CASE OF DZWONKOWSKI v. POLAND

FOURTH SECTION

CASE OF DZWONKOWSKI v. POLAND

(Application no. 46702/99)

JUDGMENT

STRASBOURG 

12 April 2007

FINAL

12/07/2007

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 Dzwonkowski v. Poland,

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

SirNicolas Bratza, President,
MrJ. Casadevall,
MrG. Bonello,
MrK. Traja,
MrS. Pavlovschi,
MrL. Garlicki,
MrJ. Šikuta, judges,

and Mr T.L. Early, Section Registrar,

Having deliberated in private on 20 March 2007,

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

PROCEDURE

1. The case originated in an application (no. 46702/99) against the Republic of Poland lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Dariusz Dzwonkowski (“the applicant”), on 24 July 1998.

2. The applicant was represented by Mr W. Hermeliński, and subsequently, Mrs A. Metelska, lawyers practising in Warszawa. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

3. The applicant alleged, inter alia, violation of Article 3 of the Convention on account of injuries sustained by him during his arrest by the police on 13 June 1997.

4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

5. On 22 March 2005 the Court declared the application partly inadmissible and decided to communicate the complaints concerning the alleged ill-treatment of the applicant and the lack of an effective and thorough investigation into his allegations, under Articles 3 and 13 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

6. The applicant was born in 1973 and lives in Marki, Poland.

A. The events of 13 June 1997

7. On the night of 12 June 1997 the applicant and three other men C.M., C.S. and D.S. were standing outside an all-night shop in Marki. The Government submitted that the group had been disturbing public order, drinking vodka and destroying public property. Somebody called the police.

8. On 13 June 1997, at about 1 a.m., an unmarked police car arrived with two plain‑clothes police officers G.G. and R.Ł. It was followed by a second police car with two other police officers M.R. and B.S.

9. The police officers ordered all present outside the shop to lie on the ground and then handcuffed them.

According to the applicant, while he was lying down, his hands handcuffed behind his back, the police officers, in particular G.G., started to beat him on the head with their fists, kick him and insult him.

According to the Government, the applicant, who was the most aggressive, had hit police officer G.G. with his open hand on the face and had insulted and threatened him. The police then managed to handcuff him.

10. The applicant was then placed in one of the police cars and taken to the Warsaw Sobering‑Up Centre (izba wytrzeźwień).

On the way there, the applicant submitted that he was again beaten and insulted by G.G. and R.Ł. His repeated requests to take him to a hospital were ignored.

The Government stated that the applicant had been “extremely aggressive” also in the police car and that he had “repeated his threats to the officers in a vulgar and offensive way”.

11. In the Warsaw Sobering-up Centre the applicant underwent a breath test, which showed 1.92 ‰ of alcohol in his blood. Subsequently, the applicant was taken to the Bródno Hospital in Warsaw and examined by doctors.

12. On 14 June 1997 the applicant was examined by doctors at the Praga Hospital in Warsaw.

B. Medical evidence

13. The applicant's injuries were described as follows.

14. A certificate by a radiologist, Dr E.D., dated 12 June 1997, stated:

“Dzwonkowski Dariusz, 22 years old. Nasal bone fracture. Fracture of the edge of the right eye socket. ... Suspected fracture of the right jaw ... ”

15. A certificate by a laryngologist, Dr M.O., dated 13 June 1997 at 3 a.m., stated, in so far as relevant:

“...Condition after a head injury. Non-displaced nasal bone fracture. Large haematoma around left eye... Skin abrasion and swelling on the nose and right eye... since the patient reported loss of consciousness, a consultation with a surgeon is recommended.”

16. A medical certificate dated 13 June 1997 at 3.50 a.m. read, in so far as relevant:

“...Condition after an injury to head and right eye. ... Fracture of jaw. Large haematoma and swelling on lower eyelid (right); bloodshot eye; cornea swollen...”

17. On 13 June 1997 Dr T.S., an internist, issued a forensic medical certificate, which read, in so far as relevant:

“Medical examination of Dariusz Dzwonkowski, born on 15 March 1973, residing in Marki, identity card...

The examination carried out on 13 June 1997 upon the victim's request. The patient submits that he was beaten on 12 June 1997. Complains of headache, dizziness, pain in legs and hands. As regards the injuries:

- intense pain in right crown of the head, haematoma 15 cm in diameter in this area, nose and eye pain;

- nasal bone fracture. Fracture of the edge of the right eye socket... Suspected fracture of the right jaw; right eye bloodshot and swollen;

- [illegible] scratch on the right thigh 20 cm long – the injury inflicted with a blunt object.

[The above injuries amounted to bodily harm resulting in illness] for a period exceeding 7 days. This certificate is issued for submission to the police.”

18. On 4 August 1997, Dr T.R., of the Warsaw Medical Academy, made a forensic report, which stated, in so far as relevant:

“II. ...The certificate [issued by the Praga Hospital on 14 June 1997] states: fracture of the left hand (radial bone)...plaster cast for 10 days.

IV. The injuries sustained by [the applicant] which are described in the medical certificates could have occurred in the circumstances alleged by him.

However, one cannot exclude that they occurred in the circumstances described by the police.”

C. The criminal proceedings against police officer G.G.

1. The first decision of the District Prosecutor

19. On 13 June 1997 the applicant requested the Wołomin District Prosecutor (Prokurator Rejonowy) to initiate criminal proceedings against police officer G.G. The applicant asserted that on 12 June 1997 he had been beaten by the police and had sustained serious injuries.

20. On 22 September 1997 the Wołomin Distric Prosecutor discontinued the investigation into the allegations made by the applicant. The prosecutor based his decision on the forensic report prepared by Dr T.R. and on evidence taken from the police officers, the applicant and C.M. and C.S., who had been arrested with him on the same day.

21. The prosecutor observed that the applicant had sustained the following injuries: fracture of jaw, non-displaced nasal bone fracture, large haematoma around left eye, bloodshot eye and swollen cornea, large haematoma on the lower eyelid of the right eye and fracture of the left hand (radial bone).

22. The prosecutor, relying on the statements of the police officers, which he considered “coinciding and complementary”, established the following course of events.

23. On 13 June 1997 at 1 a.m. the local police station in Marki was informed that several men under the influence of alcohol were disturbing the peace and destroying property in front of an all-night shop. After the arrival of police cars, two men attempted to run away. The police officers then ordered the applicant and the others to lie on the ground. While the applicant was lying on the ground, he insulted the police officers and hit the approaching police officer G.G. in the face so that the latter fell on the ground. Other police officers, R.Ł. and M.R., came to help G.G. but the applicant kicked R.Ł. who had also fallen. A struggle began and the police officers were able to apprehend the applicant only after he had fallen on the ground. The prosecutor stated as follows:

“According to the police officers, while falling, [the applicant] hit his head against the kerb. For a short while he was calm but then he again insulted and attacked the police officers. He was again apprehended and handcuffed. Afterwards, [the applicant] started hitting his head in fury against the pavement. Seeing the behaviour of [the applicant] and the injuries sustained by him, the police officers had taken him by force to the police car.”

24. The prosecutor also noted that other men who were arrested with the applicant had given another version of events and had claimed that the applicant had been beaten by the police officers. However, the prosecutor found discrepancies in their statements, especially as to whether the applicant had been handcuffed at the beginning of the police action or later. Moreover, one of those arrested stated that the applicant had also been hit with a truncheon, which had not been confirmed by the others or by the applicant. Finally, the prosecutor pointed out that those arrested had given different details as to the lapse of time between the arrival of the first and the second police car.

25. The District Prosecutor concluded as follows:

“...It is not contested that during the police intervention [the applicant] sustained the injuries as described by the doctors. The expert in his forensic report stated that the injuries sustained by [the applicant] could have occurred in the circumstances alleged by him, as well as in the circumstances alleged by the police officers.

Consequently, taking into account all evidence gathered in the proceedings, it must be concluded that police officer G.G. had not abused his powers (nie przekroczył uprawnień slużbowych) and that the injuries sustained by the applicant had occurred in the circumstances described by the police officers. For these reasons the investigation shall be discontinued.”

2. The second decision of the District Prosecutor

26. On 3 October 1997 the applicant, represented by a lawyer, lodged an appeal against the decision of 22 September 1997. He challenged the forensic report, considering it inconclusive, and argued that the circumstances in which he had sustained his injuries had not been clarified. In particular, it had not been clarified how it had been possible for him to have caused himself the multiple fractures as described by the police. The applicant further complained that the conclusion of the prosecutor's decision had not been justified by any evidence.

27. On 27 February 1998 the Warsaw District Prosecutor re‑examined the case and upheld his original decision.

28. In his decision the prosecutor further analysed the account of the events given by the applicant:

“...[the applicant] at the reconstruction of events stated that he had been punched on his back and chest and kicked in his ribs and back; however, it does not appear from the medical evidence that he had sustained such injuries. The injuries sustained by the applicant are the reflection of the events described by the police officers. It is difficult to believe that multiple kicks with a boot did not leave any visible marks.

It appears from the additional forensic report that the injuries sustained by [the applicant] could have occurred in the circumstances described by him as a result of being hit with objects like: a fist, booted foot, truncheon, pipe or other solid and flat object.

However, the expert also established that identical injuries could also be caused by falling on hard ground and on a hard and blunt object like a stone, kerb, step, a road – therefore it can confirm the version of events given by the police officers...

Furthermore, the expert established that the fracture of the left hand could have resulted from falling on the ground as well as from twisting a hand when handcuffing a resisting person...”

29. The prosecutor came to the same conclusions as in his decision of 22 September 1997. He found that police officer G.G. had not abused his powers and that the applicant had sustained his injuries in the circumstances alleged by the police officers.

3. The decision of the Regional Prosecutor

30. The applicant lodged an appeal with the Warsaw Regional Prosecutor (Prokuratura Wojewódzka).

31. On 5 June 1998 the Warsaw Regional Prosecutor upheld the District Prosecutor's decision.

D. The criminal proceedings against the applicant

1. The first-instance proceedings

32. On 18 June 1997 the Wołomin District Prosecutor indicted the applicant before the Wołomin District Court (Sąd Rejonowy) on charges of assaulting police officers G.G. and R.Ł., and uttering threats and insulting all four police officers.

33. On 6 September 1999 the Wołomin District Court gave judgment. The applicant was convicted as charged and sentenced to a fine.

2. The appellate proceedings

34. The applicant lodged an appeal against the judgment.

35. On 22 December 1999 the Warsaw Regional Court quashed the judgment and remitted the case. The appellate court held, inter alia, that:

“...The District Court failed to assess diligently the evidence before it; therefore, the facts as established by it are open to doubt. Without prejudging the merits of the case, it should be noted that the outcome of this case depends on the clarification of the circumstances in which the accused sustained his injuries. It is beyond question that the accused sustained the injuries during the police action on 13 June 1997 but those circumstances have not so far been sufficiently clarified.

The District Court established that during the police action the accused had fallen on the ground and had hit his head against a kerb. He then repeatedly hit his head against the ground causing injuries to his face and hand. The District Court established the above facts on the basis of the testimonies of the police officers whom it considered trustworthy.

However, as the accused rightly points out, the District Court, in its assessment, did not take into account that these witnesses [the police officers] had an interest in the outcome of the case.... The very fact [that at the same time the criminal proceedings against police officer G.G. were being conducted] required the lower court to make a critical evaluation of the testimonies of the police officers...The District Court should have been more cautious in assessing their statements, also because, contrary to that court's opinion, they were not at all detailed.

The District Court failed to notice that the witness B.S. [one of the police officers] when giving evidence at the hearing, apparently spontaneously, had given another version of events contradictory to what was established by the trial court as the cause of the injuries. This witness admitted that [the police officers] had stood and struggled with [the applicant]; during the struggle [the applicant] had sustained his injuries and it had been necessary to take him to a hospital...

Furthermore, it should be examined whether it is probable that [the applicant] had himself caused the injuries to his face and hand. Would he, even intoxicated, hurt himself? As we know he had his nose broken, the edge of his right eye socket fractured, a broken jaw and head and ear injuries; therefore, his state of health was serious and resulted from many injuries and not a single one. A single fall on the ground as reported by the police officers could not have caused so many injuries...”

36. The appellate court instructed the trial court to re-hear evidence from the applicant and other witnesses in order to clarify the inconsistencies and to consider ordering a fresh medical report or to re-hear the expert witnesses. The court concluded:

“If the circumstances of the case are established on the basis of the correct assessment of evidence, it will be possible to determine whether the accused committed the alleged offences and whether the injuries sustained by him resulted from the actions of the police officers, and, finally, to assess the social danger represented by the applicant's acts and to decide on his guilt or penalty.

On the basis of the above considerations the Regional Court decided as in the operative part [of the judgment].”

3. The retrial

37. On 17 June 2002 the Wołomin District Court gave judgment. The court found that the applicant had committed the offences of assaulting police officers G.G. and R.Ł. and uttering threats and insulting all four police officers. Nevertheless, the trial court discontinued the criminal proceedings against the applicant because it considered that the applicant's actions were of “minimal social danger” (znikoma społeczna szkodliwość czynu).

38. As regards the course of events, the trial court established the following:

“...While [the police officers] carried out their duties and attempted to establish the identities of the arrestees, [the applicant] got up and started to insult the police officers. He uttered threats and hit police officer G.G. in the face so that he fell to the ground. Police officers G.G., R.Ł., M.R. and B.S. started to struggle with [the applicant], attempting to apprehend him. During this struggle [the applicant] kicked police officer R.Ł. in the stomach and R.Ł. fell to the ground. The police officers attempted to put [the applicant] on the ground and to handcuff him but he tried to free himself. Then [the applicant] fell down hitting his face against the ground and his nose started to bleed. Despite these injuries, he continued to struggle and to hit his head against the kerb; he had also been repeatedly hit on the head by police officer G.G. using his fists and kicked in the head and other parts of his body. The police officers drove all those arrested to the Warsaw Sobering-up Centre where breath tests were carried out...All those arrested were under the influence of alcohol, the breath test revealed that [the applicant] had 1.93 ‰ alcohol in his blood...

It is not disputed that [the applicant] sustained the following injuries: non‑displaced nasal bone fracture (swelling and abrasion on the nose); fracture of the edge of the right eye socket (with bloodshot eye and swollen cornea); haematoma under the right eye; 15 cm haematoma on the top of the head; swelling and abrasion on the front, line-shaped abrasion 20 cm long on his right thigh; fracture of the radial bone on the left hand...

In his forensic report the expert stated that it was not possible to establish categorically whether these injuries had been caused by the beating and kicking of [the applicant] by the police officers or by his hitting his head against the kerb...

As regards the injuries sustained by [the applicant], taking into account the forensic medical report, the court considers as true the statements given by [both] [the applicant] and the police officers. The court considers that the injuries could have occurred in the circumstances alleged by [the applicant] as well as in the circumstances described by the police officers.

The testimonies of the above-mentioned witnesses [the police officers] are concurrent, logical and complementary. During both the investigation and the trial phase these witnesses consistently testified that the accused had sustained injuries as a result of falling on the ground during the struggle and then hitting his head against the pavement. [However], there are discrepancies as to whether the accused fell on the ground by himself or was pushed, whether he hit his head against the kerb or the pavement, where he was lying precisely and which side of his head he had hit. Such gaps cannot be explained solely by the lapse of time since the events; obviously these witnesses tried to diminish their role in the events by arguing that [the applicant] was solely responsible for his injuries.

The court accepts as true that part of the police officers' account in which they stated that the injuries had also occurred [as a result of the applicant's actions]; however, the court refuses to believe that part of their statements in which they denied that any of them, and in particular G.G., had beaten [the applicant] and had caused the above-mentioned injuries.

This part of the police officers' testimonies is contrary to the statements given by other witnesses C.M., C.S. and D.S. [other persons arrested with the applicant]. C.S. testified at the hearing that [the applicant] had been kicked and beaten by the police officers all over his body, on the face and on the head....Witness C.M. testified consistently that [the applicant] had been beaten by the police officers. His testimony corresponds to that given by the witness D.S. The court believes that these witnesses told the truth when they testified that the accused had been beaten by the police; however, the court does not believe that during these events [the applicant] had been calm and had not attacked, uttered threats or insulted the police officers...”

The court concluded:

“In the light of the evidence obtained, the circumstances in which [the applicant] committed the alleged offences, are established beyond any doubt. Taking into account the nature of the rights violated by the accused, the penalty provided by law for these offences and the fact that during the events [the applicant] sustained injuries which were caused not only by his own actions, the court finds that [the applicant's] actions represent a minimal social danger and that, accordingly, the proceedings should be discontinued.”

39. On 13 August 2002 the applicant lodged an appeal against the judgment.

40. On 4 November 2002 the Warsaw Regional Court dismissed the appeal and upheld the judgment.

II. RELEVANT DOMESTIC LAW AND PRACTICE

41. Article 16 of the Police Act of 6 April 1990 reads, in so far as relevant:

“1. If a lawful order given by a police authority or police officer has not been complied with, a police officer may apply the following coercive measures:

1) physical, technical and chemical means of restraining or escorting persons or of stopping vehicles;

2) truncheons;

3) water cannons;

4) police dogs;

5) rubber bullets fired from fire-arms.

2. Police officers may apply only such coercive measures as correspond to the exigencies of a given situation and are necessary to ensure that their orders are obeyed.”

42. Paragraph 5 of the Ordinance of the Council of Ministers of 17 September 1990 on the Use of Coercive Measures by the Police provides:

“1. Physical force shall be used in order to restrain a person, to counter an attack or to make [a person] obey an order.

2. When using physical force, no one shall hit a person, unless he has to do so in self‑defence or in order to counter an unlawful attack against life, health or property of others.”

Paragraph 6 of the Ordinance provides, in so far as relevant, as follows:

“Handcuffs may be used (...) in order to prevent an escape or to prevent an active assault or active resistance. ...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

43. The applicant complained that he had been ill-treated by the police during his arrest and that no adequate and effective investigation into his allegations had been carried out by the authorities. He invoked Article 3 of the Convention which provides as follows:

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

44. The Government contested that argument.

A. Admissibility

45. The Court notes that these complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. Alleged ill-treatment by the police

(a) The parties' submissions

46. The applicant submitted that he had been ill-treated by the police. He referred to the Court's case-law to the effect that if an individual is taken into the police custody in good health but is found injured at the time of release, it is incumbent on the State to provide plausible explanations as to how the injuries occurred (Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports of Judgments and Decisions 1998‑VIII). The applicant pointed to the decisions of the District Prosecutor who had confirmed the injuries sustained by him. He underlined that in respect of a person deprived of his liberty any recourse to physical force which was not made strictly necessary by his own conduct, diminishes human dignity and is in principle an infringement of Article 3 of the Convention. The applicant further argued that even assuming that the injuries had occurred in the circumstances advanced by the police, namely as a result of the applicant's own acts, the State remained responsible as the police officers failed to prevent them.

47. The Government maintained that the applicant had not been subjected to treatment contrary to Article 3 of the Convention. They submitted that the applicant “took an active part in a struggle with the police officers.” Even if he had been intoxicated, he should have been aware of the risk of sustaining injuries. The Government further argued that the exact origin of his injuries could not be established and referred to the findings of the medical experts concluding that the injuries could have resulted either from the applicant's fall or from the police actions.

In conclusion, the Government submitted that the suffering and injuries sustained by the applicant did not reach the threshold of severity necessary to fall under Article 3 of the Convention.

(b) The Court's assessment

48. The Court reiterates that where a person is injured while in detention or otherwise under the control of the police, any such injury will give rise to a strong presumption that the person was subjected to ill-treatment (see Bursuc v. Romania, no. 42066/98, § 80, 12 October 2004). Where an individual, when taken into police custody, is in good health, but is found to be injured at the time of 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 Tomasi v. France, judgment of 27 August 1992, Series A no. 241-A, pp. 40-41, §§ 108‑11, and Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V).

49. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, pp. 64-65, § 161). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Ribitsch v. Austria, judgment of 4 December 1995, Series A no. 336, § 34, Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000‑VII).

50. The Court further recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim (see Ireland v. the United Kingdom, cited above, p. 65, § 162).

51. 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, cited above, § 38). Thus, the burden rests on the Government to demonstrate with convincing arguments that the use of force, which resulted in the applicant's serious and numerous injuries was not excessive (see, mutatis mutandis, Rehbock v. Slovenia, no. 29462/95, § 72, ECHR 2000‑XII and Matko v. Slovenia, no. 43393/98, § 104, 2 November 2006).

52. Turning to the circumstances of the instant case the Court observes that the applicant sustained fractures of the jaw, nose, edge of the right eye socket and left hand. In addition, he suffered haematomas and bruises (see paragraphs 14‑18 above). His injuries were established by several medical examinations carried out while he was still in police custody, and shortly afterwards, and were confirmed by the domestic authorities in both sets of subsequent criminal proceedings. Thus, the degree of bodily harm indicates that the applicant's injuries were sufficiently serious to amount to inhuman and degrading treatment within the scope of Article 3 (see, for example, Assenov and Others, cited above, § 95, Afanasyev v. Ukraine, no. 38722/02, § 61, 5 April 2005). It remains to be considered whether the State should be held responsible under Article 3 for these injuries.

53. It has not been disputed, neither by the domestic authorities nor by the parties, that the applicant's injuries had occurred during his arrest by the police on 13 June 1997.

The Government submitted that the applicant's injuries were the result of his aggressive behaviour during the struggle with the police officers who had tried to apprehend him and that expert medical opinion could not categorically establish the origin of the injuries.

54. The Court firstly notes the contradictory conclusions in the two sets of domestic proceedings which concerned the assessment of the same events of 13 June 1997. In the proceedings instituted upon the applicant's allegations of ill‑treatment, the public prosecutors concluded that the applicant's injuries had been caused, as submitted by the police, by his falling on the ground and repeatedly hitting his head against the kerb (see paragraphs 25 and 29 above). However, in the subsequent criminal proceedings against the applicant, the courts acknowledged that the applicant had been beaten by the police since his numerous injuries could not have been caused solely by his own actions (see paragraph 38 above).

The latter conclusions of the domestic courts constitute sufficient factual and evidentiary basis for the Court to establish that the applicant had sustained his injuries, at least partly, as a result of being beaten by the police officers.

55. In this connection the Court reiterates that in respect of a person deprived of liberty, any recourse to physical force which has not been made strictly necessary by his own conduct is in principle an infringement of Article 3 (see paragraph 51 above). The Court considers that, even accepting that the applicant had not been calm and had struggled with the police officers, there is no evidence that he had been particularly dangerous or had been in possession of a weapon. No evidence of any injury to the police officers was adduced by the Government. The Government did not advance any additional argument that would allow the Court to establish that the applicant's conduct was of such character as to justify recourse to the considerable physical force that, judging by the seriousness of the injuries, must have been employed by the police. The instant case must be thus distinguished from the case of Klaas v. Germany, which concerned less serious injuries sustained in the course of an arrest operation, and where the national courts had concluded that the arresting officers had not used excessive force after having had the opportunity of hearing witnesses at first hand and of assessing their credibility (see Klaas v. Germany, judgment of 22 September 1993, Series A no. 269, pp. 17‑18, § 30).

56. Regard being had to those considerations and to the particularly serious injuries sustained by the applicant, the Court finds that the Government have not furnished convincing or credible arguments which would provide a basis to explain or justify the degree of force used by the police (see, Rehbock, cited above, § 76). Accordingly, the force used by the police was excessive and unjustified in the circumstances.

57. The use of such force had as a consequence injuries which undoubtedly caused serious suffering to the applicant of a nature amounting to inhuman treatment (see Rehbock, cited above, § 77).

58. In the light of the above, and in the absence of any plausible explanation of the Government which would justify the degree of force used, it must be considered that the applicant was subjected to inhuman treatment for which the Government must bear responsibility.

There has accordingly been a violation of Article 3 of the Convention.

2. Adequacy of the investigation

(a) The parties' submissions

59. The applicant maintained that the investigation into his allegations had not been effective and thorough as required by Articles 3 and 13 of the Convention.

Article 13 provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

60. The Government did not agree with this assertion and stated that “having regard to the circumstances of the case and divergences in the explanations of the applicant's friends, in the opinion of the Government, the investigation in the present case complied with the requirements of Articles 3 and/or 13”.

(b) The Court's assessment

61. The Court recalls 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 their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. As with an investigation under Article 2, such investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV).

62. The investigation into serious 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, cited above, § 103 et seq.). They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence (see, Tanrıkulu v. Turkey [GC], no. 23763/94, ECHR 1999-IV, § 104 et seq. and Gül v. Turkey, no. 22676/93, § 89, 14 December 2000). Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard.

63. Turning to the circumstances of the instant case the Court notes that following the applicant's complaint that on 13 June 1997 he had been ill-treated by police officers, the public prosecutor carried out an investigation. It is not, however, persuaded that this investigation was sufficiently thorough and effective to meet the above requirements of Article 3.

64. It finds it particularly unsatisfactory that the prosecutor was prepared to conclude that the applicant's injuries had been caused by his hitting himself against a kerb despite the medical evidence proving the extent of the injuries sustained by him and statements of witnesses who contradicted the police's version of events. The Court recalls that the domestic authorities in the subsequent trial against the applicant had considered those witnesses trustworthy in so far as they asserted that the applicant had been beaten by the police. The Court finds that the prosecutor did not make any attempt to give a logical explanation as to how the applicant could have sustained multiple fractures without any use of force by the police.

65. The prosecuting authorities unconditionally embraced the statements of the police officers without taking any note of the fact that they had obviously had an interest in the outcome of the case and in diminishing their responsibility. The Court would agree with the assessment of the Regional Court which, in the subsequent set of proceedings, underlined the importance of assessing critically the testimonies of police officers in such circumstances.

66. In the light of the above, the Court considers that the investigation was superficial, lacked objectivity and ended in decisions which contained conclusions unsupported by a careful analysis of the facts.

67. Against this background, in view of the lack of a thorough and effective investigation into the applicant's arguable claim that he had been beaten by police officers, the Court finds that there has been a violation of Article 3 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

68. The parties referred to their submissions on the effectiveness of the investigation from the standpoint of Article 3 of the Convention (see paragraphs 59 and 60 above).

69. In view of its findings above (see paragraphs 63-67 above) and having regard to its case-law (Nesibe Haran v. Turkey, no. 28299/95, § 91, 6 October 2005, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, §§ 120-123, 6 July 2005, and Makaratzis, cited above, § 86), the Court considers that no separate issue arises under Article 13.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

70. 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

71. The applicant claimed 100,000 Polish zlotys (PLN) in respect of non‑pecuniary damage.

72. The Government considered the applicant's claim excessive.

73. The Court awards the applicant 10,000 euros (EUR) in respect of non‑pecuniary damage.

B. Costs and expenses

74. The applicant, who was represented by a lawyer, also claimed EUR 1,500 for the costs and expenses incurred before the Court. This included 15 hours' work at an hourly rate of EUR 100.

75. The Government considered this amount excessive.

76. According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, in the light of the applicant counsel's specification of the costs and expenses incurred in the proceedings before the Court, he should be awarded the amount claimed in full. Accordingly, the Court awards the applicant EUR 1,500 for his costs and expenses together with any value-added tax that may be chargeable.

C. Default interest

77. 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 UNANIMOUSLY

1. Declares the application admissible;

2. Holds that there has been a violation of Article 3 of the Convention on account of the applicant's ill-treatment;

3. Holds that there has been a violation of Article 3 of the Convention as regards the absence of an effective investigation into the applicant's allegations of ill-treatment;

4. Holds that no separate issue arises under Article 13 of the Convention;

5. Holds

(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 10,000 (ten thousand euros) in respect of non-pecuniary damage and EUR 1,500 (one thousand five hundred euros) in respect of costs and expenses, to be converted into Polish zlotys at the rate applicable at the date of settlement, plus any tax that may be chargeable;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 12 April 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

T.L. EarlyNicolas Bratza
RegistrarPresident

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