CASE OF ZNAKOVAS v. LITHUANIA

SECOND SECTION

CASE OF ZNAKOVAS v. LITHUANIA

(Application no. 32715/17)

JUDGMENT
 

STRASBOURG

19 November 2019

This judgment is final but it may be subject to editorial revision.

In the case of Znakovas v. Lithuania,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

Valeriu Griţco, President,
Egidijus Kūris,
Darian Pavli, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 22 October 2019,

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

PROCEDURE

1.  The case originated in an application (no. 32715/17) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Mr Petras Znakovas (“the applicant”), on 21 April 2017.

2.  The applicant was represented by Mr J. Platelis, a lawyer practising in Klaipėda. The Lithuanian Government (“the Government”) were represented by their Agent, Ms L. Urbaitė.

3.  On 5 September 2018 the complaints concerning the alleged ill‑treatment by the police and lack of an effective investigation under Article 3 of the Convention were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTSTHE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1955 and lives in the Klaipėda Region.Circumstances of the applicant’s arrest

5.  At around 9.20 p.m. on 9 September 2016 the applicant’s wife called the Gargždai police and stated that the applicant was using violence against her. At around 10 p.m., two police officers, R.N. and R.J., went to the applicant’s house.The applicant’s version

6.  According to the applicant, that night he and his wife had guests staying with them and they drank some alcohol. After the guests had gone to bed, he and his wife had an argument but he did not use violence against her and went to bed. The applicant was woken up by two police officers who did not explain the reasons for their arrival. The applicant took his mobile phone and wanted to record what was happening but officer R.N. grabbed the phone from him and threw it at the wall. The applicant was handcuffed and taken outside wearing only underwear. He and his wife took alcohol tests, which established blood alcohol concentrations of 1.95‰ and 1.03‰ respectively. The officers asked the applicant’s wife to give a statement, which was video recorded (see paragraph 26 below).

7.  The applicant was put in the back seat of a police car. On the way to the police station he asked the officers to video record everything, but they ignored his requests. After some time officer R.N. became enraged, stopped the car, got out and began to yell at the applicant to keep quiet; then he opened the back door of the car and used an electroshock weapon against the applicant three or four times, all the while yelling at him. Then R.N. told his colleague R.J. to drive, while he kept hold of the applicant and repeatedly threatened to use the electroshock weapon again if the applicant made any more requests. The applicant was taken to the police station and placed in a detention cell. The following morning he was questioned. He was released from the police station on the morning of 11 September 2016.The police officers’ version

8.  In their official reports written in essentially identical wording and submitted on 9 September 2016, officers R.N. and R.J. stated that they had gone to the applicant’s house after receiving a call about domestic violence. When they arrived there, they were greeted by the applicant’s wife, who stated that the applicant had been acting aggressively, that he had slapped her in the face and had kicked her several times, and that he had a gun at home. The officers found the applicant lying in bed, although his wife stated that just moments earlier, he had been walking around the house.

9.  When the officers entered the bedroom, the applicant was hostile and began shouting at them. They introduced themselves and explained that his wife had called them because of his violent and inappropriate behaviour towards her. The room smelled of alcohol, the applicant was visibly drunk and his speech was slurred. The officers politely asked him to get out of bed but he began threatening them that “it would not end well” and called R.N. an offensive name. The applicant was ordered to get out of bed and get dressed but he refused. The officers explained to him that he would be taken to the police station in order to clarify the situation but he again refused and continued threatening them. Then R.N. took the applicant by the arm and ordered him to get out of bed but the applicant stiffened his hands, started swearing and told the officer not to touch him. Seeing that the applicant was not following his orders and was acting aggressively, R.N. handcuffed him while he was still in bed. He then led the applicant to a police car. The applicant was taken there in his underwear because he had refused to get dressed, but the officers asked his wife to give them some of the applicant’s clothes.

10.  While in the car, the applicant kept acting aggressively and calling the officers offensive names. On the way to the police station, he suddenly attacked R.N., grabbed his jacket and pulled on it, and tried to grab the steering wheel, thereby creating a risk of a traffic accident. R.N. quickly stopped the car on the roadside and got out, ran around the car towards the backdoor and opened it. The applicant was shouting and tried to get out of the car and attack R.N., and for that reason a Taser device (an electrical discharge weapon) was used against him. After that, the applicant calmed down and was taken to the police station with no further difficulties. He did not complain of any health problems.Other relevant circumstances

11.  On 12 September 2016 the applicant was examined by a court medical expert, who found contusions on both his arms and the right side of his chest, as well as bruises, resembling traces of electricity, on his chest and back. The expert considered that the injuries corresponded to negligible health impairment (nežymus sveikatos sutrikdymas).

12.  Following the allegations of domestic violence made by the applicant’s wife (see paragraph 5 above), a pre-trial investigation was opened against the applicant. It was discontinued on 12 September 2016, after the applicant’s wife withdrew the allegations.Refusal to open a pre-trial investigation against officer R.N.

13.  On 14 October 2016 the applicant lodged a complaint with the Klaipėda prosecutor, asking that a pre-trial investigation be opened into officer R.N.’s actions and the physical force used against the applicant at his home and in the police car (see paragraphs 6 and 7 above).

14.  The prosecutor interviewed officers R.N. and R.J., who gave essentially the same statements as those in their official reports (see paragraphs 8-10 above). R.N. additionally stated that he had used the Taser device against the applicant in accordance with the law, seeking to defend himself from danger and to subdue (sutramdyti) the applicant in his unlawful actions.

15.  On 24 October 2016 the prosecutor refused to open a pre-trial investigation against R.N. The prosecutor held that the applicant had acted aggressively towards the officer and had refused his lawful orders, so the use of physical force against him, including the Taser device, had been lawful and justified. In particular, the relevant rules adopted by the Police Commissioner General permitted using that device to subdue or arrest offenders who were, inter alia, aggressive, under the influence of alcohol, acting in an unpredictable and dangerous manner, or others who disobeyed police officers’ lawful orders or caused a danger to police officers or other persons (see paragraph 32 below). The fact that the applicant had suffered only negligible health impairment (see paragraph 11 above) also showed that the force used had complied with the legal requirements.

16.  The applicant lodged an appeal against the prosecutor’s decision. He submitted that the decision had been based exclusively on the statements given by officers R.N. and R.J. The applicant also submitted that R.J. had made a video recording of the arrest at his home but the prosecutor had not examined that recording and had not determined whether the applicant had really insulted and threatened the officers. The applicant contended that the officers had had video cameras with them, so if he had been aggressive towards them at any point, they should have made a video recording as proof. Given that they had not made such a recording, their oral statements should not be accepted as evidence. He further argued that it was very unlikely that he would have tried to attack two armed police officers while being handcuffed and almost naked in a police car in the middle of the night. However, the prosecutor had accepted the officers’ version of events without questioning it.

17.  In subsequent additional submissions the applicant stated that R.N.’s and R.J.’s official reports had been almost identical (see paragraphs 8-10 above), which should have raised doubts as to their credibility.

18.  On 7 December 2016 the Klaipėda District Court dismissed the applicant’s appeal. The court stated that it was not clear from the appeal “what the applicant wanted, what criminal offence had been committed, why a pre-trial investigation should be opened, what procedural measures should be taken and with regard to what criminal activity [R.N.’s] actions should be investigated”. It stated that the appeal contained only the applicant’s “reflections based on his subjective assessment, conviction and speculations”, which did not constitute grounds for criminal liability.

19.  The applicant lodged an appeal against the court’s decision, but on 16 January 2017 the Klaipėda Regional Court dismissed the appeal and stated that nothing in the case file gave grounds to believe that a criminal act might have been committed. The court acknowledged that the applicant had sustained certain injuries during his arrest (see paragraph 11 above) but emphasised that police officers had the right to use physical force against persons who refused to obey their lawful orders. The court observed that administrative proceedings had been opened against the applicant for insulting police officers and disobeying their lawful orders at his home and in the police car (see paragraphs 20-30 below). It therefore concluded that officer R.N. had acted lawfully. That decision was final and not amenable to any further appeal.Administrative proceedings against the applicant

20.  On 7 November 2016 the police drew up an administrative offence report, stating that the applicant had insulted police officers and disobeyed their lawful orders.Proceedings before the Klaipėda District Court

21.  During a hearing before the Klaipėda District Court the applicant repeated his version of events (see paragraphs 6 and 7 above) and denied having threatened or insulted the officers.

22.  When questioned at the hearing, officers R.N. and R.J. stated that when they had entered the applicant’s bedroom on the night of the arrest, he had been awake. R.N. had explained to him several times why the officers were there but the applicant had been hostile from the beginning, had called them offensive names and refused to follow their lawful orders. Before handcuffing the applicant, R.N. had asked R.J. to make a video recording, but by the time R.J. had started the recorder, R.N. had already handcuffed him (see paragraph 27 below). Outside, the officers had taken a statement from the applicant’s wife on video (see paragraph 26 below). On the way to the police station, the applicant had started pulling R.N.’s jacket and tried to grab the steering wheel, so R.N. had stopped the car and both he and R.J. had got out. When R.N. had opened the back door of the car, the applicant had remained in the car but tried to attack the officer, and R.N. had used the Taser device. Afterwards R.N. had stayed in the back seat with the applicant and R.J. had driven the car. There had been no equipment for audio or video recording in the car, but in any event the applicant had not asked for any recording to be made.

23.  R.N. stated that he had warned the applicant before handcuffing him but not before using the Taser device, because he had had to act “within seconds”. In the car the applicant’s hands had been handcuffed in front of him, which had made it possible for him to attack the officer. On the way to the police station the applicant had kept insulting the officers, and at first R.N. thought that “he was an old man who would just talk and not do anything”, but when the applicant had tried to attack him, he could have caused a traffic accident on the highway – there had been a risk of crashing the car and putting the officers and the applicant in danger. R.N. considered that the Taser device had been the most appropriate measure in the circumstances – otherwise he “would have broken the applicant’s arms” (būčiau sulaužęs rankas) or used a tear-gas dispenser, which would have burned the applicant’s eyes.

24.  When questioned at the hearing, the applicant’s wife stated that on the night in question she and the applicant had had an argument and had “shoved and punched” each other, but he had not hit her and she regretted having called the police. She stated that the applicant had not insulted the officers and that R.N. had acted aggressively.

25.  The guests who had been staying in the applicant’s house on the night of the arrest (see paragraph 6 above) stated that they had been asleep and had not heard or seen anything.

26.  The court examined the video recording made by the officers, showing the applicant’s wife on the night of 9 September 2016. She was visibly agitated and in tears, and stated that the applicant had slapped her in the face several times, had kicked her in the legs and stomach. She said that it had not been the first time, although she had never called the police before; the applicant drank every day and could be even more aggressive.

27.  The court also examined the video recording made by officer R.J. at the applicant’s home. It showed the applicant lying on a bed in his underwear and handcuffs. Officer R.N. told him that he would be taken to the police station half-naked and asked him to get out of bed voluntarily, but the applicant did not do so. Then R.N. took his arm and led him out of the room, while asking the applicant’s wife to put some clothes in a bag. After the applicant had been taken out of the bedroom, he was heard asking R.N. to allow him to get dressed, but R.N. refused and said that he had already asked the applicant to do that several times.

28.  On 19 January 2017 the Klaipėda District Court held the applicant liable for the administrative offence of insulting police officers and disobeying their lawful orders. The court considered that officers R.N. and R.J. had given consistent and detailed testimony about the applicant’s aggressive behaviour and offensive words. It dismissed the applicant’s arguments that R.N. had acted aggressively towards him, pointing out that it had been refused to open a pre-trial investigation against R.N. (see paragraphs 13-19 above). It also held the testimony of the applicant’s wife given at the hearing to be unreliable because it had been refuted by the video recording made on the night of the applicant’s arrest (see paragraphs 24 and 26 above). The court thus found it established that the applicant had disobeyed police officers’ lawful orders both at his home and in the police car, insulted the officers by using demeaning words, and acted aggressively in the car, thereby creating the risk of causing a traffic accident. The applicant was given a fine of 90 euros (EUR).Proceedings before the Klaipėda Regional Court

29.  The applicant lodged an appeal against that decision. He submitted, inter alia, that the video recording of him at his home had not shown him disobeying or insulting the officers (see paragraph 27 above), and that the court had unfairly dismissed the testimony his wife had given in his favour at the hearing (see paragraph 24 above).

30.  On 28 February 2017 the Klaipėda Regional Court dismissed the applicant’s appeal. It considered that the lower court had correctly established the relevant factual circumstances and made well-founded conclusions. It stated that the video recording made at the applicant’s home (see paragraph 27 above) had shown that he had refused the officers’ request to get dressed, had stayed in bed only in his underwear and had not provided any explanation about the conflict between him and his wife, which demonstrated his intention to insult the officers and his refusal to obey their lawful orders. In the court’s view, the applicant’s inappropriate behaviour had been further proved by the fact that the officers had had to handcuff him and take him to the police station. It also held that the lawfulness of the measures which the officers had used against the applicant had been confirmed by the prosecutor’s and courts’ refusal to open a pre‑trial investigation against R.N. (see paragraphs 13-19 above). The court also noted that it was not examining whether the applicant had used violence against his wife, because that question had been the subject of different proceedings (see paragraph 12 above). However, in the court’s view, the fact that the applicant’s wife had changed her testimony with regard to domestic violence gave it grounds to consider her testimony in the applicant’s favour, given in the present proceedings, as unreliable. That decision was final and not amenable to any further appeal.RELEVANT DOMESTIC LAW

31.  The relevant parts of Article 26 of the Police Act, in force at the material time, read:

“1. A police officer may use coercion when it is necessary to prevent criminal activity or administrative offences, to apprehend individuals who have committed criminal or administrative offences, as well as in other cases where protecting and defending the lawful interests of an individual, society or the State. Coercion which might cause bodily injuries or death may only be used to the extent which is necessary for the fulfilment of the official duties and only after all possible measures of persuasion or other measures have been used with no effect. The type of coercion and the limits of its use shall be chosen by the police officer, taking into account the particular situation, the nature of the violation of the law and the individual characteristics of the offender. When using coercion, police officers must seek to avoid grave consequences.

2. Before using physical coercion or special equipment, a police officer must give a warning, providing the individual with an opportunity to comply with the officer’s orders, except for cases where a delay might endanger the life or limb of the officer or another person, or where a warning is not possible.

3. An officer may use any means necessary to fulfil the functions of the police ...”

32.  The relevant parts of the Rules for using Taser weapons in police activity, adopted on 23 June 2005 by order no. 5-V-394 of the Police Commissioner General and in force at the material time, provided:

“2. A Taser device is special equipment of the police. The use of a Taser device against an individual constitutes physical coercion within the meaning of [the Police Act]. A Taser device may be used against an individual only in strict compliance with the conditions of and grounds for the use of physical force, laid out in [the Police Act]. A Taser device is not a replacement for a service firearm, however, a police officer, having assessed the potential danger and the risk to his or her, or another persons’ life and limb, may use a Taser device as a less dangerous weapon.

3. A Taser device may be used to subdue (sutramdyti) or arrest offenders who are aggressive, under the influence of alcohol, drugs or other psychotropic substances, mentally unstable, or acting in an unpredictable and dangerous manner, or others who disobey police officers’ lawful orders or cause danger to themselves, police officers or other persons, as well as for self-defence or for defence of others from aggressive animals.

...

9. Every use of a Taser device, even if accidental, must be examined and documented. After the use of a Taser device, a report on its use ([form appended to the Rules]) must be drawn up ...

...

37. The user of a Taser device must give an oral warning to the arrested individual and other police officers about the possible use of the Taser device, and when possible, demonstrate the laser aim, except in cases where the use of a Taser device is urgent.”RELEVANT INTERNATIONAL MATERIAL

33.  In its 20th General Report, published in 2010, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) stated:

“66. The use of [electrical discharge weapons (EDW)] by law enforcement and other public officials is a controversial subject. There are conflicting views as regards both the specific circumstances in which resort to such weapons can be justified and the potential negative effects on health that the weapons can cause. It is also a fact that by their very nature, EDW lend themselves to misuse ...

...

68. The CPT understands the wish of national authorities to provide their law enforcement officials with means enabling them to give a more graduated response to dangerous situations with which they are confronted. There is no doubt that the possession of less lethal weapons such as EDW may in some cases make it possible to avoid recourse to firearms. However, electrical discharge weapons can cause acute pain and, as already indicated, they are open to abuse. Consequently, any decision to issue law enforcement officials or other public servants with EDW should be the result of a thorough debate at the level of the country’s national executive and legislature. Further, the criteria for deploying EDW should be both defined by law and spelt out in specific regulations.

69. The CPT considers that the use of electric discharge weapons should be subject to the principles of necessity, subsidiarity, proportionality, advance warning (where feasible) and precaution ...

70. In the CPT’s view, the use of EDW should be limited to situations where there is a real and immediate threat to life or risk of serious injury. Recourse to such weapons for the sole purpose of securing compliance with an order is inadmissible. Furthermore, recourse to such weapons should only be authorised when other less coercive methods (negotiation and persuasion, manual control techniques, etc) have failed or are impracticable and where it is the only possible alternative to the use of a method presenting a greater risk of injury or death.

...

72. Electrical discharge weapons are increasingly being used when effecting arrests, and there have been well-publicised examples of their misuse in this context (e.g. the repeated administration of electric shocks to persons lying on the ground). Clearly, the resort to EDW in such situations must be strictly circumscribed. The guidance found by the CPT in some countries, to the effect that these weapons may be used when law enforcement officials are facing violence – or a threat of violence – of such a level that they would need to use force to protect themselves or others, is so broad as to leave the door open to a disproportionate response. If EDW gradually become the weapon of choice whenever faced with a recalcitrant attitude at the time of arrest, this could have a profoundly negative effect on the public’s perception of law enforcement officials.

...

76. ... The CPT knows of cases in which persons deprived of their liberty have been subjected to several electrical discharges in quick succession; such excessive, unnecessary use of force certainly qualifies as ill-treatment ...

...

79. The potential effects of EDW on the physical and mental health of persons against whom they are used is the subject of much argument ... In the absence of detailed research on the potential effects of EDW on particularly vulnerable persons (e.g. the elderly, pregnant women, young children, persons with a pre-existing heart condition), the CPT believes that their use vis-à-vis such persons should in any event be avoided. The use of EDW on people who are delirious or intoxicated is another sensitive issue; persons in this state of mind may well not understand the significance of an advance warning that the weapon will be used and could instead become ever more agitated in such a situation ...

...

82. Following each use of an EDW, there should be a debriefing of the law enforcement official who had recourse to the weapon. Further, the incident should be the subject of a detailed report to a higher authority. This report should indicate the precise circumstances considered to justify resort to the weapon, the mode of use, as well as all other relevant information (presence of witnesses, whether other weapons were available, medical care given to the person targeted, etc). The technical information registered on the memory chip and the video recording of the use of the EDW should be included in the report.

...

84. Whenever it transpires that the use of an EDW may not have been in accordance with the relevant laws or regulations, an appropriate investigation (disciplinary and/or criminal) should be set in motion.”

THE LAWALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

34.  The applicant complained that he had been ill-treated by the police and that the domestic authorities’ investigation into his allegations of ill‑treatment had not been effective. He invoked Articles 3 and 6 of the Convention. The Court, being the master of the characterisation to be given in law to the facts of a case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), considers that the applicant’s complaints fall to be examined under the substantive and procedural limbs of Article 3 of the Convention. This provision reads:

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

35.  The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other grounds. It must therefore be declared admissible.MeritsAlleged inhuman and degrading treatment

(a)   The parties’ submissions

(i)  The applicant

36.  The applicant submitted that the physical force used against him had been unnecessary and disproportionate because he had not posed any real danger either to the police officers or to anyone else. In particular, with regard to the events in the police car, the applicant submitted that he had been over sixty years old, wearing only underwear and handcuffed; therefore, even supposing that he had attempted to grab one of the officers sitting in the front seat, those officers could have used various alternative measures. For example, one of them could have stayed with him on the back seat, or they could have used additional handcuffs, or stopped the car and tried to persuade him to calm down. However, the officers had chosen to use the electroshock weapon in order to “punish and intimidate” him. He had not been warned about the use of that weapon in advance (see paragraph 23 above) and had not been given an opportunity to comply voluntarily with the officers’ orders, contrary to domestic law (see paragraph 31 above).

37.  The applicant submitted that the electroshock weapon had been used on him three or four times, which had been clearly excessive, had caused him great pain and fright, and had left scars on his body. He pointed out that the use of such weapons had been strongly criticised by the CPT (see paragraph 33 above).

(ii)  The Government

38.  The Government submitted that the treatment sustained by the applicant had not attained the minimum level of severity under Article 3 of the Convention. The applicant had only suffered negligible health impairment (see paragraph 11 above) and there was no information as to whether he had been prescribed any sick leave as a result. Furthermore, the use of force against the applicant had not been premeditated and had been used in response to his violent and insulting behaviour.

39.  In particular, as concerns the use of the electroshock weapon, the Government submitted that the applicant had disobeyed the officers’ lawful orders and tried to attack one of them. In such circumstances the use of the weapon had been necessary and proportionate. Officer R.N. had considered using other measures but had decided that the electroshock weapon would have the least harmful consequences (see paragraph 23 above). Furthermore, domestic law permitted the use of such a weapon against intoxicated or aggressive individuals (see paragraph 32 above). The domestic violence allegations against the applicant, together with his aggressive behaviour, had made it necessary for the officers to use coercion against him in order to protect themselves against his attempted attack and to avoid a traffic accident. The Government pointed out that after using the electroshock weapon, officer R.N. had had to remain on the back seat of the car and restrain the applicant, further proving his aggressiveness.

40.  The Government lastly submitted that the use of a Taser device did not per se constitute excessive use of force. The use of such a device enabled police officers to “give a more measured response to dangerous situations”. The devices were calibrated so as not to cause any long-term damage and the pain disappeared immediately after the release of the device button.

(b)   The Court’s assessment

41.  The general principles concerning the substantive limb of Article 3 of the Convention, relevant in cases involving alleged ill-treatment by law‑enforcement authorities, are summarised in Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-90, ECHR 2015).

42.  In particular, the Court reiterates that in respect of a person who is deprived of his or her liberty or, more generally, is confronted with law-enforcement officers, any recourse to physical force which has not been made strictly necessary by his or her own conduct diminishes human dignity and is, in principle, an infringement of the right set forth in Article 3 of the Convention (ibid., § 88, and the cases cited therein).

43.  In the present case, a court medical expert who examined the applicant a few days after his arrest found contusions on both his arms and the right side of his chest, as well as bruises resembling traces of electricity on his chest and back (see paragraph 11 above). There was no dispute between the parties that the applicant had sustained those injuries during the arrest.

44.  As to the events at the applicant’s home, the Court sees no good reason to question the account of the police officers that the applicant was hostile, refused to give any explanation about his wife’s allegations of domestic violence and to put on clothes, insulted and threatened the officers, and resisted his arrest. The Court observes that the officers gave consistent statements during the two sets of domestic proceedings (see paragraphs 8‑10, 14 and 22 above) and their version of events was sufficiently corroborated by video evidence (see paragraphs 26 and 27 above). Accordingly, the Court is satisfied that some of the applicant’s injuries resulted from his resistance when he was being handcuffed and taken to the police car.

45.  By contrast, the Court is unable to reach a similar conclusion with regard to the use of the electroshock weapon. At the outset, it notes that none of the domestic proceedings established how many times officer R.N. had used the electroshock weapon against the applicant. It reiterates that 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. The burden of proof is then on the Government to provide a satisfactory and convincing explanation by producing evidence establishing facts which cast doubt on the account of events given by the victim (ibid., § 83, and the cases cited therein). In the circumstances of the present case, the Court considers that the authorities failed to cast doubt on the applicant’s statement that the electroshock weapon had been used against him three or four times (see paragraphs 7 and 37 above). Furthermore, that statement appears to be consistent with the findings of the court medical expert, who detected bruises resembling traces of electricity on the applicant’s chest and back (see paragraph 11 above), thereby indicating that the electroshock weapon could have been used more than once (see, for a similar situation, Kanciał v. Poland, no. 37023/13, § 77, 23 May 2019).

46.  The Court has previously found that subjecting a person to electric shocks is a particularly serious form of ill-treatment capable of provoking severe pain and cruel suffering (see Grigoryev v. Ukraine, no. 51671/07, § 90, 15 May 2012; Anzhelo Georgiev and Others v. Bulgaria, no. 51284/09, §§ 75-76, 30 September 2014; and Kanciał, cited above, § 78). In addition, the CPT in its 20th General Report stated that electrical discharge weapons can cause acute pain and that the use of several electrical discharges in quick succession against persons deprived of their liberty qualifies as ill-treatment (see paragraph 33 above).

47.  The Government argued that the use of the electroshock weapon against the applicant had been necessary because he had been intoxicated and aggressive – in particular, he had grabbed officer R.N.’s jacket and had tried to grab the steering wheel of the police car, thereby creating a risk of causing a traffic accident on a highway (see paragraph 39 above). The Court observes that there is no objective proof in support of either the applicant’s or the officers’ account of exactly what took place in the police car. However, even if the Court were to accept that the applicant did indeed grab officer R.N.’s jacket and tried to grab the steering wheel, it nonetheless considers that, in the circumstances of the present case, that could not have justified the use of an electroshock weapon against him, for the reasons presented below.

48.  The Court firstly observes that the applicant was not given an advance warning about the use of the electroshock weapon, which would have provided him with an opportunity to voluntarily comply with the officers’ orders (see, mutatis mutandis, Anzhelo Georgiev and Others, § 76, and Kanciał, § 79, both cited above). Such a warning was explicitly required by domestic law, except for cases where a delay might cause danger to the life or limb of the officer or another person, or where a warning was not possible (see paragraph 31 above; see also the relevant CPT standards cited in paragraph 33 above). Officer R.N. argued that he had been unable to warn the applicant because he had had to act “within seconds” (see paragraph 23 above). However, the Court cannot fail to notice that after the applicant’s alleged attempt to grab the steering wheel, the officers were able to safely stop the car and get out of it (see paragraphs 8‑10 above). It points out that the feasibility of an advance warning was not thoroughly assessed in the domestic proceedings and the officers were never asked to explain in more detail what danger might have been caused by any delay in the use of the electroshock weapon after the car had been stopped and there was no longer a danger of causing a traffic accident (see paragraph 58 below).

49.  The Court further observes that, in accordance with Lithuanian law, coercion which might cause bodily injuries or death may only be used after all possible measures of persuasion or other measures have been used with no effect (see paragraph 31 above; see also the relevant CPT standards cited in paragraph 33 above). In the present case, there are no indications that the officers considered using less coercive measures against the applicant in the police car (see Anzhelo Georgiev and Others, cited above, § 76). In fact, from the statement given by R.N. in the administrative proceedings it transpires that he only considered measures which were potentially even more harmful than the electroshock weapon (see paragraph 23 above). The Court notes that at that time the applicant was sixty-one years old (see paragraph 4 above); he was unarmed, which must have been clear to the police officers, as he was wearing only underwear; he was handcuffed; and he was alone against two officers (see, mutatis mutandis, Gedrimas v. Lithuania, no. 21048/12, § 73, 12 July 2016). However, at no stage of the domestic proceedings did the officers provide any explanation as to why the use of less coercive measures – for example, handcuffing the applicant’s hands behind his back so that he could not reach the steering wheel, or having one of the officers stay with him on the back seat of the car (see paragraph 36 above) – would not have been sufficient to restrain him.

50.  The Court also takes note of the CPT standards, according to which, the use of electrical discharge weapons should be limited to situations where there is a real and immediate threat to life or risk of serious injury, and recourse to such weapons for the sole purpose of securing compliance with an order is inadmissible. Furthermore, the CPT has recommended avoiding the use of electrical discharge weapons against the elderly because of their vulnerability, as well as against intoxicated persons who may become even more agitated as a result (see paragraph 33 above; compare with the Lithuanian rules on the use of Taser devices, in force at the material time, cited in paragraph 32 above).

51.  In the light of the foregoing, the Court concludes that the Government have failed to demonstrate that the use of an electroshock weapon against the applicant in the police car, while he was handcuffed and unarmed, was necessary in order for two well-trained police officers to curb his resistance, or that it was proportionate in the circumstances. It therefore finds that the applicant has been subjected to inhuman and degrading treatment and there has been a violation of Article 3 of the Convention under its substantive limb.Alleged lack of an effective investigation

(a)   The parties’ submissions

(i)  The applicant

52.  The applicant submitted that the prosecutor and courts had refused to open a pre-trial investigation against the police officers solely on the basis of the statements given by those officers, without assessing other evidence, such as the results of the medical examination and video recordings. In particular, the authorities had not investigated the circumstances under which the electroshock weapon had been used against the applicant – such as how many times it had been used and whether all possible alternatives had been considered. Furthermore, although in the administrative proceedings instituted against him the relevant circumstances had been examined in more detail, under domestic law those proceedings could not have established the officers’ liability and led to their punishment.

(ii)  The Government

53.  The Government submitted that the preliminary inquiry had been opened promptly after the applicant had lodged a complaint, it had been carried out by a prosecutor who was independent from the police officers involved, and the applicant had been informed about the relevant developments. Furthermore, the prosecutor’s decision not to open a pre-trial investigation had been reviewed and upheld by the courts. The prosecutor had thoroughly assessed the relevant circumstances and had made a well‑reasoned decision that the use of force against the applicant had been justified by his own behaviour.

54.  The Government also submitted that the circumstances of the applicant’s arrest had been further examined in the administrative proceedings against him. In those proceedings, the applicant had been able to provide his version of events, to submit questions to the police officers and comment on their statements. The courts in those proceedings had examined relevant evidence, but they had likewise found that the applicant had disobeyed the officers.

(b)   The Court’s assessment

55.  The general principles concerning the procedural limb of Article 3 of the Convention are summarised in Mocanu and Others v. Romania ([GC], nos. 10865/09 and 2 others, §§ 314-26, ECHR 2014 (extracts)).

56.  In particular, the Court reiterates that the investigation must be thorough, which 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 (ibid., § 325).

57.  The Court also notes that, according to the CPT standards, whenever it transpires that the use of an electrical discharge weapon may not have been in accordance with the relevant laws or regulations, an appropriate disciplinary and/or criminal investigation should be set in motion (see paragraph 33 above).

58.  Turning to the circumstances of the present case, the Court observes that a preliminary inquiry into the lawfulness of the use of force against the applicant was opened promptly after he lodged his complaint (see paragraphs 13-15 above). The Court has no reason to doubt the independence and impartiality of those proceedings, and it is satisfied that the applicant was given sufficient opportunity to participate in them.

59.  However, it is unable to accept that that inquiry was thorough and adequate. The prosecutor made the decision not to open a pre-trial investigation against R.N., relying essentially on the statements given by the police officers and holding that the police had the right to use physical force, including Taser devices, against persons who refused to obey their lawful orders (see paragraph 15 above). That conclusion was upheld by courts (see paragraphs 18 and 19 above). In particular, the Klaipėda District Court dismissed the applicant’s appeal in summary fashion, without any examination of the merits of his arguments (see paragraph 18 above).

60.  The Court finds it particularly disconcerting that neither the prosecutor nor the courts sought to establish the exact circumstances of the use of the electroshock weapon against the applicant (see, mutatis mutandis, Yusiv v. Lithuania, no. 55894/13, § 72, 4 October 2016, and Kanciał, cited above, §§ 91-93). From the material in the Court’s possession it does not appear that in those proceedings there was any attempt to determine how many times the electroshock weapon had been used; whether an advance warning had been given to the applicant and, if not, whether the legal conditions for dispensing with a warning had been fulfilled; as well as whether any less coercive measures had been considered and why they had not been used (see the relevant domestic law cited in paragraphs 31 and 32 above; see also the relevant CPT standards cited in paragraph 33 above). In such circumstances, the Court concludes that the inquiry carried out following the applicant’s complaint did not amount to an effective investigation, as required under the procedural limb of Article 3 of the Convention.

61.  Although in the administrative proceedings instituted against the applicant the courts examined the circumstances surrounding his arrest, including the use of the electroshock weapon, in more detail (see paragraphs 20-30 above), the Court emphasises that the purpose of those proceedings was to determine whether the applicant had insulted the officers and disobeyed their lawful orders. The purpose of those proceedings was not to assess the lawfulness of the use of force against the applicant, or the necessity and proportionality of the officers’ actions; thus the courts in those proceedings could not have attributed responsibility to the officers or awarded the applicant any redress (see Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, § 164, 21 April 2011). Those proceedings therefore did not suffice to fulfil the State’s procedural obligation under Article 3 of the Convention.

62.  Accordingly, the Court concludes that there has not been an effective investigation into the applicant’s allegations of ill-treatment by police officers, in particular the use of an electroshock weapon against him. There has therefore been a violation of Article 3 of the Convention under its procedural limb.APPLICATION OF ARTICLE 41 OF THE CONVENTION

63.  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.”Damage

64.  The applicant claimed 122 euros (EUR) in respect of pecuniary damage, consisting of the fine which he had been given in the administrative proceedings (EUR 90) and the medical expenses related to the injuries suffered during the arrest (EUR 32). He also claimed EUR 50,000 in respect of non-pecuniary damage for the physical pain and emotional distress caused by the violation of his rights.

65.  The Government submitted that the fine given to the applicant for insulting police officers and disobeying their lawful orders had not resulted from the violations of the Convention found in the present case. They also submitted that the applicant’s claim in respect of non-pecuniary damage was excessive and unsubstantiated.

66.  The Court does not discern any causal link between the violations of the substantive and procedural limbs of Article 3 of the Convention found in the present case and the fine which the applicant had been ordered to pay for insulting police officers and disobeying their lawful orders. It therefore rejects his claim in respect of pecuniary damage in that part. However, it is satisfied that the medical expenses sustained by the applicant were sufficiently related to the violations found in the present case, and awards him EUR 32 under this head (see Dinu v. Romania, no. 64356/14, § 90, 7 February 2017).

67.  The Court further considers that the applicant must have suffered distress and inconvenience as a result of the violations of his rights found in the present case; however, it finds the applicant’s claim in respect of non-pecuniary damage to be excessive. Making its award on an equitable basis, the Court awards the applicant EUR 12,000 under this head.Costs and expenses

68.  The applicant also claimed EUR 2,421 for the legal and postal costs and expenses incurred before the domestic courts and before the Court. He provided copies of relevant receipts.

69.  The Government submitted that the applicant had not indicated the hourly rate charged by the lawyer who had represented him before the Court or the number of hours spent on the representation, nor provided any proof that he had actually paid the requested amount.

70.  Regard being had to the documents in its possession and to its case-law, the Court grants the applicant’s claim for costs and expenses in full and awards him EUR 2,421 covering costs under all heads.Default interest

71.  The Court considers it appropriate that the default interest rate 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, Declares the application admissible;Holds that there has been a violation of Article 3 of the Convention under its substantive head;Holds that there has been a violation of Article 3 of the Convention under its procedural head;Holds

(a)  that the respondent State is to pay the applicant, within three months the following amounts:

(i)        EUR 32 (thirty-two euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii)      EUR 12,000 (twelve thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii)     EUR 2,421 (two thousand four hundred and twenty-one euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(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;Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 19 November 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Valeriu Griţco
Deputy RegistrarPresident

 

Full & Egal Universal Law Academy