Communicated on 10 May 2017
FOURTH SECTION
Application no. 48455/14
Zsolt CSONKA
against Hungary
lodged on 17 June 2014
STATEMENT OF FACTS
1. The applicant, Mr Zsolt Csonka, is a Hungarian national, who was born in 1988 and lives in Szigetvár-Becefa. He is represented before the Court by Mr T. Fazekas, a lawyer practising in Budapest.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. At 11 a.m. on 4 February 2013 the applicant was taken to Sellye police station for questioning, firstly as a witness, in relation to recent occurrences of timber theft. According to the police record, he waived his right to counsel and immediately admitted to his involvement in the offence in question. As a result, from 12.12 p.m. onwards, he was further questioned, this time as a suspect, and disclosed the identity of his accomplices. At 2.15 p.m. the applicant was taken home (in order to change his shoes because the police wanted to seize the ones he had been wearing) and then to the scene of the theft, where he explained to the officers precisely how the offence was carried out. At 4 p.m. he was released after signing a document stating that he had not suffered any injuries while in custody and had no complaint about the questioning.
4. On leaving the police station, the applicant met his aunt and a man from his village, who were waiting for him and his accomplice (his cousin), who had been questioned at the same time by other officers.
5. At 4.56 p.m., the applicant was examined by a general practitioner in Sellye and was diagnosed with hyperaemia (redness) (measuring 8 cm in diameter) on his left cheek and a minor wound in his mouth. His chest was also noted to be tender. On 6 February 2013, X-ray and ultrasound examinations were conducted on the applicant at a hospital in Pécs. No fracture was found, but a bruise was noted at the height of the rib cage.
6. On 6 February 2013 the applicant initiated proceedings on account of ill-treatment by the police in order to extort a confession. He indicated his willingness to undergo a polygraph test in order to prove the veracity of his allegations.
7. On 28 March 2013 the applicant was heard by the Pécs investigating prosecutor. He contended that, in the morning of 4 February 2013, he had been questioned by five police officers. When he had denied his involvement in the offence, one of them (wearing gloves) had slapped him on both cheeks several times. Another officer had then ordered him to stand up and when he had done so, he had kicked him in the chest so that he had fallen back onto the chair. The third officer had continued to slap him in the face once or twice, and had punched him in the stomach once. The applicant could name two of the officers whom he knew from previous police visits to his village: one of them, who had been in charge of his questioning on 4 February 2013, had not hit him; the other one had only “dropped by” and had allegedly taken part in his beating. He gave a description of the two unknown officers who had allegedly beaten him.
8. On 16 October 2013 the prosecutor questioned the police officer who had been in charge of questioning the applicant on 4 February 2013. The police officer firmly denied any kind of ill-treatment and said that, after his release, the applicant had met someone who he alleged had participated in the crime. The police officer suggested that the applicant’s injuries might well have resulted from that encounter. He further contended that when taken home on 4 February 2013, the applicant had met his mother but had not complained to her of any kind of ill-treatment.
9. On 25 October 2013 the applicant’s aunt and her son (the applicant’s accomplice) were heard. The applicant’s aunt said that when she had met the applicant at 4 p.m. in front of the police station, she had seen his mouth bleeding. The accomplice also alleged that he had seen wounds inside the applicant’s mouth.
10. A medical expert opinion was obtained. On the basis of the documents previously drawn up by the general practitioner and the doctor at Pécs Hospital, the expert concluded that the applicant’s visible injuries, notably the hyperaemia on his face and a minor wound in his mouth, might have resulted from a single slap inflicted with medium force (the wound being caused by the canine tooth colliding with the mucous membrane). The expert held that the sensitiveness of the chest, without external perceivable symptoms, was a subjective complaint; it could not therefore be considered as an injury for the purposes of criminal law.
11. On 15 November 2013 the prosecutor discontinued the investigation. Having particular regard to the medical expert opinion allegedly contradicting the applicant’s statements (given that it only corroborated one blow, rather than several as described by the applicant), he held that the ill-treatment of the applicant while in police custody could not be proven “beyond reasonable doubt”.
12. The applicant lodged a complaint against the decision, arguing, among other things, that the authorities had failed to organise a confrontation between him and the police officer in charge in order to resolve the discrepancies in their statements, or an identification parade in order for the applicant to identify the police officers involved. Moreover, the first-instance authority’s decision had not given any reasons for having disregarded the statement of the two witnesses (the applicant’s aunt and her son) who had seen the applicant with a bleeding mouth immediately after his release.
13. On 5 December 2013 the Baranya County Chief Prosecutor’s Office rejected the complaint as ill-founded. It stressed that further investigative steps (a confrontation or an identification parade) would have been necessary only if the medical expert had substantiated the applicant’s allegations, which he had not. Since the fact of ill-treatment by the police as such was not sufficiently proven, there was no need for further investigation into the identity of the alleged perpetrators. It also noted that the witnesses had not seen the alleged ill-treatment.
14. A final decision was allegedly served on the applicant on 17 December 2013. The applicant was informed that he had the possibility of bringing a private prosecution, acting as substitute private prosecutor, under Articles 229-230 of the Criminal Procedure Code.
15. On 13 December 2013 the investigation against the applicant on account of the alleged timber theft was discontinued for want of sufficient evidence. The decision took account of the fact that the applicant had withdrawn his confession and that his brother had provided him with an alibi.
B. Relevant domestic law
16. The Criminal Code (Act no. IV of 1978), as in force at the material time, provided as follows:
Article 227
Coercive questioning
“(1) Any public official who attempts by force or threat of force, or by other similar means, to coerce another person into giving information or making a statement, or to withhold information, is guilty of an offence punishable by imprisonment of up to five years.
(2) Any person who engages in preparations for the coercive questioning of a person is guilty of a misdemeanour punishable by imprisonment up to two years.”
COMPLAINT
17. The applicant complains under Article 3 of the Convention of ill-treatment allegedly sustained during police questioning, as well as of the lack of a thorough and effective investigation into his grievances.
QUESTIONS TO THE PARTIES
Has there been a violation of Article 3 of the Convention? In particular:
1. Have the Government fulfilled their obligation to provide a satisfactory and convincing explanation for the applicant’s injuries (see Balogh v. Hungary, no. 47940/99, §§ 51-53, 20 July 2004, and Bouyid v. Belgium [GC], no. 23380/09, § 83, ECHR 2015)?
2. Having regard to the right to procedural protection from inhuman or degrading treatment (see Bouyid v. Belgium, cited above, §§ 114-23), was the investigation by the domestic authorities in the present case in breach of Article 3 of the Convention?
Full & Egal Universal Law Academy