Published on 4 April 2022
FIRST SECTION
Applications nos. 51350/20 and 51637/20
Maciej STACHOWIAK against Poland
and Anna CIEŚLIŃSKA-STACHOWIAK against Poland
lodged on 5 November 2020 and 6 November 2020 respectively
communicated on 16 March 2022
STATEMENT OF FACTS
1. The applicant in the first case, Mr Maciej Stachowiak (“the first applicant”), is a Polish national, who was born in 1968 and lives in Wrocław. He is represented before the Court by Mr M. Pietrzak and Mr A. Ploszka, lawyers practising in Warsaw.
2. The applicant in the second case (“the second applicant”), Ms Anna Cieślińska-Stachowiak, is a Polish national, who was born in 1969 and lives in Wrocław. She is represented before the Court by Ms M.J. Radziejowska and Mr M.W. Pietrzak, lawyers practising in Warsaw.
3. The first applicant and the second applicant brought their respective applications on their own behalf and on behalf of their son, Igor Stachowiak (I.S., “the third applicant”), who died in police custody.
The circumstances of the case4. The facts of the case, as submitted by the first and second applicants, may be summarised as follows.
I.S.’s arrest and treatment by the police, and his death at the police station(a) The sequence of events
Arrest in the street
5. On 15 May 2016 at 6.20 a.m., I.S. (height: 190 cm; weight: 90 kg) was arrested by police in the street in Wrocław.
6. As established during the criminal investigation (described below), a police patrol was dispatched to first run an identity check on I.S. who had been seen, via the street monitoring, wandering in the streets, acting strangely and looking lost. I.S.’s behaviour raised suspicion that he could have been a lost or wanted person.
7. According to I.S.’s arrest record (protokół zatrzymania) drawn up at 7.15 a.m., I.S. was arrested at around 6 a.m. on suspicion of assaulting a police officer and in relation to the theft of a mobile phone.
8. As established during the investigation, at his arrest, I.S., was subjected to two shocks from a taser and to a series of physical restraint measures, in particular, strangulation for 25 to 59 seconds. I.S. was handcuffed with his arms in front of him and placed in a police car.
9. A part of I.S.’s arrest was filmed by onlookers. The footage showed I.S. firstly being held on the ground by four police officers, then handcuffed and then pulled, pushed and carried with difficulty into a police car. I.S. was ultimately held by the neck in the police car’s back seat. During the whole scene, I.S. was seen talking loudly and pleading with the police and the passers-by to be let go and asking why he was being taken in. He first resists the handcuffing and then, being taken to a police car, continued to resist arrest by sitting, rolling and lying down on the ground, and by pulling the officers away from the car. His face bore a mark on the right side of his lips and another one, under his left eye. His nose did not appear to be swollen. At some point, two onlookers were seen approaching the group of policemen and patting I.S. on the head and shoulders, telling him to be calm and reassuring him that nothing was going to happen to him. Other onlookers were heard addressing the officers, occasionally telling them not to strangle I.S. and commenting that I.S. was high on drugs. Neither the officers nor I.S. appeared to act aggressively. The scene did not appear to be tense. Occasionally the officers could be heard telling onlookers to step away and explaining that they were doing their job.
10. I.S. was then driven to the Wrocław Stare Miasto Police Station.
(b) Treatment at the police station
11. At 6.30 a.m. I.S. arrived in the Wrocław Stare Miasto Police Station.
12. According to I.S.’s arrest record that was mentioned above, I.S. had declared to be healthy and not undergoing any neurological or psychiatric treatment or addiction rehabilitation.
13. According to a sobriety test report, I.S.’s alcohol test performed at 7.35 a.m. proved negative.
14. According to a body-search report which was drawn up at 9.35. a.m., I.S., who had refused to give up the objects in his possession, was subjected to a body-search by one policeman. The following items were found on him during the search: a small packet of white crystals (in his sock), two mobile phones and a USB key. During the search, I.S. resisted both passively and actively and was non-compliant. The restraining measures used included handcuffs, physical force and a taser.
15. As established during the investigation, I.S.’s body-search was performed, between 9.10 and 9.35 a.m., by four officers inside the police station’s toilet. I.S. who was still handcuffed in front of his body, did not comply with the orders given by the officers and, at some point, he found himself on the floor, struggling with them. I.S. received several blows to his legs with a truncheon. One officer used a taser, discharging it three times. I.S. then started complying with the officers’ orders.
16. The camera from the taser recorded how I.S. was first lying on the floor, kicking into the air, while the taser’s wires were still connected to his body. There was some commotion. I.S was then heard to respond to an officer: “I can hear”. He was then seen to calm down, and then to sit or kneel against the wall or on the floor. The door to the toilet was open and an officer was seen standing at the door. Another one was seen next to I.S., filming from the taser. I.S. who was barefoot, was seen slowly taking his trousers off and then lowering his underwear. He then squatted and showed his naked body parts to the officer. I.S. then pulled up his underwear and slowly put his trousers back on. During the scene I.S. and the officers were heard talking but the speech was mostly unintelligible. At some point I.S. was heard cursing several times and asking: “Why inside the bog?” the recording ends with I.S., handcuffed at the front of his body, kneeling against the wall, dressed, with his shoes and a telephone lying on the floor next to him. I.S. did not look agitated. His forehead looked sweaty. His face was not visible for long or clearly enough to determine whether he had any injuries there.
17. As established during the investigation, when the body search was finished, a policeman attempted to move the handcuffs behind I.S.’s back. During that procedure, I.S. freed himself and ran out of the toilet. Six policemen apprehended him and used force against him. At some point during the struggle I.S. fainted and stopped breathing. An officer, who was trained in emergency aid, started resuscitation. At 9.19 a.m. the officers called an ambulance. At 10.24 a.m. the medical team declared I.S. dead.
18. No camera recording of this scene was produced during the investigation.
Official findings regarding I.S.’s treatment and the cause of his death19. The death certificate issued by the medical team in the morning of 15 May 2016 stated that there were multiple abrasions, bruises and injuries on I.S.’s face and body. According to the report of an expert in police interventions (dated 8 January 2017), I.S. had a large collar-shaped bruise on his neck, while his face and the upper part of his chest were marked by cyanosis (sinica).
20. A photograph of I.S.’s body, that was taken by the first applicant on 15 or 16 May in the morgue, showed that I.S. had a heavily bruised face and a swollen nose.
21. An x-ray that was carried out on an unspecified date excluded that I.S.’s nose had been fractured.
22. The autopsy that was carried out on 16 May 2016, revealed, inter alia, that I.S. had a small part of his thyroid cartilage (cartilago thyroidea) broken. He also had petechiae (wybroczyny) and abrasions in his neck’s soft tissue, marks on his body from the use of a taser, as well as bloody petechiae underneath the pleura (opłucna) of both lungs.
23. On 24 May 2016 an examination of the bronchial tissue that had been extracted during the autopsy revealed that I.S. had pulmonary distention (rozdęcie płuc) that might have been caused by acute asphyxiation.
24. A laboratory test that was carried out on 30 September 2016 revealed that, at the moment of his death, I.S. had small concentrations of amphetamine in his urine and of tramadol in his blood.
25. Two expert reports were drawn up for the purposes of the criminal proceedings described below: one, by the experts in forensic science, anaesthesiology and accident and emergency, from the Łódź Medical University (dated 3 August 2017) and the other one, by an expert in cardiology, A.P. (dated 16 December 2017).
26. In summary, the experts of the Łódź Medical University concluded that the cause of I.S.’s death had, most likely, been cardiovascular arrest in conjunction with arrhythmia that followed an episode of excited delirium that had, in turn, been caused by I.S’s drug-intake.
27. They also made the following observations, in so far as relevant. It was not possible to prove beyond reasonable doubt that the restraining measures used by the police had caused I.S.’s death. The levels of amphetamine and tramadol were too low to cause I.S.’s death. I.S. had acted like a person with excited delirium syndrome, given that he had been excited and non-compliant and given that he had taken drugs, one of which was known to cause excited delirium syndrome. A taser could be dangerous for people with advanced or chronic cardiovascular ailments. I.S.’s condition had not worsened immediately after being tasered – it followed that there was no basis to claim that the use of a taser had caused I.S.’s death. The causes of excited delirium syndrome were not fully known. Hyperthermia could be one of the syndrome’s symptoms. Stress and physical effort could be both the syndrome’s symptom and its catalyst. Excited delirium syndrome was known to be lethal. It could possibly occur even some time after the drug-intake had already lapsed. There were cases of people who had suffered excited delirium because they had taken a drug, while, at the moment of their death, the drug was no longer present in the victim’s blood system. Protracted use of drugs could cause changes in a person’s metabolism that make that person prone to excited delirium syndrome. According to the experts, the video footage from the street monitoring and from the cameras used inside the Wrocław Stare Miasto Police Station had shown that I.S. had hallucinations and that he had been disoriented, aggressive and, vis-a-vis the police, non-compliant.
28. As to the other report, the expert in cardiology concluded that it could not be excluded that the direct cause of I.S.’s death was arrhythmia which, in turn, had resulted from the multiple use of a taser in his chest area. Factors that contributed to I.S.’s arrhythmia had also been hypoxia caused by his strangulation, by stress related to his arrest, by the use of restraining measures, as well as by drugs.
29. Moreover, the expert made the following observations in so far as relevant. It was highly likely that the use of a taser could cause ventricular fibrillation (migotanie komór). A taser had been used several times on I.S.’s chest and stomach, which had increased the probability of ventricular fibrillation. Hyperthermia was known as one of the main symptoms of excited delirium syndrome. At the police station, I.S. had shown fear and stress but no aggression. The material in the casefile did not allow for a conclusion that I.S. had suffered excited delirium syndrome, even assuming that the syndrome was a real health ailment.
Criminal proceedings against the police officers(a) Preliminary inspection of the scene
30. On 15 May 2016 in the early afternoon, a prosecutor on duty arrived at the Wrocław Stare Miasto Police Station to investigate the circumstances surrounding I.S.’s death. According to her testimony, that was obtained on 13 December 2016, on the day of the events in question, she had heard one police officer and given orders to secure all officers’ notebooks and to check them for injuries that might have been caused during their interventions. The first and second applicants had been notified of I.S.’s death and when they had arrived at the police station, they had asked to be shown the body. The prosecutor had refused because at that point, she had still not finished inspecting the scene. The prosecutor had not issued any formal decision not to show the body to the applicants. When she had finished, I.S.’s body had been transported to the morgue.
(b) Initial investigation into four sets of offences
31. On 16 May 2016 the Wrocław District Prosecutor (Prokurator Rejonowy) opened a criminal investigation into I.S.’s death (case no. PR 2 Ds 118.2016). On 19 May 2016 the investigation was taken over by the Legnica Regional Prosecutor (Prokurator Okręgowy) (no. PO I Ds 1. 2016) and on 24 May 2016, by the Poznań Regional Prosecutor (no. PO II Ds 5.2016).
32. For the purposes of the investigation, the events of 15 May 2016 were split into three stages and corresponding offences: (1) abuse of power and cruel treatment during I.S.’s arrest in the street by means of the use of force including a taser while I.S. showed no resistance or attempts to flee the scene (Articles 231 § 1 and 247 § 1 of the Criminal Code); (2) abuse of power and cruel treatment during I.S.’s detention at the police station, namely during his body-search (2a) and from the moment when I.S. had freed himself from the bathroom, by means of using excessive force, including immobilising him on the floor and pressing him to the ground (2b) (Articles 231 § 1 and 247 § 1 of the Criminal Code); and (3) unintentionally causing death by use of force during I.S.’s arrest in the street and his detention at the police station, including during his body-search in the police station toilet during which I.S. had received three shocks from a taser (Article 155 of the Criminal Code).
33. On 25 January 2018 an investigation into the offences (1), (2b) and (3) were separated and included in a set of proceedings (no. PO I Ds 8.2018).
34. On 2 March 2018 the first and second applicants filed a motion, asking to have the entire sequence of events in question investigated in one set of proceedings, namely the offence of abuse of power in conjunction with cruel treatment and murder (Article 231 § 1 of the Criminal Code in conjunction with Articles 247 § 2 and 148 § 1 of the Criminal Code). It appears that no formal decision was issued in response to this motion.
(c) Investigation into offences (1), (2b) and (3)
35. On 20 March 2018 the Poznań Regional Prosecutor discontinued the investigation into offences (1), (2b) and (3) on the grounds that there was no case to answer.
36. On 24 October 2018 the Wrocław Regional Court (Sąd Okręgowy) partly quashed that decision, as a result of the first applicant’s appeal. The court instructed the prosecutor to supplement the various expert reports with answers to the following main questions. 1). Was the restraining measure of strangulating I.S. in the street for 25 to 59 seconds adequately performed given that the autopsy had revealed that I.S. had a broken thyroid cartilage, as well as petechiae and abrasions in his neck’s soft tissue? 2). Were the various measures of force used at I.S.’s arrest in the street proportionate? 3). Was the use of a taser justified when I.S. had been face-down on the floor and outnumbered by police officers? 4). Did the police use pepper spray at I.S.’s arrest? 5). Was the use of five shocks of a taser to I.S.’s body in accordance with the rules and was it harmless to him? 6). Did the combination of repeated or long-term measures of restraint (including chemical measures such as pepper spray) that were used at I.S.’s arrest in the street and later at the police station, put his life in danger, given that an expert concluded that I.S.’s death could have been caused by excited delirium that had been significantly heightened by stress. Moreover, the court instructed the prosecutor to develop the description of facts and of the elements of the impugned offences – especially in respect of the moment when I.S. had left the toilet and had been pushed down and held on the floor; and to inquire into the fact that the results of I.S.’s breathalyser had gone missing.
37. On 29 May 2020, having obtained and examined some additional material, the Poznań Regional Prosecutor discontinued the investigation into offences (1), (2b) and (3) on the grounds that there was no case to answer.
38. The first applicant appealed, arguing essentially, that the criminal proceedings into the death of his son had been unjustifiably fragmented and thus had not addressed all the circumstances of the event in question. The authorities had also failed to obtain adequate expert reports and to thoroughly examine the evidence. Instead, they had selectively relied on contradictory evidence. As a result, the criminal proceedings had been ineffective in breach of Articles 2 and 3 of the European Convention on Human Rights (“the ECHR”).
39. On 11 January 2021 the second instance authority, the Poznań Provincial Prosecutor (Prokurator Regionalny) upheld the Regional Prosecutor’s decision of 29 May 2020. The superior prosecutor found that the Poznań Regional Prosecutor had fully complied with the instructions given by the Wrocław Regional Court on 24 October 2018 and had thoroughly examined the case.
40. The Provincial Prosecutor essentially concluded that, in the light of the material that had or that could possibly have been gathered in the case, as well as in light of equivocal expert reports, there was no conclusive evidence that I.S.’s death had been caused by the treatment to which he had been subjected by the police or that that treatment had been excessive and constituted abuse of power.
41. Additionally, the prosecutor made the following observations regarding various factual details that had been raised in the appeal. On the night of 16 May, prior to his arrest, I.S. had had an encounter with security guards of a night club. It was therefore possible that some of the injuries that he had sustained pre-existed the arrest. Given contradictory statements of three witnesses – police officers who had been at the police station at the material time, as well as medical experts’ reports and other evidence, it was not proven that I.S. had received more shocks, namely shocks from a torch‑taser privately owned by one of the policemen or that he had also been exposed to pepper spray - the traces of which had been found on I.S.’s sweater. According to the experts, the injuries of the neck and lungs were not, in and of themselves, indicative of asphyxia. Likewise, the multiple use of a taser could not cause I.S.’s death. The taser had been used lawfully. The prosecutor’s reasoned decision was 63-pages long.
42. The evidence that was produced during the investigation comprised, among others: testimony from various witnesses; two reports from medical experts described above (see paragraphs 24-28 above), with supplementary reports; a report drawn up on 8 January 2017 by a court-appointed expert in police interventions (regarding the proportionality of the use of force by the police); a report commissioned by the first and second applicants from an expert in psychology (regarding I.S.’s behaviour in the street, dated 11 September 2017), two reports from experts in audio forensics (providing transcripts of the audio from the taser recording, dated 25 August 2016 and 26 June 2017); an expert report regarding the existence of traces of pepper spray on I.S.’s clothes, dated 29 June 2017; three autopsy reports, dated 16 May, 24 May and 25 October 2016; blood and urine tests, dated 25 May 2016, respectively; a report concerning the substance found on I.S. on the day of his arrest, dated 30 September 2016; a report from the examination of I.S.’s internal organs, dated 27 February 2017.
43. The first applicant was served with the prosecutor’s reasoned decision on 5 February 2021 and instructed that no further appeal lay under the applicable law. The first applicant was also instructed that he was entitled to lodge, within one month, a subsidiary bill of indictment (subsydiarny akt oskarżenia) to a criminal court. By letter of 23 February 2021 the first and second applicants instructed their lawyers not to lodge the subsidiary bill of indictment. The first and second applicants explained that, given the outcome of the investigation, pursuing the case would require unsurmountable effort on their part and would cause them severe pain.
Court proceedings against four police officers charged with offence of abuse of power and cruel treatment during I.S.’s body-search at the police station (2a)44. As for the remainder of the investigation, on 20 March 2018 the Poznań Regional Prosecutor indicted four police officers with the offence of abuse of power and cruel treatment during I.S.’s body-search in the police station’s toilet.
45. On 21 June 2019 the Wrocław District Court (Sąd Rejonowy) found all four police officers who had handled I.S. in the police station’s toilet, guilty of abuse of power and cruel treatment (Articles 231 and 247 of the Criminal Code). One policeman was sentenced to 2 years and 6 months’ imprisonment and ordered to pay 15,000 Polish zlotys (PLN) in compensation to the applicants. The others were sentenced to 2 years’ imprisonment and ordered to pay PLN 10,000 each, in compensation to the applicants. The court held that the report of the experts from the Łódź Medical University clearly indicated that I.S. had died as a result of excited delirium syndrome which had been caused by his use of drugs prior to the arrest.
46. Moreover, in its reasoning, the court incidentally stated that there had been a causal link between the excessive use of force towards I.S. and his death but as the defendants had not been indicted with the offence of manslaughter, the court could not rule on this aspect of the case.
47. The defendants and the applicants, who had the status of auxiliary prosecutors (oskarżyciel posiłkowy), appealed.
48. On 19 February 2020 the Wrocław Regional Court changed the first‑instance judgment, by additionally sentencing the first officer to a prohibition of working as a policeman for eight years, and a prohibition of working as policemen for six years for the remaining three officers. The appellate court also quashed the orders regarding compensation to the first and second applicants.
49. In its reasoning, the court incidentally observed that, although the defendants had not been indicted with the offence of manslaughter, there was no evidence that the abuse of power had a nexus with I.S.’s death.
50. The applicants were not entitled to file a cassation appeal in the case.
51. Such appeals were filed by the defendants’ lawyers and by the Commissioner for Human Rights (the latter, on 20 February 2021). The applicants filed their response to all the cassation appeals.
52. In his cassation appeal, the Commissioner for Human Rights argued that the proceedings had breached the procedural limb of Article 2 of the ECHR in that the trial court had erred (i) in rejecting the first and second applicants’ motion – presented in their appeal against the first-instance judgment – that a new expert report be obtained to determine the cause of I.S.’s death and whether or not there was a causal connection between the treatment to which the four officers had subjected I.S. to and his death; and (ii) in relying on the existing expert reports, considering them comprehensive, clear and unequivocal. In particular, the Commissioner argued that the expert opinions in question had made only general conclusions that excited delirium syndrome could be caused by drug use. They had not associated the use of specific drugs with that syndrome or concluded that I.S. had developed the syndrome. As to the latter, it was pointed out that the experts had not examined whether biochemical changes attributable in literature to excited delirium syndrome had occurred in I.S.’s brain. It followed that the trial court’s thesis that I.S. had suffered excited delirium syndrome as a result of his drug-intake, was groundless. The Commissioner also argued that the experts from the Łódź Medical University had not been asked by the trial court to comment on several specific findings of the cardiology expert that were not in line with their findings. The court had also erred in considering that the two expert reports were not contradictory on the key issues. The trial court, in reaching its conclusion that I.S. had died due to excited delirium caused by drugs, had disregarded the findings from the cardiology expert report, that “it could not be excluded that one of the main causes of cardiovascular arrest in the context of excited delirium was the use of restraining measures”, as well as that I.S.’s behaviour prior to or after his arrest had not pointed to any of the psychological symptoms of excited delirium (i.e. aggression or hallucinations). These findings of the expert in question were supported by comparative material and, in the Commissioner’s opinion, were left without explanation by the other experts. Overall, the Commissioner argued that the trial court’s examination of the evidence had been unjustifiably selective and erroneous. In the end, the public authorities had failed in their procedural obligation to offer an effective remedy capable of establishing whether the force used by the police had been justified and, if necessary, of punishing those who were responsible for I.S.’s death.
53. The applicants raised the following arguments in their reply to the cassation appeals lodged in the case. The trial court had erred in not qualifying the ill-treatment at the hands of the four defendants as torture. It had erred in only examining a single short sequence of the material events. The authorities should not have split the events into two sets of proceedings. The trial court had wrongly relied on an expert report drawn up by the experts of the Łódź Medical University which was not comprehensive, clear or unequivocal, and which did not address the key issues that had been raised in the report of the cardiology expert. Overall, the applicants fully supported the arguments made by the Commissioner for Human Rights in his cassation appeal.
54. The proceedings are currently pending before the Supreme Court (no. V KK 413/20).
Relevant domestic law55. Article 231 § 1 of the Criminal Code, which defines the offence of abuse of power, reads as follows:
“A public official who, exceeding his authority, or not performing his duty, acts to the detriment of a public or individual interest shall be liable to a custodial sentence of liberty for up to three years.”
56. Article 247 of the Criminal Code, which defines the offence of cruel treatment, reads as follows:
Ҥ 1 Whoever physically or mentally abuses a person legally deprived of liberty, shall be punished by imprisonment for a term of between 3 months and 5 years.
§ 2 If the perpetrator acts with particular cruelty, he shall be subject to the penalty of deprivation of liberty for a term of between one and 10 years.
§ 3 A public official who, contrary to his duty, allows the commission of the act specified in § 1 or 2, shall be subject to the penalty specified in these provisions.”
57. Article 155 of the Criminal Code, which defines the offence of manslaughter, reads as follows:
“Anyone who unintentionally causes the death of a human being shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.”
58. Art. 148 § 1 of the Criminal Code, which defines the offence of murder, reads as follows:
“Who kills a man, shall be punished by imprisonment for not less than 8 years, 25 years’ imprisonment or life imprisonment.”
59. Article 2 of the Code of Criminal Proceedings, in so far as relevant, as follows:
Ҥ 1 The purpose of this Code is to conduct criminal proceedings in a way which will ensure that:
(1) the perpetrator of an offence is detected and punished, and that no innocent person is punished,
(2) by the correct application of measures provided for by criminal law, and by the disclosure of the circumstances which favoured the commission of the offence, the objectives of criminal proceedings are completed not only to combat the particular offences, but also to prevent them, as well as to consolidate the rule of law and the principles of community life,
(3) the legally protected interests of the injured party are secured, and
(4) determination of the case is achieved within a reasonable time.”
COMPLAINTS
The applicants complain under the substantive limb of Articles 2 and 3 of the Convention that I.S. had died in police custody as a result of the use of excessive force, amounting to degrading treatment and torture, at the hands of police officers. They also complain under the procedural limb of Articles 2 and 3 of the Convention that the circumstances surrounding I.S.’s death and ill-treatment have not, until now, been fully and effectively investigated. The applicants complain, in particular, that the investigation should not have been split into various phases; that the investigation was not prompt, diligent or thorough; that the assessment of evidence by the courts at the ensuing trial was not thorough or accurate; and that the authorities have not addressed the issue of the responsibility of the police officers’ superiors for structural deficiencies of the system of police interventions ‑ especially in respect of the use of tasers.
QUESTIONS TO THE PARTIES
1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?
2. Has the first and second applicants’ son’s right to life, ensured by Article 2 of the Convention, been violated in the present case? In particular, did I.S.’s death result from a use of force which was absolutely necessary for the purposes of paragraph 2 of this Article?
3. Having regard to the procedural protection of the right to life (see Salman v. Turkey [GC], no. 21986/93, § 104, ECHR 2000-VII), was the investigation and the ensuing trial in the present case by the domestic authorities in breach of Article 2 of the Convention?
4. Has the first and second applicants’ son been subjected to ill‑treatment, in breach of Article 3 of the Convention in its substantive limb?
5. Having regard to the procedural protection from ill-treatment (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV), was the investigation and the ensuing trial in the present case by the domestic authorities in breach of Article 3 of the Convention?