Published on 2 September 2024
FOURTH SECTION
Application no. 16013/22
Mohamed Hashem WATAD
against Germany
lodged on 23 March 2022
communicated on 15 August 2024
SUBJECT MATTER OF THE CASE
The application mainly concerns the applicant’s alleged ill-treatment by police officers and the alleged shortcomings of the ensuing criminal investigation.
The applicant, born in 2000, is a Syrian citizen who fled to Germany as a minor and was placed in a housing project for unaccompanied minor refugees in Berlin where he shared a flat with three other persons.
On 9 May 2018 the police searched the flat. This measure was not directed against the applicant, but a fellow occupant who was suspected of robbery. The search warrant specified that only the suspect’s rooms were to be searched. On the basis of a prior information that the suspect was violent and possibly armed, police officers decided to arrest all people that would be present in the flat in order to verify their identity and carry out the search without any disturbance. Early in the morning, several police officers burst through the front door with a ram. Two officers entered the applicant’s room, pointed their guns at him and asked him to get out of his bed. When the applicant, who had just woken up in a state of panic and disorientation, did not comply, the officers grabbed him by his arms and legs and pulled him off the bed and onto the floor in order to handcuff him. In doing so, the glass door of a wardrobe opposite the applicant’s bed was shattered and pieces of broken glass fell onto the floor, causing several deep and long cuts to the applicant’s body. When the officers noticed that the applicant was bleeding profusely, they removed the handcuffs from him and called an ambulance. The applicant spent two days in hospital.
The applicant did not lodge a criminal complaint. On 22 May 2018, after a foundation in charge of the housing project had released in public a statement denouncing the police intervention as disproportionate, the police initiated criminal proceedings of their own motion against the two officers, in particular for bodily harm in the performance of official duties. During the investigation, the police questioned the occupants of the flat and the officers who were present during the search. On 13 December 2019 the Berlin Public Prosecutor’s Office discontinued the proceedings due to insufficient evidence to bring charges against the officers. On 23 April 2020 the Berlin Chief Public Prosecutor’s Office confirmed the decision. On 9 July 2020 the Berlin Higher Regional Court rejected the applicant’s request for a judicial decision. It held that the officers’ behaviour had been justified because they could not have been sure whether the applicant had been armed, they had intended to verify his identity and he had not cooperated with them. It dismissed as irrelevant the applicant’s arguments pointing to a certain inconsistency in the officers’ statements, in particular as to what had caused the glass door to break. On 14 September 2021 the Federal Constitutional Court declined to accept the applicant’s constitutional complaint for adjudication, without providing reasons (2 BvR 412/21).
The applicant complained under Article 3 of the Convention that the police officers’ behaviour amounted to a degrading treatment and that the domestic authorities had failed to conduct an effective investigation against the officers. He also claimed that the search warrant had not permitted the police to enter his room and that by doing so nevertheless, they had violated his right to respect for his home under Article 8 of the Convention.
QUESTIONS TO THE PARTIES
1. Has the applicant been subjected to degrading treatment, in breach of the substantive limb of Article 3 of the Convention?
In particular:
(a) Which was the legal basis for the measures taken against the applicant, in particular his arrest?
(b) Having regard to the principles established by the Court notably in its judgment of Bouyid v. Belgium [GC] (no. 23380/09, §§ 88 and 109, ECHR 2015), was the use of force against the applicant strictly necessary in the particular circumstances of the present case, taking into account the applicant’s age and vulnerability?
2. Did the domestic authorities carry out a prompt and effective investigation in compliance with the requirements of the procedural limb of Article 3 of the Convention? Having regard to the principles established by the Court (see Bouyid, cited above, §§ 116-23), did the authorities make a serious attempt to establish the facts and determine whether the force used against the applicant was justified in the circumstances? In particular:
(a) Did the domestic authorities sufficiently examine whether the police had planned the search with enough care and diligence? Did they examine whether the police had prior information which occupant was living in which room of the flat, whether the layout of the flat corresponded to the information which the police had received prior to the search, and at which point in time – before or during the intervention – the police decided to pre-emptively arrest all persons present in the flat?
(b) Would additional investigative measures, such as securing forensic evidence at the scene of the incident, have helped in establishing the facts?
(c) Did the domestic authorities sufficiently examine the alleged inconsistency and/or contradictions in all statements admitted in evidence?
3. Has there been a violation of the applicant’s right to respect for his home, contrary to Article 8 of the Convention?
In particular:
(a) Has there been an interference with the applicant’s right to respect for his home within the meaning of Article 8 of the Convention?
(b) Was the alleged interference compatible with Article 8 § 2 of the Convention? In particular, what was the legal basis for the police officers to enter and search the applicant’s room?
(c) After the police measures had been completed, did the applicant receive a document containing information about the legal basis and the content of these measures? If so, did this document contain instructions on available legal remedies?