THIRD SECTION
DECISION
Application no. 49111/08
M.J.M. WIESMAN
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 4 November 2014 as a Chamber composed of:
Josep Casadevall, President,
Luis López Guerra,
Ján Šikuta,
Dragoljub Popović,
Kristina Pardalos,
Johannes Silvis,
Iulia Antoanella Motoc, judges,
and Stephen Phillips Section Registrar,
Having regard to the above application lodged on 10 October 2008,
Having regard to the declaration submitted by the respondent Government on 4 February 2014 and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant, Mr M.J.M. Wiesman, is a Dutch national, who was born in 1965 and lives in Groenlo. He was represented before the Court by Mr C.W.J. de Bont, a lawyer practising in Doetinchem.
2. The Dutch Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs.
3. The applicant’s complaint, which the Court interpreted as a complaint about a failure of the authorities of the respondent State to comply with the procedural requirements flowing from Article 3 of the Convention was communicated to the Government. The Court also communicated ex proprio motu the substantive issue of Article 3 to the Government.
4. The following summary of the facts of the case is based on the submissions of the applicant and on replies received from the respondent Government to factual questions put to them pursuant to Rule 49 § 3 (a) of the Rules of Court.
A. The circumstances surrounding the applicant’s arrest and subsequent events
5. In the evening of Thursday 7 July 2005 the applicant went out in Deventer. At some point in the evening he used cocaine.
6. On Friday 8 July 2005, at approximately 1.05 a.m., two specially uniformed police officers of the bicycle team of the IJsselland police force, Officers A and B, were notified by bystanders that the applicant might need assistance.
7. The police officers found the applicant walking in a confused state on the pavement next to a busy road. One of the police officers called a taxi for the applicant and was informed it would take 30 minutes for a taxi to arrive.
8. Meanwhile the applicant tried several times to walk from the pavement onto the road.
9. The police officers asked the applicant for his identity documents. As he was not able to provide identification and as the police officers considered that the applicant was possibly endangering himself and others, they told the applicant that he would be transferred to the police station. Upon this notice the applicant ran away, onto the road.
10. The applicant strenuously resisted arrest and had to be forced to the ground in order to be handcuffed. A second team of police officers arrived at the scene and took the applicant to the police station by car.
11. Before being taken into custody the applicant was checked by a doctor of the Municipal Health Service (Geestelijke Gezondheidsdienst, hereafter “GGD”), who happened to be present in the police station. The doctor decided that the applicant could be taken into custody. The applicant was locked into an observation cell.
12. About half an hour later the applicant started complaining of pain in his shoulder. The doctor of the GGD, still present in the police station, decided that he had to be taken to the accident and emergency department of a hospital.
13. The applicant was taken to the local hospital by two police officers, where he was treated for a dislocated shoulder. This treatment did not lead to the desired result and an X-ray photograph showed a fracture of the applicant’s left shoulder, which could only be remedied by surgery. In the hospital three blood samples were taken from the applicant for examination.
14. The applicant chose to have the surgery in another hospital and he was taken home by police.
15. On 19 July 2005 the applicant’s shoulder was replaced by shoulder prosthetics. This treatment led to a loss of functional capacity of the left shoulder.
B. Medical information
16. According to the referral note of 8 July 2005, the doctor of the accident and emergency department of the Deventer hospital established that the applicant had welts on his wrists, several scrapes on his arms and head, and that his left shoulder was broken.
17. In a letter of 1 May 2006, the surgeon treating the applicant stated that the applicant’s loss of capacity and pain was persistent. According to the surgeon the serious fracture might have come about in one of two ways: either as a result of the hold in which the applicant had been placed when he was arrested, or as a result of the failed attempt to relocate the applicant’s shoulder in the accident and emergency department.
C. The applicant’s complaints against the police officers
18. On 11 July 2005 the applicant lodged a criminal complaint against the police of aggravated assault causing bodily harm. The applicant claimed that the use of cocaine had made him anxious. He had asked for help, but instead he had been provoked by two police officers of a bicycle team. The applicant had got scared and wanted to flee. While trying to run away, one of the police officers had taken hold of him from behind and throttled him. As the applicant had been unable to breathe, he had put up strenuous resistance. One of the officers had told him to lie on the ground. The applicant had refused to do so and he had been forced to the ground. Meanwhile the officers had hit him several times. The applicant had subsequently been handcuffed and placed into the police car. One of the police officers had shouted at him to sit up straight and punched him in the face, on the head and on the left shoulder. The applicant had asked the police officers several times to loosen the handcuffs because of pain in his wrists, but they had not obliged. At the police station he had twice been checked over by a doctor. After the applicant had complained of pain in his shoulder, he had been taken to hospital.
19. On 29 May 2006 the public prosecutor wrote to the applicant informing him that he had decided on the basis of an investigation that had been carried out by the Intelligence and Security Department of the IJsselland police force not to bring a prosecution against police officers A and B. The applicant lodged a complaint with the Arnhem Court of Appeal on 4 August 2006 against the decision not to prosecute, pursuant to Article 12 of the Code of Criminal Procedure (Wetboek van Strafvordering).
20. After further investigations had been carried out, the Court of Appeal dismissed, on 15 April 2008, the applicant’s complaint against the public prosecutor’s decision not to prosecute police officers A and B, holding that there was insufficient evidence that the two police officers had assaulted the applicant.
COMPLAINT
21. The applicant complained that the State authorities had failed to conduct an effective investigation into his allegations of having been ill-treated by police officers. He argued that this breached his right to respect for his private life as guaranteed by Article 8 of the Convention.
THE LAW
A. The procedural aspect of Article 3 of the Convention
22. Invoking Article 8 of the Convention, the applicant complained that the investigation into the ill-treatment reported by him had been ineffective. The Court considered it more appropriate to examine this complaint as one involving an allegation of a failure by the respondent State to meet the procedural requirements resulting from Article 3.
23. After the failure of attempts to reach a friendly settlement, the Government informed the Court by a letter of 4 February 2014 that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application.
The declaration provided as follows:
“Although the applicant alleges violations of Articles 6 and 8 of the Convention, the Court’s questions set out in the statement of facts ... indicate that the Court considers the present application to be based on Article 3 of the Convention.
On that understanding, the Government, by way of unilateral declaration, hereby acknowledge that the investigations into the complaint lodged by the applicant following his arrest and detention on 7 and 8 July 2005 did not meet the requirement of an effective investigation implied in Article 3 of the Convention.
The Government sincerely regret this course of events and are willing to offer the applicant just satisfaction to the amount of 10,000 Euros (EUR) and reimbursement of any costs made in relation to the proceedings before the Court, provided they are specified, reasonable and necessarily incurred.
The Government note that the above statement does not pertain to any alleged material violation of Article 3. In that respect, the Government refer to the contents of the case file which is in the Court’s possession, including the Court’s statement of facts.”
24. By a letter of 2 April 2014, the applicant indicated that he was not satisfied with the terms of the unilateral declaration on the ground that the just satisfaction offered was not proportional to the circumstances of the case – given that the applicant was in good health when he had been arrested and that he showed serious and permanent injury when he had been released –, nor to the actual damage suffered by him, which consisted of medical expenses (EUR 895.20), loss of earning capacity (EUR 262,016) and immaterial damage (EUR 30,000).
25. The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
26. It also recalls that in certain circumstances, it may strike out an application or part thereof under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
27. To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI).
28. The Court notes that in his application the applicant did not complain of the ill-treatment allegedly meted out to him by agents of the State but only of the lack of an effective investigation into those allegations. The Court has established in a number of cases its practice concerning complaints about the violation of the procedural obligation to conduct a thorough and effective investigation into an applicant’s allegation of having been subjected to treatment in breach of Article 3 (see, for example, Assenov and Others v. Bulgaria, no. 24760/94, § 102, Reports of Judgments and Decisions 1998-VIII; El‑Masri v. “The Former Yugoslav Republic of Macedonia” [GC], no. 39630/09, §§ 182-185, ECHR 2012; and Husayn (Abu Zubaydah) v. Poland [GC], no. 7511/13, §§ 479-480, 24 July 2014).
29. Having regard to the nature of the admission contained in the Government’s declaration, as well as the amount of compensation proposed the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1(c)).
30. Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this complaint (Article 37 § 1 in fine).
31. The Court further considers that the amount offered by the Government in the unilateral declaration should be paid within three months from the date of notification of the Court’s decision issued in accordance with Article 37 § 1 of the European Convention on Human Rights. In the event of failure to settle within this period, simple interest shall be payable on the amount in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.
32. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, this part of the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
33. Accordingly, the complaint covered by the Government’s unilateral declaration should be struck out of the list.
B. The substantive aspect of Article 3 of the Convention
34. When it communicated part of the application to the Government, the Court ex proprio motu also requested them to reply to the question whether the applicant had been subjected to treatment in breach of Article 3, which provision reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
35. As set out in their unilateral declaration, the Government refer, in relation to this issue, to the case file in the Court’s possession.
36. Having regard to all the evidence in its possession, from which it inter alia appears that it cannot be excluded that the injuries to the applicant’s shoulder were actually caused by the attempt to relocate his shoulder (see paragraph 17 above), the Court considers there is an insufficient basis for an arguable claim that the applicant was subjected to ill-treatment by one or more police officers. It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
C. Costs and expenses
37. When it strikes out an application, or part of an application, the Court may award legal costs (Rule 43 § 4 of the Rules of Court). In this respect it notes that the Government have indicated in their unilateral declaration that they are prepared to reimburse costs made by the applicant in relation to the present proceedings (see paragraph 23 above).
38. The applicant, who had been provided with State-sponsored legal aid (toevoeging) pursuant to which he was to pay a mandatory personal contribution (eigen bijdrage) of EUR 47 to his representative, submitted that in the event that he were granted compensation to an amount of EUR 10,000 or more in the present proceedings, he would no longer qualify for that legal aid and would have to pay his lawyer’s fees amounting to EUR 7,558.20. In addition, he had also incurred costs which were not covered by State-sponsored legal aid: a general practitioner had charged him EUR 45.51 for supplying his medical records; he expected to have to pay a similar amount to another physician who had not yet invoiced him; and the translation into English of his reply to the Government’s unilateral declaration had cost EUR 943.80.
39. In a letter of 10 June 2014 the Government submitted that the legal aid assigned to the applicant in the present case might only be retroactively revoked if he, as a result of the present proceedings, had a claim relating to a sum of money amounting to at least 50% of the capital yield tax allowance (heffingsvrij vermogen), which allowance had been set at EUR 21,139 in 2014. The just satisfaction being offered by the Government being less than 50% of that allowance, the applicant’s contention that he would no longer be eligible for State-sponsored legal aid was therefore incorrect. The Government added that any reimbursement which the applicant might receive for costs incurred for an expert or translation services would not be included in the assessment of whether he had a pecuniary claim of at least 50% of the aforementioned allowance.
40. Having regard to the above, the Court can see no reason to find that the applicant would be liable to pay more than the mandatory personal contribution towards his lawyer’s fees. Noting furthermore that costs for an expert or translation services are not eligible for reimbursement pursuant to the domestic legal aid scheme and that no invoice has been submitted in respect of one of the medical records obtained from a physician, the Court considers it reasonable to award the applicant a total amount of EUR 1,036.31 as regards costs incurred by the applicant for the mandatory personal contribution and for the services of an expert and a translator.
41. This amount should be paid within three months from the date of notification of the Court’s decision issued in accordance with Article 37 § 1 of the European Convention on Human Rights. In the event of failure to settle within this period, simple interest shall be payable on the amount in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.
For these reasons, the Court, unanimously,
Takes note of the terms of the respondent Government’s declaration relating to the procedural limb of Article 3 of the Convention and of the modalities for ensuring compliance with the undertakings referred to in that declaration;
Decides to strike this part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible;
Holds
(a) that the respondent State is to pay to the applicant, within three months, in addition to the sum contained in the unilateral declaration submitted by the Government on 4 February 2014, EUR 1,036.31 (one thousand and thirty-six euros and thirty-one cents) for costs and expenses incurred in the proceedings before the Court;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the overall amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Stephen PhillipsJosep Casadevall
RegistrarPresident
Full & Egal Universal Law Academy