Communicated on 5 September 2018
FOURTH SECTION
Application no. 74305/17
Augustinas ŽEMAITIS
against Lithuania
lodged on 13 October 2017
STATEMENT OF FACTS
1. The applicant, Mr Augustinas Žemaitis, is a Lithuanian national, who was born in 1994 and lives in Vilnius.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On the night of 30 June 2014, the Vilnius police received a call that a suspected drink-driver was on the streets of one of the city’s residential neighbourhoods. Several police cars were sent to that area. When the police spotted the suspected car, it stopped and several young men ran away. Police officers began searching the neighbourhood for the men.
4. That same night, at about 1.30 a.m., the applicant was walking home from a friend’s house in that neighbourhood. He was arrested in relation to the suspected drink-driving offence.
5. According to the applicant’s subsequent testimony (see paragraphs 14-17 below), he heard someone running after him and yelling “stop”, he got scared and started running, until he saw that he was being chased by a police officer. The applicant then stopped and raised his hands in the air but the officer hit him several times, handcuffed him and deliberately broke his glasses.
6. According to statements subsequently given by police officers (see paragraphs 20-22 and 24-27 below), the applicant disobeyed their orders to stop and resisted arrest, as a result of which physical force had to be used against him.
7. The applicant was taken to a police station where he took an alcohol test which showed that he was sober. He was released from the police station later that night.
8. The following day the applicant went to the hospital because of pain in the chest area. He underwent an X-ray scan but no broken ribs were detected.
9. Two days later the applicant was examined by a court medical expert who found bruises on his left ear and cheek, multiple scrapes on his forearms, hands and wrists, and bruises on the right side of his chest. The expert stated that the injuries had likely been made with a hard blunt object and that they corresponded to negligible health impairment (nežymus sveikatos sutrikdymas).
10. On an unspecified later date the applicant was examined by another court medical expert, who identified the same injuries and agreed with their classification as negligible health impairment. The expert stated that the applicant had suffered at least twenty-two blows (ne mažiau nei dvidešimt du trauminiai poveikiai). According to the expert, the bruise on the applicant’s left ear was likely caused by a punch with a fist, the bruises on his left cheek and left palm were likely caused by falling down on hard ground, the bruises on his cheek and chest were likely caused by being hit with a hand or pressed with fingers, and the scrapes on his wrists and forearms were likely to be caused by handcuffing and fingernail scratches.
11. On 9 July 2014 a pre-trial investigation was opened into the applicant’s allegations of ill-treatment at the hands of the police.
12. At around the same time administrative proceedings were opened against the applicant for disobeying police officers’ lawful orders. It was alleged that on the night of 30 June 2014 the applicant had tried to run away from officers and had not obeyed their orders to stop. The applicant submitted that he had not recognised the police officer and that he had run because he had thought that he was being chased by an attacker. It appears that in those proceedings officer A.U., who had chased the applicant, admitted that he had initially yelled “stop” and not “stop, police”. On 2 October 2014 the administrative proceedings were discontinued on the grounds that the applicant had not acted deliberately in defiance to the officer’s orders.
13. On an unspecified date A.U. was charged with abuse of office under Article 228 § 1 of the Criminal Code and the case was transferred to the Vilnius District Court for examination on the merits.
1. The applicant’s statements in criminal proceedings
14. When interviewed on 7 July 2014, the applicant stated that on the night of 30 June 2014 he had watched a football match with his friend, D.D., at her home. He left from there at around 1.30 a.m. and began walking home, which was nearby. The applicant stated that he was short-sighted and had astigmatism, as a result of which he often found it difficult to orient himself at night. On his way home, he heard the sound of a car engine and felt unsafe. Then he saw a man in the street and began to walk faster – there were no other people around and he was scared that he might be attacked. He did not see any other movement or cars on the street. Soon afterwards he heard a man running after him and yelling at him to stop. He did not hear the man say that he was a police officer. It was dark, the only light was coming from streetlights and he did not see the man or what he was wearing. He was scared and ran towards a well-lit part of the street. When he got there, he turned around and saw that he was being chased by a police officer and he therefore stopped and raised his hands in the air. The officer told him to lie on the ground and then took his left arm and twisted it, pushing the applicant towards the ground, so the applicant lay down himself and did not resist because he did not want to fall down. His right hand accidentally stayed under his stomach but the applicant did not intend to resist. While he was lying down, the officer hit him several times in the left side of his face and the right side of his chest. The officer kept asking him why he had been running and the applicant replied that he had been scared, that he had not realised that he was being chased by the police and had mistaken the officer for an attacker or a robber. The officer then hit him a few more times. Then another police officer came. The applicant was handcuffed and told to stand up. After standing up, the applicant realised that he had lost his glasses. He asked the officers to find them, explaining that his eyesight was poor. The officers shone on the ground with a torch and searched for the glasses, but when they found them, the officer who had previously hit him deliberately stepped on them and broke them. The applicant was then taken to a police car and more police officers were present there. They asked him who had hit him and the applicant responded that it had been the officer who had been holding him. That officer then turned to the applicant and, in a menacing tone, asked “who hit you?”. The applicant got scared and said that he had fallen down on the grass. He was put into a police car where another suspect was present. The officer who had hit him asked the other suspect if he knew the applicant, and when the suspect responded in the negative, the officer hit him in the head. The applicant was then taken to another car and to a police station. At the police station nobody asked about his bruises. At around 3.30 a.m. that night his father came to pick him up from the police station. On their way home, they stopped at the location of the applicant’s arrest to look for his glasses and found that they were completely broken.
15. On an unspecified date the applicant was taken to the location of his arrest and demonstrated how the events had unfolded.
16. On 13 October 2014 the applicant was presented with a line-up and recognised A.U. as the officer who had arrested and allegedly assaulted him.
17. When interviewed on 13 October 2014, the applicant gave essentially the same testimony as before.
18. On 12 February 2015 the applicant provided a receipt of 196 euros (EUR) for his glasses.
19. On an unspecified date the applicant provided photographs of the bruises on his body and of the broken glasses.
2. A.U.’s statements
20. In his official report written on 1 July 2014, A.U. stated that, after arresting several men suspected of drink-driving, he and his colleague, M.B., had kept looking for other suspects. A.U. saw a young man (the applicant) who, after seeing him, started running and did not react to A.U.’s commands to stop – A.U. had yelled “stop, police”. The applicant stopped only after realising that he would not manage to escape. A.U. caught up with him, told him to lie down, then a police car arrived and the applicant was handcuffed and taken to a police station.
21. When questioned in the course of the pre-trial investigation, A.U. stated that on the night of 30 June 2014 he and his colleagues had been searching for the men who had been suspected of drink-driving. A.U. firstly apprehended two men who had been hiding in the bushes. After that he saw the applicant and yelled “stop” but the applicant started running. A.U. ran after him and yelled “stop, police” several times. After about 100 metres, A.U. caught up with the applicant and tried to knock him down but the latter pushed him. Then another officer, M.B., approached and they tried to knock the applicant on the ground together. When the applicant fell down, he hid his head and hands under his body and pressed himself against the ground. The officers tried to pull his hands from under his body. Then A.U. saw another suspect and ran after him, leaving M.B. with the applicant. A.U. did not see how the applicant’s arrest had been completed or how he had been taken to the police car because that had been done by M.B. Nor did he see the applicant’s glasses or know if they had been broken.
22. When questioned at the hearing before the Vilnius District Court, A.U. stated that after seeing the applicant he had yelled “stop, police” several times but the applicant had started running. When A.U. caught up with the applicant, the latter had not stopped running and had not turned his face towards the officer. A.U. grabbed the applicant by the arm and twisted it, kicked his leg and knocked him down, with his face to the ground. While the applicant was lying down, A.U. put one of his hands in handcuffs and the applicant kept his other hand under his stomach. Then M.B. came and helped to pull the applicant’s other hand and put handcuffs on it. Afterwards A.U. saw another suspect and ran after him.
3. Witness and expert testimonies
23. The applicant’s friend, D.D., and his father, Č.Ž., both testified that they had seen bruises on the applicant’s face and body after the night of 30 June 2014 and that the applicant had told them that he had been knocked down and beaten up by a police officer. The applicant’s father also testified that after he had taken his son from the police station that night, they had gone to the place of his arrest and found the broken glasses there.
24. Police officer M.B., in his official report written on 1 July 2014, stated that on the night in question he and his colleagues had been looking for men who had been suspected of drink-driving. When he was chasing them, he heard A.U. shout “stop, police” and saw the applicant running from A.U. He saw how A.U. had caught up with the applicant, how the latter had tried to avoid being apprehended and tried to push A.U. and run away. Then M.B. approached them and, using combat wrestling methods, knocked the applicant to the ground. The applicant fell on his stomach, hid his hands under his body and did not obey the order to pull them out. The officers pulled his hands by force, twisted them and handcuffed the applicant. He was then led to a police car and M.B. and A.U. continued looking for other suspects.
25. On 31 July 2014 M.B. provided a clarification that the applicant, while running from A.U., had looked back several times but had not stopped. When A.U. caught the applicant, A.U. and M.B. knocked him down together. After handcuffing the applicant, M.B. led him to a police car and A.U. continued looking for other suspects.
26. When interviewed on 12 November 2014, M.B. stated that when he approached A.U. and the applicant, A.U. had already knocked the applicant to the ground. M.B. did not see how this was done but the applicant was lying with his face to the ground. The applicant’s hands were under his stomach, the officers ordered him several times to pull them out but he did not obey. The officers kept the applicant pressed to the ground with their knees and pulled out his hands from under his body. They handcuffed the applicant together. Then A.U. noticed another possible suspect and ran after him, whereas M.B. stayed with the applicant and led him to a police car. M.B. did not see if the applicant was wearing glasses.
27. When interviewed on 23 March 2015, M.B. essentially repeated his testimony of 12 November 2014, but claimed that in his initial official report he had mistakenly stated that he had knocked the applicant to the ground – M.B. now claimed that he had only helped A.U. arrest the applicant, who had already been lying down.
28. Police officer P.L. testified that he had taken the applicant and another arrested suspect to the police station. P.L. did not remember if the applicant had been handcuffed and he had not noticed any injuries on his face. As far as P.L. could remember, none of the suspects arrested that night complained of having been beaten up.
29. Witness Š.M. testified that on the night of 30 June 2014 he had been in a car with I.J. and A.S. They caused a traffic accident and tried to run away but were soon caught by the police. Š.M. was already under arrest when he saw officers apprehend the applicant, whom he did not know. He saw how the officer had thrown the applicant over (permetė per save) and twisted his arm. Š.M. did not see the entire arrest and could not tell what exactly the officer’s actions had been. He told the officers that the applicant had not been with them. At the police station the applicant said that the officers had broken his glasses. Š.M. saw traces of injuries and redness on the applicant’s face.
30. Witness I.J. testified that on the night of 30 June 2014 he had been in the car with Š.M. and A.S. He was arrested and taken to a police minivan. While he was there, an officer brought in the applicant, whom I.J. did not know. I.J. told that officer that the applicant had not been in the car with them, following which the officer slapped I.J. The officer then asked the applicant why he had tried to run away. The applicant said that he had been scared and the officer punched him in the chest. Then the applicant was taken to a different police car.
31. Court medical expert J.G.-D., who had previously examined the applicant, stated that, taking into account the circumstances of his arrest, the applicant could have seen the face of the police officer who had arrested him because that officer had come close to the applicant and the arrest had taken place on a well-lit part of the street. According to the expert, in such circumstances it was immaterial that the applicant was short-sighted and had astigmatism, nor did it matter whether he was wearing his glasses at that moment. However, in the expert’s opinion, if the applicant was lying down with his face to the ground, it would have been difficult for him to see the officer or officers who were beating him.
4. Decision of the Vilnius District Court
32. On 27 April 2016 the Vilnius District Court found A.U. guilty of abuse of office under Article 228 § 1 of the Criminal Code.
33. The court held that A.U.’s statements about the circumstances of the applicant’s arrest had been inconsistent and contradictory. In particular, in his initial official report he did not mention any resistance on the part of the applicant and stated that the applicant had stopped running after realising that he would not manage to escape (see paragraph 20 above). However, when questioned during the pre-trial investigation, A.U. stated that he had caught the applicant and grabbed him by the arm, the applicant had tried to push him and A.U. had knocked him down together with M.B. (see paragraph 21 above). Meanwhile when questioned at trial, A.U. stated that he had knocked the applicant down by twisting his arm and kicking his leg (see paragraph 22 above).
34. The court also considered as unreliable M.B.’s testimony that he had helped A.U. arrest the applicant who had resisted them (see paragraphs 24‑27 above), because that testimony did not correspond to A.U.’s official report or his subsequent statements.
35. The court observed that the applicant had testified both during the pre-trial investigation and at trial that he had seen and memorised the face of the officer who had arrested him and he had recognised A.U. The court considered the applicant’s testimony to be credible. It also took into account the testimonies by the applicant’s friend, D.D., and his father, Č.Ž, that he had not been injured before the arrest (see paragraph 23 above). Furthermore, in the court’s view, the applicant’s statement that he had stopped running after he had seen that he had been chased by a police officer was confirmed by A.U.’s official report, in which the latter had written that the applicant had stopped after realising that he would not manage to escape (see paragraph 20 above).
36. The court concluded that A.U.’s actions – knocking the applicant down to the ground and handcuffing him – had been excessive and unnecessary because the applicant had stopped and had not actively resisted. There were thus no lawful grounds to arrest him in such a way.
37. A.U. was given a fine of EUR 3,766. The applicant was awarded EUR 196 in respect of pecuniary damage for his broken glasses and EUR 5,000 in respect of non-pecuniary damage.
5. Decision of the Vilnius Regional Court
38. A.U. lodged an appeal and on 26 September 2016 the Vilnius Regional Court overturned the lower court’s decision, acquitted A.U. and left the applicant’s civil claim unexamined.
39. The court considered that the police officers, who on the night in question had been searching for several men suspected of drink-driving, had had the right to stop the applicant who had been in that neighbourhood and had matched the description of a suspect. As the applicant disobeyed the officers’ lawful orders, physical force had to be used against him, which might have resulted in negligible health impairment. The court found no evidence that A.U. or any other officers had intended to cause harm to the applicant.
40. The court noted that the reports of court medical experts on the injuries sustained by the applicant (see paragraphs 9 and 10 above) had not denied the possibility that those injuries might have resulted from the struggle during his arrest and had been caused by the combat wrestling methods used against him, such as knocking him down, pressing him against the ground with knees and handcuffing. The court stated that there was “no indisputable evidence that the applicant had been beaten up for no reason”. It also observed that A.U. had not used physical force against other suspects who had not resisted (A.S. and Š.M.).
41. In the Vilnius Regional Court’s view, the lower court’s decision had been based exclusively on the applicant’s statements. However, the applicant’s version of events was refuted by the testimonies of all the police officers who had been present during his arrest and there were no grounds not to believe them. The court considered that the applicant’s testimony also contradicted the testimony of witness I.J. – in particular, according to I.J., the applicant had not mentioned that a police officer had hit him in the chest while he had been in a police car (see paragraph 30 above). The court further observed that when questioned during the appellate-instance proceedings, the applicant had refused to answer questions, claimed that he could not provide any more details or explanation and merely stated that he stood by his previous statements. In addition, neither the applicant nor his lawyer had been able to answer A.U.’s lawyer’s questions concerning the applicant’s earlier allegations that the police had applied undue pressure on him during the investigation.
42. The Vilnius Regional Court further stated that the lower court had incorrectly referred to A.U.’s official report describing the arrest of another suspect, Š.M. and had erroneously considered that report as describing the applicant’s arrest. Furthermore, the lower court had erred when assessing Š.M.’s testimony (see paragraph 29 above) – according to the Vilnius Regional Court, Š.M. could not have witnessed the applicant’s arrest from a police car because he had in fact been arrested after the applicant. It observed that Š.M. had not been questioned at trial because he had fled.
43. The Vilnius Regional Court also held that the lower court had not examined the circumstances of the breaking of the applicant’s glasses. It noted that the glasses could have broken when the applicant had fallen down and that their breaking could have been the cause of the bruises on the applicant’s face and ear. Nor could it be excluded that the applicant himself might have stepped on the glasses. The court noted that the applicant’s broken glasses had not been obtained and examined during the pre-trial investigation and the applicant had only provided a photograph of the glasses a week after the investigation was opened.
44. Furthermore, the court criticised the line-up during which the applicant had recognised A.U. (see paragraph 16 above) – it noted that of all the officers who had been present on the night of the applicant’s arrest, A.U. was the only one who had been part of the line-up. The court observed that the applicant had admitted that he could not have recognised any of the other officers who had been present that night. It also referred to the testimony of the court medical expert that the applicant, while lying down with his face to the ground, would have had difficulties to see who had been beating him (see paragraph 31 above).
45. The court lastly stated:
“The chamber takes a critical view of [the applicant’s] statement that after this event he no longer trusts police officers and is afraid to go outside in the dark, because the factual circumstances of the case, supported by his own testimony, demonstrate that even before the event in question [the applicant] was affected by phobias, as a result of which he did not assess the situation appropriately. That is confirmed by his actions during the incident and during the pre-trial investigation – after hearing some unknown noise, he got scared and began walking faster; after hearing someone running after him, he started running and was afraid to turn around; he did not see a police officer wearing a light-reflecting uniform in a well-lit place and did not hear his repeated lawful order “stop, police”; when being arrested, he tussled and resisted being handcuffed. Later he was scared to testify in the administrative proceedings and instead asked to rely on his testimony given in the pre-trial investigation; and during the pre-trial investigation he was scared to participate in a confrontation with the officer [A.U.]. It must be highlighted that, in the light of his age and education, [the applicant] should have understood that he was being ordered to stop by a police officer ... The chamber dismisses as unfounded [the applicant’s] lawyer’s arguments that [A.U.] did not shout “stop, police” because they are refuted by the case-file material.
It must be underlined that the first-instance court did not assess the fact that immediately after [the applicant’s] arrest, administrative proceedings were opened against him [for disobeying police officers’ lawful orders], and that only after that, at [the applicant’s] request, a pre-trial investigation was opened concerning his allegations that a police officer ... had beaten him up and had broken his glasses. Following [the applicant’s] requests and complaints, internal inquiries and pre-trial investigations were unfoundedly opened concerning possible undue pressure against him; there were requests to remove the officers who had opened the administrative proceedings against [the applicant], doubts were raised as to their impartiality, another pre-trial investigation was opened concerning falsification of documents and [A.U.’s] alleged attempts to influence other officers, there were complaints about the length of the investigation, etc. It must be noted that all those complaints and requests were dismissed as unfounded. In these actions of [the applicant] the chamber sees the intention to turn the investigation into a direction favourable to him and thereby avoid administrative liability. That is also confirmed by the unfounded arguments in [the applicant’s] appeal that [A.U.] unlawfully tried to stifle the investigation, procrastinated it, warned [the applicant] that he would find it difficult to go against the system, that [A.U.’s] lawyer, irrespective of the court’s decision, would take care of everything ... and he would be acquitted.
...
In the chamber’s view, there are grounds to reopen the administrative proceedings against [the applicant] for [disobeying police officers’ lawful orders] because they were discontinued on the sole ground that the applicant had been arrested by mistake; however, that does not absolve him of liability for disobeying officers’ lawful orders. It is further underlined that the officer who discontinued the administrative proceedings relying exclusively on [the applicant’s] statements made an unfounded conclusion that [the applicant] had not deliberately tried to avoid being arrested ... Reasons for disobeying a police officer’s lawful orders – such as intoxication from alcohol or drugs, fear, hostility or mistrust towards the officer, or confidence in one’s own righteousness – does not affect the legal qualification of the actions but can only be taken into account when determining the penalty.
...
The chamber will not examine whether [the applicant], when claiming that [A.U.] had beaten him up and broken his glasses, acted deliberately in order to avoid administrative liability, or was motivated by personal hostility towards the officer who had arrested him, or made an honest error. Those questions have to be answered in the course of a pre-trial investigation.”
6. Decision of the Supreme Court
46. The applicant lodged an appeal on points of law. He submitted that the Vilnius Regional Court had not examined whether the physical force used against him had been proportionate and necessary in the circumstances. He argued that even though he had been running, he had subsequently stopped, had not resisted and had not posed any danger to A.U. or anyone else, and thus it had not been necessary for well-trained police officers to resort to physical force of such extent – twenty-two blows to various body parts (see paragraph 10 above) – in order to apprehend him.
47. The applicant also submitted that the Vilnius Regional Court had made “unethical” statements concerning his personality, had described him as vengeful and riddled with phobias and had interpreted his lawful use of his procedural rights as “willingness to turn the investigation into a direction favourable to him”. He further complained that the court had overstepped its authority and had challenged decisions adopted in different proceedings (the administrative proceedings against him) and that it had essentially declared the applicant guilty of an administrative offence, despite the fact that those proceedings had been discontinued by a final decision. The applicant submitted that that demonstrated that the Vilnius Regional Court had not been impartial.
48. On 3 May 2017 the Supreme Court dismissed the applicant’s appeal on points of law and upheld the Vilnius Regional Court’s decision in its entirety.
49. The Supreme Court held that the appellate-instance court had determined all the relevant facts of the case and had correctly refused to rely on the applicant’s version of events. The Supreme Court acknowledged that a person who had been in a stressful situation could not be expected to give very precise testimony and that during subsequent interviews the testimony might slightly differ because the victim or witness might remember new details. It nonetheless considered that the applicant’s statements had been inconsistent with regard to certain important details, such as how many officers had arrested him, to which body parts he had been hit, which officer had looked for his glasses and had broken them and which officer had led him to a police car. In the Supreme Court’s view, the appellate-instance court had correctly concluded that the applicant’s statements could not have refuted the other testimony available in the case.
50. The Supreme Court stated that, under domestic law, A.U. and other officers had had the right to arrest the applicant and that the reasons for which the applicant had been running away (fear and not understanding that he was being chased by a police officer) were immaterial for the lawfulness of his arrest. It held that the applicant’s argument that the use of physical force against him had been unnecessary and disproportionate because he had stopped and had not resisted was not supported by the case-file material. It also stated that the appellate-instance court had carried out a comprehensive analysis of all the witness testimonies and had reached a well-founded conclusion that A.U.’s actions when arresting the applicant –chasing him, yelling at him to stop and knocking him down to the ground after he had not stopped – had been necessary in the circumstances.
51. The court further observed that of the twenty-two blows sustained by the applicant, seventeen had been caused by handcuffing, two had been caused by falling down and three appeared to have been caused by hitting with a hand or fist, or by pressing with fingers (see paragraph 10 above). It upheld the appellate-instance court’s conclusion that the court medical expert’s findings had not denied the possibility that those injuries might have resulted from the struggle and the combat wrestling methods used during the applicant’s arrest. The Supreme Court underlined that there was no undisputable evidence that the injuries had been caused by hitting the applicant and not by arresting and handcuffing him. It also pointed out that the applicant had the right to lodge a civil claim concerning any damage caused to him by police officers.
52. When addressing the applicant’s arguments concerning the appellate court’s impartiality, the Supreme Court stated that the applicant’s behaviour before, during and after his arrest was relevant for the assessment of the necessity and proportionality of the physical force used against him and thus the appellate court’s references to the applicant’s behaviour had been justified and did not imply partiality. The Supreme Court further held that the appellate court had referred to the administrative proceedings against the applicant only insofar as the findings made in those proceedings had been relevant to the criminal case. It underlined that that court had not declared the applicant guilty but had only expressed an opinion that there were grounds to reopen those proceedings.
B. Relevant domestic law and practice
53. For relevant domestic law concerning the use of force by the police, see Gedrimas v. Lithuania (no. 21048/12, § 49, 12 July 2016).
COMPLAINTS
54. The applicant complains that he was ill-treated by the police and that the domestic authorities’ investigation into his allegations of ill-treatment was not effective. He invokes Articles 1, 3, 6, 13 and 17 of the Convention.
QUESTIONS TO THE PARTIES
1. Was the applicant subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention, at the hands of police officers (see Bouyid v. Belgium [GC], no. 23380/09, §§ 81-90, ECHR 2015, and Yusiv v. Lithuania, no. 55894/13, §§ 57-62, 4 October 2016)?
2. Was the domestic authorities’ investigation into the applicant’s allegations of ill-treatment in line with the State’s procedural obligations under Article 3 of the Convention (see Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, §§ 316-26, ECHR 2014 (extracts), and Gedrimas v. Lithuania, no. 21048/12, §§ 82-84, 12 July 2016)?
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