Communicated on 5 September 2018
FOURTH SECTION
Application no. 32715/17
Petras ZNAKOVAS
against Lithuania
lodged on 21 April 2017
STATEMENT OF FACTS
1. The applicant, Mr Petras Znakovas, is a Lithuanian national, who was born in 1955 and lives in the Klaipėda Region.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Circumstances of the applicant’s arrest
3. On 9 September 2016, around 9.20 p.m., the applicant’s wife called the Gargždai police and stated that the applicant was using violence against her. Around 10 p.m., two police officers, R.N. and R.J., came to the applicant’s house.
4. According to the applicant, that night he and his wife had guests and drank some alcohol. After the guests had gone to bed, he and his wife had an argument but he did not use violence against her. The applicant then went to bed and his wife, possibly still angry about their argument, called the police and falsely accused him of domestic violence. The applicant was woken up by two police officers who did not introduce themselves to him and did not explain the reasons for their arrival. They told him to get dressed and go with them. The applicant took his mobile phone and wanted to record what was happening but officer R.N. grabbed the phone from him and threw it at the wall. The applicant was handcuffed and taken outside while wearing only underwear. He and his wife took alcohol tests which established 1.95‰ and 1.03‰ of alcohol respectively. The applicant’s wife was asked by the officers to give a statement which was video recorded. The applicant was put in the backseat of a police car. On the way to the police station he asked the officers to video record everything but they ignored his requests. After some time officer R.N. became enraged, stopped the car, got out and began to yell at the applicant to keep quiet; then he opened the back door of the car and used an electroshock device against the applicant three or four times, all the while yelling at him. Then R.N. told his colleague R.J. to drive, while he kept hold of the applicant and repeatedly threatened to use the electroshock device again if the applicant made any more requests. The applicant was taken to the police station and placed in a detention cell. He was given some clothes which his wife had given to the officers before he was seized. The following morning he was questioned. He was released from the police station on the morning of 11 September 2016.
5. In their official reports written in essentially identical wording and submitted on 9 September 2016, officers R.N. and R.J. stated that they had gone to the applicant’s house after receiving a call about domestic violence. When they arrived there, they were greeted by the applicant’s wife who stated that the applicant was acting aggressively, that he had slapped her in the face and had kicked her several times and that he had a gun at home. The officers found the applicant lying in bed, although his wife stated that just moments before he had been walking around the house. When the officers entered the bedroom, the applicant was hostile and began shouting at them. They introduced themselves and explained that his wife had called them because of his violent and inappropriate behaviour towards her. The room smelled of alcohol, the applicant was visibly drunk and his speech was slurred. The officers politely asked him to get out of bed but he began threatening them that “it would not end well” and called R.N. an offensive word. The applicant was ordered to get out of bed and get dressed but he refused. The officers explained to him that he would be taken to the police station in order to clarify the situation but he again refused and continued threatening them. Then R.N. took the applicant by the arm and ordered him to get out of bed but the applicant stiffened his hands, started swearing and told the officer not to touch him. Seeing that the applicant was not following his orders and was acting aggressively, R.N. handcuffed him while he was still in bed. He then led the applicant to a police car. The applicant was taken there in his underwear because he had refused to get dressed but the officers asked his wife to give them some of the applicant’s clothes. While in the car, the applicant kept acting aggressively and calling the officers offensive words. On the way to the police station, he suddenly attacked R.N., grabbed his jacket and pulled on it, and tried to grab the steering wheel, thereby creating a risk of a traffic accident. R.N. quickly stopped the car on the roadside and got out, ran around the car towards the backdoor and opened it. The applicant was shouting and tried to get out of the car and attack R.N. and for that reason an electroshock device was used against him. After that the applicant calmed down and was taken to the police station with no further difficulties. He did not complain of any health problems.
6. On 12 September 2016 the applicant was examined by a court medical expert who found contusions on both his arms and the right side of his chest, as well as skin bruises, resembling traces of electricity, on his chest and back. The expert considered that the injuries corresponded to negligible health impairment (nežymus sveikatos sutrikdymas).
7. Following the applicant’s wife’s allegations of domestic violence (see paragraph 3 above), a pre-trial investigation was opened against the applicant. However, it was discontinued on 12 September 2016 because the applicant’s wife withdrew her complaint.
2. Refusal to open a pre-trial investigation
8. On 14 October 2016 the applicant lodged a complaint to the Klaipėda prosecutor, asking to open a pre-trial investigation into officer R.N.’s actions and the physical force used against the applicant at his home and in the police car (see paragraph 4 above).
9. On 24 October 2016 the Klaipėda prosecutor, after conducting a preliminary inquiry, refused to open a pre-trial investigation against R.N. The prosecutor held that the applicant had acted aggressively towards the officer and had refused his lawful orders, so the use of physical force against him, including an electroshock device, had been lawful and justified. The fact that the applicant had suffered only negligible health impairment showed that the force had been proportionate.
10. The applicant lodged an appeal against the prosecutor’s decision. He submitted that the decision had not been based on a thorough assessment of the relevant facts – the prosecutor had not interviewed the applicant’s wife and the guests who had been at his house on the night of his arrest and instead had relied exclusively on the statements given by officers R.N. and R.J. The applicant also submitted that, as it appeared from R.N.’s statements given during the preliminary inquiry, R.J. had made a video recording of the applicant’s arrest at his home, but the prosecutor had not examined that recording and had not determined if the applicant had really insulted and threatened the officers. The applicant contended that the officers had had video cameras with them, so if he had been aggressive towards them at any point, they should have made a video recording as proof, but if they had not made such a recording, their oral statements should not be accepted as evidence. He further argued that it was very unlikely that he might have tried to attack two armed police officers while being handcuffed and almost naked in a police car in the middle of the night – however, the prosecutor had accepted the officers’ version of events without question.
11. In his subsequent additional submissions the applicant stated that R.N.’s and R.J.’s official reports had been almost identical, which raised doubts as to their credibility. He also submitted that the time indicated on his and his wife’s alcohol test results did not correspond to the time when those tests had been taken and thus they might have been falsified.
12. On 7 December 2016 the Klaipėda District Court dismissed the applicant’s appeal. The court stated that from the appeal it was not clear “what the applicant wanted, what criminal offence had been committed, why a pre-trial investigation should be opened, what procedural measures should be taken and with regard to what criminal activity [R.N.’s] actions should be investigated”. It stated that the appeal contained only the applicant’s “reflections based on his subjective assessment, conviction and speculations”, which did not constitute grounds for criminal liability. The court also considered that the applicant’s request to question his guests as witnesses was unfounded because he himself had previously stated that the guests had been asleep and had not seen anything.
13. The applicant lodged an appeal against the court’s decision, in which he complained that his wife and guests had not been questioned, that domestic violence had not been established and that he had sustained injuries because of R.N.’s actions.
14. The applicant’s wife submitted a written statement and a reply to the applicant’s appeal, in which she supported his version of events (see paragraph 4 above).
15. On 16 January 2017 the Klaipėda Regional Court dismissed the applicant’s complaint. The court firstly observed that it was not examining whether the applicant had used violence against his wife because that question was the subject of separate proceedings instituted following the applicant’s wife’s complaint. It then stated that, under domestic law, police officers had the right to use physical force against persons who refused to obey their lawful orders. The court observed that administrative proceedings had been opened against the applicant for insulting police officers and disobeying their lawful orders (see paragraphs 16-25 below). It therefore concluded that officer R.N. had acted lawfully.
That decision was final and not subject to any further appeal.
3. Administrative proceedings against the applicant
16. On 7 November 2016 a report of an administrative offence was drawn up against the applicant for insulting police officers and disobeying their lawful orders, under Article 187 §§ 1 and 2 of the Code of Administrative Offences.
17. The applicant submitted a written statement to the Klaipėda District Court, in which he contended that R.N.’s and R.J.’s official reports had been almost identical and that the time indicated on his and his wife’s alcohol test results did not correspond to the time when those tests had been taken.
18. During the hearing before the Klaipėda District Court the applicant repeated his version of events (see paragraph 4 above) and denied having threatened or insulted the officers.
19. When questioned at the hearing, officers R.N. and R.J. stated that when they had arrived at the applicant’s house on the night in question, they had been greeted by the applicant’s wife who had been agitated and whose cheek was red. When they went to the applicant’s bedroom, he was awake. R.N. explained to him several times why the officers were there but the applicant was hostile from the beginning, called them offensive words and refused to follow their lawful orders. Before handcuffing the applicant, R.N. had asked R.J. to make a video recording, but by the time R.J. started the recorder, R.N. had already handcuffed him. Outside, the officers took a statement from the applicant’s wife; she said that the applicant had been violent against her before but she had never called the police. They did not see any other people in the house. On the way to the police station, the applicant started pulling R.N.’s jacket and tried to grab the steering wheel, for which reason R.N. stopped the car and both he and R.J. got out. After using the electroshock device, R.N. remained in the back seat with the applicant and R.J. drove the car. There was no equipment for audio or video recording in the car.
20. When questioned at the hearing, the applicant’s wife stated that on the night in question she and the applicant had had an argument and had “shoved and punched” each other but he had not hit her in the face and there had not been bruises. She regretted having called the police. When the police officers arrived, the applicant was asleep, he did not understand what was happening and the officers did not introduce themselves to him. The applicant asked them to allow him to get dressed but they refused. R.N. was aggressive, while R.J. was not. Later the applicant told her that on the way to the police station R.N. became enraged and used an electroshock device against him.
21. The court examined a video recording showing the applicant’s wife on the night of 9 September 2016, made by the officers. In it she was visibly agitated and in tears, she stated that the applicant had slapped her in the face several times, had kicked her in the legs and stomach and that it had not been the first time. She stated that the applicant drank every day and that he could be even more aggressive.
22. The court also examined the video recording made by officer R.J. at the applicant’s home. In it the applicant was lying on the bed in his underwear and handcuffs. Officer R.N. told him that he would be taken to the police station half-naked and asked him to get out of bed voluntarily, but the applicant did not do so. Then R.N. took his hand and led him out of the room, while asking the applicant’s wife to put some clothes in a bag. After the applicant was taken out of the bedroom, he was heard asking R.N. to allow him to get dressed but R.N. refused and said that he had already asked the applicant to do that several times.
23. On 19 January 2017 the Klaipėda District Court held the applicant liable for the administrative offence of insulting police officers and disobeying their lawful orders. The court considered that officers R.N. and R.J. had given consistent and detailed testimony about the applicant’s aggressive behaviour and offensive words. It dismissed the applicant’s arguments that R.N. had acted aggressively towards him, pointing out that it had been refused to open a pre-trial investigation against R.N. (see paragraphs 8-15 above). The applicant was given a fine of 90 euros (EUR).
24. The applicant lodged an appeal against that decision in which he reiterated his previous arguments (see paragraph 17 above). In addition, he submitted that the video recording of him at his home had not shown him disobey or insult the officers, that his wife’s statement which had been video recorded on the night in question had been provoked by the officers who had asked her leading questions and that the court had unfairly dismissed his wife’s testimony in his favour given at the hearing.
25. On 28 February 2017 the Klaipėda Regional Court dismissed the applicant’s appeal. It considered that the lower court had correctly established the relevant factual circumstances and made well-founded conclusions. It stated that the video recording made at the applicant’s home had showed that he had refused the officers’ request to get dressed, had stayed in bed only in his underwear and had not provided any explanation about the conflict between him and his wife, which demonstrated his intention to insult the officers and refusal to obey their lawful orders. In the court’s view, the applicant’s inappropriate behaviour had been further proved by the fact that the officers had had to handcuff him and take him to the police station. It also held that the lawfulness of the measures which the officers had used against the applicant had been confirmed by the prosecutor’s and courts’ refusal to open a pre-trial investigation against R.N. (see paragraphs 8-15 above). The court dismissed the applicant’s submission that his wife had been provoked by the officers to give a statement against him. It considered that the video recording of the applicant’s wife showed her talking of her own free will and that the officers had not been giving her instructions what to say but had only been asking for certain clarifications. The court also noted that it was not examining whether the applicant had used violence against his wife because that question had been subject to separate proceedings. However, in the court’s view, the fact that the applicant’s wife had changed her testimony during the course of the administrative proceedings gave it grounds to consider her testimony in the applicant’s favour as unreliable.
That decision was final and not subject to any further appeal.
B. Relevant domestic law and practice
26. For relevant domestic law concerning the use of force by the police, see Gedrimas v. Lithuania (no. 21048/12, § 49, 12 July 2016).
COMPLAINTS
27. 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 3 and 6 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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