FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 29461/95 
by D. D. 
against Poland

The European Court of Human Rights (Fourth Section), sitting on 5 October 2000 and 30 November 2000 as a Chamber composed of

Mr G. Ress, President
 Mr A. Pastor Ridruejo
 Mr L. Caflisch
 Mr J. Makarczyk
 Mr V. Butkevych
 Mr J. Hedigan
 Mrs S. Botoucharova, judges,

and Mr V. Berger, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 2 July 1995 and registered on 5 December 1995,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the parties’ oral submissions at the hearing on 19 October 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Polish national, a teacher born in 1957 and living in Bielsko-Biała. She is represented before the Court by Mr W. Hermeliński, a lawyer practising in Warsaw, Poland.

The respondent Government are represented by Mr K. Drzewicki of the Ministry of Foreign Affairs, Agent.

At the oral hearing on 19 October 1999 the parties were represented by:

(a) the Government

Mr K. Drzewicki, Agent,

Mr K. Karpiński, Counsel,

Mrs B. Drzewicka,

Mr A. Kaliński,

Mrs M. Wąsek-Wiaderek,

Mrs R. Kowalska, Advisers;

(b) the applicant

Mr W. Hermeliński, Counsel

A.  Particular circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant and her brother are co-owners of a house. The applicant lives on the first floor and her brother on the ground floor. In September 1993 the applicant complained to the local police that her brother had been harassing her and trying to coerce her, by disconnecting the heating system of her apartment, into agreeing to certain alterations in the house.

On 25 April 1994 the Bielsko-Biała District Prosecutor discontinued the criminal proceedings against the applicant’s brother which had been instituted at the applicant’s request. On 23 June 1994 the Bielsko-Biała Regional Prosecutor dismissed the applicant’s appeal against this decision. Subsequently, the applicant complained to the Katowice Appeal Prosecutor, alleging that there had been serious deficiencies in the investigations.

In September 1994 policemen from the local station kept coming to the applicant’s apartment, often as late as 11 p.m., to question her about the dispute with her brother. On 7 September 1994 the applicant complained thereof to the Bielsko-Biała Regional Prosecutor.

On 7 September 1994 the applicant’s brother submitted a complaint to the local police station that the applicant had cut off the electricity in his apartment. On the same date the police took steps to contact the applicant.

On 12 September 1994 she came to the Regional Police Headquarters and requested the Chief Regional Officer to explain the reasons for her being harassed by the Police.

On 14 September 1994 at 6.40 a.m. two policemen and the electricians from the local electricity station, having stated that there was no electricity in the applicant’s brother apartment, made an unsuccessful attempt to visit the applicant’s apartment.

In a letter of 14 September 1994 the Katowice Appeal Prosecutor informed the Bielsko-Biała Regional Prosecutor of the results of the inquiry into the applicant’s complaint about the alleged deficiencies in the criminal investigations against her brother, which had been discontinued in June 1994. It was stated in this letter that, in order to establish relevant facts, the applicant herself should have been given an opportunity to give evidence in those investigations. The purpose of the investigations had erroneously been limited to establishing whether her brother had forged her signature on certain documents relating to their property, even though there had been ample evidence to support coercion charges against him, in particular as he had cut off the heating system of the applicant’s apartment. The Appeal Prosecutor stressed that throughout the investigations the applicant’s requests that certain evidence be taken had been disregarded without any justification. In conclusion, the Appeal Prosecutor ordered that the criminal proceedings against the applicant’s brother be resumed in order to remedy these shortcomings.

On 21 September 1994 the police instituted investigations concerning the complaint submitted by the applicant’s brother on 7 September and relating to charges of coercion committed by cutting off the electric current in his apartment. On 23 September 1994 two policemen came to the school where the applicant worked and tried to serve on her a summons to the police station for that day. She refused to accept it and requested that it be sent to her by post.

On 26 September 1994 a hearing in civil proceedings between the applicant and her brother was held in the Bielsko-Biała District Court. At 11.30 a.m., as the applicant was leaving the court building, she was arrested by two policemen, one in plainclothes and one in uniform. She was subsequently asked to accompany them to the police car. The applicant refused to comply, whereupon she was warned that coercive measures would be used if she persisted in her refusal. The applicant said that she would not obey and tried to walk away. Upon her arrest she was hit several times, pushed and jostled, and pushed out of the court building. The policemen caught her by both hands and brought her to the police car, parked nearby. The applicant resisted arrest by trying to get away, kicking and crying. After she was brought to the car, she refused to get in. As she was being pushed, crying, by two policemen into an unmarked car, the parking assistant helped them to shove her into the car.

At the police station the applicant was informed, at an unspecified time, that she had made it impossible for her brother, who lived in the same building, to use the electric installation. Later on, approximately at 2.30 p.m. a policeman received a prosecutor’s decision authorising a search of the applicant’s apartment, limited to an inspection of the electric installation. On the way to the applicant’s apartment, the policemen granted her request to fetch her father, who was present at the search. Having checked the installation, an electrician from the electricity board declared that one fuse in the fuse-box was blown and replaced it, whereupon the installation in the applicant’s brother’s apartment started to work normally. The applicant was not allowed to participate in the checking of the installation. The applicant was released at 6.30 p.m., after which the applicant was released at 6.30 p.m., she went to the emergency services, where she was given tranquillisers.

On 27 September 1994 the applicant was given sick leave of eight days.

On 28 September 1994 doctor S.S. issued a medical certificate at the applicant’s request, stating that she had several painful areas on her head and chest, and that she suffered from general nervous exhaustion.

On 30 September 1994 the applicant complained to the Bielsko-Biała District Court about her wrongful arrest on 26 September 1994 and about the manner in which it had been effected. She submitted in particular that the detention had been unlawful as she had never received any summons before the date of her arrest, either by post or by hand. Thus the legal requirements of detention had not been complied with. She contended that the record of her arrest was inaccurate and failed to recount relevant details, such as her complaint that she had felt unwell throughout her detention. She further complained about having been pushed, jostled and intimidated by the policemen. She stated that one of them had been particularly aggressive towards her, pushing her violently and hitting her on the head. Her brother, who had been a witness to her arrest, had told her that she would finally be “dealt with”. When taken to the police station, she had been refused permission to use the telephone. She had also been refused permission to use the toilet. The policemen had intimidated her, and her complaints that she felt unwell had been ignored. She had briefly been presented with a document containing charges against her, but it had been immediately taken away. She had been told that her brother had lodged a complaint against her and that she had to be questioned to investigate this complaint. She also stated that her request to be given the record of the arrest had not been complied with, at least until the time when she was lodging her complaint with the District Court.

The applicant concluded that she had been wrongfully arrested, especially given the nature of the offence concerned. She had not received any summonses by post, in particular none dated 20 September 1994.

The following medical documents were submitted to the court as annexes to the applicant’s complaint: first, the copy of an information card, issued by the Regional Emergencies Centre in Bielsko-Biała on 26 September 1994 at 10.30 p.m. in which a physician on duty had recommended that the applicant undergo medical treatment on an outpatient basis in the local clinic; secondly, a copy of the applicant’s eight-day sick leave of 27 September 1994; and a copy of a medical certificate issued by doctor S.S. on 28 September 1994.

Further, the applicant supplied the record of her arrest on 26 September 1994. She further submitted the search order for her apartment , given by the District Prosecutor and a copy of  her complaint of 20 September 1994 to the Head of the Regional Police Headquarters.

On 3 October 1994 the police charged the applicant with coercion in that she had refused her brother access to the electricity fuses. On the same day the applicant’s sick leave was prolonged for a further eleven days.

On 4 October 1994 the President of the Bielsko-Biała District Court rejected the applicant’s complaint, finding that it had been filed with the court outside the forty-eight-hour time-limit.

On 14 October 1994 the Bielsko-Biała Police station supplemented the charges of 3 October 1994 with a charge that the applicant had unlawfully resisted arrest on 26 September 1994.

On 19 October 1994 the applicant filed an appeal with the Bielsko-Biała Regional Court against the decision of 4 October 1994, arguing that in fact the time-limit to complain about a wrongful arrest was seven days and not forty-eight hours as held by the District Court.

On 20 October 1994 the applicant complained to the Bielsko-Biała Regional Police Headquarters about the manner in which her arrest had been effected. She submitted that the police had acted unlawfully in that her detention had been unjustified; that she had never received any summons prior to her arrest; that she had not committed any offence; and that she had been refused any information as to the grounds for her arrest. She contended that she had been intimidated by the police. She submitted that the police had arrested and harassed her as a “personal favour” to her brother, who had many friends among the police. She submitted that her arrest and detention were in breach of Articles 3 and 5 of the Convention and constituted an abuse of power within the meaning of the Police Act.

On 3 November 1994 the applicant’s parents, in a letter to the Bielsko-Biała District Prosecutor, stated that the applicant’s brother had had electricity in his apartment during the material period and had never complained to them that the applicant had been causing him any difficulties in using the electric installations.

On 22 November 1994 the Bielsko-Biała Regional Court quashed the decision of 4 October 1994, considering that the applicant had complied with the applicable time-limit of seven days for lodging complaints about wrongful arrest, and referred the case back to the District Court.

On 30 December 1994 the Bielsko-Biała District Prosecutor lodged an indictment against the applicant with the Bielsko-Biała District Court. She was charged with coercion in that from 6 to 27 September 1994 she had refused her brother access to the main electricity fuses in her apartment and that this had deprived him of electricity. She was further charged with unlawfully resisting arrest on 26 September 1994.

On 10 January 1995 the Bielsko-Biała District Court dismissed the applicant’s complaint about her wrongful arrest.

The Government contend that the court considered, inter alia,  the following evidence in the case-file: the applicant’s complaint of 20 September 1994 to the Regional Headquarters of the Police, two letters by the applicant’s brother dated 7 September 1994 requesting the prosecutor to institute proceedings against the applicant, seven reports of the police officers concerning the circumstances of the applicant’s arrest, the decision of 23 September 1994 to bring charges against the applicant, and  records of testimony given by two eye witnesses. 

The case-file further contained records of the administrative proceedings undertaken following the applicant’s complaints filed with the Regional Police Headquarters. The Government contend that it was established in these proceedings that the policemen involved in the applicant’s arrest on 26 September 1994 had acted in conformity with the law and that there had been no abuse of their powers.

In its decision of 10 January 1995, the Bielsko-Biała District Court found that the police had twice tried to visit the applicant in her apartment to inspect the electric installations, on 9 and 14 September 1994, and that the applicant had refused to let them in. On 20 September 1994 the applicant had received a summons for 23 September 1994 by registered post and she had failed to comply with it. The applicant had also refused to receive the summons at her workplace in the presence of her superior, A.P. In these circumstances the applicant’s arrest had been lawful as it was only by arresting her that the policemen could, acting upon the Public Prosecutor’s orders, question her and inform her of the charges.

On 24 January 1995 the applicant filed an appeal against the decision of 10 January 1995 with the Bielsko-Biała Regional Court. She argued that there was no trace of evidence in the case-file that the police had tried to contact her at her apartment on 9 and 14 September 1994. As regards the summons for 23 September 1994, it was only at the same date that the post office had informed her that a registered letter was to be served on her, with a time-limit fixed for 27 September 1994. She further stated that she had taken this summons from the post office on that date and emphasised that there had not been any previous summonses. As to the summons which the applicant had allegedly refused to accept at her workplace in the presence of A.P., the headmaster, the applicant referred to a written statement of the latter in which she had declared that no attempt had been made to serve the summonses on the applicant at school. She further stressed that the irregularities in the issuing and service of the summonses were clearly attributable to the police. The applicant concluded that arresting in a public place a person who had not jeopardised the conduct of the investigations in any way, who had a permanent address and a permanent job, should therefore be seen as an abuse of power by the police.

On 29 January 1995 a forensic medical expert stated in a certificate issued upon the applicant’s request that the injuries suffered by her as shown in the medical documents could have originated from the events of 26 September 1994 as described by the applicant.

On 31 January 1995 the President of the Bielsko-Biała District Court rejected the applicant’s appeal as no appeal lay against the court’s decision of 10 January 1995.

On 25 May 1995 the Bielsko-Biała Regional Court upheld the rejection of the applicant’s appeal against the decision of 31 January 1995, finding that the President of the District Court had been right in holding that no appeal lay against a dismissal of a complaint against a decision on allegedly unlawful arrest.

On 15 September 1998 the Bielsko-Biała District Court found that the offence of coercion with which the applicant had been charged, had ceased to constitute a criminal offence under the provisions of the new Criminal Code which had entered into force on 1 September 1998, and, accordingly, discontinued the proceedings.

On the same date the District Court discontinued the criminal proceedings against the applicant relating to the charges of resisting arrest. The court found that on 26 September 1994 two policemen, D.S. and W.M., came to the Bielsko-Biała District Court to arrest the applicant. On 12 a.m. approximately they had done so. They had given her their names, grades and ordered her to follow them to the police car. The applicant had said that she was under no obligation to obey their orders and had begun to walk away. Thereupon the policemen had caught her by arms and had led to the police car. The applicant had been crying, trying to get away and kicking.  She had also refused to get into the car. Then D.S. had got into the car and, holding her by her arm, pulled her inside. A parking attendant S.S. had helped him by forcing the applicant’s head down. Subsequently the applicant had been taken by car to the police station.

The court relied on evidence given by one of the policemen, D.S., by the applicant’s brother and by two other witnesses, S.S. and A.P. 

The court further observed that the applicant had denied all charges. She had stated that on the material date she had been approached by two men who assaulted her and forced her to go to the parking beside the court building. There she had been hit on the head several times and pushed into the car.

The court had regard to the applicant’s submissions, but found that they were contradicted by the submissions of other witnesses. Witness D.S., a policeman, had submitted that he had arrested the applicant together with W.M., having given his name and grade to the applicant, and having ordered her to follow their orders. Since she had refused to comply, they had got hold of her and had taken her to the car. She had been kicking and trying to get away. The court noted that his submissions were corroborated by the testimony of the applicant’s brother who had also been present at the scene, and by those of S.S., the parking assistant, who had stated that he had helped the policemen to put the applicant into the car by pushing her head down. The latter witness had also confirmed that the applicant had been kicking and trying to get away. Also, witness A.P. had confirmed that the applicant had not wanted to get into the car and kept resisting.

The court considered as credible the testimony of all the witnesses who had given a concordant recount of the material events.  The testimony of D.S. had been corroborated by the evidence given by other impartial witnesses who had accidentally been present at the scene. The court further considered that the applicant’s conduct amounted to an offence with which she had been charged. However, the court decided to discontinue the proceedings, finding that the seriousness of the offence was infinitesimal. In taking this decision the court took into consideration the circumstances in which the offence had been committed, and in particular the context, i.e. the fact that the applicant had been involved in a conflict with her brother, which manifested itself in numerous civil and criminal proceedings to which they were parties. The court observed that the applicant had been acting under an intense emotional stress and her motives could not be considered as contemptible.

B.  Relevant domestic law and practice

1.  Domestic remedies against ill-treatment by the State’s agents

a)  Under criminal law

Acts of ill-treatment causing physical harm amount to criminal offences prosecuted under the relevant provisions of the Criminal Code on various forms of assault. In instances concerning ill-treatment amounting to moral harm, in particular an attack on the privacy or dignity of the person concerned, a victim may use two remedies. Firstly, in cases concerning acts committed by police officers the victim can, under Article 142 of the Police Act of 6 April 1990, request the prosecutor to institute criminal proceedings against police officers involved in any incident which allegedly infringed his or her privacy or other personal rights, such as dignity or physical inviolability.

Pursuant to Article 255 of the Code of Criminal Procedure of 1969, applicable at the relevant time, the authorities had to open criminal proceedings ex officio in any case in which suspicion arose that a criminal offence had been committed.

b)  Under civil law

Article 417 § 1 of the Civil Code provides that the State Treasury shall be liable for damage caused by a State agent in the exercise of his or her duties.

According to the case-law of the Polish Supreme Court, a plaintiff seeking damages under Section 417 of the Civil Code must show that the act in question is unlawful and that the State agent committed a fault (the Supreme Court judgments: No. I PR 468/70 of 29.12.1970, unpublished, No. I CR 24/71 of 19.4.1971, unpublished and No. I CR 152/74 of 11.4.1974, unpublished).

2.  Grounds for arrest

Under Article 205 of the Polish Code of Criminal Procedure, as applicable at the relevant time, the police could arrest a person if there were reasonable grounds for suspicion that he or she had committed an offence and if there was a risk of absconding or collusion.

3.  Proceedings for compensation for unjustified arrest or detention

Chapter 50 of the Code of Criminal Procedure of 1969, provided in its Article 487 § 4 for compensation regarding damages arising out of obviously unjustified detention on remand and for arrest and detention up to 48 hours. The Regional Court in whose jurisdiction the detained person had been released was competent to examine whether the conditions for awarding compensation were met. The decision of the Regional Court could be appealed against to the Court of Appeal.

According to Article 489 of the Code, a request for compensation for manifestly unjustified detention on remand had to be lodged within one year from the date on which the final decision terminating the criminal proceedings in question had become final. Therefore, in practice, a request for compensation for unjustified detention under Article 487 of the Code of Criminal Procedure could not be lodged until the criminal proceedings against the person concerned were terminated (see also the decision of the Supreme Court no. WRN 106/96, 9.1.96, published in Prok. i Pr. 1996/6/13). The court competent to deal with such a request was obliged to establish whether the detention was justified in the light of all the circumstances of the case, in particular whether the authorities had considered all the factors militating in favour of or against the detention (see, inter alia, the decision of the Supreme Court no. II KRN 124/95, 13.10.95, published in OSNKW 1996/1-2/7).

Chapter 58 of the new Code of Criminal Procedure of 1997 provides for a request for compensation for, inter alia, unjustified detention. Current Article 552 § 4 of the Code is the equivalent of Article 487 § 4 of the Code of 1969.

4.  Use of force by the police

The modalities for permissible use of direct coercive measures by the police are laid down by Article 16 of the Police Act, which provides that in situations in which a police order is not obeyed, such measures can be resorted to only insofar as they correspond to the requirements of a particular situation and insofar as they are necessary to obtain compliance with that order. 

The Ordinance of 17 September 1990 on the Use of Coercive Measures by the Police provides in its Article 5 § 1 that direct physical force can be used to overpower a person, to counter an attack and to ensure compliance with an order. When such force is being used, it is forbidden to strike the person against which the action is being carried out, unless in self-defence or to counter an attack against another person’s life, health or property.

COMPLAINTS

The applicant complains under Article 3 of the Convention that she was ill-treated by the police upon her arrest and later in the police station in that she was pushed and jostled by the policemen and hit on the head and neck several times. She further submits that the policemen intimidated and insulted her. She claims that she did not offer any resistance and that there was a significant disproportion of force as she was confronted by three men. She refers to the medical certificate of 28 September 1994 and to the fact that she received nineteen days’ sick leave.

The applicant complains under Article 5 § 1 (b) and (c) and § 2 of the Convention that she was deprived of her liberty unlawfully and without justification. She submits that she had never received any summons to attend the police station before the date of her arrest; that the statements of witnesses show that there were no grounds for her detention as in fact the electrical installation in her brother’s apartment worked normally throughout September 1994 and that she was not given any information as to the reasons for her arrest until she was taken to her apartment.

The applicant complains under Articles 5 § 4 and 6 § 1 of the Convention about the outcome of the proceedings concerning her complaint contesting the lawfulness of her arrest. She submits that the court’s decision was wrong as the court relied only on the documents of the police, entirely disregarding any arguments put forward by the applicant.

The applicant complains under Article 8 of the Convention that her right to respect for her home was breached by unjustified and unauthorised visits by the police, who tried to intimidate her.

THE LAW

1.  The applicant complains under Article 3 of the Convention that she was ill-treated by the police upon her arrest and later in the police station.

Article 3 provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

a)  The Government argue that the applicant failed to exhaust domestic remedies in respect of her complaint under Article 3 of the Convention. Thus, she did not request the public prosecutor to institute investigations of her complaints about the alleged ill-treatment. The applicant had also at her disposal a further remedy, namely the possibility to institute private prosecution under the provisions of Article 5 § 3 of the Code of Criminal Procedure of 1969. It was also open to her to institute proceedings for compensation for unjustified arrest and detention under the provisions of Chapter 50 of that Code.

The Government further argue that the applicant could also have lodged with a civil court a civil action against the State Treasury claiming compensation for damage sustained as a result of unlawful arrest and ill-treatment during the arrest, under Article 417 of the Civil Code. In such proceedings a civil court is empowered to establish the facts relevant for the compensation claim, the existence of causal link between the acts of the State agents and the damage sustained by a complainant, and to determine the amount of damages to be awarded. Such an action would have constituted an effective and sufficient remedy in compliance with the relevant requirements laid down by the Convention organs’ case-law.

The applicant submits that she complained to the Bielsko-Biała District Court about her wrongful arrest, describing in detail the conduct of the police, and submitted medical evidence in support of her allegations. The court examined her complaint, but failed to establish the circumstances of her arrest, in particular regarding the allegations of ill-treatment. As a result, the court found that the applicant’s arrest was lawful, having entirely failed to address the allegations of ill-treatment and to comment on the relevant evidence. In such circumstances, a civil remedy referred to by the Government could not be regarded as effective, offering the applicant a possibility of obtaining redress for the alleged violation of Article 3 of the Convention. The applicant further states that she also addressed a complaint to the police headquarters about the ill-treatment, which remained unanswered.

The Court recalls that the basis of the rule of exhaustion of domestic remedies under Article 35 of the Convention is that, before proceedings are brought in an international court, the state made answerable must have had an opportunity to redress the alleged damage by domestic means within the framework of its own legal system (see Walther Uwe v. Germany, application no. 5964/72, Commission decision of 29 September 1975, Decisions and Reports (DR) 3, p. 57).

In the light of the Court’s case-law, it is in the first place for the applicant to select which legal remedy to pursue: where there is a choice of remedies available to the applicant to obtain redress for an alleged violation of the Convention, Article 35 of the Convention must be applied in a manner corresponding to the reality of the applicant’s situation in order to guarantee him or her effective protection of the rights and freedoms set forth in the Convention (see the Airey v. Ireland judgment of 7 October 1979, Series A no. 32, p. 12, § 23). The applicant must make “normal” use of those remedies which are apparently effective and sufficient (application no. 10078/82, Commission decision of 13 December 1984, DR 41, p. 103).

The Court observes that on 30 September 1994 the applicant lodged the complaint about wrongful arrest with the Bielsko-Biała District Court, arguing that her arrest was unlawful. She also submitted that upon her arrest she had been ill-treated by the police. She substantiated this complaint by, inter alia, the medical information card of 26 September 1994 and a medical certificate of 28 September 1994, issued by doctor S.S. She further referred to eight days’ sick leave which she had obtained on 27 September 1994.

The Court notes that the domestic court in its decision of 10 January 1995 did not react to the allegations of ill treatment and only stated that the arrest had been lawful. It should be noted that under Article 255 of the Code of Criminal Procedure, as applicable at the relevant time, the court was under an obligation to inform the prosecutor of any circumstances in which a suspicion arose that a criminal offence had been committed, so that relevant investigations could be made. The District Court did not do so. However, in the Court’s opinion, it cannot be said that that court did not refer the case to the prosecutor because it did not consider the applicant’s submissions to be credible, since in its decision the court did not comment on them at all.

The Court observes that the applicant took further steps in order to inform the authorities about the conduct of the police during her arrest. She complained to the Regional Police Headquarters about the manner in which her arrest had been carried out, but her complaint remained unanswered.

As to the other remedy, i.e. the compensation claim for an unjustified arrest and police detention, the Court considers that in the light of the Bielsko-Biała Court’s decision of 10 January 1995, referred to above, and of its finding that the applicant arrest was lawful, this remedy cannot be considered as offering any reasonable prospects of success. The Court further notes that this procedure, as conceived by the Code of Criminal Procedure of 1969, was aimed at obtaining compensation for unjustified arrest or detention on remand, but did not purport to have the lawfulness of such detention examined ex post.

The Court further notes that the Bielsko-Biała District Court failed to address the applicant’s allegations about her ill-treatment by the police. The Court has also regard to Article 417 of the Civil Code which provides for responsibility of the State agents for prejudice caused in the exercise of their duties. According to the case-law of the Polish Supreme Court a plaintiff seeking damages under this provision must show that the acts of the State agents which had caused the prejudice, were unlawful (see Relevant domestic law). The Court thus considers that, in the light of the decision of 10 January 1995, the applicant had legitimate grounds on which to fear that the civil action against the State, brought under this provision of the Civil Code, offered no prospect for success. In these circumstances, the Court considers that the applicant should be exempted from the obligation to exhaust the particular remedy referred to by the Government.

This part of the application cannot, therefore, be declared inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 of the Convention.

b)  As to the substance of the complaint, the Government submit that the use of force by the police during the applicant’s arrest was necessary as she first refused to comply with the policemen’s orders and tried to walk away. When she was apprehended by the police, she actively resisted arrest. After having been brought to the car, she refused to get into it and had to be pushed into it with the help of the parking assistant. It was the applicant’s resistance which forced the policemen to use direct coercion against her. The actions of the police satisfied the conditions for the permissible use of force as set out in Article 16 § 2 of the Police Act. The applicant’s assertions concerning the alleged refusals to use the toilet at the police station and the disregard of her complaints that she felt unwell were not confirmed by the statements of the policemen, taken down in the course of an internal enquiry.

The Government further submit that the evidence submitted by the applicant to the Bielsko-Biała District Court in support of her complaint of 30 September 1994 did not sufficiently substantiate her allegations of ill-treatment. They further note that the medical certificate signed by doctor Z.M. is not to be found in the case-file of the proceedings. In particular, whereas it is true that she submitted three medical certificates, none of them indicated that the applicant had been ill-treated by the police. The Government further states that the written statements of witnesses of the applicant’s arrest, submitted to the Court, had never been submitted to any domestic authorities, either in the proceedings in which the lawfulness of the applicant’s arrest was examined, or in the criminal proceedings against her.

They conclude that the applicant’s complaints about ill treatment have not been substantiated.

The applicant submits that the severity of the police’s conduct during her arrest, i.e. the fact that she was hit, pushed, verbally insulted and refused permission to go to the toilet, constituted inhuman and degrading treatment in breach of Article 3 of the Convention. The applicant emphasises that she obtained a medical certificate to the effect that she had suffered a number of injuries which, as stated by doctor Z.M. in a medical certificate of 28 September 1994, could have been caused by the police’s actions as described by her. She further stresses that the use of force was out of all proportion to the seriousness of the alleged offence. The characteristics of the offence did not represent any genuine threat to life or limb.

The applicant further states that, given her personality, she could not have reasonably been considered as a dangerous criminal, posing a threat to others. The circumstances of her arrest were confirmed by the written statements of four witnesses, submitted to the Court. The applicant challenges the Government’s assertion that the policeman who arrested her had informed her of his name and function. She did not resist arrest, as there was an obvious disproportion of force; in fact she was arrested by two men, assisted by a third one, namely, the parking assistant, and by her brother. When two men were pushing her into the unmarked car, she was pushed, hit and jostled. The evidence on which the Government based their submissions could not be considered credible as it was given by the persons who had participated in her arrest. The police intervention was in breach of the relevant provisions of the Ordinance on the Use of Force by the Police, which states that it is forbidden to hit an arrested person. The Government in their observations, as well as the domestic court in its decision of 10 January 1995, have failed to address the issue of her injuries and stress suffered as a result of her arrest, confirmed by the medical certificates and, in particular, the fact that she was given nineteen days’ sick leave.

The applicant further recalls that, when a person is held in police custody, the authorities exercise full control over such person. Therefore, where injuries occur in the course of such custody, it is incumbent on them to produce evidence showing facts which cast doubt on the account given by the victim, in particular if supported by medical evidence. The applicant relies in this respect on the Court’s judgment in the Ribitsch case (Ribitsch v. Austria judgment of 4 December 1995, Series A no. 336). She further recalls that where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation as to the cause of the injury. She invokes the judgment in the Aksoy case (see the Aksoy v. Turkey judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI).

The applicant concludes that in her case there was a breach of Article 3 of the Convention.

The Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention as established in the case-law of the Convention organs (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, § 162). Allegations of ill-treatment must be supported by appropriate evidence (see the Klaas v. Germany judgment of 22 September 1993, Series A no. 269, p. 17, § 30). To assess such evidence, the Court uses the standard of proof “beyond reasonable doubt” but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see the above-mentioned Ireland v. the United Kingdom judgment, p. 65, § 161 in fine).

In the present case the Court first notes that that during the hearing before the Court the applicant has failed to substantiate her allegations of ill-treatment by a more detailed recount of material events. Moreover, she did not assert that she had been subject to ill-treatment while in the police station. On the whole, it was not argued that she had been a victim to ill-treatment other than the altercation upon her arrest.

In this respect the Court notes the applicant’s submissions that the force used against her by the policemen was disproportionate. The Court also acknowledges that the applicant was granted eighteen days of sick leave after the incident. Nevertheless, and leaving open the question when and whether the fourth medical certificate, signed by doctor Z.M., relied on by the applicant had been issued, whether it was submitted to the domestic authorities, and what was its probative value, the Court considers that in any event, in the light of the three medical certificates submitted by the applicant in the domestic proceedings, it appears that she did not suffer any injuries severe enough to bring the case within the notion of inhuman or degrading treatment within the meaning of Article 3 of the Convention.

Therefore there is no indication that the policemen, when using force against the applicant, overstepped the limits of proportionality, set out by the Police Act.

The Court has regard here to the findings of the Bielsko-Biała District Court in its decision of 15 September 1998 by which the court discontinued the criminal proceedings against the applicant. The policemen had given her their names, grades and ordered her to follow them to the police car. The applicant had said that she was under no obligation to obey their orders and had begun to walk away. Thereupon the policemen had caught her by arms and led her to the police car. The applicant had been crying, kicking and trying to get away.  She had also refused to enter the car. Then D.S. had got into the car and, holding her by arm, pulled her inside. A parking attendant S.S. had helped him by forcing the applicant’s head down. The court relied on evidence given by one of the policemen, D.S., by the applicant’s brother and by two other witnesses, S.S. and A.P. The court had regard to the applicant’s submissions, but noted that they were contradicted by those of other witnesses. The court considered as credible the testimony of all the witnesses who had given concordant recounts of the material events.

The Court recalls that in principle it is not its task to substitute its own assessment of the facts for that of the domestic courts, but that it is not bound by the domestic courts’ findings. It must exercise particular vigilance when dealing with rights such as those set forth in Article 3 of the Convention, which prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim’s conduct (Ribitsch judgment, loc.cit., § 32).

However, in the present case, the Court considers, in the light of evidence before it, that there is no indication that the conclusions of the domestic court were arbitrary or unreasonable. No evidence has been adduced in the course of the proceedings before the Convention organs, capable of calling into question the findings of the national courts and to add weight to the applicant’s allegations that she had been beaten or hit upon her arrest, even taking into account the evidence relied on by the applicant, which, according to the Government, had not been submitted to any domestic authorities. Reference is made here to the medical certificate given by doctor Z.M. and written testimony of four witnesses of the incident on 23 September 1994.

On the whole, in the circumstances of the present case, the Court does not find it established that, when using force against the applicant, the police overstepped the limits of proportionality set out by the Police Act. Neither does it find that the applicant was otherwise hit or beaten, or subject to any other forms of violence. Having examined the material submitted, the Court finds no evidence that the treatment complained of attained the threshold of severity so as to fall within the ambit of this provision of the Convention.

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected under Article 35 § 4.

2.  The applicant complains under Article 5 § 1 (c) of the Convention that her deprivation of liberty was unlawful and lacked any justification.

Article 5 § 1 (c), in so far as relevant, provides:

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence...”

The Government concede that, by lodging a complaint with the court about the alleged unlawfulness of her arrest, the applicant exhausted relevant domestic remedies.

As to the substance, the Government submit that there was reasonable suspicion that the applicant had committed the offence concerned by cutting off the electricity current in her brother’s apartment and that this offence posed a threat to the life and health of other persons living in the same building, and to property. The measures taken by the police were also aimed at restoring the electricity in the apartment.

The Government state that on 7 September 1994 the police took steps to contact the applicant. On 9 September 1994 the prosecutor ordered the police to investigate her brother’s allegations and to take evidence from the electrician of the local electricity board who, together with the policemen, had tried to contact the applicant several times. The prosecutor further ordered the police to arrest the applicant if she refused to co-operate in the investigations.

The Government contend that the prosecutor’s decision to arrest the applicant was taken after several attempts of the police to contact her which failed as she did not let them into her apartment. A police note of 14 September 1994 attests that the prosecutor ordered to summon the applicant for an interview at a police station. The applicant was duly summoned several times for an interview, but did not accept the summonses. It transpires from the evidence given by the policemen and from a postal note on the summons of 15 September 1994 for an interview to be held on 23 September 1994 that the applicant was notified thereof on 20 September 1993 but did not comply. On 23 September 1994 the police came to the applicant’s school and tried to serve the summons on her, but she refused to accept it. In these circumstances, the police had to resort to arresting the applicant.

The Government conclude that the complaint under Article 5 § 1 of the Convention should be declared manifestly ill-founded.

The applicant first refers to Article 205 of the Code of Criminal Procedure as it stood at the material time and states that her arrest did not satisfy any of the conditions set out therein. The documents relied on by the Government were not sufficient to justify a reasonable suspicion to arise that she had committed an offence.

She further emphasises that there was no danger of her absconding. Her family situation was stable, she had a permanent job and a fixed address where she lived with her daughter. The authorities did not refer to a single piece of evidence showing that she had had any intention to abscond. The Government’s assumption that she might consider absconding in order to evade responsibility for a single blown electric fuse must be regarded as absurd. No reasonable measures were taken in order to ensure the applicant’s participation in the investigations before her arrest.

The applicant also argues that the Government’s submissions as to the summonses having allegedly been served on and ignored by her are untrue. She was not served with any summons dated 20 September 1994. The second summons was dated 15 September 1994 and she collected it from the Post Office on 27 September 1994. During the material period, the applicant did not try to avoid contact with the police; on the contrary, on 12 September 1994 she came to the Regional Police Headquarters to ask why she was being harassed by the police.

The applicant refers in particular to written declarations given by witnesses and submitted by her to the Court, to the effect that there had been electricity in her brother’s apartment throughout September 1994. Assertions as to her alleged failure to open the door and let the police into her apartment on 14 September 1994 were untrue as she was not present in her flat at that time.

The Court recalls that the reasonableness of the suspicion on which an arrest must be based forms an essential part of the safeguard against arbitrary arrest and detention which is laid down in Article 5 § 1 (c). Having a “reasonable suspicion” presupposes the existence of facts or information which would satisfy an objective observer that the person concerned might have committed the offence (see the Fox, Campbell and Hartley v. the United Kingdom judgment of 30 August 1990, Series A no. 182, p. 16, § 32).

The Court notes that the police, when taking steps to contact the applicant before her arrest on 26 September 1994, acted upon a complaint lodged by the applicant’s brother to the effect that the applicant had cut off the electricity.  Thus, the police had at their disposal a complaint, giving rise to the suspicion that a criminal offence had been committed. It is further to be noted that apparently efforts were made later to contact the applicant in order to check the relevant circumstances, and this was to be accomplished by visiting the applicant’s apartment. This proved impossible because of the  applicant’s lack of co-operation as in the morning of 14 September 1994 two policemen and an electrician of the local electricity board tried to visit the applicant, to no avail. The Court recalls here the decision of the Bielsko-Biała District Court of 10 January 1995, in which it found that the police had twice tried to visit the applicant in her apartment to inspect the electric installations, on 9 and 14 September 1994, and that the applicant had refused to let them in. The local court further stated that on 20 September 1994 the applicant had received a summons for 23 September 1994 by registered post and that she had failed to comply with it.

The Court further notes that the applicant must have been aware that investigations had been instituted following her brother’s complaint, as she was informed thereof on 23 September 1994 at the latest, when two policemen came to the school where she worked. They tried to serve her with the summons to the police station for questioning on 23 September 1994, but to no avail as she refused to accept it.

The Court therefore notes, on the one hand, that the police had received a complaint that a criminal offence had been committed. On the other hand, the applicant refused to comply with the summonses for 23 September 1994 and it proved impossible to contact her on 14 September 1994. Therefore, in the circumstances of the case it does not seem unjustified that the police proceeded to the applicant’s arrest on 26 September 1994, having no other means to ensure that the complaint be effectively investigated.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention

3.  The applicant complains under Article 5 § 2 of the Convention that she was informed of the reasons for her arrest only upon her release.

Article 5 § 2 reads:

“Everyone who is arrested shall be informed promptly ... of the reasons for his arrest and of any charge against him.”

According to the Government, the record of the applicant’s arrest shows that she was questioned at 12.35 p.m. It logically follows that she must have been informed of the charge against her before her questioning began. The Government emphasise that the applicant signed the record of the arrest. In any event, having evaded service of the summonses, the applicant must have been aware that she might be arrested.

The Government further state that at the time of her arrest the applicant was informed in general terms of its legal basis. She was also told that she would be brought to the police station for questioning. After she was taken there, she obtained, at 2.30 p.m., detailed written information about the legal basis of her arrest and about its purpose.

The Government further draw the Court’s attention to the inconsistency between the factual statements contained in the applicant’s original application and in her reply to the Government’s observations. In the latter document she maintains that she was informed of the reasons for her arrest upon her release at 6.30 p.m., whereas in the former she asserts that she was given this information at 8.00 p. m. They stress that neither statement corresponds to the actual facts. 

The Government conclude that, in view of the fact that the applicant obtained relevant information two hours and a half after her arrest, this complaint should be declared manifestly ill-founded.

The applicant submits that she was not informed of the charges against her at the time of her arrest. It was only after the questioning was completed that she was told that there was no electricity in her brother’s apartment. She further states that the record of her arrest was drawn up on 26 September 1994 at 2.30 p.m.  At that time the applicant had not yet been charged with an offence and could not therefore enjoy any guarantees of her procedural rights. The record of the arrest was not given to her until approximately 8 p.m.

The Court recalls that Article 5 § 2 of the Convention contains the elementary safeguard that any person arrested should know why he or she is being deprived of his liberty. Any person arrested must be informed, in simple, non-technical language, of the essential legal and factual grounds for the arrest, so as to be able to apply to a court to challenge its lawfulness in accordance with paragraph 4 of Article 5. However, whether the content and promptness of the information conveyed were sufficient must be assessed in each case according to its special features (see the Fox, Campbell and Hartley v. the United Kingdom judgment of 30 August 1990, Series A no. 182, p. 19, § 40).

The Court observes that in her complaint of 30 September 1994 to the Bielsko-Biała District Court, the applicant stated that after her arrival at the police station she had been given a document containing charges against her, but that it had immediately been taken from her. The applicant further asserted in her complaint that she had been told that her brother had lodged a complaint against her and that she had to be questioned to investigate it. She also said that her request to provided with the record of the arrest had not been complied with, at least until the time when she was lodging her complaint with the District Court.

The Court first notes that there is a discrepancy in the applicant’s statements as to the time when she was given the record of her arrest, between her complaint lodged with the domestic court and her observations in the proceedings before the Court. The Court recalls that in the latter document she has stated that she received the record of arrest on 26 September 1994 at 8.00 p.m.

The Court, having regard to the applicant’s submissions, does not consider it established that on 26 September 1994 the applicant did not have access to the record of her arrest which contained information on the grounds of suspicion against her. The Court further notes that in her complaint to the domestic court the applicant acknowledged that the police had informed her that the purpose of her arrest was to investigate her brother’s complaint against her. Moreover, she admitted in the same document that when she had been at the police station she had had access, albeit briefly, to the document containing the charges against her. The Court observes, lastly, that after the interview at the police station came to an end, the applicant had been taken to her apartment where the electricity installations were inspected. Moreover, the applicant was able to challenge the lawfulness of her arrest, by lodging a complaint with the Bielsko-Biala District Court four days later. There is, in the Court’s view, no ground on which to accept that the manner in which the reasons of the applicant’s arrest were presented to her was such as to prevent her from challenging its lawfulness.

Having regard to the foregoing, the Court considers that the applicant was sufficiently informed of the legal basis of her arrest and of the essential facts relevant to its lawfulness. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention

4.  The applicant complains under Articles 5 § 4 and 6 § 1 of the Convention about the outcome of the proceedings held before the Bielsko-Biała District Court concerning the complaint about wrongful arrest.

Article 6 § 1, insofar as relevant, reads:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing...”

Article 5 § 4 reads:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

The Court observes that the proceedings regarding the lawfulness of the applicant’s arrest did not relate either to her civil rights and obligations or to any criminal charge against her. Therefore Article 6 § 1 is not applicable. The Court has examined the applicant’s complaint under Article 5 § 4 of the Convention. It observes that the applicant was entitled under Polish law to initiate proceedings in which the lawfulness of the detention would be examined by a court. She instituted such proceedings and the court, having considered her complaint in the light of the evidence before it, found against her. Article 5 § 4 of the Convention does not guarantee a right to any particular outcome of the proceedings concerned. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

5.  The applicant complains under Article 8 of the Convention that her right to respect for her home was breached through  unjustified and unauthorised visits by the police.

The Court is not required to examine whether or not the facts submitted by the applicant in support of this part of the application disclose any appearance of a violation of the Convention, as Article 35 § 1 of the Convention provides that the Court “may only deal with a matter after all domestic remedies have been exhausted”.

 

In the present case, the applicant failed to avail herself of the specific remedy provided for in Article 142 of the Police Act, i.e. to request that criminal proceedings be instituted against the policemen who had breached her privacy. It follows that this part of the application must be rejected for non-exhaustion of domestic remedies under Article 35 § 1 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Vincent Berger Georg Ress 
 Registrar President

D.D. v. Poland DECISION


D.D. v. Poland DECISION