AS TO THE ADMISSIBILITY OF

Application No. 32733/96

by Stanisław KOPCYCH

against Poland

The European Commission of Human Rights (Second Chamber) sitting in private on 21 October 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

D. ŠVÁBY

P. LORENZEN

E. BIELIŪNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber;

Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 1 May 1996 by Stanisław KOPCYCH against Poland and registered on 22 August 1996 under file No. 32733/96;

Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Polish citizen born in 1959, is an electrician by trade.  He resides in Giżycko, Poland.

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

Particular circumstances of the case.

On an unspecified date the applicant, who was serving a sentence of imprisonment, following his conviction on an unspecified date, was released from prison on short-term leave.  On 3 September 1994 the applicant was arrested by the police, under a warrant of arrest issued by the Giżycko District Court (Sąd Rejonowy) on an unspecified date, because he had failed to report back to the prison after the expiry of his leave.  Later the same day, he was examined by a doctor and diagnosed as having an inflammation of his left inner ear.

On 4 September 1994 the applicant was questioned by A.B., a policeman.  During the questioning, he informed the policeman that, in connection with the inflammation of his ear, he was on certain medicaments which he had left at his place of residence and asked the officer to help him to recover those medicaments.  The policeman agreed to escort the applicant to his place of residence where, shortly after entering the premises, the applicant fled, jumping out by an open window.

Subsequently, the applicant went to the house of M.O., his colleague, and was invited to have dinner with the latter's family and friends.  The meal took place in a courtyard.

In the meantime, the police had started to search for the applicant.  Nine policemen, including A.B., went to M.O.'s premises and surrounded them while the dinner was continuing.  Subsequently, four of the policemen, i.e. A.B., K.K., B.M. and W.Ł., entered the premises.  Immediately, all the persons at the table dispersed and tried either to hide themselves or to stop the policemen; the applicant hid himself in a pigsty.  During the incident one of the policemen fired warning shots in the air.  In the applicant's opinion, these shots were aimed and fired at him.

The applicant was found in the pigsty by A.B. and dragged out.  As he was resisting, K.K. and B.M. twisted his arms, then pushed him to the ground where, finally, W.Ł. handcuffed him.  Subsequently, he was dragged away to a patrol car and pushed inside.  He was escorted to the Giżycko District Police Headquarters (Komenda Rejonowa Policji).  The applicant submits that, in the patrol car, K.K. and another, unknown policeman insulted him and spat at him.

The applicant further submits that, on being brought to the police premises, he was again pushed, hit and kicked by several policemen and, eventually, thrown on the floor in a corridor where, again, several policemen passing by, kicked him.

Subsequently, the applicant was brought before J.S., the officer on duty, who questioned him for a short time.         

Later, the same day, the applicant was examined by a doctor from a civil hospital and diagnosed as fit and able to be kept in detention.  He did not report any injuries to the doctor.  The doctor stated that  a further laryngological consultation might be necessary.  Subsequently, the applicant was detained in Giżycko prison. 

On 7 September 1994 the applicant complained to a prison doctor about various ailments and injuries, stating that they were the result of ill-treatment by the policemen on 4 September 1994.

On the same day he was examined by the prison doctor and the following description of his injuries was entered in his medical records:

"[Symptoms:] Pain in the left ear.  Feeling of pain in the chest, i.e. on the third and fourth pair of ribs directly below the middle of the right collar-bone (no fractures).  Livid spots on the right shoulder and the left wrist.  Grazes on the left ear and the left lower jaw.  [The patient] states that he sustained the injuries in question on 4 September 1994 (beaten by policemen).  The above-mentioned injuries will affect the functioning of the body for a period not exceeding seven days.  Stamp: "Doctor Jerzy Cygler, an internist [...]".  [Signature illegible]."

On 8 November 1994 the applicant submitted a complaint to the Giżycko District Prosecutor (Prokurator Rejonowy) about the incident of 4 September 1994, submitting that he had been beaten up, kicked and insulted by the policemen during and after his apprehension and that this had amounted to inhuman treatment justifying the institution of criminal proceedings against the policemen concerned.

On 29 December 1994 the Giżycko District Prosecutor replied to the complaint, stating that, according to the findings made in the preliminary investigative proceedings relating to this complaint, no person involved in the incident had seen the applicant being beaten up or otherwise ill-treated by the policemen.  Moreover, according to the medical statement issued upon his redetention in prison on 4 September 1994, the applicant had had no physical injuries.

On 10 January 1995 the applicant complained to the Suwałki Regional Prosecutor (Prokurator Wojewódzki) that the Giżycko District Prosecutor had failed to take any steps to elucidate the actual course of the events which had taken place on 4 September 1994.  On an unspecified date the complaint was referred to the Giżycko District Prosecutor who, on 11 January 1995, informed the applicant that he maintained his previous position.

On 16 January and 6 March 1995 the applicant again complained to the Suwałki Regional Prosecutor, stressing that even though he had formally notified the prosecuting authorities about the offence committed by the policeman against him, they had failed to issue any formal, appealable decision on this matter.  The position of the authorities remained unchanged, as the applicant was informed by letters of the Suwałki Regional Prosecutor of 9 February and 7 April 1995.

The applicant also complained to the Ombudsman and the Minister of Justice (on 19 and 20 April 1995 respectively).  These complaints were forwarded to the Białystok Prosecutor of Appeal (Prokurator Apelacyjny), who wrote to the applicant on 16 June 1995 informing him that he had instructed the Giżycko District Prosecutor to institute a formal investigation into the applicant's allegations.

On 5 July 1995 the Giżycko District Prosecutor made a decision refusing to institute criminal proceedings against the policemen since there was no evidence that the applicant had been beaten by them during

his apprehension or arrest.  In particular, neither the policemen concerned, nor any of the third parties taking part in or witnessing the incident had seen the applicant being beaten up or maltreated in any other way.

On an unspecified date the applicant appealed against this decision, submitting that, in the light of the entry made in his medical records, it was clear that he had sustained bodily injuries on 4 September 1994 and that they had been caused by beating by the police officers.

On 2 August 1995 the Suwałki Regional Prosecutor quashed the contested decision, finding that the applicant's complaint justified a suspicion that the offence of infringement of the applicant's personal rights, outlawed by Section 142 para. 1 of the Police Act of 6 April 1990, had been committed.  He ordered the Suwałki District Prosecutor to institute criminal proceedings and proceed with the investigation, stressing that it was necessary to obtain a forensic medical expert's report on the possible cause of the injuries sustained by the applicant and to hear evidence from all the policemen involved in the applicant's apprehension and his further detention in the Giżycko District Police Headquarters, and also from witnesses proposed by the applicant.

On 30 December 1995 the Giżycko District Prosecutor discontinued the investigation, finding that there was no evidence that the offence had been committed.  The reasons for this decision, insofar as relevant, read:

"On 4 September 1994 [the applicant] fled while in police custody. ... The same day, as it was established that he was on the premises of M.O., a group comprising nine policemen surrounded these premises but only A.B., K.K., B.M. and W.Ł. took part in a direct action aimed at apprehending him.  A.B. got [the applicant] out of a pigsty.  According to A.B. and the three other policemen, [the applicant] resisted.  K.K. and B.M. held him under the arms and W.Ł. handcuffed him [starting with his left hand].  Since he was still resisting, he was forcibly pushed into a patrol car and escorted to the police headquarters by K.K. and B.M.  Upon their arrival at the police premises, he was taken to A.B.'s office and searched.  Afterwards, he was taken to a civil hospital by A.B. and K.K. and examined by a doctor.

All the policemen who had taken part in apprehending [the applicant], as well as those who  had witnessed the apprehension, denied that any physical force beyond such as had been necessary to subdue his resistance to arrest, had been used against him.  Moreover, neither [the witnesses], nor the doctor who examined him that day, noticed any injuries to his body.

J.S., who was the officer on duty on the material day and had direct contact with [the applicant], stated that the latter had not complained about any ailments.  Nor did the officer himself notice any injuries to his body. ...

[As regards the witnesses other than the policemen,] Z.J. stated that he had seen the policemen pushing [the applicant] to the ground and kicking him; however, all the other persons stated that the policemen had used force merely in order to subdue his resistance to arrest.  Even M.O. confirmed that [the applicant] had resisted arrest.  The testimony given by Z.J. and M.O. must

 be taken with some caution; both of them were [and are the applicant's] colleagues and drinking-companions and they had frequently had [,on account of their conflicts with the law,] contact with the policemen concerned.  On the other hand, their testimony does clearly differ from the evidence obtained from the other witnesses.

A [forensic medical] expert stated in his report that it was impossible to establish how the injuries to [the applicant] had been sustained, in particular whether they had been caused by [an intentional] beating or resulted from [the use of force to overcome] his resistance.

In the course of the investigation it was established, however, that, beyond any doubt, [the applicant] had been resisting arrest and that the policemen had used physical force against him but that the degree of force had been proportional and its use entirely lawful; there was no evidence that [the policemen] had overstepped the limits of the permissible and acceptable use of force.  Nor is there any indication that during the incident in question the policemen had deliberately kicked or beaten up [the applicant].  It follows that the investigation in the present case should be discontinued as no offence was committed.  Stamp: "District Prosecutor; Alicja Gadomska; L.L.M.". [Signature illegible]."          

On 31 January 1996, upon the applicant's appeal, the Suwałki Regional Prosecutor upheld the decision of the prosecutor at first instance, for the following reasons:

"[The applicant], in his appeal, submitted that the policemen concerned were criminally responsible for beating him up and that, moreover, they had also shot at him and insulted him.  He was of the opinion that, if the expert [appointed in the course of the proceedings] had been unable to establish the cause of his injuries, another expert should have been appointed.  His appeal is ill-founded. ...

On 3 September 1994 [the applicant] was arrested under a court order since he had failed to return to prison after leave.  The next day ... he fled.  Upon finding out that he was on the premises of M.O., the policemen surrounded these premises and demanded that he surrender himself voluntarily.  This was to no avail; he attempted to escape and some other persons [on M.O.'s premises], in order to help him, aggressively hindered the policemen in their action.  The whole situation became dangerous; this prompted one of the policemen to fire a warning shot in the air, with the intention of calling those persons to order.  As a result, M.O. and his mother were indicted of hindering the policemen in carrying out their duties.

Eventually, [the applicant] was apprehended by the policemen.  They used force against him, i.e. twisted his arms, pushed him down to the ground, handcuffed him and dragged him along the ground.  In the light of the material [at the prosecutor's disposal], such a recourse to physical force was necessary.

However, [the applicant] claims that he was also severely beaten up, insulted and that the policemen spat at him.  There is no evidence confirming his statements, except for some slight injuries to his body, such as a feeling of pain in the chest and

 slight grazes, and livid spots, which could well have been sustained by him during his apprehension on M.O.'s premises, and which he reported to the authorities as late as 7 September 1994, even though he had been taken to and examined by a doctor on 4 September 1994.

Neither the above facts, nor the nature of his injuries (assessed by an expert as very minor) justify an unambivalent finding that he had been beaten up by the policemen after having been apprehended and pushed into a patrol car.  Such a possibility cannot entirely be excluded; nevertheless, in the light of the material gathered in the present case, nothing justifies a finding that the beating complained of ever occurred. ...

Furthermore, the applicant's statements must be assessed with a certain caution; all the evidence shows that he tried to diminish the role played by him and his allies in the incident, but exaggerated the acts of the policemen.  For instance, he claimed that a warning shot had been fired at him, whereas all the evidence clearly shows that it was shot in the air. ...

Finally, [the applicant's] request for fresh evidence to be obtained from a forensic medical expert must be rejected; clearly, in the light of the original report, it is not possible to establish how and at what precise stage of the incident of 4 September 1994 he sustained the injuries in question.  ...

It follows that the contested decision is justified.  Stamp: Regional Prosecutor; Jan Wojczulis. [Signature illegible]."

Relevant domestic law.

Section 142 para. 1 of the Police Act of 6 April 1990 (as amended) provides:

"1. A police officer who, in the course of carrying out his duties, oversteps his powers or fails to fulfil his duties in a manner which infringes upon a citizen's personal rights [this concept includes, inter alia, privacy, personal liberty, dignity and physical inviolability] shall be liable to up to five years' imprisonment."

COMPLAINTS

1. The applicant complains under Article 3 of the Convention that, during his apprehension and arrest on 4 September 1994, the police officers subjected him to inhuman treatment in that they shot at him, severely kicked and beat him up and insulted him.

2. He also complains under Article 5 para. 1 of the Convention that his arrest and subsequent detention on 4 September 1994 were unlawful.

THE LAW

1. The applicant complains under Article 3 of the Convention that, during his apprehension and arrest on 4 September 1994, the policemen subjected him to inhuman treatment in that they shot at him, severely kicked and beat him up and insulted him.

Article 3 of the Convention provides:

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

The Commission 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.  The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim (see Eur. Court HR, Tekin v. Turkey judgment of 9 June 1998, to be published in Reports of Judgments and Decisions ... 1998 ... para. 52).

It further recalls that, in respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is, in principle, an infringement of the right set forth in Article 3 (see the Tekin v. Turkey judgment, loc. cit.).

Moreover, the Commission reiterates that, according to its own practice and case-law, when examining an alleged violation of the Convention, it is not bound by the findings of fact reached by the national authorities, and that it can, on the basis of all the material placed before it, draw its own conclusions (see Comm. Report in Ribitsch v. Austria, 4.7.94, annexed to the Eur. Court HR, Ribitsch v. Austria judgment of 4 December 1994, Series A no. 336, p. 37, para. 112).

In the present case, however, the Commission cannot see any reasons justifying a departure from the findings made by the Polish authorities in the course of the investigation instituted at the applicant's request.  This concerns, in particular, the finding that the injuries sustained by the applicant during his apprehension and arrest on 4 September 1994 resulted from a use of force which was not more than was necessary to subdue his resistance to arrest.

The Commission notes at the outset that the applicant's own conduct, namely his attempt to hide himself from the policeman searching for him and his further refusal to submit himself to those policemen, made some use of force against him unavoidable.

In the Commission's view, the actual degree of physical force employed by the policemen against the applicant does not seem to be disproportionate to the circumstances in which it occurred.  Moreover, the force employed merely left slight injuries on his body, such as livid spots and grazes, and a feeling of pain. 

In this context, the Commission also observes that the nature of the injuries sustained by the applicant does not, in itself, correspond to his allegations that he was severely beaten up and repeatedly kicked by several officers and that this occurred in two phases: during his apprehension and arrest, and after he arrived at the Giżycko District Police headquarters.  If this had been so, injuries more severe than the above-mentioned superficial, cutaneous traces would have been left on his body.  Nor can the Commission find, in the light of the material submitted by the applicant, that such an event as the firing of a shot at him by the policemen had actually taken place; this allegation, again, seems to be unsupported by any evidence.

Finally, having regard to all the circumstances of the case and, more particularly, to the character and degree of the injuries sustained by the applicant in the course of the incident complained of, the Commission considers that the treatment to which he was subjected by the police officers during his apprehension and arrest did not attain the level of severity required to bring his complaint within the scope of Article 3 of the Convention.

It follows that this part of the application is inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.

2. The applicant also complains under Article 5 para. 1 of the Convention that his arrest and subsequent detention on 4 September 1994 were unlawful.

The Commission firstly observes that this complaint falls to be examined under Article 5 para. 1 (a) of the Convention, since the purpose of the detention complained of was to return the applicant to prison where he had previously been serving his sentence.

This provision, insofar 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:

a. the lawful detention of a person after conviction by a competent court; ..."

The Commission further notes that the applicant has failed to submit information showing whether he had contested the lawfulness of his arrest and detention before the Polish authorities or otherwise put the substance of the present complaint before them, so as to exhaust, under Article 26 of the Convention, the remedies available under domestic law. 

However, the Commission finds that it is not necessary to decide whether or not the applicant has in all respects complied with Article 26 of the Convention since this complaint is, in any event, inadmissible for the following reasons.

On the question of whether the contested arrest and detention are "lawful" the Convention essentially refers back to national law and states the obligation to conform to the substantive and procedural rules thereof, but it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness.  Nevertheless, a period of detention will, in principle, be lawful if it is carried out pursuant to a court order (see Eur. Court HR, Benham v. the United Kingdom judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III no. 10 pp. 752-753, paras. 40-42).

As regards the present case, the Commission observes that the applicant's arrest of 4 September 1994 was effected under the warrant of arrest, which was issued by the Giżycko District Court on an unspecified date in view of the fact that he had failed to report back to prison after the expiry of leave granted to him while serving his sentence.  His subsequent detention, on the same day, was a simple continuation of his sentence following his conviction.

In these circumstances, the Commission finds that the applicant's arrest and detention on 4 September 1994 were "lawful" in the sense of Article 5 para. 1 of the Convention, the more so as they were based on adequate judicial decisions. 

It follows that the remainder of the application is inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.  

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

   M.-T. SCHOEPFER                              J.-C. GEUS

      Secretary                                                 President

to the Second Chamber                      of the Second Chamber