FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33310/96 
by H. D. 
against Poland

The European Court of Human Rights, sitting on 7 June 2001 as a Chamber composed of

Mr G. Ress, President
 Mr A. Pastor Ridruejo
 Mr L. Caflisch
 Mr J. Makarczyk
 Mr I. Cabral Barreto
 Mrs N. Vajić
 Mr M. Pellonpää, judges
and Mr V. Berger, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 4 October 1995 and registered on 2 October 1996,

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 7 June 2001,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms H.D., is a Polish national, born in 1952 and living in Samice, Poland. In the proceedings before the Court she was represented by Mr Hermeliński, a lawyer practising in Warsaw, Poland. The respondent Government were represented by their Agent, Mr K. Drzewicki of the Ministry of Foreign Affairs, assisted by Ms M. Wąsek-Wiaderek and Ms U. Wieczorek, advisers.

A.  The circumstances of the case

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

Since 1971 the applicant has been suffering from diabetes.  She is on insulin.

On 19 August 1994 the applicant was arrested by policemen from Warsaw-East Railway Police Station (Komisariat Kolejowy Policji) and then taken to the Warsaw Sobering-up Centre (Izba Wytrzeźwień).

The facts surrounding the applicant’s arrest and her stay in the sobering-up centre are in dispute.

1.  Facts surrounding the applicant’s arrest

(a)  As presented by the applicant

On 19 August 1994, the applicant took the 3.36 p.m. train from Łowicz to Warsaw-East.  She fell asleep and then fell into a hypoglycaemic coma because she had taken her last injection of insulin at 6 a.m.

At some later time, she suddenly woke up on a floor in a one-window room. She was alone. She felt as if she had been beaten up. Her whole body was aching. She could hear a noise made by trains and a voice announcing a train to Prague. She recalled that, beforehand, when she had been in a state which she later described either as a “coma” or “semi-coma”, she had felt hits on her body, in particular, kicks on her thighs and lower legs.  She also recalled that she had been slapped on the face. She remembered persons in police uniforms but was later unable to specify who of them had beaten her up or to depict those persons.

Shortly afterwards, she was handcuffed.  Later, in the course of the investigation instituted at her request, she stated that she had probably behaved improperly. On account of her shock, she did not remember how she had behaved.

She was then taken to a police car. She was not beaten while taken to the car or in the car.

(b)  As presented by the Government

The Government, in their version of the relevant facts, relied on evidence heard during the investigation from the policemen involved in the applicant’s arrest, namely, D.R. and M.F. (who arrested her on the train) and E.M. (who did a body search of the applicant at the police station).

D.R. and M.F., in response to the applicant’s resistance, disabled her. Furthermore, when she started to behave more aggressively and tried to make it impossible for them to escort her, D.R. hit the applicant on her legs two or three times with a truncheon.  The applicant was aggressive and used vulgar expressions.  That confirmed their suspicion that she was drunk.

At the police station, when E.M. entered the cell in which the applicant was kept, she saw the applicant straining and struggling with the policemen who held her. She also kicked them.  In E.M.’s words, “she looked as a person being in a state of madness”. Looking at E.M., the applicant shouted: “what is that whore doing here?” In response to the applicant’s behaviour, the policemen used physical force against her by seizing her hands and legs, and holding her on the floor in order to enable E.M. to do a body search of the applicant. Since all the policemen who dealt with the applicant were convinced that she was in a state of alcoholic intoxication, she was brought to the Warsaw Sobering-up Centre.  The policemen learnt that the applicant was a diabetic only as late as during the investigation.

2.  Facts surrounding the applicant’s detention in the Warsaw Sobering-up Centre

(a)  As presented by the applicant

Upon her arrival at the sobering-up centre, the applicant immediately reported to W.Z., a doctor who admitted her to that centre, that she had been brutally assaulted by the policemen, that she suffered from diabetes and that she needed medical care. Doctor W.Z. did not order a breath-test and did not measure her pulse rate. When she showed him her bodily injuries, he commented: “They should have beaten you up even more badly”. He disregarded her. When she mentioned that she suffered from diabetes, he did not listen to her, refused to talk to her and ordered the staff to take her to a common lodging room. They took her there and tied her to a bed.

Some time later, when the second doctor, W.B., talked to her, she was still tied to the bed. She told him that she needed an insulin injection at 6 a.m. next morning. She demanded a breath test, which was done; however, the staff of the centre refused to inform her of the result, saying: “This is none of your business.” Afterwards, she was again tied to the bed.  It was as late as 19 May 1995 when she eventually learnt from the investigating prosecutor that the breath test had shown 1.70 promille of alcohol in her blood.

In sum, she twice requested the doctor to give her an insulin injection: on 19 August 1994 at about 11.00 p.m. and again on 20 August 1994 at about 6 a.m. He promised to give her medicines before her release, but he did not do so. She was released on 20 August 1994 at 9.00 a.m.  As she did not pay the costs of her stay in the centre, the staff took a lien over her gold earrings, which were kept in the centre’s custody.

(b)  As presented by the Government

According to the Government, the applicant was admitted to the centre on 19 August 1994 at about 6.00 p.m.  A doctor who examined her ascertained that she was intoxicated and that she had bruises on her thighs and buttocks inflicted by a truncheon. The doctor described the applicant as aggressive and vulgar. An entry in Section VI. 2 of the card recording her stay in the sobering-up centre (see below 5. Other documentary evidence) indicated that at 10.30 p.m. the applicant claimed that she had not drunk any alcohol and that she suffered from diabetes. At that time she underwent a breath test which showed 1.70 promille of alcohol in her blood. She did not tell the doctors that she was on insulin. Nor did she have on her the so-called “certificate of a person suffering from diabetes“ (książeczka chorego na cukrzycę). None of the doctors said that the policemen should have beaten her up even more badly.

3.  Criminal proceedings instituted at the applicant’s request

On 23 August 1994 the applicant requested the Warsaw District Prosecutor (Prokurator Rejonowy) to institute criminal proceedings against the policemen who had beaten her up and then detained in the Warsaw Sobering-up Centre.

On 16 September 1994 the applicant was summoned before B.S-F., a prosecutor from the Warsaw District Prosecutor’s Office (Prokuratura Rejonowa), in order to make a formal notification of the commission of an offence (zawiadomienie o popełnieniu przestępstwa). The relevant document read, in so far as relevant:

“... On 19 August 1994 I travelled by train from Łowicz to Warsaw East.  ...  I fell asleep and woke up at a police station.   I considered that I was at the Warsaw-East Railway Station [because] I heard a noise made by trains and a voice announcing a train to Prague.  At the police station I was beaten ..., that is to say, slapped on the face; I also felt kicks on my thighs and lower legs.  I saw policemen surrounding me.  At that time I was in a coma or semi-coma.  I am unable to say or describe who of the policemen beat me.  I do not remember that.  In consequence of the beating my whole body was aching, I had bruises on my legs and bumps on my head.  I want to stress that since 1971 I have been suffering from diabetes, although during the incident in question I did not have a certificate [of a person suffering from diabetes] on me. ...”

On the same day, the prosecutor heard evidence from the applicant. The relevant part of the record read:

“... During last two years states of diabetic coma have most frequently occurred to me in the summer. On average, they occur four-five times over the summer time.  ...[In such a state] I loose consciousness and do not know what happens to me.  I do not control my behaviour; [typical] symptoms are trembling hands and eyelids as well as sweating  ... In a coma I would behave aggressively when someone would wake me up or try to stir me up. ... My state may appear to be similar to a state of intoxication. ...

On 19 August 1994, [when] I travelled on my own on the train I was not under the influence of alcohol or any intoxicating drug.  I had an insulin injection at 6 a.m.. ... I fell asleep; that was due to a low level of sugar in my blood.  I do not know when I woke up; it was not dark yet. I was at a police station.  I believe that it was the Warsaw Railway Police Station. [I heard] trains and a voice announcing a train to Prague.  Beforehand, I had not been aware where had I been and what had happened to me.  I was in a diabetic coma.  I do not know who took me to the police station but I am sure that I did not sustain injuries before having been brought to the police station.  I was [lying] on a floor.  ...  When I woke up, I was alone and after a while I became aware of the fact that I had been beaten up.  My whole body was aching; that could not have been the result of a [coma].  ...  When in a coma, I remembered that, having been at the police station, I had felt blows to my body, in particular, kicks on my upper and lower legs.  I also remember that I was slapped on my face.  I cannot recall the number and intensity of the blows because my senses were dulled by a coma.  The blows were, however, strong enough to have resulted in a huge bruise on my right thigh and other bruises described by a doctor. ...  I cannot say who beat me and for how long.  They were, though, persons in police uniforms ...  I cannot describe those policemen.  ...  When I woke up, that is to say, when I regained consciousness, I was alone in the room.  ...  I was in shock resulting from the situation.  After a while I was hand cuffed because I had probably misbehaved.  I cannot describe how I behaved because I was at the time still in shock.  Then, I was taken to a car.  While being taken to that car and during the drive I was not beaten up.  ...  I was taken to the [Warsaw] Sobering-up Centre ...

The first person whom I told that I suffered from diabetes was a doctor in the sobering-up centre.  ...  I showed him the injuries I sustained at the police station.  He said: “The policemen should have beaten you up even more badly.”  He did not provide me with any assistance and behaved towards me in an inconsiderate manner.  I think that my state did not require an immediate help but the doctor did not show much interest in my diabetes.  Perhaps, it was on account of a big number of persons who were queuing to be attended by him.  I also asked yet another doctor for help but he disregarded my request.  That is all I want to say.  ...  ”

On 17 October 1994 the Warsaw Praga-Północ District Prosecutor instituted an investigation “concerning abuse of their powers by officers from Warsaw-East Railway Police Station while carrying out their duties, resulting in infringement of [the applicant’s] personal rights on 19 August 1994” and on suspicion “that the offence defined in section 142 of the Police Act of 1990 had been committed against [the applicant]”.

On 22 December 1994 the investigating prosecutor heard evidence from D.R. The relevant record read, in so far as relevant:

“...I do not remember the exact date and hour but, after showing me a copy of my notebook, I see that it was on 19 August 1994 at about 5 p.m. I went to a platform together with M.F. ... Someone from the train service ... told us that a passenger did not want to leave a train and that they could not cope. When we got into the train, we saw a woman lying on the seat, her head leaning against a window. ... She was not asleep. She looked and behaved as though she were intoxicated. She all the time used vulgar words; they were not addressed to any particular person. As the train was already late and was to depart I, together with M.F., took that woman out of the train, supporting her by our arms and brought her to the platform, taking her bags with us. Initially, she did not resist; she only uttered swear words. Trying to check her state, we released her but she immediately lost her balance and could not make a step and we had to hold her to prevent her from collapsing. Since we believed that that woman was excessively drunk, we decided to take her to the police station. We did not search for her documents. We began to escort her, supporting her by our arms but she then started to sit down, to stop and to dig her feet into the ground. We tried to subdue her by twisting her arms in order to make her go with us. That enraged that woman even more badly. In an underground passage she simply became aggressive. She started to swear at us. She struggled to free herself and tried to run away. I do not remember whether she tried to hit us. At that moment, as we could not cope with her, we used truncheons. I remember that I hit that woman on her legs two or three times; those hits were not strong. Today, I cannot recall whether M.F. hit her with a truncheon, too. After being hit, that woman calmed down a bit and we managed to escort her to the police station. She was taken to a cell and I went to find E.M. [to ask her] to do a body search. When E.M. entered the cell, that woman started to insult her and, behaving aggressively, did not let her touch her. E.M. asked us to help her. I and two policemen (M.F. was not present at the time) used physical force against [the applicant]. We seized her arms and legs and put her down on the floor, holding her in order to enable E.M. to do a body search. The woman still struggled, kicked and insulted us. Nothing was found on her. ... Neither myself nor anyone else did ever slap that woman on the face. ... Then I left her and waited for a police car which was to take her to the Warsaw Sobering-up Centre. During that wait, the woman kicked the door of the cell. ... I was sure that that woman was intoxicated: she smelled of alcohol and she behaved as though she were intoxicated. I believe that our action was correct and that, certainly, we did not overuse [physical] force against that woman. I learnt that she suffered from diabetes as late as during the investigation.  She did not have on her any document concerning her disease. ...”

On 5 January 1995 the investigating prosecutor heard evidence from M.F. The relevant record read, in so far as relevant:

“... Due to the passage of time, I do not remember exactly that event. After showing me a copy of my notebook, I recall that on 19 August 1994 ... I went with D.R. to the 7th platform. [A] conductor informed us... that an intoxicated woman did not want to leave the train. On the spot, I met the conductor together with that woman... . [S]he appeared to be excessively drunk.  She was lying on the seat.  When she saw us in our police uniforms she began to insult us. There was an evident smell of alcohol on her breath. The conductor asked us to take her out of the train. She struggled and insulted us all the time. When we entered an underground passage, she sat down, saying that she would not go with us to any police station. She did not want to give her personal details. I do not remember whether we twisted her arms on her back or used other holds; we certainly escorted her by supporting her arms. I am sure that I did not hit her with my truncheon. I cannot recall whether D.R. used his truncheon – though – it could well have been so because she was aggressive and hindered us in performing our actions. I remember that we escorted that woman to the police station even though she still resisted. Then, D.R. dealt with the matter because I had my dinner break. I do not know what happened to that woman afterwards.  I would only add that during the whole incident I thought that she was intoxicated. I learnt that she suffered from diabetes today ... During the incident, she did not have on her any documents showing that she was ill. ...”

On 6 January 1995 the prosecutor discontinued the investigation, finding that no offence had been committed. He considered that the actions taken by the policemen against the applicant had been entirely legitimate. They had good reasons to believe that she had been intoxicated and they had taken correct actions, without abusing their powers. Furthermore, referring to the evidence gathered in the course of the investigation, the prosecutor stressed that the injuries sustained by the applicant had resulted from her aggressive behaviour and the breaking of her resistance by the policemen.

The applicant appealed against that decision to the Warsaw Regional Prosecutor (Prokurator Wojewódzki). She maintained, among other things, that she had at the material time been in a hypoglycaemic coma, that her detention had been unlawful and that the policemen had severely assaulted her, in particular by beating her and kicking her in the legs.  She referred, in particular, to a medical certificate of 21 August 1994, listing her injuries (see below 4. Medical documentary evidence supplied by the parties).

On 28 April 1995 the Warsaw Regional Prosecutor quashed the contested decision and ordered further investigation, holding, inter alia, that:

“... It is beyond any question that [the applicant] was brutally beaten up and kicked by the police officers and that, as a result, she sustained bodily injuries within the meaning of Article 156 § 2 of the Criminal Code.  ...

When D.R. and the second police officer were questioned, they said that during the incident “[the applicant] seemed and behaved like one intoxicated ... used abusive expressions ... resisted ... made efforts to free herself ... her breath smelt of alcohol”. If this was so, they should, first of all, have established, by appropriate blood analyses, whether her condition justified her detention in a sobering-up centre. ...

[The applicant] states that, upon her arrival at the sobering-up centre, she informed a doctor that she suffered from diabetes and showed him her bodily injuries.  In such circumstances, the lack of response from the doctor and his opinion that, as recalled by [the applicant], “The policemen should have beaten her up even more badly” should carefully be examined in the future investigation. The persons concerned should be questioned and, if necessary, confronted with each other.

[Since] the above-mentioned circumstances were not taken into account in the original investigation – not to mention [that no account was taken of] the lawless conduct of the policemen – and because that investigation was limited to hearing evidence from [the applicant] and the two police officers concerned (in whose best interest was to present the incident to their advantage), it is necessary to supplement the investigation.  In particular [the investigating prosecutor] shall:

1.  carefully and diligently hear evidence not only from both policemen concerned (to date, their statements have been vague) but also from all other persons who were involved in the incident in any other way. It concerns, in particular, E.M., a constable, [who did a body search of the applicant]. [She should be questioned] on how [the applicant] was treated during the search; whether she had any injuries to her body; whether she complained that she had been beaten up; whether the constable, unrequested, attended to [the applicant’s] health; how the other officers behaved; why, given that there was a suspicion that [the applicant] was intoxicated, no blood was taken from her and analysed before her detention;

2.  hear evidence from other police officers, including the Chief Constable of the [Warsaw-East Railway Police Station], in order to establish whether he has ever trained his staff how to deal with an arrested person who must not necessarily be intoxicated;

3.  hear evidence from the doctor (and the staff of the Warsaw Sobering-up Centre) in order to establish what are the rules of admission to the centre; what actions were taken by the doctor; whether, examining [the applicant] he was sure that she was intoxicated and, if so, what indicated that she was under the influence of alcohol; what action he took after she had informed him about her disease; what did he mean in saying that “The policemen should have beaten her up even more badly”; whether, in his opinion, a diabetic deserves beating up rather than immediate medical assistance and treatment?;

4.  obtain evidence from a medical expert (specialist in diabetes) in order to establish symptoms of diabetes; whether a hypoglycaemic coma may result in aggressive behaviour and whether diabetes may be masked by, or mistaken for, a state of intoxication; whether being on medicines (and, if so, on which ones) may result in exhaling a smell resembling the smell of alcohol?

The above-mentioned evidence (and any evidence that may be necessary) shall be obtained in the further investigation. ... in order to assess objectively the facts of the case and the behaviour of the possible culprits ...

That being so, the impugned decision shall be quashed as being premature.”

On 16 May 1995 the investigating prosecutor heard evidence from E.M. The relevant part of the record of her testimony read:

I recall an event that took place last summer, when a woman, behaving in a very aggressive way and looking as if she was very drunk was escorted to the police station. Probably, that event took place on 19 August 1994. ...At around 6 p.m., I think, D.R. asked me to do a body search of a woman who was to be taken to the sobering-up centre. Entering the cell, I saw two or three policemen who were trying to keep the woman standing still; she was behaving aggressively and struggling. At the first sight, she was looking like heavily drunk. I cannot recall the names of the policemen that kept that woman and prevented her from struggling. When I entered the room along with D.R., the woman was kicking the policemen who were trying to subdue her and she was behaving as if she were mad. When I was entering the cell she shouted: “what is that whore doing here?” Apart from that, she was screaming all the time and swearing at all policemen.  She was using vulgar words; I do not remember exactly those words because I tried to ignore that.

When D.R. told her that I came to do a body search before she would go to the sobering-up centre, she went even madder than before. I cannot find the proper words to describe how vulgar and aggressive that woman was at the time. The police officers could hardly prevent her from kicking and struggling. So, I said to the officer D.R. that I could not do a body search, as four young men had to keep her standing still. After some time the police officers managed to put her down on the floor, then it was possible to search briefly her pockets to see if she had any dangerous, sharp objects. ... I told D.R. to take her to the sobering-up centre as soon as possible so that the doctor could examine her, and I went back to my office. I did not hear anything about that woman afterwards, and I was sure she was taken to the sobering-up centre.

... According to me, the following symptoms indicated that the woman was heavily drunk: her breath that smelled clearly of alcohol; she was mumbling, and she had a look of “madness” in her eyes, and her whole behaviour was that of a drunken person. I am very surprised that she claimed to be in a diabetic coma. It was not like this according to me, and as a proof I can tell that when I entered the cell she was able to see me and to notice that I was a woman. I do not think that a person in a coma could notice such things. I think that her blood was not analysed ... because as far as I know, there was no suspicion that she could commit any crime.

The policemen escorted her to the police station in order to take care of her and not to punish her for her bad behaviour. There is no breath analyser in our police station. I am of an opinion that the best that could have been done, as she was so aggressive, was to take her to the sobering-up centre for the doctor to examine her. I do not think there was any need for the woman to undergo a blood test. During my contact with the woman, she did not indicate that she might be suffering from diabetes. Apart from swearing at us all, she did not ask us for anything. She did not have any documents concerning her illness. If she had informed us of it, or if we had been able to notice it, she would have received an immediate medical help. ...

As to the manner in which she was treated during the body search, it was exactly as I have said before. ... I do not know anything about beating her up. No one beat her in my presence. I do not have any knowledge of what happened before or after I was in the cell. I saw the face and hands of the woman and I noticed neither any signs of beating nor any injuries. I did not see the whole body and cannot tell if there could be any injuries.  [The applicant] did not complain about having been beaten up.

The witness, when asked a question whether she had shown any interest in the woman’s state of health, answered: I showed such an interest by telling the police officers to take her, in her state of madness, to the sobering-up centre so that she could be examined by a doctor. I think that D.R. and other officers, whose names I do not know, behaved adequately to the situation. I did not see any of them beating her, they were only holding her hands, so that she could not struggle or hurt anyone. I think that if that woman sustained any injuries on that day, they were caused by herself, and were a consequence of her struggling and trying to free herself from the policemen. ...”

On 19 May 1995 the investigating prosecutor again heard evidence from the applicant. The record of her testimony read, in so far as relevant:

“... I hereby confirm all what I have already said. ... I add that on 19 August 1994 I did not drink any alcohol. ... I recall that ... in the sobering-up centre, on my own request, a breath test was made ... I was not informed of the result. I do not know how was it possible that there was 1.70 promille of alcohol in my blood. ...

As regards the events that took place at the police station, I entirely uphold what I already said before the prosecutor on 16 September 1994 and have nothing to add. I also maintain the description of events at the sobering-up centre given by me [on that day] and would only add that I told the doctor that I would have to be given insulin at 7 a.m. He promised to do so. In the morning, I reminded the staff of that but they laughed at me and I was not given insulin.  ... 

I confirm that during the incident I behaved aggressively towards the policemen; I remember that I struggled and tried to free myself, and that I used vulgar words.  I would explain that my aggression resulted from my coma and malaise.   I believe that the policemen should not have kicked and beaten me up even though I looked as I were intoxicated and behaved aggressively.  I certainly remember that I was kicked.  ... I do not know whether I told the policemen that I was ill; I certainly did it upon my admission to the sobering-up centre.  I do not remember whether at the police station a body search was to be made by a policewoman.  ... I remember that I also behaved aggressively in the sobering-up centre but, at that time I felt better and my behaviour resulted from the impossibility of explaining to the doctor that I was sick and that I could not stay in the centre overnight - the doctor showed no interest in [my complaints].  ... I would want to obtain compensation and have my case referred to a court.  ...

I have a grievance against the doctor [because] when I showed him the bruises on my legs he said that the policemen should have beaten me up even more badly.  ... Had the policemen only hit me with truncheons, I would not have had a grudge against them but I cannot forgive them kicking me.  ...”

On 19 May 1995 the investigating prosecutor ordered that medical evidence be obtained.  He asked M.P., a forensic expert, to prepare a medical report and answer the following questions:

“1.  What are symptoms of diabetes?  Can the so-called “coma” result in aggressive behaviour or behaviour [similar to that typical of] alcohol intoxication?

2.  May the taking of medicines (and, if so, which ones) by a diabetic result in his/her exhaling a smell similar to the smell of alcohol?

3.  Was it possible that the reading of the breath test undergone by the applicant was erroneous, for instance on account of an elevated level of acetone in her breath?

4.  Is it difficult to distinguish between the behaviour of a diabetic in a coma and the behaviour of an intoxicated person?

5.  How, under the relevant provisions of the Criminal Code, should the injuries sustained by [the applicant] be classified?  Were those injuries caused in the manner described by her or rather in the manner described by the witnesses policemen?”

The expert submitted his report on 22 May 1995.  The relevant parts of the report are presented below (see 4. Medical documentary evidence supplied by the parties).

On 23 May 1995 the investigating prosecutor heard evidence from W.Z., a doctor from the sobering-up centre.  The relevant record read, in so far as relevant:

“Today I am not able to recall how did [the applicant’s] admission and stay proceed on 19 August 1994.  I admit nearly 80-100 patients a day, I cannot therefore remember each of them, and what is more, the event in question took place almost a year ago. The only thing I can say is that, after looking at the card of her stay in the sobering-up centre, I was the doctor on duty who admitted [the applicant] to the centre. The card indicates that the patient was vulgar and aggressive. After examining the patient I could tell there were blood extravasations on her bottom and thighs, resulting from beating with a truncheon.  Since the patient was very excited psychomotorically, she was given an injection containing a calming agent (ataraks) and it was recommended that she be tied up to a bed. The card also contains a note made by doctor W. – no, after a slight reconsideration I think it was a handwriting of doctor [W.] B. – showing that the patient acknowledged that she had drunk vodka and said that she suffered from diabetes. A test was then made by a glucose-analyser. [Such test] is done by stinging a finger with a needle, and analysing a blood drop, one drop is enough to perform the analysis. The result was 170 mg/%. The patient did not tell the doctor about any health problems. I can add that, after admitting her to the centre, a breath test was made and it read 1.70 promille. In my opinion, it is possible that the patient was in such a state that she did not notice that a glucose test was made.  If the patient had notified me that she was a diabetic I would definitely have written it down on the card recording her stay, and made a glucose analysis. Then she would have been detained in the centre as we admit diabetics, too. A person suffering from diabetes can consume alcohol without any negative consequences. The card indicates that the patient was moderately intoxicated and that her stay in the sobering-up centre was highly recommended. I do not recall at all being rude to the patient and saying that the policemen should have beaten her even more badly. Neither me nor any of the doctors working with me are ever impolite towards patients and would ever address the patient in such a manner. ...”

On 24 May 1995 the investigating prosecutor heard evidence from A.S. , one of the policemen from the Warsaw East Railway Police Station who was on duty on 19 August 1994.  A.S. said that, given the passage of time, he did not remember whether any incident involving an intoxicated woman had taken place on that day.

On 25 May 1995 the prosecutor heard evidence from W.B., a doctor from the Warsaw Sobering-up Centre.  The relevant part of the record of the latter’s testimony read as follows:

“... Today I cannot at all recall any incident involving a woman who allegedly suffered from diabetes and was admitted to the centre on 19 August 1994.  What I am going to say will only be the repetition of what is written down on the card recording her stay in the sobering-up centre.  On the basis of that, I can say that [the applicant] was admitted to the centre on that day.  During her admission and examination she was very aggressive and vulgar towards medical personnel and the other persons who were on the shift on that day.

I was not personally present during the examination of the woman, she was examined by doctor [W.] Z.  Her card of stay in the centre indicates that at 6.55 p.m. she did not claim to suffer from any disease. After three and a half-hours, during a doctor’s round, the applicant claimed that she had not drunk alcohol and told me that she suffered from diabetes. Therefore, I made a breath test at 11.00 p.m. and the result was 1.70 promille, which confirmed that the woman was intoxicated. The card does not indicate that I made a test by a glucose analyser.  I think that doctor [W.] Z. was not able to read correctly my handwriting on the card, I mean – it is a copy, I made a note concerning the test by a breath analyser. On the basis of the card, I can tell that after carrying out the breath test I assumed that the woman did not say the truth, I mean, she could not tell anything concrete about her illness. I cannot recall right now whether or not I made a glucose test. I also examined that woman on 20 August 1994 at about 8.30 a.m. before she was released from the centre.   At that time, she did not claim that she suffered from any disease either. If the woman had told me that she suffered from diabetes and needed to take insulin during my doctor’s round at 10.30 p.m., I would have checked the glucose level in her blood and ascertained whether there was a need to give her insulin during night hours. The card also indicates that the woman did not say that she needed an insulin injection on her departure from the centre.  During her admission she did not have a certificate of a person suffering from diabetes, which was obligatory and on the basis of which it would have been possible to assess her condition. ...

I was sure that the woman was intoxicated, which was confirmed by the breath test.  When the woman told me that she suffered from diabetes, I did not take any action because I came to the conclusion that even if she was really ill, her general condition did not indicate danger to her life. Apart from the words of the intoxicated woman, I did not have any basis to assume that she was really ill. She should have told me whether she was taking insulin or oral hypoglycaemic drugs but I did not receive such information. I do not recall myself saying that “the police officers should have beaten her even more badly” after seeing her injuries. On the basis of the card I can add that the condition of the woman - intoxication - justified her detention in the centre because her behaviour could have been dangerous to her or other persons’ health. ...”

On 30 May 1995 the Warsaw-Praga Północ District Prosecutor again discontinued the investigation, finding that no offence had been committed.  This decision read, inter alia, as follows:

“... All the evidence obtained in the course of the supplementary investigation only confirmed that the measures applied by the police to the applicant were within the limits of lawful means accorded to them [“mieściły się w granicach przysługujących im uprawnień”]. The statements of D.R., F.M. and E.M. are logical and mutually coherent; they unequivocally indicate that [the applicant] behaved as a person in a state of alcohol intoxication.

It is telling that whereas [the applicant] agrees that after [being woken up] she might have unconsciously behaved in an aggressive manner, she could unmistakably perceive a person who entered the cell to do a body search. As E.M. has testified: when she entered the cell [the applicant] noticed her immediately and could perceive that she was dealing with a woman. It is therefore difficult to negate the credibility of the policemen’ statements as to the circumstances surrounding [the applicant’s] arrest, the more so as [the latter] has admitted that she hardly remembered the events which took place at the police station.

The objective borne in mind by the policemen, when they were taking [the applicant] to the police station – and, to do so, it was necessary to use a truncheon – was not to punish her for her behaviour but to take care of her because she endangered herself.  What were the [true] intentions of the policemen is shown by their try to remove earrings with sharp endings from her ears – which could possibly injure her – and then their [decision] not to do it because of their fear to injure her.  

The circumstances surrounding the finding of [the applicant] in the train, her vulgar behaviour, blurred speech, inability to stand on her legs and, first and foremost, the smell of alcohol, gave the policemen grounds [both] to consider that they were dealing with an intoxicated person and to apply the measures they in fact used in the situation. 

It was not possible to take blood from [the applicant] and do any analyses or breath-test because the police did not have the necessary equipment. ...  It was a routine decision to take her to the sobering-up centre.  She was endangering not merely other persons but herself and this was the reason why a prompt decision to bring her to the sobering-up centre was made.  There was no suspicion that she had committed any offence; rather, her exceptionally aggressive behaviour and the impossibility of making any contact with her prompted the policemen to take the most correct decision [to detain her in such a centre].

According to a report prepared by M.P., a forensic expert, she was intoxicated and, in consequence, behaved aggressively and could be apprehended in the manner applied by D.R. and M.F. ...

On the basis of the expert report, it has to be established that [the applicant] had no symptoms of a diabetic or hypoglycaemic coma. There were, however, noted the symptoms of alcohol intoxication (confirmed by the relevant test which showed 1.70 promille of alcohol in her blood) and on that basis it is legitimate to conclude that on the material day at after 5.00 p.m. [the applicant] was intoxicated and her disease was a matter of secondary importance. ...

In her appeal, [the applicant] attached particular importance to the – in her view – brutal manner in which the policemen treated her during the incident in question and to the fact that they ignored her disease.  These arguments are unfounded.  When travelling, she had failed to take any documents, including those relating to her disease. ... She informed the doctor about her disease ... as late as 11.00 p.m., that is to say, six hours after having been arrested. It seems reasonable and clear that the policemen would certainly have provided her with medical care if they had been informed of her disease. ....

Her explanations that her actions were unconscious and she could not recall the circumstances of her arrest are not coherent; for instance, her oblivion concerned such important events as hand-cuffing and a body search, whereas she could recall what had she said to the doctor and who had escorted her to the centre, and she could distinguish between being hit with a truncheon and being kicked. Such inconsistency, in particular concerning the beating, does not give grounds to believe that the policemen so behaved, the more so as the medical certificate issued by Skierniewice Hospital and entries made [by the doctors] in the card recording her stay in the sobering-up centre show the contrary. The two certificates describe [the applicant’s state] as injuries on both lower limbs, bruises on both thighs and lower legs in the shape of stripes; that indicates that they were caused by the use of a truncheon. No injuries to her face, although alleged by the applicant, were observed either by the policemen or the staff of the sobering-up centre, or by the doctors who examined her in connection with the incident in question. 

The aforementioned findings of fact have been made on the basis of evidence heard from the following witnesses: D.R., M.F.; E.M. and A.S., the doctors from the sobering-up centre W.Z. and W.B. and the above-cited forensic expert report. ...

Assessing the facts of the case as a whole, it has to be stressed that all the actions taken by the policemen against the applicant were entirely proved to be right. They had good reasons to believe that they were dealing with an intoxicated and aggressive person and they took the adequate action – without exceeding their powers. In addition, they were not aware of the fact that she was ill because she did not have on her [the so-called] certificate of a person suffering from diabetes. She should, though, have had it on her.

The material collected in the investigation justifies the conclusion that the injuries sustained by the applicant had resulted from her aggressive behaviour and the policemen’ attempts to deal with it. It is therefore fully justified to consider that the officers concerned did not abuse their powers and, in consequence, their deeds did not constitute a criminal offence. ...”

On 13 November 1995, upon the applicant’s appeal, the Warsaw Regional Prosecutor upheld the decision of the prosecutor at first instance and the reasons therefor, stressing that the injuries sustained by the applicant could well have resulted from kicks and blows by fists or from hits by a truncheon which, in the Regional Prosecutor’s opinion, did not support her version of the incident in question.

4.  Medical documentary evidence supplied by the parties

On 21 August 1994 the applicant was examined by a court medical expert. He made a report, which read as follows:

“On 21 August 1994 I examined Ms H[...] D[...], residing in Samice, who presented an identity card No. 6768205.  She states that on 19 August 1994 she was beaten up by three policemen. This took place between 6.00 and 8.00 p.m. at the Warsaw-East Station.  In particular, they kicked her in the legs.

She complains of a pain in the back of her chest, her legs and her left hand.

[After the examination] I ascertain [the following injuries]:

On her lower limbs there are six blue bruises of the following size:

a/ 13 cm x 9 cm;

b/ 12 cm x 13 cm;

c/ 8 cm x 9 cm;

d/ 4 cm x 4,5 cm;

e/ 20 cm x 19 cm;

f/ 8 cm x 10 cm.

I attach a certificate issued by Skierniewice Regional Hospital.

I attest that the above-mentioned injuries amounted to bodily harm within the meaning of Article 156 § 2 of the Criminal Code, resulting in sickness for a period not exceeding seven days.

Stamp: Consulting Room. Doctor of medicine F.[...] K.[...], surgeon, internist and forensic expert. [Signature illegible]."

The above-mentioned certificate of Skierniewice Regional Hospital, issued on 21 August 1994, read:

“Medical record no. 7749.

Mrs [H.D.] , 42 years old, was given medical assistance on 21 August 1994.

Diagnosis: Injuries to both legs with blood extravasations on both thighs. Joint mobility: normal.  Painfulness in the right part of the chest and paraspinal region.  Treatment for diabetes.  At present does not require hospital treatment. ...[signed by a surgeon].“

On 22 August 1994 M.S., a specialist in internal diseases and diabetes, issued a medical certificate, which read, in so far as relevant:

“Patient [H.D.] since 1971 has been suffering from diabetes type I [insulin-dependent]. Suffers from states of hypoglycaemia coupled with aggression. In June 1994 admitted to a ward for internal diseases in Skierniewice Regional Hospital as being diagnosed with neuroglycopenia [a disorder characterised by such symptoms as impaired thinking, change of mood, irritability, dizziness, headache, tiredness, confusion and later convulsions and coma] which occurred between 3 p.m. and 4 p.m. ...”

On 22 May 1995 M.P., a forensic expert, submitted the following report to the investigating prosecutor:

“... [From the relevant material, it emerges that] H[...] D[...] suffers from insulin-dependent diabetes and ... she was recently hospitalised for cerebral hypoglycaemia. At 6.00 a.m. on the day in question she injected herself with the prescribed dose of insulin.  At 3.36 p.m. she departed from the Skierniewice railway station, and at 5.15 p.m. she was asleep on a bench for passengers in the same train at the Warsaw East railway station. She was forced to leave the train, and was beaten with a police truncheon on the buttocks and thigh. She was taken to a Sobering-up Centre, where she was found to show clinical symptoms of ethyl alcohol intoxication and an alcohol concentration of 1.70 promille. There was no finding or any description of the victim presenting a serious general state of health, rapid breathing, dry skin, or a fast, weak pulse. ...

[In the present case], the clinical symptoms described in the medical documents are typical for ethyl alcohol intoxication, and are characteristic of the second (euphoric) phase of such intoxication. ...

In sum, it can be asserted that symptoms of diabetic or hypoglycaemic coma were not observed in the case of H[...] D[...]. On the other hand, symptoms of the second phase of ethyl alcohol poisoning were observed (and confirmed by the results of an objective test). For these reasons, it can be assumed that, after 5.00 p.m. on the day in question, the victim was intoxicated, and not in a diabetic coma.

The bodily injuries described by physicians (at the Sobering-up Centre, in hospital and [by Dr F.K.]), in the form of subcutaneous blood effusions consistent with blows by a police truncheon, caused injury to tissue integrity and resulted in health disorders, as defined in Article 156 § 2 of the Criminal Code.

Conclusions:

In answer to the questions contained in the Prosecutor’s decision, it can be said that the bodily injuries suffered by H[...] D[...] resulted in health disorders meeting the requirements of Article 156 § 2 of the Criminal Code. They doubtless arose in the manner described by the victim and witness. There is indeed a cause-and-effect relationship between those injuries and subsequent health disorders.

Diabetic coma does not elicit symptoms of aggression similar to those that occur in the second phase of ethyl alcohol intoxication.

...

Associate Professor of Medicine

M[...]. P[...]., Ph.D.”

5.  Other documentary evidence

(a)  Report made by D.R. on 19 August 1994 (summary)

According to an official report made by D.R. to his superior on 19 August 1994, on that day, at 5.15 p.m., M.F. and himself got into the Łowicz-Warsaw East train as they had been informed by a conductor that a passenger, apparently intoxicated, had refused to leave the train. In a compartment they saw a woman lying on a seat, her head leaning against a window.  While being woken up by them, she used vulgar words.  In their view, she behaved as though she were intoxicated; her speech was blurred and they could smell alcohol on her breath.

When they took her out of the train, she resisted and sat down.  She did not want to go.  She used vulgar expressions, which were not addressed to any particular person.  Her resistance made it difficult to escort her and, consequently, they used physical force against her by, in particular, seizing her arms.  Then she became more aggressive, started to kick them and tried to free herself. She again screamed words commonly considered vulgar, however not addressing them to any particular person.  Since the efforts to restrain her were to no avail, they hit her with a truncheon.  Afterwards, she let them escort her to the police station.  They did not know her name as she had no documents and it was not possible to talk to her. At the police station D.R. asked E.M. to do a body search of the applicant.

(b)  Card recording the applicant’s stay in the Warsaw Sobering-up Centre

The staff of the Warsaw Sobering-up Centre filled out a form recording the applicant’s stay in that establishment.

That form was pre-printed. It bore the number 169990/501/J and was entitled “Card recording a stay in a sobering-up centre”. It had been filled out by hand. After details of the applicant’s identity, the form was divided into seven sections.

The first section, entitled “Request for admission”, indicated that the applicant had arrived at the centre on 19 August 1994 at 5.30 p.m. The reason for the arrest was partly printed and partly hand-written. It read:

“Brought on [handwriting] 19.08.94 at 5.30 p.m. [print] had been arrested on [handwriting] 19.08.94 at 5.15 p.m. [print] having been intoxicated he/she behaved offensively in a public place or a place of employment, was in a condition endangering his/her life or health, or was himself/herself endangering other persons’ life or health (give the exact description of the circumstances and place of arrest as well as the behaviour of the arestee during taking him/her [to a sobering-up centre).

[the relevant description in handwriting] the above-mentioned [person] was travelling on the train no. 9219 from Łowicz to Warsaw East.  The above-mentioned could not continue her travel any longer because of her drunkenness; she behaved to the general indignation of travellers.

[print] I ask that the above-mentioned be admitted to a sobering-up centre. [handwriting] [illegible rank] D. [...] R. [...] 07896 from KKP [Railway Police Station] Warsaw E[ast].”

Section II, entitled “Doctor’s assessment” and signed by a doctor, read:

“[print] [Person] brought to a sobering-up centre was examined by a doctor at [handwriting] 6.15 p.m.

1. Anamnesis:

(1)  Circumstances, kind and quantity of alcohol drunk, facts surrounding intoxication: [handwriting] drank vodka rowdy [behaviour] vulgar speech;

2.  Examination of the person brought in:

(1)  Behaviour: lucid; unconscious; somnolent; talkative; calm; rowdy; reticent; composed;

The words “lucid”, “talkative” and “rowdy” were underlined by hand.

(2)  Mood: cheerful; depressed, average; excited;

The word “excited” was underlined by hand.

(3)  Walk: steady; unsteady; lack of balance;

The word “unsteady” was underlined by hand.

(4)  Speech: clear; blurred; mumbling;

The word “blurred” was underlined by hand.

(5)  Traces of vomit: visible; invisible;

The word “invisible” was underlined by hand.

(6)  Pulse: regular; irregular; strong; weak;

The words “regular” and “strong” were underlined and “80” was written by hand.

(7)  Heart: regular beat’; irregular beat; clear tones; unclear [tones];

The words “regular beat” and “clear tones” were underlined by hand.

(8)  Pupils: wide; normal; abnormal; narrow; slow to react; no reaction;

The words “abnormal” and “no reaction” were underlined by hand.

(9)  Skin: pale; red; normal supply of blood; blue;

The words “pale” and “red” were underlined by hand and an illegible note was made on the entry.

(10)  Lungs: [illegible note in handwriting];

(11)  State of abdominal cavity: [illegible note in handwriting]

(12)  Injuries: [handwriting] blood extravasations on the bottom and thighs (truncheons)

(13)  Other ailments: [handwriting] none;

(14) Description of the state the person examined: [illegible word in handwriting];

[Print] As a result of the examination I find that the person brought in:

1)  is in a state of intoxication justifying keeping him/her in a sobering-up centre for [handwriting] 10 [print] hours;

That entry was underlined in handwriting.  The form proposed two other measures, which were not selected:

“2)  should be taken to a public medical care establishment;

3)  should not be placed in a sobering-up centre.”

Section IV, entitled “Objects to be kept in the centre’s custody”, listed the belongings taken from the applicant as follows:

“... identity card [no.] FW 6768205 issued by KPMO [District Headquarters of Civic Militia] in Skierniewice; staff badge no. 0720186 issued by the Skierniewice Institute of Gardening; certificate of disabled status, 33,500 (thirty three thousand and five hundred) old Polish zlotys; purse; two earrings made of golden metal; bag; trousers, blouse, bra; pants; shoes.”

Section V, “Alcohol taken from [the person concerned]”, contained no entry. On that section there appeared a copy of a printed slip showing the result of the breath test, which read:

“+breath analyser V5. 4+; date: 00.00.00; hour: 00:00; volume: 2,4 l; time: 7 S; level of alcohol: 1.70 promille.”

Section VI, entitled: “Stay in the sobering-up centre”, contained a list of the measures which could be applied to an intoxicated person (they included administering medicines, a warm or cold bath, solitary confinement, physical restraint by means of safety belts or a strait-jacket) and description of his/her behaviour. 

That section comprised the following entries:

“Medicines (injections): [illegible note in handwriting];

Safety belt from [handwriting] 7.10 – 9.00 p.m.;

Reasons for the use of a safety belt or strait jacket, person who made the respective decision: [handwriting] patient v[ery] aggressive, vulgar;

State of health and behaviour:

1)  mental state [partly illegible note in handwriting] at 10.30 p.m. patient during doctor’s round reported that she had drunk vodka and that she suffered from diabetes.  At 11 [illegible] p.m. a test by [illegible] was made, level [illegible note] of alcohol [illegible handwriting];

2)  physical state [no entry]

3)  other remarks concerning the stay:[handwriting] at 8.30 a.m. does not report any ailments; [signature illegible]

The last section, “VII. Release from the sobering-up centre”, recorded that on 20 August 1994 at an unknown hour the applicant had been examined by a doctor, assessed as “lacking symptoms of alcohol intoxication”, and released at 8.28 a.m.

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 are criminal offences prosecuted under the relevant provisions of the Criminal Code on various forms of assault and battery.

At the material time, the relevant provisions were contained in Articles 155 and 156 of the Criminal Code of 1969 (which is no longer in force and was repealed and replaced by the so-called “New Criminal Code”).

Article 155 provided for two types – intentional or unintentional – of aggravated battery (i.e. battery occasioning grievous bodily harm or invalidity or serious fatal, chronic or incurable disease).

Article 156 dealt with four forms of assault: aggravated assault, assault occasioning actual bodily harm (i.e. occasioning bodily injuries or health disorder such as to affect the functions of the body for more than 7 days), common assault (occasioning bodily injuries or health disorder such as to affect the functions of the body for not more than 7 days) and unintentional assault.  Criminal proceedings on charges of common assault and unintentional assault (if the latter had not affected the functions of the victim’s body for more than 7 days) could be instituted only by means of private prosecution.

At the material time, in instances concerning ill treatment that amounted to moral harm, in particular an attack on the privacy or dignity of the person concerned, a victim might avail himself or herself of two remedies.

Firstly, in cases concerning acts committed by police officers he or she might, under Section 142 of the Police Act of 6 April 1990 (as amended), request the prosecutor to institute criminal proceedings against police officers who, while carrying out their duties, have infringed his or her privacy or other personal rights (including personal liberty, dignity and physical inviolability).

Secondly, he or she might bring, under Article 181 and 182 of the Criminal Code, a private prosecution against any other person who has insulted him or trespassed against him.

Under the so-called “principle of legality” (zasada legalizmu) laid down in Article 255 of the Code of Criminal Procedure of 1969 (which is no longer in force), the authorities were obliged to institute criminal proceedings ex officio in all cases where there was a suspicion that an offence had been committed.  However, in practice such proceedings were very frequently instituted on a victim’s request.

(b)  Under civil law

Articles 417 et seq. of the Polish Civil Code provide for the State’s liability in tort.

According to the well-established jurisprudence of the Polish Supreme Court, a plaintiff seeking damages under Section 417 of the Civil Code must show that the act or omission in question is unlawful and that the State’s agent committed a fault (the Supreme Court judgments: No. I PR 468/70 of 29.12.70, unpublished, No. I CR 24/71 of 19.4.71, unpublished and No. I CR 152/74 of 11.4.74, unpublished).

Article 445 § 2 of the Civil Code provides that if a person has been deprived of liberty, the court may award him or her an adequate sum to compensate for the detriment suffered.

Under Article 448, a person whose personal rights (e.g. personal liberty) have been infringed may seek compensation.  That provision, in its relevant part, reads:

“The court may grant an adequate sum in compensation for the detriment suffered to everyone whose personal rights have been infringed.  Alternatively, that person, regardless of seeking any other relief that may be necessary to compensate for the infringement sustained may ask the court to award an adequate sum for the benefit of a specific public interest.   ...”

2.  Extracts from judgments produced by the Government together with their pleadings submitted on 4 May 2001

(a)  Case no. XXII C 2074/97, judgment given by the Poznań Regional Court on 22 December 2000

i.  Facts

In December 1996 policemen from the anti-terrorist unit of the Wielkopolska Regional Police mistakenly took the plaintiffs (who came to their place of employment) for criminals involved in offences allegedly committed by their employer.  The plaintiffs, for their part, considered that they were confronted with, in their words, “bandits” who had entered their employer’s premises. They began to run away.  In the ensuing pursuit, the policemen shot at them from machine guns.  In consequence, the plaintiffs were seriously injured (injuries sustained by one of them caused serious disability and he permanently lost ability to work).

Criminal proceedings, which were instituted against the policemen on suspicion of having committed the offence specified in section 142 of the Police Act, were discontinued because the prosecution considered that the policemen had not breached the applicable rules laying down the conditions of the use of fire-arms by the police.  The plaintiffs then sued the State Treasury – the Wielkopolska Regional Commandant of the Police for damages.

ii.  Ruling

The court granted compensation to the plaintiffs, under Article 417 of the Civil Code.  It made its own assessment of the relevant facts.  In contrast to conclusions reached by the prosecution authorities, the court found that the rules governing the use of fire-arms had been breached and that the policemen had not had a sufficient basis to believe that they had been dealing with dangerous criminals.

(b)  Case no. I C 260/00/S, judgment given by the Kraków-Śródmieście District Court on 21 June 2000

i.  Facts

On 8 August 1998 K.M. was arrested by the police, pursuant to Article 206 of the Code of Criminal Procedure of 1969, on suspicion of having committed an offence. On 18 June 1999, on her appeal against the warrant of arrest, the Tarnów District Court quashed the warrant and declared it unlawful.  Subsequently, K.M. sued the State Treasury – the Małopolska Commandant of the Police before a civil court, seeking damages under Article 445 § 2 and 448 of the Civil Code.

ii.  Ruling

The civil court, basing its decision on the findings made by the criminal court, granted compensation to the applicant (that included psychological harm suffered).

(c)   Case no. I C 2158/97, judgment given by the Warsaw Regional Court on 25 October 2000

i.  Facts

In the course of criminal proceedings against the plaintiff (he was charged with dealing with stolen goods), some goods belonging to him were seized by the police under a warrant issued by the investigating prosecutor. Later, the prosecutor ordered that the seized goods be returned to the plaintiff. However, the police returned them to a third person.  The plaintiff sued the Warsaw Commandant of the Police before the Warsaw Regional Court, seeking damages for material loss.

ii.  Ruling

The court, relying on Article 417 § 1 of the Civil Code, granted compensation to the plaintiff, finding that the financial loss pleaded had been caused by negligence on the part of the police officers and, in particular, by the manner in which they had executed the order returning the goods to the plaintiff.

(d)  Case no. I ACa 139/99, judgment given by the Warsaw Court of Appeal on 12 May 1999

i.  Facts

The plaintiff , who was a witness in criminal proceedings and repeatedly failed to appear before the court, was detained for non-compliance with the court order. He was held 16 days in detention.  He later sued the judge presiding over the trial, seeking damages.  The court of first instance dismissed his claim, finding that there had been no fault on the part of the judge and that he could not be found liable for the damage pleaded.  The plaintiff appealed, invoking, inter alia, Article 5 of the Convention.

ii.  Ruling

The Court of Appeal set aside the first-instance judgment and remitted the case.  It held that the lower court should re-examine the factual basis for the claim.  The court expressed the opinion that a Convention provision (in the relevant case Article 5 §§ 1–5) could constitute an independent legal basis for a civil claim for compensation against the State Treasury.

3.  Use of force by the police

Section 16 of the Police Act of 6 April 1990, in the version applicable at the material time, read, in so far as relevant:

“1.  If a lawful order given by a police authority or a policeman has not been complied with, policemen may apply the following coercive measures (środki przymusu bezpośredniego):

a)  physical, technical and chemical means of restraining or escorting persons or of stopping vehicles;

b)  truncheons;

c)  water cannons;

d)  police dogs;

e)  rubber bullets fired from fire-arms;

2.  Policemen may apply only such coercive measures that correspond to the exigencies of a given situation and are necessary to have their orders obeyed.

Paragraph 5 of the Ordinance of the Council of Ministers of 17 September 1990 on the Use of Coercive Measures by the Police (Rozporządzenie Rady Ministrów w sprawie określenia przypadków oraz warunków i sposobów użycia przez policjantów środków przymusu bezpośredniego), in the version applicable at the material time provided:

“1.  Physical force shall be used in order to restrain a person, to counter an attack or to make [a person] to obey an order.

2.  When using physical force, no one shall hit a person, unless he has to do so in self-defence or in order to counter an unlawful attack against life, health or property of others.”

Paragraph 13 of the Ordinance provided:

“1.  A truncheon may be used in the following instances:

a)  countering a physical attack;

b)  breaking an active resistance

c)  countering a damage to property.

2.  Neither ordinary, nor riot truncheons shall be used against a person resisting passively, unless the use of force has been to no avail.”

4.  Arrest of intoxicated persons under the Law of 26 October 1982 on Education in Sobriety and Counteracting Alcoholism

The Law of 26 October 1982 on Education in Sobriety and Counteracting Alcoholism (hereinafter “the Law of 26 October 1982”) (Ustawa o wychowaniu w trzeźwości i przeciwdziałaniu alkoholizmowi) lays down measures which may be applied in respect of two categories of persons: those “addicted to alcohol” and those “intoxicated”.

Sections 21-38 deal with voluntary or compulsory treatment of "persons addicted to alcohol", whereas Sections 39-40 set out measures which may be applied to "intoxicated persons".

Pursuant to Section 39 of the Law, sobering-up centres shall be set up and managed by the authorities of municipalities with more than 50,000 inhabitants.

Section 40 of the Law (in the version applicable at the material time) provided, insofar as relevant:

“1.  Intoxicated persons who behave offensively in a public place or a place of employment, are in a condition endangering their life or health, or are themselves endangering other persons’ life or health, may be taken to a sobering-up centre or a public health-care establishment, or to their place of residence.”

2.  In the absence of a sobering-up centre, such persons may be taken to a [police station].

3.  [Intoxicated] persons who have been taken to a sobering-up centre or a [police station] shall remain there until they become sober but for no longer than twenty-four hours. ...

4.  Where it is justified to institute proceedings [in respect of an intoxicated person] with a view to [his undergoing] compulsory treatment [for addiction to alcohol], [the authorities concerned] shall immediately report [this fact] to the relevant committee for counteracting alcoholism.  ...”

A person arrested and, subsequently, confined in a sobering-up centre under Section 40 of the Law was not entitled to bring proceedings challenging the lawfulness of deprivation of his liberty since, according to Article 206 of the Code of Criminal Procedure, only a person arrested on suspicion of having committed an offence might appeal against a decision to arrest him (see the Supreme Court judgment No. I KZP 43/91 of 12 February 1992 reached by a bench of seven judges, published in OSNKW 1992 No. 5-6/32).

The Ordinance of the Minister of Administration, Local Economy and Environmental Protection of 7 May 1983 on taking intoxicated persons to sobering-up centres, the organisation of those centres, the medical care provided by them and the fees for transportation to and staying in sobering-up centres or police stations (repealed by an Ordinance of the Minister of Health and Social Care of 23 October 1996) set out detailed rules relating to detention in a sobering-up centre.

Paragraph 9 of the Ordinance (in the version applicable at the material time) provided, insofar as relevant:

“1.  A person taken to a sobering-up centre shall promptly be given a medical examination.

2.  Following the medical examination, a doctor shall ascertain whether such person should be placed in a sobering-up centre ..., or should be placed in a hospital or other medical establishment ..., or whether there are no signs of intoxication justifying a placement in a sobering-up centre.”

No provision obliged the authorities to carry out in addition any tests (e.g. blood or breath tests) to establish whether or not a given person was intoxicated. Paragraph 16 of the Ordinance provided, insofar as relevant:

“An alcohol test shall be carried out on the request of the intoxicated person ... “

According to paragraph 21 of the Ordinance, a person placed in a sobering-up centre was to be charged for both lodging and transportation there, at rates estimated to amount to, respectively, 20% and 4% of an average monthly salary in the public sector. If the person concerned did not have sufficient money, a sobering-up centre was entitled, under paragraph 22, to take a lien over his or her possessions.

COMPLAINTS

1.  The applicant complained under Article 3 of the Convention that the treatment to which she had been subjected during her arrest was inhuman and degrading.  She had been weak and affected by illness; in the circumstances of the incident as a whole, nothing justified her being kicked black and blue by the police officers.

She further submitted that the doctors and the staff of the Warsaw Sobering-up Centre had treated her in an inhuman and degrading manner, that they had completely disregarded the fact that she had been suffering from hypoglycaemia, ignored her requests for an insulin injection and her complaints that she had been brutally beaten up by the policemen.

2.  The applicant also complained under Article 5 § 1 of the Convention that her detention in the Warsaw Sobering-up Centre had been unlawful and unjustified.

THE LAW

1.  The applicant, invoking Article 3 of the Convention, complained that the treatment to which she had been subjected during her arrest and her subsequent detention in the Warsaw Sobering-up Centre had been incompatible with that provision.

Article 3 provides:

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

A.  The Government’s preliminary objection on non-exhaustion

1.  The Government’s arguments

The Government maintained that even though the applicant had availed herself of some domestic remedies available in respect of allegations of ill-treatment by State agents, she had not exhausted all such remedies.

They argued that the applicant, after the investigation into the circumstances surrounding her arrest by the police, and further detention in the Warsaw Sobering-up Centre had been discontinued, could have brought private prosecution against the alleged culprits to the relevant court.  She could have sought to have them tried either on the charge of common assault, an offence defined in Article 156 § 2 of the Criminal Code of 1969, or on the charge of trespass to the person defined in Article 182 of that Code.

In that context, the Government cited statistical data supplied by the Katowice Regional Court. They admitted, however, that within the time-limit allowed to them before the oral hearing, they had not been able to provide more examples, especially as the Ministry of Justice did not collect statistical data concerning that particular aspect of the Polish courts’ practice.

The Government stated that from 1 January 1994 to 1 September 1998 in the Katowice region alone twenty-five private prosecution proceedings had been brought by persons seeking to have policemen convicted on charges of common assault.  All those proceedings had been initiated after investigations relating to the offence defined in section 142 of the Police Act had been discontinued. In ten cases (out of those twenty-five) policemen had been convicted as charged.

In addition, the Government argued, the applicant had a further, effective remedy under civil law, namely an action for damages under Article 417 § 1 of the Civil Code.

In that regard, the Government stressed that since the beginning of the 1990s’ the Polish courts had fundamentally changed their practice and had begun to apply Article 417 in a more flexible manner. Previously, civil actions for damages based on that provision and directed against a State agent who had committed acts of ill-treatment had been examined in the light of evidence gathered in the relevant criminal proceedings. In consequence, the result of those proceedings could have had a bearing on the determination of whether the defendant had been at fault, which was one of the essential pre-requisites for finding him liable for damages.

Under the new practice, however, civil courts evaluated the question of fault on the part of the defendant State’s agents regardless of whether or not a person alleging ill-treatment had ever sought to have criminal proceedings instituted against the culprits and, had such proceedings been instituted, regardless of their outcome.

In that connection, the Government maintained that twelve judgments had been delivered in the years 1994-1998, awarding damages to persons for loss and injury caused by policemen in the course of carrying out their duties, regardless of the fact that the relevant criminal proceedings had been discontinued. They further produced copies of the four judgments summarised above (see the “Relevant domestic law and practice”).

They underlined that all those judicial decisions unequivocally showed that the fact that the investigation instituted at the applicant’s requests had been discontinued on the ground that the policemen’ actions had been lawful had not made it unrealistic for her to obtain damages in a civil court. 

In sum, the Government considered that the Polish legal system afforded the applicant several criminal and civil law remedies which, had she ever resorted to them, would have redressed her grievance under Article 3.  She had not, however, made any attempt to try any of those remedies and, accordingly, had not given the Polish authorities an opportunity to put matters through the domestic system and to grant her redress. 

At the oral hearing, the Government also stressed that the applicant, before asking the Court to award her compensation for the alleged breach of her Convention rights, should first of all have sought damages before domestic courts under Article 417 § 1 of the Civil Code.

2.  The applicant’s arguments

The applicant disagreed. She stressed that she had asked for criminal proceedings to be instituted against the policemen who had brutally beaten her but those proceedings had been discontinued. She did not see how she could successfully have instituted private prosecution proceedings on the same set of facts and against the same persons, given that the original criminal proceedings had been discontinued on the ground that there had been no basis for prosecuting the culprits.

On that point, the applicant referred to the Court’s established case-law, pointing out that an applicant could not be required to have recourse to legal remedies which were ineffective or lacking prospects of success. In particular, she did not need to exercise remedies which, although theoretically of a nature to constitute a remedy, did not in reality offer any chance of redressing the alleged breach.

The applicant considered that the same principle applied to the Government’s further argument that she had failed to lodge a civil claim. In her submission, any attempt to obtain compensation based on the general rules of tort would have been to no avail.  It was a matter of common practice that in the determination of a claim based on Article 417 § 1 of the Civil Code a civil court, in the process of obtaining and assessing evidence, would consider material gathered by the prosecution during the investigation. It would do so for two reasons: to enrich its understanding of the relevant facts and to absolve itself – at least in part – from making its own findings of fact, findings which would in any event not be complete for the lack of means of inquiry which were at the investigating authorities’ disposal.

3.  The Court’s assessment

The Court recalls that the aim of the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention is to afford Contracting States an opportunity to put matters right through their own legal system before having to answer before an international body for their acts. However, although Article 35 § 1 requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, it does not require that recourse should be had to remedies that are inadequate or ineffective (see Egmez v. Turkey no. 30873/96, ECHR 2000-XII, §§ 65 et seq). Nor can it be said that in cases where the national law provides for several parallel remedies in the sphere of both civil and criminal law, the person concerned, after a sustained but eventually unsuccessful attempt to obtain redress through one such remedy, must necessarily try all other means.

In consequence, the Court does not consider that, after the Polish prosecution authorities had discontinued the investigation instituted at the applicant’s request, she should, in order to fulfil her obligation under Article 35 § 1, have brought private prosecution against the policemen concerned.

Yet in the present case the Government further argued that the applicant could also have tried to obtain compensation for the injuries sustained and detriment suffered, under Article 417 § 1 of the Civil Code. In that connection, they heavily relied on new developments in the domestic civil courts’ jurisprudence.

The Court recalls, however, that in cases where – as in the instant one – an individual has an arguable claim under Article 3 of the Convention, the notion of an effective remedy entails, on the part of the State, a thorough and effective investigation capable of leading to the identification and punishment of those responsible.   That does not necessarily entail the punishment at all cost of the officers involved in the alleged ill-treatment (see Selmouni v. France [GC], no. 25803/94, ECHR 1999-XII, § 79, and Egmez v. Cyprus cited above).

By force of that special obligation created by the Convention for domestic authorities in respect of arguable Article 3 claims, in the present case the applicant, by asking the Polish authorities to institute criminal proceedings into her allegations of ill-treatment, discharged her duty under Article 35 § 1 of the Convention to afford the Polish State an opportunity to put matters right through its own legal system before having to answer before an international body for the acts complained of (see, mutatis mutandis, Egmez v. Cyprus cited above). 

Accordingly, the Court holds that the applicant should not in addition have sought to pursue the other remedies relied on by the respondent Government.

It follows that the Government’s preliminary objection must be rejected

B.  Compliance with Article 3

1.  As regards the circumstances surrounding the applicant’s arrest

The Government, relying on the judgment in the case of Kudła v. Poland ([GC], of 26 October 2000), maintained first of all that ill-treatment falling within the ambit of Article 3 had in any event to go beyond an inevitable element of suffering and humiliation connected with a given form of legitimate treatment or punishment.

They stressed that in the present case there was no doubt that the policemen had arrested the applicant in order to protect the public order and that her own conduct had given sufficient grounds for using physical force against her.

The policemen had never denied that, in order to subdue her resistance, aggressive behaviour and struggling, they had used the so-called “overpowering holds” and had hit her three or four times with the truncheon.

The Government further maintained that the applicant’s allegations that she had been beaten, kicked and brutally assaulted by the police had never been confirmed. All medical reports had described bruises on her legs as resulting from hits by a truncheon. The applicant’s injuries had, accordingly, been the consequence of the lawful use of force by the police.

The applicant, for her part, maintained that she had been treated in an inhuman and degrading way. She had been dragged by the policemen from the train. They had been slapping her on the face, beating her with their truncheons and kicking her in the legs. The forensic expert who had examined her afterwards had found six big bruises on her body. The use of force against her – a weak woman – had been out of all proportion to her allegedly offensive behaviour. The policemen had clearly violated the rules governing the use of coercive measures against a person.

The applicant further contended that the Government’s argument that beating her with truncheons had been necessary had no basis. She had been apprehended and held by two policemen. There had been no need to apply such a drastic measure, given that, in her state, she could have been restrained by a simple hold or hand cuffing.

In that regard, the applicant also recalled that, according to the Court’s case-law, the recourse to the physical force against a person arrested or detained – if such a recourse was not strictly necessary – violated human dignity and constituted a breach of Article 3.

2.  As regards the applicant’s detention in the Warsaw Sobering-up Centre

The Government acknowledged that under Article 3 of the Convention the State had an obligation to provide a detained person with the requisite medical assistance. The State had moreover to ensure that a person was detained in conditions compatible with respect for his or her dignity.

The Government considered that in the present case the Polish authorities had not failed to satisfy those requirements. 

In their view, the applicant had been given adequate medical help and attention. In the course of her detention she had been examined three times by doctors. Only during the second examination, at 10.30 p.m., had she informed the doctor that she suffered from diabetes.  She had not, however, had on her a certificate corroborating that fact. The doctor had therefore had no documentary proof of her disease. He had nevertheless carried out a breath test that had confirmed that the applicant’s condition had resulted from intoxication, rather than from the disease she suffered.  On the next day, before her release, the applicant had again been examined by a doctor and been found in good condition.

It was true, the Government added, that the applicant had been tied with safety belts to her bed for some time. That measure had, however, been entirely legitimate and justified by her aggressive behaviour.

In any event, there had been no proof that the medical assistance or treatment received by the applicant from the doctors and staff of the Warsaw Sobering-up Centre had any adverse effects on her health or well-being.

The applicant replied that in the Warsaw Sobering-up Centre she had been refused medication and the doctors had not only turned a blind eye to her complaints about having been beaten up by the policemen but had also expressed approval of the officers’ behaviour.

The doctors, even though she had told one of them that she had suffered from diabetes, had ignored her request for an insulin injection. The fact that she had not had on her the relevant certificate had not absolved them from making a diligent and thorough medical examination, in order to establish her condition.

In sum, the applicant considered that the standard of care given to her in the Warsaw Sobering-up Centre had fallen below the minimum acceptable from the ethical and humanitarian point of view.

3.  As regards the adequacy of the investigation concerning the applicant’s allegations of ill-treatment

The Government maintained that the Polish authorities had conducted an effective and thorough investigation into the applicant’s allegations of ill-treatment by the police and the staff of the sobering-up centre.  That investigation had been instituted only a month after the applicant had asked for the alleged culprits to be prosecuted and lasted for more than a year.   The prosecution had heard voluminous evidence from all witnesses that could potentially have been involved in the incident and obtained comprehensive medical evidence.

Against that background, the Government considered that the authorities had not failed to satisfy the procedural requirements of Article 3 of the Convention.

The applicant contested this. She maintained that the investigation instituted at her request had not been sufficiently thorough and effective and had not, therefore, satisfied the standards required under Article 3.

In particular, the first phase of the investigation had been conducted in a superficial way and had been limited to obtaining evidence from the policemen who had mistreated her. No effort had been made to confront them with the applicant, or with each other.

Later, on 28 April 1995, the Warsaw Regional Prosecutor had quashed the original decision to discontinue the investigation and had ordered the District Prosecutor to obtain evidence from several witnesses and medical experts. Most of those orders had not been complied with. The District Prosecutor had not heard evidence from the Chief Constable of the Warsaw–East Railway Police Station and other officers who had been on duty on the material day. Nor had he confronted the applicant with the policemen or doctors, even though their statements concerning the essential points of fact had been evidently contradictory. Despite that, no effort had been made to obtain, or to recover, the original copy of the document recording the applicant’s breath test, which had been a vital piece of evidence in her case. Nor had the authorities made any serious attempt to find out how and why the original had disappeared.

In the applicant’s opinion, all those shortcomings demonstrated that the investigation had been conducted in a manner incompatible with Article 3 of the Convention.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits.  The court concludes therefore that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.  No other ground for declaring it inadmissible has been established.

2.  The applicant further complained under Article 5 § 1 of the Convention that she had unlawfully been detained in the Warsaw Sobering-up Centre.

Article 5 § 1, in its relevant part, states:

“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:

(e)  the lawful detention of ... alcoholics ...”

A.  The Government’s preliminary objection on non-exhaustion

1.  The Government’s arguments

The second limb of the Government’s preliminary objection related to the possibility of either claiming compensation under Articles 445 § 2 and 448 of the Civil Code or invoking Article 5 § 5 of the Convention before civil courts and, on that basis, seeking damages for wrong suffered in connection with unlawful deprivation of liberty.

The Government relied on two examples from domestic practice.

They first pointed out that in the case no. I C 260/00/S the Kraków-Śródmieście District Court had awarded the plaintiff compensation for unlawful arrest by the police and maintained that the applicant, in order to exhaust all domestic remedies, should have brought a claim under Articles 445 § 2 and 448 of the Civil Code.

Secondly, they cited the judgment of 12 May 1999 given by the Warsaw Court of Appeal in the case no. I Aca 139/99. They submitted that in the reasoning for that judgment, the Court of Appeal strongly emphasised that everyone had a right to claim compensation for arrest or detention imposed in contravention of the domestic law or Article 5 §§ 1–4 of the Convention. That court explicitly acknowledged that Article 5 § 5 of the Convention constituted a separate legal basis for compensation claims.

In conclusion, the Government considered that the Article 5 § 1 complaint should be rejected for non-exhaustion because the applicant had not attempted to pursue either of the remedies referred to by them.

2.  The applicant’s arguments

The applicant began by recalling that, according to the Court’s established case-law, Article 35 § 1 had to be applied with the necessary flexibility and in a manner corresponding to the reality of the applicant’s situation, in order to guarantee him or her effective protection under the Convention.

She considered that the remedies relied on by the Government had no apparent connection with her situation.

Both judicial decisions were delivered several years after the events complained of had taken place and were based on different facts.  Also, there were completely different legal bases for the plaintiffs’ detention in the cases cited by the Government.

In that regard, the applicant stressed that the Kraków District Court’s ruling in the case I C 260/00/S had been based on a prior finding of a criminal court that the plaintiff’s arrest had been unlawful. The award of compensation had accordingly been a simple consequence of the criminal court’s decision holding the relevant warrant of arrest unlawful.

She had not, however, been entitled to appeal against her arrest and detention in the sobering-up centre.  At the material time there had been no judicial control over detention in sobering-up centres and no appeal had laid in law against a decision to hold a person in such a centre.

In consequence, the applicant considered that she had had no remedy whereby she could have the lawfulness of her detention examined.

3.  The Court’s assessment

Referring to the Government’s argument that the applicant should have claimed compensation under Articles 445 § 2 and 448 of the Civil Code, the Court recalls that in similar Polish cases it has dismissed the Government’s argument that where lawfulness of detention is concerned, an action for damages against the State is a remedy that the applicant must exhaust in order to satisfy the requirements of Article 35 § 1 (see, mutatis mutandis, Zdebska, Zdebski & Zdebska v. Poland (dec.) no. 27748/95, 6 April 2000).

The Government also maintained that Article 5 § 5 might be invoked as an autonomic legal basis for a claim for compensation for unlawful detention. In that connection, they relied on the relevant legal practice and cited the judgment delivered by the Warsaw Court of Appeal on 12 May 1999.

The Court cannot rule out that the new judicial practice that has recently been developing in Poland may in certain other cases become relevant for the determination of the question whether or not domestic remedies have been exhausted. However, as regards the present case, in which the facts complained of took place in 1994-1995, the Court does not consider that the material supplied by the Government sufficiently demonstrates that at the material time the applicant could effectively have sought compensation under Article 5 § 5 of the Convention.

It follows that the Government’s preliminary objection must be rejected.

B.  Compliance with Article 5 § 1 (e)

1.  The Government’s arguments

The Government considered that the applicant’s detention in the Warsaw Sobering-up Centre had been lawful and, given the applicant’s conduct, necessary in the circumstances. 

In the Government’s opinion, there could be no doubt that the policemen, when arresting the applicant and taking her to the sobering-up centre, had followed the procedure provided for by section 40 of the Law of 26 October 1982. The applicant’s detention had therefore had a legal basis under Polish law. It had moreover been entirely justified as having been imposed to protect the public order and the applicant herself. The applicant had been in a situation endangering her health and safety. In her state of intoxication she could very likely have become the victim of a crime.

Given the applicant’s aggressive behaviour, the policemen had had sufficient grounds to believe that they had been dealing with an intoxicated person.  The fact that the applicant had indeed been intoxicated had subsequently been confirmed by a breath test and examination made by two doctors in the sobering-up centre.

Furthermore, the Government underlined that, in contrast to the circumstances in the case of Witold Litwa v. Poland (judgment of 4 April 2000), the authorities could not apply other measures provided for by section 40 of the Law of 26 October 1982.  They had not had any other choice but to detain the applicant for the time necessary for her to sober up. They could not have escorted her to her place of residence because she lived in another town.

In sum, the Government invited the Court to hold that the complaint was manifestly ill-founded.

2.  The applicant’s arguments

The applicant maintained that she had not been intoxicated and that her state and her – to some extent – aggressive behaviour had resulted from a hypoglycaemic coma in which she had fallen before the policemen had found her. She considered that her detention had lacked any legal basis and that, given her state, she should have been brought not to a sobering-up centre, but to a hospital in order to be given proper medical assistance.

The applicant contested the accuracy of the breath test and stressed that the original copy of the relevant record had been missing and no other records could be found.

The applicant further underlined that, under section 40 of the Law of 26 October 1982, only intoxicated persons who behaved offensively in a public place or were in a condition endangering their life or health could be detained in a sobering-up centre.

The Government had not, in her opinion, produced any evidence showing that she had behaved offensively before having been arrested. Both policemen involved in her arrest had found her lying in a compartment on a seat. That had not been a behaviour that might have disturbed the peace or public order.

The applicant accordingly asked the Court to find that Article 5 § 1 of the Convention had been violated.

2.  The Court’s assessment

The Court recalls that under Article 5 of the Convention any deprivation of liberty must be “lawful”, which includes the requirement that it must be effected “in accordance with a procedure prescribed by law”. On this point, the Convention essentially refers to national law and lays down an obligation to comply with its substantive and procedural provisions.

However, a further necessary element of the “lawfulness” of detention within the meaning of Article 5 § 1 is the absence of arbitrariness. The detention of an individual is such a serious measure that it is only justified in cases where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained. That means that it does not suffice that the deprivation of liberty is executed in conformity with national law but it must also be necessary in the circumstances (see Witold Litwa v. Poland, no. 26629/95, ECHR 2000-IV, §§ 72 et seq.)

In the present case, as in the above-cited case of Witold Litwa v. Poland, the applicant was detained under section 40 of the Law of 26 October 1982.

That provision laid down two conditions for applying that measure; first, that the person concerned was intoxicated and, second, that his or her behaviour was offensive or that his or her condition was such as to endanger his own or other persons’ life or health.

The applicant considered that those conditions had not been satisfied in her case, whereas the Government maintained that both her state and conduct had given sufficient grounds for her detention. Both parties referred to medical evidence relating to the applicant’s stay in the sobering-up centre.

The Court notes at the outset that the document recording the result of the applicant’s breath test did not state either the date or the hour at which that test was made. However, while it entertains certain doubts as to the probative value of this particular piece of evidence, it cannot but note that on the material day the applicant, before being detained, was examined by a doctor who confirmed that she was intoxicated and recommended that she be kept in the sobering-up centre for ten hours. The state of the applicant and particular symptoms of her intoxication were described in a detailed manner in the document recording her stay in the centre.

Furthermore, the Court finds that in the course of the investigation the applicant never denied that, after being woken up by the policemen, she behaved aggressively. Several policemen and two doctors from the centre described her behaviour in similar terms, namely as being “rowdy”, “aggressive”, “offensive” and “vulgar”.

That leads the Court to the conclusion that the applicant’s detention was adequately covered by the provisions of section 40 of the Law of 26 October 1982. Despite that, the Court finds nothing to suggest that the authorities acted arbitrarily in taking the applicant to a sobering-up centre. Nor does it consider that the applicant’s detention was unnecessary having regard to her condition and to the circumstances in which she had been detained.

Consequently, the Court holds that the applicant’s detention was “lawful” within the meaning of Article 5 § 1 (e) of the Convention.

It follows that the remainder of the application is inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected, pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaint under Article 3 of the Convention;

Declares inadmissible the remainder of the application.

Vincent Berger Georg Ress 
 Registrar President

H.D. v. POLAND DECISION


H.D. v. POLAND DECISION