FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 46702/99 
by Dariusz DZWONKOWSKI 
against Poland

The European Court of Human Rights (Fourth Section), sitting on 22 March 2005 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr J. Casadevall
 Mr G. Bonello
 Mr R. Maruste
 Mr S. Pavlovschi
 Mr L. Garlicki, 
 Mr J. Borrego Borrego, judges
and Mr M. O'Boyle, Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 24 July 1998,

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 deliberated, decides as follows:

THE FACTS

The applicant, Mr Dariusz Dzwonkowski, is a Polish national, who was born in 1973 and lives in Marki, Poland.

The facts of the case, as submitted by the applicant and as they emerge from the documents submitted by him, may be summarised as follows.

A.  The events of 13 June 1997

On the night of 12 June 1997 the applicant and three other men C.M., C.S. and D.S. stood outside an all-night shop in Marki. On 13 June 1997, at about 1 o'clock a.m., an unmarked police car arrived with two plain-clothes police officers G.G. and R.Ł. It was followed by the second police car with two other police officers M.R. and B.S.

The police officers ordered all present outside the shop to lie on the ground and handcuffed them. While the applicant was lying down, handcuffed behind his back, the police officers, in particular G.G., started to beat him on the head with fists, kick him and insult him.

The applicant was then placed in one of the police cars and taken to the Warsaw Sobering-Up Centre (izba wytrzeźwień). On the way there, the applicant was again beaten and insulted by G.G. and R.Ł. The applicant's repeated requests to take him to a hospital were ignored.

In the Warsaw Sobering-up Centre the applicant underwent a breath test, which showed 1.92 ‰ of alcohol in his blood. Subsequently, the applicant was taken to the Bródno Hospital in Warsaw and examined by doctors.

On 14 June 1997 the applicant was examined by doctors in the Praga Hospital in Warsaw.

B.  Medical evidence

The applicant's injuries were described as follows.

A certificate by a radiologist, Dr E.D., dated 12 June 1997, stated:

“Dzwonkowski Dariusz, 22 years old. Nasal bone fracture. Fracture of the edge of the right eye socket. ... Suspected fracture of the right jaw ... ”

A certificate by a laryngologist, Dr M.O., dated 13 June 1997 at 3 a.m., stated, in so far as relevant:

“...Condition after a head injury. Non-displaced nasal bone fracture. Big haematoma around left eye... Skin abrasion and swelling on the nose and right eye... since the patient reported loss of consciousness, a consultation with a surgeon is recommended.”

A medical certificate dated 13 June 1997 at 3:50 a.m. read, in so far as relevant:

“...Condition after an injury of head and right eye. ... Fracture of jaw. Big haematoma and swelling on lower eyelid (right); bloodshot eye; cornea swollen...”

On 13 June 1997 Dr T.S., an internist, issued a forensic medical certificate, which read, in so far as relevant, as follows:

“Medical examination of Dariusz Dzwonkowski, born on 15 March 1973, residing in Marki, identity card...

The examination carried out on 13 June 1997 upon the victim's request. The patient submits that he was beaten on 12 June 1997. Complains of headache, dizziness, pain in legs and hands. As regards the injuries:

-  intense pain in right crown of the head, haematoma 15 cm in diameter in this area, nose and eye pain;

-  nasal bone fracture. Fracture of the edge of the right eye socket... Suspected fracture of the right jaw; right eye bloodshot and swelled;

-  [illegible] scratch on the right thigh 20 cm long – the injury inflicted with a blunt object.

[The above injuries amounted to bodily harm resulting in sickness] for a period exceeding 7 days. This certificate is issued for submission to the police.”

On 4 August 1997, Dr T.R., of the Warsaw Medical Academy, made a forensic report, which stated, in so far as relevant:

“II.  ...The certificate [issued by the Praga Hospital on 14 June 1997] states: fracture of the left hand (radial bone)...plaster cast for 10 days.

IV.  The injuries sustained by [the applicant] which are described in the medical certificates could occur in the circumstances alleged by him.

However, one cannot exclude that they occurred in the circumstances described by the police.”

C.  The criminal proceedings against the police officer G.G.

1.  The first decision of the District Prosecutor

On 13 June 1997 the applicant requested the Wołomin District Prosecutor (Prokurator Rejonowy) to initiate criminal proceedings against the police officer G.G. The applicant asserted that on 12 June 1997 he had been beaten by the police and had sustained serious injuries.

On 22 September 1997 the Wołomin Distric Prosecutor discontinued the investigation into the allegations made by the applicant. The prosecutor based his decision on the forensic report prepared by Dr T.R. and on evidence taken from the police officers, the applicant and C.M. and C.S., who had been arrested with him on the same day.

The prosecutor observed that the applicant had sustained the following injuries: fracture of jaw, non-displaced nasal bone fracture, big haematoma around left eye, bloodshot eye and cornea swelled, big haematoma on the lower eyelid of the right eye and fracture of the left hand (radial bone).

The prosecutor, relying on the statements of the police officers, which he considered “coinciding and complementary”, established the following course of the events.

On 13 June 1997 at 1 o'clock a.m. the local police station in Marki was informed that several men under the influence of alcohol had disturbed the public peace and destroyed property in front of the all-night shop. After the arrival of the police cars, two men attempted to run away. Then, the police officers ordered the applicant and the others to lie on the ground. While the applicant was lying on the ground, he insulted the police officers and hit the approaching police officer G.G. in the face so that the latter fell on the ground. Other police officers, R.Ł. and M.R., came to help G.G. but the applicant kicked R.Ł. who had fallen as well. A struggle began and the police officers were able to apprehend the applicant only after he had fallen on the ground. Then, the prosecutor stated as follows:

“According to the police officers, while falling, [the applicant] hit his head against the kerb. For a short while he was calm but then he again insulted and attacked the police officers. Then he was again apprehended and handcuffed. Afterwards, [the applicant] started hitting his head in fury against the pavement. Seeing the behaviour of [the applicant] and the injuries sustained by him, the police officers had taken him by force to the police car.”

The prosecutor also noted that other men who were arrested with the applicant had given another version of events and had claimed that the applicant had been beaten by the police officers. However, the prosecutor found discrepancies in their statements, especially as to whether the applicant had been handcuffed at the beginning of the police action or later. Moreover, one of the arrested stated that the applicant had also been hit with a truncheon, which has not been confirmed by the others or by the applicant. Finally, the prosecutor pointed out that those arrested had given different details as to the lapse of time between the arrival of the first and the second police car.

The District Prosecutor concluded as follows:

“...It is not contested that during the police intervention [the applicant] sustained the injuries as described by the doctors. The expert in his forensic report stated that the injuries sustained by [the applicant] could occur in the circumstances alleged by him, as well as, in the circumstances alleged by the police officers.

Consequently, taking into account all evidence gathered in the proceedings, it must be concluded that the police officer G.G. had not abused his powers (nie przekroczyl uprawnien sluzbowych) and that the injuries sustained by the applicant had occurred in the circumstances described by the police officers. For these reasons the investigation shall be discontinued.”

2.  The second decision of the District Prosecutor

On 3 October 1997 the applicant, represented by a lawyer, lodged an appeal against the decision of 22 September 1997. He challenged the forensic report, considering it inconclusive, and argued that the circumstances in which he had sustained injuries had not been clarified. In particular, it had not been clarified how it was possible for him to have caused himself multiple fractures as described by the police. The applicant further complained that the conclusion of the prosecutor's decision had not been justified by any evidence.

On 27 February 1998 the Warsaw District Prosecutor re-examined the case and upheld his original decision.

In his decision the prosecutor further analysed the account of events given by the applicant:

“...[the applicant] at the reconstruction of events stated that he had been punched on his back and chest and kicked in his ribs and back; however, it does not appear from the medical evidence that he had sustained such injuries. The injuries sustained by the applicant are the reflection of the events described by the police officers. It is difficult to believe that multiple kicks with a boot did not leave any visible marks.

It appears from the additional forensic report that the injuries sustained by [the applicant] could occur in the circumstances described by him as a result of being hit with objects like: a fist, booted foot, truncheon, pipe or other solid and flat object.

However, the expert also established that identical injuries could also be caused by falling on hard ground and on a hard and blunt object like a stone, kerb, step, a road – therefore it can confirm the version of events given by the police officers...

Furthermore, the expert established that the fracture of the left hand could have resulted from falling on the ground as well as from twisting a hand when handcuffing a resisting person...”

The prosecutor came to the same conclusions as in his decision of 22 September 1997. He found that the police officer G.G. had not abused his powers and that the applicant had sustained injuries in the circumstances alleged by the police officers.

3.  The decision by the Regional Prosecutor

The applicant lodged an appeal with the Warsaw Regional Prosecutor (Prokuratura Wojewodzka).

On 5 June 1998 Warsaw Regional Prosecutor upheld the District Prosecutor's decision.

D.  The criminal proceedings against the applicant

1.  The first-instance proceedings

On 18 June 1997 the Wołomin District Prosecutor indicted the applicant before the Wołomin District Court (Sąd Rejonowy) on charges of assault of the police officers G.G. and R.Ł., and of uttering threats and insulting all four police officers.

On 6 September 1999 the Wołomin District Court gave judgment. The applicant was convicted as charged and sentenced to a fine.

2.  The appellate proceedings

The applicant lodged an appeal against the judgment.

On 22 December 1999 the Warsaw Regional Court quashed the judgment and remitted the case. The appellate court held, inter alia, that:

“...The District Court failed to assess diligently the evidence before it; therefore, the facts as established by it are open to doubt. Without prejudging the merits of the case, it should be noted that the outcome of this case depends on the clarification of the circumstances in which the accused sustained his injuries. It is beyond any question that the accused sustained the injuries during the police action on 13 June 1997 but those circumstances have not so far been sufficiently clarified.

The District Court established that during the police action the accused had fallen on the ground and hit his head against a kerb. Then, he had repeatedly hit his head against the ground causing himself injuries to his face and hand. The District Court established the above facts on the basis of the testimonies of the police officers whom it considered trustworthy.

However, as the accused rightly points out, the District Court, in its assessment, did not take into account that these witnesses [the police officers] had an interest in the outcome of the case.... The very fact [that at the same time the criminal proceedings against the police officer G.G. were being conducted] required the lower court to make a critical evaluation of the testimonies of the police officers...The District Court should have been more cautious in assessing their statements also because, contrary to that court's opinion, they were not at all detailed.

The District Court failed to notice that the witness B.S. [one of the police officers] when giving evidence at the hearing, apparently spontaneously, had given another version of events contradictory to what was established by the trial court as the cause of the injuries. This witness admitted that [the police officers] had stood and struggled with [the applicant]; during the struggle [the applicant] had sustained his injuries and it had been necessary to take him to a hospital...

Furthermore, it should be examined whether it is probable that [the applicant] had caused himself the injuries to his face and hand. Would he, even intoxicated, hurt himself? As we know he had his nose broken, the edge of his right eye socket fractured a broken jaw and head and ear injuries, therefore, his state of health was serious and resulted from many injuries and not a single one. One fall on the ground reported by the police officers could not have caused so many injuries...”

The appellate court instructed the trial court to re-hear evidence from the applicant and other witnesses in order to clarify the inconsistencies and to consider ordering a fresh medical report or to re-hear the expert witnesses. The court concluded:

“If the circumstances of the case are established on the basis of the correct assessment of evidence, it will be possible to determine whether the accused committed the alleged offences and whether the injuries sustained by him resulted from the actions of the police officers, and finally, to assess the social danger represented by the applicant's acts and to decide on his guilt or penalty.

On the basis of the above considerations the Regional Court decided as in the operative part [of the judgment].”

3.  The retrial

On 17 June 2002 the Wołomin District Court gave judgment. The court found that the applicant had committed the offence of assault against police officers G.G. and R.Ł. and of uttering threats and insulting all four police officers. Nevertheless, the trial court discontinued the criminal proceedings against the applicant because it considered that the applicant's actions were of “minimal social danger” (znikoma społeczna szkodliwość czynu).

As regards the course of events the trial court established the following:

“...While [the police officers] carried out their duties and attempted to establish the identities of the arrestees, [the applicant] got up and started to insult the police officers. He uttered threats and hit the police officer G.G. in the face so that he fell on the ground. The police officers G.G., R.Ł., M.R. and B.S. started to struggle with [the applicant], attempting to apprehend him. During this struggle [the applicant] kicked the police officer R.Ł. in the stomach and R.Ł. fell on the ground. The police officers attempted to put [the applicant] on the ground and to handcuff him but he tried to free himself. Then [the applicant] fell down hitting his face against the ground and his nose started to bleed. Despite these injuries, he continued to struggle and to hit his head against the kerb; he had also been repeatedly hit on the head by police officer G.G. with fists and kicked in the head and other parts of his body. The police officers drove all arrested to the Warsaw Sobering-up Centre where breath tests were made...All arrested were under the influence of alcohol, the breath test revealed that [the applicant] had 1.93 ‰ alcohol in his blood...

It is not disputed that [the applicant] sustained the following injuries: non-displaced nasal bone fracture (swelling and abrasion on the nose); fracture of the edge of the right eye socket (with bloodshot eye and cornea swelled); haematoma under the right eye; 15 cm haematoma on the top of the head; swelling and abrasion on the front, line-shaped abrasion 20 cm long on his right thigh; fracture of the radial bone on the left hand...

In his forensic report the expert stated that it was not possible to establish categorically whether these injuries had been caused by the beating and kicking of [the applicant] by the police officers or by his hitting his head against the kerb...

As regards the injuries sustained by [the applicant], taking into account the medical forensic report, the court considers as true the statements given by [both] [the applicant] and the police officers. The court considers that the injuries could have occurred in the circumstances alleged by [the applicant] as well as in the circumstances described by the police officers.

The testimonies of the above-mentioned witnesses [the police officers] are concurring, logical and complementary. During both the investigation and the trial phase these witnesses consistently testified that the accused had sustained injuries as a result of falling on the ground during the struggle and then hitting his head against the pavement. [However], there are discrepancies as to whether the accused fell on the ground by himself or was pushed, whether he hit his head against the kerb or the pavement, where was he lying exactly and which side of his head he hit. Such gaps cannot be explained solely by the lapse of time since the events; obviously these witnesses tried to diminish their role in the events by arguing that [the applicant] was solely responsible for his injuries.

The court accepts as true that part of the police officers' account in which they stated that the injuries had also occurred [as a result of the applicant's actions]; however, the court refuses to believe that part of their statements in which they denied that any of them, and in particular G.G., had beaten [the applicant] and had caused the above-mentioned injuries.

This part of the police officers' testimonies is contrary to the statements given by other witnesses C.M., C.S. and D.S. [other persons arrested with the applicant]. C.S. testified at the hearing that [the applicant] had been kicked and beaten by the police officers all over his body, on the face and on the head....Witness C.M. testified consistently that [the applicant] had been beaten by the police officers. His testimony corresponds to that given by the witness D.S. The court believes that these witnesses told the truth when they testified that the accused had been beaten by the police; however, the court does not believe that during these events [the applicant] had been calm and had not attacked, uttered threats or insulted the police officers...”

The court concluded:

“In the light of the gathered evidence, the circumstances in which [the applicant] committed the alleged offences, are established beyond any doubt. Taking into account the nature of the rights violated by the accused, the penalty provided by the law for these offences and the fact that during the events [the applicant] sustained injuries which were caused not only by his own actions, the court finds that [the applicant's] actions represent a minimal social danger and that, accordingly, the proceedings should be discontinued.”

On 13 August 2002 the applicant lodged an appeal against the judgment.

On 4 November 2002 the Warsaw Regional Court dismissed the appeal and upheld the judgment.

COMPLAINTS

1.  The applicant alleges that the events of 13 June 1997 and subsequent investigation into his allegations against the police gave rise to a violation of Articles 3 and 6 of the Convention. He refers to the case Ribitsch v. Austria. In this connection the applicant complains that the prosecuting authorities refused to prosecute the persons responsible for his ill-treatment. Moreover, the decisions to discontinue the proceedings prevented him from seeking compensation in civil proceedings.

2.  The applicant also complains that he was arbitrarily deprived of his liberty, contrary to Article 5 §§ 1 and 2 of the Convention.

THE LAW

1.  The applicant complains about ill-treatment by the police and ineffectiveness of the subsequent investigation. The Court considers that the complaints should be examined under Articles 3 and 13 of the Convention.

Article 3 of the Convention reads as follows:

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

Pursuant to Article 13 of the Convention:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court considers that it cannot, on the basis of the file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of these complaints to the responded Government.

2.  The applicant further complains that his arrest was in breach of Article 5 § 1 (c) (unlawful detention) and Article 5 § 2 (right to be informed promptly about reasons for arrest).

However, pursuant to Article 35§ 1 of the Convention:

“1.  The Court may only deal with the matter ... within a period of six months from the date on which the final decision was taken.”

The Court notes that the applicant was arrested by the police on 13 June 1997, which was more than six months before the date on which he submitted his complaint to the Court. It follows that this complaint is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant's complaints about a breach of Articles 3 and 13 of the Convention;

Declares the remainder of the application inadmissible.

Michael O'Boyle Nicolas Bratza 
 Registrar President

DZWONKOWSKI v. POLAND DECISION


DZWONKOWSKI v. POLAND DECISION