FOURTH SECTION
CASE OF HOLODENKO
v. LATVIA
(Application no.
17215/07)
JUDGMENT
STRASBOURG
2 July 2013
This judgment will become final in the circumstances set
out in Article 44 § 2 of the Convention. It may be subject to
editorial revision.
In the case of Holodenko v. Latvia,
The European Court of Human Rights (Fourth Section), sitting as
a Chamber composed of:
David Thór Björgvinsson, President,
Ineta Ziemele,
Päivi Hirvelä,
George Nicolaou,
Zdravka Kalaydjieva,
Vincent A. De Gaetano,
Krzysztof Wojtyczek, judges,
and Françoise Elens-Passos, Section Registrar,
Having deliberated in private on 11 June 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
17215/07) against the Republic of Latvia lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Latvian national, Mr Jurijs Holodenko (“the
applicant”), on 10 April 2007.
The applicant, who had been granted legal aid,
was represented by Ms D. Rone, a lawyer practising in Rīga. The Latvian
Government (“the Government”) were represented by their Agent, Mrs I. Reine,
who was succeeded by Mrs K. Līce.
The applicant alleged, in particular, that he has
been subjected to ill-treatment by police officers and that the
authorities had failed to investigate his allegations.
On 6 September 2011 the complaint under
Article 3 of the Convention was communicated to the Government. It was
also decided to rule on the admissibility and merits of the application at the
same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1969.
A. The applicant’s arrest and detention, and the
injuries sustained
At 7.18 a.m. on 9 June 2006 the State
police in Rīga received a telephone call from R.H. who reported that two
men had broken into his apartment in Rīga and attacked him with an axe.
The alleged victim had escaped but his girlfriend, O.A., was still in the
apartment and was allegedly under threat. According to reports drawn up by
police officers K.H. and V.O. on the same date, four police officers (V.O.,
D.V., M.S., J.S.) from the “Alfa” special operations unit (Speciālo
uzdevumu vienība “Alfa”) and two police officers (K.H. and I.G.)
from the Rīga Main police station (First Division), went immediately to the
address given. Next to the building they met R.H., who was bleeding. He guided
the police officers to the apartment, where they saw a naked woman and two men.
One of the men (the applicant) attempted to escape, so the police had to use a
special combat technique to put him on the ground. The applicant did not calm down
and was therefore handcuffed. Both men, as well as the alleged victims, R.H.
and O.A., were taken to the Rīga Main police station (First Division). The
applicant was searched and the police officers found narcotic substances on
him.
According to the applicant, on
9 June 2006 he was in an apartment in Rīga visiting acquaintances
and consuming alcohol, when suddenly five or six police officers arrived. They
handcuffed and searched the applicant, and punched him a number of times in the
head and body. The applicant was then dragged to a police car and taken to a police
station. After an altercation with the police officers, the applicant was
wrestled to the ground. The police officers kicked him; one of them jumped on
him while he was on the ground, and another pulled open the applicant’s eye and
hit him in the eyeball. The ill-treatment lasted for about half an hour, during
which the applicant lost consciousness several times. Afterwards he was put in a
pre-trial detention cell where he asked for medical assistance. Only
after repeated requests was he admitted to hospital.
The record of the
applicant’s arrest under article 46 of the Administrative Offences Code, drawn
up at 8 a.m. on 9 June 2006 by police officer O.K., stated that the
applicant had bruises on his arms and wounds to the left eyebrow and right
cheek. It noted that during the search of the applicant the police had seized,
among other things, a firearm-like object and a plastic bag containing a transparent
substance. According to the report, the applicant was released at 4.30 p.m. on
the same day and subsequently arrested under section 264 of the Law of Criminal
Procedure. The arrest report indicated that the applicant had had a swollen eye
and had been under the influence of drugs.
According to medical records, at around 1 p.m. on
9 June 2006 the applicant was examined at the State Drug and Alcohol
Abuse Agency where it was confirmed that there were traces of narcotic
substances in his body. At about 10 p.m. the same day the applicant was
admitted to Rīga Hospital No. 1. He complained of a headache and pain in
the left part of the chest. An X-ray was taken and he was diagnosed with bruising
on the head and chest.
On 11 June 2006 the Rīga City
Latgale District Court remanded the applicant in custody.
On 12 June 2006 the applicant was
admitted to the Latvian Prison hospital (Latvijas Cietuma
slimnīca), where the results of an X-ray examination carried
out on 13 and 19 June 2006 established that he had four broken
ribs.
On 27 June 2006 the decision to detain
the applicant was revoked and he was discharged from the hospital.
On 29 June 2006 the applicant was re-arrested
for alleged possession of drugs which had been discovered on him on 9 June 2006
(see paragraph 8 above) and remanded in custody. Deciding on the measure, the investigating
judge relied, inter alia, on the fact that the applicant had expressed his
intention to leave the country.
From 29 June to 12 July 2006
the applicant was again admitted to the prison hospital where he was diagnosed
with “a condition after a series of fractured ribs on the left side. Post-traumatic
neuralgia”.
B. Investigation into the applicant’s complaint of
ill-treatment on 9 June 2006
On
27 June 2006, following a complaint submitted by the applicant on 14 June 2006
that he had been ill-treated by police officers, the State police Internal
Security Office (Valsts policijas Iekšējas drošības
birojs) instituted criminal proceedings in case no. 11819004606
with respect to the alleged ill-treatment of the applicant in the short-term
detention unit of the Rīga Main police station (Rīgas
Galvenās Policijas Pārvaldes Īslaicīgās
aizturēšanas izolators).
On 21 July 2006 R., the investigator of
the Internal Security Office, sought medico-legal assessment and also asked the
expert to ascertain whether the applicant’s injuries could have been self-inflicted.
On 28 July 2006
the first medico-legal assessment was carried out on the basis of the available
medical data. Additional information was requested from the health-care
institutions and a radiologist in relation to the applicant’s chest injury. On
12 October 2006 the radiologist concluded that the applicant had four
fractured ribs on the upper left side under the arm. The fractures were
considered to be “fresh”, possibly sustained on 9 June 2006. On 16 October 2006
the medico-legal expert concluded that the fractured ribs constituted a medium-to-severe
bodily injury causing long-term health problems of more than twenty-one
days, whereas the other bruising constituted light injuries causing short-term
health problems of no more than six days. The conclusion stated that the
applicant himself could have inflicted the bruising to his head and the hematomas
on 9 June 2006, and that they may have been caused by a blunt object.
The expert noted that the applicant had not been subjected to an early medico-legal
assessment and it was therefore impossible to draw conclusions concerning the
exact number of traumatic impacts. Nor could the expert draw conclusions about
the exact manner and time at which the fractures had been sustained because the
initial X-ray examination of 9 June 2006 had not disclosed that
injury (the report stated that the results of that examination had not been
kept) and the information about it had appeared for the first time on
13 June 2006. The expert stated that it could not be excluded that
the fracture might have been caused on 9 June 2006 because the
applicant had complained of pain on the same day. Nor could it be excluded that
some of the injuries could have been caused as a result of the applicant
falling down against a hard, uneven surface, but it would have had to have
happened more than once.
From July 2006
to January 2007 nine police officers from the Rīga Main police station
and the special operations unit were questioned. Police officer K.H. stated, inter
alia, that when he and I.G. had arrived at the apartment, the applicant had
tried to escape and had attempted to kick the police officers. Therefore he and
some of his colleagues had had to put him face down on the ground and handcuff
him.
In relation to the
applicant’s behaviour in the police station, K.H: stated:
“... After having been brought to the [premises of the Rīga
Main police station], the detainees behaved aggressively ... [the applicant]
tried to kick me, used abusive language about police officers and threatened to
cause us problems. In view of the aggressive behaviour of [the two detainees]
and the fact that during arrest they had tried to run away, in order to prevent
them from absconding again ... we ordered them to lay face down on the ground.
A.S. obeyed our orders but [the applicant] refused and started to swear. Therefore
[I] applied physical force, forced his hands behind his back and put him face
down on the ground, [and] handcuffed him again. ([Let me] clarify that at that
point his handcuffs still had not been removed and I did not force his arms
behind his back but took [him] by the arms). Afterwards the search [of the
applicant] was carried out.”...
The other two police
officers (I.G. and V.O.) who had participated in the applicant’s arrest stated
that the arrest had been carried out speedily. Once they had taken the
applicant to the police station, their shift was over and they left without
having witnessed the applicant being searched.
The other police officers either could not
remember the events at the police station or contended that no-one had used
force against the applicant. In particular, D.J. submitted that at 8 a.m.
when he took up his duties at the police station the applicant had already been
handcuffed. The applicant behaved aggressively; he was swearing, alleging that
he had been detained without any grounds and threatening to cause the police
officers problems at work. D.J. then left; when he returned the applicant was in
the detention unit and had some facial injuries. O.K. testified that at about 8
a.m. when he had arrived at the police station, the applicant had been lying
face down and handcuffed on the ground. During the search the applicant was in
a horizontal position on the floor and ignored orders to stand up and respond
to questions. S.V., who arrived at the police station at 7.45 a.m. and together
with other colleagues took over the detention procedure from the previous shift,
noted that the applicant had been on the ground. During S.V.’s shift the
applicant asked for medical assistance, which was provided to him. G.L.,
another police officer, could not remember the applicant’s behaviour but
recalled that when he had arrived at the police station at 7.45 a.m., the
applicant had been lying on the ground and O.K. and the witnesses had been
drawing up the arrest report.
J.O., one of the two civilians invited to witness
the applicant’ being searched, could not precisely recollect the events and
whether the applicant had behaved aggressively during the search or whether
special measures had been applied, but he thought he remembered that on his
arrival the applicant had already been on the floor.
O.A., one of the alleged victims, testified that
she had not witnessed any force being used against the applicant in the
apartment. The co-defendant, A.S., stated that when the two defendants had
been taken to the police station they had been first searched and afterwards
put in separate cells, so he had been unable to witness the treatment of the
applicant. Nevertheless, he had heard him shouting.
Meanwhile,
following an order from the head of the Rīga Main police station, the human
resources department (Rīgas pilsētas Galvenās
policijas pārvaldes Personālsastāva inspekcijas nodaļa)
carried out an internal investigation in order to verify the applicant’s
allegations. In the course of the investigation K.H. denied that he had used force
against the applicant either in the apartment or in the police station. Four
other police officers were also questioned and they denied that physical force had
been applied to the applicant. G.L. stated that he had arrived at the police station
at 7.45 a.m. and had seen two men lying on the floor; he and O.K. had filed the
arrest report and stated that the two men had sworn at them when they were put
in the police cells. His statement was confirmed by two other police officers who
had witnessed the events.
The internal investigation was concluded on
15 August 2006. The decision stated that the police officers
concerned had denied that the applicant had been subjected to brutal physical
force, and that it had not been possible to prove the allegations without
carrying out procedural measures. It was recommended that the materials of the
internal investigation be forwarded to the Internal Security Office in order to
decide whether to institute criminal proceedings, and to decide on any disciplinary
measures after the adoption of the procedural decision.
On 20 and 23 October 2006 the
applicant complained to the prosecutor’s office about the ineffectiveness of
the investigation into his alleged ill-treatment. In response, on
25 October 2006 the Internal Security Office and the Rīga City
Centre District Prosecutor’s Office questioned the applicant as a victim in the
criminal proceedings concerning his alleged ill-treatment.
Meanwhile, following
the applicant’s complaint to the prosecutor’s office, on 27 October 2006
prosecutor S. dismissed the allegations concerning the ineffectiveness of the investigation
carried out by the investigator, R. The decision stated, inter alia, that
it was only the applicant who alleged that brutal force had been applied
against him. The prosecutor also referred to the conclusion of the medico-legal
assessment, which stated that it could not be excluded that some of the bodily
injuries might have been sustained by his falling on to an uneven surface. In
response to a complaint lodged by the applicant, a supervising prosecutor
stated that prosecutor S. had simply quoted a paragraph from the medical expert’s
conclusion and that she had not contended that the applicant’s injuries had
been self-inflicted.
On
10 January 2007 R., the investigator of the Internal Security Office,
asked for an additional medico-legal assessment to be carried out in order to
clarify whether on 9 June 2006, at the time the applicant was examined
at Rīga Hospital No. 1, he had already had the broken ribs. After obtaining
a specialist’s opinion that the X-ray results of 9 June 2006 had disclosed
suspicions that two ribs had been fractured, on 23 January 2007 the medico-legal
expert delivered his conclusions. He stated that it had not been possible to
establish precisely whether the applicant’s ribs had already been broken on
9 June 2006, since the chest X-ray taken after the applicant’s arrest
had been of a general nature and had not been taken from an angle that revealed
the fracture.
On 31 January 2007
R. terminated the criminal proceedings. Relying on the witness statements and
the outcome of the medico-legal assessment, it was established that when the
police officers arrived at the apartment, the applicant tried to escape and to
attack the police officers, so K.H. and the officers from the special
operations unit, using a special combat technique, put the applicant on the
ground and handcuffed him. Later, at the police station, the applicant continued
to behave aggressively, kicking one of the police officers and threatening them.
In order to put a stop to his aggressive behaviour, the officers ordered the
applicant to lie face down on the ground. The applicant refused, so K.H. forced
him to lie down. During the search, O.K. and G.L., in the presence of two
witnesses, found drugs in the applicant’s pocket. The decision referred to the
fact that the police officers had been engaged in an unplanned operation in
relation to a serious crime; that there had been a firearm in the apartment; and
that the applicant had attempted to escape and that he had not obeyed police
orders. Quoting section 31(1) of the Criminal Law it concluded that the bodily
injuries inflicted on the applicant at the time of his arrest and at the police
station were proportional to the applicant’s behaviour. During the arrest and
in the police station the police’s use of force against the applicant had been in
compliance with section 13 of the Law on the Police and no criminal liability
under section 371 (2) of the Criminal Law could arise. The applicant
lodged an appeal before the Rīga City Centre District Prosecutor’s Office.
In February and March 2007 the applicant submitted
various complaints about the investigation process to the Internal Security
Office and requested the opportunity to identify the perpetrator in cross-examination.
He was informed on various occasions that he should address his request to the
prosecutor’s office.
Following
the applicant’s appeal, on 1 March 2007 district prosecutor S. of the
Rīga Centre District Prosecutor’s Office upheld his earlier decision and stated
that the medical documents only indicated the injury and not whether the police
officers were guilty. Moreover, it had not been possible to establish with
certainty whether the injuries, namely the broken ribs, had already been sustained
on 9 June 2006.
The
applicant appealed, and on 23 March 2007 a supervising district prosecutor
of Rīga City Centre District Prosecutor’s Office upheld S.’s decision.
Following a
further appeal, on 9 May 2007 the prosecutor’s office attached to the
Rīga Court Region revoked as unfounded the decision to terminate the
criminal proceedings and referred the criminal case to the State police
Internal Security Office for an additional investigation. Referring to K.H.’s
testimonies according to which he had handcuffed the applicant and the latter
had fallen down once, the prosecutor argued that after handcuffing the
applicant it had not been necessary to restrain him, and that he could not have
sustained the injuries by falling down only once. He concluded:
“... it was evident that, first, [the applicant] had sustained
injuries during his arrest and, secondly, the treatment (in this case - beating
at the apartment and the police station) during which the injuries had been
inflicted, was not necessary in order to carry out his arrest: it was not
necessary to continue applying force (vardarbību) in the police station
or to lay him on the ground. ... once the applicant had been handcuffed [he]
calmed down ... and the police officers had no legal grounds for applying force
(vardarbību) against him and causing him medium-to-severe bodily
injuries, by which the police officers evidently exceeded their duties”.
From April 2007
to July 2008 the applicant submitted various complaints concerning the
course of the investigation into his ill-treatment, and on several occasions he
was informed that the preliminary investigation of the criminal case was
pending.
Following a complaint submitted by the applicant
on 22 October 2008 to the Prosecutor General, on 6 November 2008
the Rīga City Centre District Prosecutor’s Office concluded that all the
necessary investigative procedures had not been carried out in order to identify
the perpetrators; it instructed the investigators to question the applicant and
then re-assess all the materials in the case file in order to decide whether to
carry out other procedural measures, including cross-examination. It noted that
the supervising prosecutor must be immediately informed about the fulfilment of
the instructions.
On 27 November 2008, the applicant was
questioned again by the investigator of the Internal Security Office and declared
that he could recognise the perpetrators because they had been summoned as
witnesses in his criminal case. In February and March 2009 confrontations
between the applicant and five police officers as well as the civilian witness
were carried out. During the confrontation the applicant stated, inter alia,
that K.H. and V.O. had beaten him both during the arrest and at the police
station; he could not identify the person who had jumped on him. K.H. confirmed
that he had had to use proportional force to restrain the applicant both during
his arrest and at the police station, whereas V.O. stated that he had not
witnessed any ill-treatment because from the place where he sat the applicant’s
cell was not visible.
On
20 May 2009 the investigator R. decided to terminate the criminal
proceedings. It was noted that there were serious discrepancies between the
statements of the applicant and the police officers. The decision said:
“... [n]o causal link could be established between the actions
of the police officers and the injuries sustained by [the applicant], and the
investigation considers that the applicant could have sustained the injuries
before his arrest on 9 June 2006, falling from his height under the
influence of alcohol and drugs. The applicant was advised that the decision was
subject to appeal to the Rīga City Centre District Prosecutor’s Office.”
The decision could be appealed with the Rīga
City Centre District Prosecutor’s Office. The applicant did not submit an
appeal.
C. Trial
On 29 January 2007 the lower court
convicted the applicant of possession of illegal drugs and sentenced him to
three years’ imprisonment. Some of the police officers who participated in his arrest
testified as witnesses. As the events had taken place a long time before, they
mainly upheld the statements that they had given during the pre-trial
investigation. In answer to a question by the court, K.H. replied that at the
time of the applicant’s arrest the latter had not shown signs of any injuries.
On 6 June 2007 the Rīga Regional
Court upheld the lower court’s judgment. It also noted that the alleged
ill-treatment of the applicant would be examined in another set of criminal
proceedings and that the decision of 31 January 2007 had been appealed against.
It stated, inter alia, that it had no reasons not to believe that the
applicant had sustained injuries, but that the criminal proceedings had been
terminated on the ground that the injuries had been inflicted as a result of
the applicant’s behaviour.
On 24 October 2007 the Senate of the
Supreme Court dismissed the applicant’s appeal on points of law.
II. RELEVANT DOMESTIC LAW
A. Criminal Law (Krimināllikums)
Section 317 specifies
that a State official whose intentional acts manifestly exceed the powers and
authority vested in him or her by law, or pursuant to his or her assigned
duties, will be criminally liable if substantial harm is caused thereby to the
State, administrative order or the rights and interests of other persons. The
punishment for such offences may include, inter alia, up to ten years’
imprisonment.
B. Criminal
Procedure Law (Kriminālprocesa
likums)
Section 37 provides, inter alia, that a prosecutor
supervising an investigation must give instructions regarding the type of
proceedings to be selected, the direction of the investigation and the carrying
out of investigative measures, if the investigating authority does not conduct an
effective investigation and allows the unjustified interference in a person’s
life or causes delays. The prosecutor must also examine complaints in relation
to the investigator’s activities and take over the direction of criminal
proceedings without delay once sufficient evidence in the investigation has been
obtained.
The supervising prosecutor has the following rights: to decide
whether to institute criminal proceedings and whether to transfer them to an
investigating institution; to request compliance with instructions issued in
the investigation; to carry out investigative measures to inform the
investigator; to familiarise himself or herself at any time with the materials
of the case file; to revoke decisions adopted by the investigators; to submit proposals
to a more senior prosecutor regarding the determination of the direct
supervisor of another investigator of concrete criminal proceedings, or to transfer
the criminal proceedings to another investigating institution; and to participate
in a hearing in which the investigating judge decides on the preventive
measures and special investigative measures.
Section 337 provides that a complaint about a decision
or an act of an investigating authority must be submitted to the supervising
prosecutor. Decisions or acts of a prosecutor may be appealed against to a
higher-level prosecutor.
C. Civil Law (Civillikums)
Under section 1635 a delict is any wrongful act
as a result of which damage (including non-pecuniary damage) has been caused to
a third person. The person who has suffered the damage has the right to claim
satisfaction from the person who caused it, insofar as he or she may be held
responsible for such an act. Section 1779 provides that anyone is under an
obligation to make good damage caused by his or her act or failure to act.
D. Law on the Police (likums “Par
policiju”)
Under section 13, police officers have the right
to use physical force and special combat techniques to restrain arrested,
detained and convicted individuals during conveyance and incarceration, if they
resist police officers. The use of physical force and special combat techniques
will be assessed by taking into account the nature of a particular situation
and the characteristics of the individual concerned.
Sections 15, 38 and 39 provide that within their
scope of competence the Cabinet of Ministers, the Minister of the Interior and
municipalities exercise control over the functioning of the police. The State
police are under the supervision of the Minister of the Interior, whereas the
Office of the Prosecutor General and its subordinate prosecutors supervise the
compliance with the law of police activities.
E. The Law
on the Prosecutor’s Office (Prokuratūras likums)
The relevant provisions of the Law on the
Prosecutor’s Office, as applicable at the material time, are summarised in Sorokins
and Sorokina v. Latvia, (no. 11065/02, § 57, 11 December 2012).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained that on
9 June 2006 police officers had ill-treated him in order to
make him confess, and that the investigation into the alleged ill-treatment had
been ineffective. In particular, he complained that during his arrest and at the
police station he had been punched and kicked in the head and body, and that a
police officer had jumped on his chest and broken his ribs. In this respect he
invoked Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
A. Admissibility
1. Arguments
of the parties
(a) Remedies under the Criminal Law
The Government submitted that the applicant had
failed to exhaust domestic remedies in respect of his complaint of alleged
ill-treatment by police officers. According to the Government, the applicant
had two types of remedies available to him. Under section 337 of the Criminal
Law Procedure he was entitled to appeal to the Rīga City Centre District
Prosecutor’s Office against the second decision of 20 May 2009 by
which the State police Internal Security Office terminated the criminal
proceedings (see paragraph 37 above). The decision adopted by the above
prosecutor2019s office could then be challenged before a prosecutor at the next
level, namely the prosecutor’s office attached to the Rīga Court Region. They
asserted that the applicant had clearly been aware of that procedure and its effectiveness,
because in May 2007 the prosecutor’s office attached to the Rīga
Court Region had quashed the first decision by which the Internal Security
Office had terminated the investigation into the applicant’s ill-treatment. The
Government contended that, as in the
case of Leja v. Latvia (no. 71072/01, 14 June 2011) in which the Court accepted the Government’s
preliminary objections in relation to the applicant’s failure to submit a
complaint to the prosecutor’s office, in the case at hand the applicant
had failed to avail himself of an effective remedy and the State had therefore been
denied an opportunity to remedy the matter before it had reached the Court.
The applicant’s counsel submitted that the
applicant had availed himself of three consecutive appeals (in June 2006, and March
and May 2007) in relation to the contested events, none of which had
effectively changed the outcome of the criminal investigation. She also noted
that in most cases the decisions adopted by the State police Internal Security
Office had remained unchanged because the police officers had defended each
other and refused to recognise procedural mistakes. Therefore, in cases such as
this, the procedure set out by the Government for exhausting domestic remedies would
have been a mere formality, as had been proved by the decision adopted in the
applicant’s case.
In their additional observations the Government
dismissed the applicant’s doubts about the effectiveness of that remedy and
added, first, that the applicant had submitted only two appeals; secondly, that
on one occasion a supervising prosecutor had quashed the contested decision and
therefore the procedure could not be considered as formal; and, lastly, that
the applicant’s opinion about the success of the remedy was highly subjective
and judgmental.
(b) Remedies under the Civil Law
The Government further submitted that under sections
1635 and 1779 of the Civil Procedure Act, the applicant had the right to seek
compensation for the damages caused by the State police, if a court had
concluded that the applicant’s rights had been infringed. They emphasised that
the outcome of the criminal proceedings were not determinative for the success of
compensation proceedings. According to the Government, the Court reached
similar conclusions in cases such as Plotiņa v. Latvia ((dec.),
no. 16825/02, 3 June 2008), Pundurs v.
Latvia (dec.), no. 43372/02,
20 September 2011) and especially Blumberga v. Latvia (no.
70930/01, 14 October 2008). They added that the threshold for
awarding damages in civil proceedings was lower than the one required for
establishing criminal responsibility. Concerning the effectiveness of the
compensation proceedings, the Government submitted several decisions adopted by
the domestic courts in which compensation had been awarded for damages
sustained as a result of the unlawful actions of State officials. The
Government observed that the applicant had never lodged a civil claim and thus
the State had been denied the opportunity to remedy the matter before it had reached
the Court.
The applicant’s counsel commented that, since on
20 May 2009 the State police Internal Security Office had
discontinued the criminal proceedings on ill-treatment, there had been no legal
grounds on which a claim against the State police for compensation for
pecuniary and non-pecuniary damages could be based.
2. The Court’s assessment
The Court observes that the essence of the Government’s
allegation was that, by failing to institute the second round of appeals’
procedure with the Rīga City Centre District Prosecutor’s Office and by
not seeking compensation in the civil courts, the applicant had deprived the
State authorities of an opportunity to remedy the alleged infringements through
procedures under the civil and criminal law.
The Court reiterates that Article 35 of the
Convention requires, amongst other things, that
complaints intended to be made before the Court should have already been made
to the appropriate domestic body, at least in substance and in compliance with
the formal requirements and time-limits laid down in domestic law and, further,
that any procedural means that might prevent a breach of the Convention should
have been used (see Akdivar and Others v. Turkey, [GC], 16
September 1996, § 66, Reports of Judgments and Decisions 1996-IV).
However, there are exceptions to the rule, especially where the national authorities remained
totally passive in the face of serious allegations of misconduct or infliction
of harm by State agents, for example where they failed to undertake
investigations or offer assistance. In such circumstances the burden of proof
shifts back to the Government (ibid., §§ 68-69). Concerning the appropriate
remedies, the Court has established that in cases of wilful ill-treatment by
State agents in breach of Article 3, two measures are necessary to provide
sufficient redress: a thorough and effective investigation capable of leading
to the identification and punishment of those responsible; and, where
appropriate, an award of compensation (see, amongst other authorities, Gäfgen
v. Germany [GC], no. 22978/05, § 116, ECHR 2010). Moreover,
in cases of wilful ill-treatment a breach of Article 3 cannot be remedied only
by an award of compensation to the victim (ibid., § 119).
. Turning
to the Government’s arguments about the effectiveness of the civil-law remedy, the
Court takes note of the positive developments in the national courts’ case-law
in dealing with claims for damages caused as a result of the unlawful acts of
State agents. The Court notes, however, that none of the examples concerned
claims resulting from the allegedly excessive use of force by the police during
arrest. In any event, the Court refers to the principles set out above: that the
acts of State agents in breach of Article 3 of the Convention cannot be
remedied exclusively through an award of compensation to the victim. The Court
therefore dismisses this part of the Government’s argument.
As concerns the criminal-law remedy, the Court
observes that the applicant submitted three appeals against the impugned
decision within the hierarchy of the Prosecutor’s Office. The complaint to the third
level of supervising prosecutor resulted in the decision being quashed and led
to a supplementary investigation, the decision of which was subjected to another
round of appeals within the same hierarchy, starting from the lower one. The
question whether the applicant was required to launch a second round of appeals
is closely related to the substance of the complaint, and will be assessed
together with the State’s positive obligation to take effective measures to
protect against ill-treatment, especially the obligation to carry out an
effective investigation.
In the light of the above, the complaint is neither
manifestly ill-founded within the meaning of Article 35 §§ 1, 3 and 4 of
the Convention, nor inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
1. The substantive aspect
(a) Arguments of the parties
The Government argued that according to the
Court’s case-law the reliance on appropriate and proportional physical force
during arrest may be justified for the sake of maintaining order and preventing
offences. Distinguishing the facts of the present case from those in Ribitsch
v. Austria, 4 December 1995, Series A no. 336; Rehbock v.
Slovenia, no. 29462/95, ECHR 2000-XII and Matko v. Slovenia,
no. 43393/98, 2 November 2006, they contended that in this particular
case physical force had been used against the applicant only during the course
of his arrest when, in the absence of any planned operation and given the small
number of police officers present, the unexpected development of the events made
it necessary to use certain combat techniques. The Government relied on the
fact that before arriving at the relevant address, the police had received information
that a serious crime had allegedly been committed and that a victim was still
in danger. Moreover, a gun-like object had been within reach of the
perpetrators. The Government further emphasised that both at the place of his arrest
and later in the police station the applicant had behaved aggressively and
provocatively; he had not cooperated with the police and had disobeyed their orders.
Relying on Spinov v. Ukraine, no. 34331/03,
27 November 2008, the Government considered that those circumstances had
counted heavily against the applicant and therefore the Government’s burden of
proof that the use of force had not been excessive became less stringent.
Concerning the alleged
injuries, the Government commented that the light bodily injuries sustained by
the applicant had not attained the level of severity necessary for the
application of Article 3, whereas it could not be established beyond reasonable
doubt or any other sufficiently strong, clear and concordant inferences, that
the fractured ribs had been sustained in the circumstances alleged by the
applicant. In this connection, the Government raised doubts about the applicant’s
allegations that his ill-treatment while in the police station had lasted for half
an hour. According to the police reports, the police had arrived at the
apartment after 7.18 a.m. whereas the administrative arrest report had been
drawn up at 8 a.m. Moreover, the applicant had not raised any objections
concerning the alleged ill-treatment either during his administrative arrest or
when he was arrested in the context of the criminal proceedings. The Government
also emphasised the consistency of the statements given by police officers K.H.
and V.O. on the circumstances of the use of force against the applicant. Lastly,
referring to the medico-legal report, the Government noted that it had not been
possible to exclude that the bodily injuries the applicant had sustained, namely
broken ribs, were not the direct result of physical force applied on the day of
the incident but had pre-existed or resulted from another cause.
The applicant’s counsel maintained that the
police officers had used disproportionate force. She emphasised that specially
trained officers from the special forces unit had been involved in the
applicant’s arrest. She also noted that the police officers had not followed
the procedure provided for by section 13 of the Law on the Police (see Domestic law above), according to which they
should have reported the applicant’s injuries to their superiors, and that the
applicant himself had requested medical assistance.
The Government disputed the above allegations,
indicating that immediately after the incident the police officers had drawn up
a report on the course of events. They invited the Court not to limit its assessment
of the circumstances of the present case to the applicant’s allegations, but
instead to give due consideration to the factual circumstances and the applicant’s
behaviour and personality.
(b) The Court’s assessment
The Court reiterates the
well-established principle that where an individual is taken into police
custody in good health but is found to be injured at the time of release, it is
incumbent on the State to provide a plausible explanation of how those injuries
were caused, failing which a clear issue arises under Article 3 of the
Convention (see Selmouni v. France [GC], no. 25803/94, § 87,
ECHR 1999-). Besides, any allegation of ill-treatment
must be supported by appropriate evidence, in assessment of which the Court has
generally applied the standard of proof “beyond reasonable doubt” (Ireland
v. the United Kingdom, 18 January 1978, § 161, Series A no. 25). In respect of a person deprived
of his liberty, any recourse to physical force which has not been made strictly
necessary by his own conduct diminishes human dignity and is in principle an
infringement of the right set forth in Article 3 of the Convention. The Court
reiterates that the requirements of an investigation and the undeniable
difficulties inherent in the fight against crime cannot justify placing limits
on the protection to be afforded in respect of the physical integrity of
individuals (see Tomasi v. France, 27 August 1992, § 115, Series A
no. 241-A).
Even though the Government emphasised that the
police officers had used force authorised by section 13 of the Law on the Police
only during the applicant’s arrest in the apartment, it follows from the
applicant’s allegations and the documents of the case file that the police
officers deployed physical force both at the time of his arrest and in the
police station. This conclusion is supported by the fact that the use of force
at the police station was the object of the criminal proceedings instituted by
the State police Internal Security Office (see paragraph 15 above). It is
undisputed that at the time of his arrest in the apartment, the applicant’s
behaviour could be described as belligerent (see paragraphs 18-19 above) and
that the development of an unplanned arrest may, if strictly necessary, justify
the use of force (see, for instance, Klaas v. Germany, 22 September
1993, § 30 Series A no. 269; see also Hurtado v. Switzerland,
(Rep.), 8 July 1993, Series A, No 280-A where the injuries inflicted
on the detainee were considered proportional in the context of an arrest of
members of a mafia-type organisation). The Court nevertheless notes that the
applicant’s complaint concerned primarily the use of disproportionate force in
the police station, where he was taken after his arrest. The Court will
therefore focus on evaluating all the materials of the case, including such
inferences as may flow from the facts and the parties’ submissions, in order to
establish and assess, in the light of Article 3 of the Convention, the
applicant’s behaviour and the reaction of the police officers.
The Government raised doubts about the credibility
of the injuries the applicant had sustained either during the arrest or in the
police station, and alleged that the fractured ribs had been neither corroborated
by consistent witnesses’ testimony nor established beyond doubt by the medical
documents. In this connection, the Court reiterates that where the events at issue
lie wholly, or in large part, within the exclusive knowledge of the
authorities, as in the case of persons within their control in custody, strong
presumptions of fact will arise in respect of injuries sustained during such
detention (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR
2000-VII). The Court will proceed with analysing separately each of the
Government’s above arguments (see paragraph 61 above) in the light of all the
materials of the case.
Concerning the medical documentation, the medico-legal
reports show that soon after his arrest on 9 June 2006, the applicant
complained of pain in his chest to the doctors of the Rīga Hospital No. 1
and that the fractures were considered to be “fresh” (see paragraph 17 above).
Moreover, the X-ray examination carried out a couple of hours after the arrest
disclosed “suspicions” of a fracture, which were later confirmed by further X-ray
examinations on 13 and 19 June 2006 (see paragraph 28 above). The Government have
not furnished any information indicating that the injuries might have been
sustained before his arrest (contrary to Lobanovs v. Latvia (dec.), no. 16987/02, 28 September 2010, where the
applicant was shown to be suffering from a chronic illness) and no such
allegations, supported by any evidence, were made by the investigation. The
Court therefore concludes that the injuries, which were described as medium to
severe and thus fall within the level of severity required by Article 3 of the
Convention, were caused during the applicant’s arrest. It remains for the Court
to assess whether the force used against the applicant was in any manner
justified and proportionate.
The Court observes that the applicant admitted
to having had an altercation with the police officers and claimed that that was
why he had been ill-treated. It follows from the statements provided by the
police officers that, even though they witnessed the same circumstances at the
same time, their recollections of the applicant’s behaviour in the police station
were somewhat contradictory: some of them saw the applicant behaving aggressively
whereas others remembered that he had failed to react at all (see paragraphs
19-23 above). Those who had seen the applicant behaving aggressively at the
police station specified that he had been swearing, had attempted to kick the
police officers and had threatened them with “problems at work”. The Court puts
however particular weight on the undisputed fact, supported by the testimonies
of various police officers, that during the disputed events the applicant had
already been handcuffed (see paragraph 19 above). The domestic investigation
found that it was strictly necessary for police officer K.H. to apply special
measures in order to prevent the applicant from absconding. However, the above
findings are not supported by other evidence of the applicant’s alleged
aggression or any other grounds justifying the use of force as provided for by
section 13 of the Law on the Police.
As concerns the above evidence indicating the
reaction of the police officers in the police station, the Court notes first that
their testimonies were contradictory. None of them admitted to seeing K.H. use force
against the applicant, even though it follows from K.H.’s testimonies to the Internal
Security Office that various police officers had asked the applicant to stop
cursing and ordered him to lie down (see paragraph 19 above), after which K.H.
had forced the applicant to the ground. In the course of the internal investigation
conducted by the State police, K.H. denied that fact. The statements of the
other police officers that when they arrived, the applicant was already on the
ground, are in contradiction with K.H.’s statements that he was not the only
officer present at the police station during the contested events (ibid.). There
are strong indications that during the contested events there was a
considerable number of police officers present because they were changing shifts
and at a certain point there were between seven and nine police officers
present and two civilians who had been invited as witnesses during the search of
the applicant (see paragraph 20 above). In the light of the controversial
testimonies of the police officers concerning the circumstances of the events,
and the apparent understanding expressed by some police officers that the
applicant’s insulting language had justified the use of force, the Court notes
that the atmosphere in the police station was very likely to have provoked the
police officers into acting in the way alleged by the applicant. However, the
Court cannot conclude from the case file that the applicant’s conduct justified
the deployment of strict restraint measures by the police officers. Noting
that the applicant was already handcuffed before his arrival at the police
station, the police should have reacted with more restraint to the applicant’s
verbal insults, if any (see Fahriye Çalışkan v. Turkey, no.
40516/98, § 43, 2 October 2007).
Observing the above assessment, and especially the
seriousness of the injuries and the behaviour of the applicant, the Court
cannot conclude that during the applicant’s arrest the police officers deployed
proportional force against him. Moreover, the Government did not provide any
other evidence in relation to the purpose, necessity and proportionality of the
use of force by the police officers. At the same time the Court does not find
any indication that the police used force with an aim to extort a confession
from the applicant.
In relation to the other argument raised by the
Government that the applicant’s statements as to the length of his
ill-treatment in the police station lack credibility (see paragraph 59 above),
the Court notes that no records were furnished as to the precise time the
applicant was taken to the police station, but it follows from the witness
statements that his arrest was carried out promptly and that he was immediately
taken to the police station, therefore it is possible that the applicant spent
at least half an hour in the police station. Consequently, the Court cannot
accept the Government’s argument.
Lastly, addressing the Government’s argument that
the applicant had not raised any objections in the arrest report (see paragraph
61 above), the Court notes, first, that the administrative arrest report (drawn
up at 8 a.m.) and the arrest report (drawn up at 3.30 p.m.) did not reflect the
same injuries to the applicant. Moreover, as the applicant was first administratively
detained, the reports did not contain a section in which the applicant could
separately raise objections and complaints (pretenzijas), whereas under
the Criminal Procedure Law the arrest report bears no such information and
therefore does not show whether the applicant was asked to express an opinion on
that matter.
(c) Conclusion
In the light of the above, the Court concludes
that there has been a violation of the substantive aspect
of Article 3 of the Convention.
2. The procedural
aspect
(a) Arguments of the parties
The Government submitted that the domestic
authorities had acted with promptness and diligence in investigating the
disputed events and determining the plausibility of the allegations. They
noted, in particular, that following the applicant’s initial complaint, the
State police instituted criminal proceedings within six working days, thereby meeting
the requirement of speediness; that all reasonable steps had been taken to
secure evidence, including repeated questioning of the applicant, detailed
eyewitness testimonies, and two medico-legal assessments. They alleged that, in
contrast to Spinov v. Ukraine, no. 34331/03, 27 November 2008,
the Internal Security Office had taken concrete steps to investigate the
allegations. The Government drew particular attention to the additional
investigation, including confrontations, which followed the quashing of the
first decision (see paragraph 33 above). They also maintained that the
investigating authorities had kept the applicant informed about the progress of
the investigation and had taken into account his requests to examine certain
witnesses. The Government emphasised the hierarchical independence of the Internal
Security Office and stated that the internal investigation carried out by the human
resources department of the Rīga Main police station had been a separate
procedure. Lastly, they noted that all the decisions adopted during the course
of the investigation had been re-examined by the prosecutor’s office,
which, contrary to the case of Ramsahai, was independent and carried out
effective supervision.
The applicant’s counsel argued, first, that the
investigation carried out by the State police Internal Security Office could
not be considered as independent because that body was directly connected with
the police and the prosecutor’s office and, secondly, that the authorities had not
shown the required diligence in establishing the facts and identifying the
perpetrators.
The Government in response considered that the
above allegations were of a speculative nature, and reiterated that the
obligation to investigate was an obligation of result, and not of means.
(b) The Court’s assessment
. In
the light of the Court’s findings above and the fact that the inadequacy of the
initial investigation carried out by the State police Internal Security Office was
recognised as ineffective by the prosecutor’s office (see paragraph 33 above), the
Court does not need to depart from the latter’s conclusions in order to dismiss
the Government’s allegations to the contrary (see Karabet and Others,
§ 275). In addition, the Court notes that such elements of the
investigation as the contradictory statements of the police officers, the fact
that the medico-legal assessment was based purely on the medical documents; and
the fact that the applicant was first questioned four months after the alleged
events, all indicate a lack of diligence during the initial phase of the
investigation. In the light of the above observations, the Court will limit its
assessment to the investigation carried out after the quashing of the first
decision. It will pay particular attention to the adequacy of the prosecutor’s
supervision of the investigation as a whole.
The Court notes at the outset that, as argued by
the Government, the State police Internal Security Office carried out an
investigation separate from the internal investigation undertaken by the police
station’s human resources department (see paragraph 24 above). The Court reiterates
that the independence of the authority carrying out the investigation tasks is one
of the elements to be considered, the other elements being promptness,
sufficiency, and access to information (see, for example,
Kişmir v. Turkey, no. 27306/95, § 117, 31 May 2005). Without elaborating
on the de facto independence of the State police Internal Security
Office, the fact remains that both the Internal Security Office and the human
resources department are part of the Ministry of the Interior.
In relation to promptness and access to information,
the Court observes that the case file contains no information as to whether any
investigatory measures were carried out during the period from May 2007,
when the prosecutor’s office attached to the Rīga Court Region revoked the
first decision to terminate the proceedings, to November 2008 when, following
the applicant’s repeated requests addressed to various authorities, including
the Prosecutor General, the applicant was at last questioned. It can therefore be
concluded that the responses to the applicant’s inquiries about the progress of
the investigation were in fact misleading.
As to the sufficiency of the fresh investigation,
the Court observes, first, that one and a half years after the quashing of the
first decision the supervising prosecutor instructed the authorities to carry
out two additional activities, namely to question and cross examine the applicant.
In addition to the supervisory authority’s lack of promptness, there are clear
indications that the instructions were issued as a consequence of the applicant’s
repeated complaints. The Court notes that the prosecutors responsible
executed their tasks not in the course of thorough and permanent supervision,
but rather as a mere reaction to a complaint (Vovruško v. Latvia,
no. 11065/02, § 52, 11 December 2012). Secondly, concerning the organisation of the confrontation,
it appears that the applicant was confronted with those police officers whom he
could name, having seen them appear as witnesses in the criminal proceedings
against him, even though, as follows from the case file, it was likely that
other police officers and at least one civilian were present during the
contested events and could have been recognised by the applicant. Thirdly, during
the additional investigation no efforts were made to clarify the contradictions
in the witnesses’ statements noted above.
In relation to the supervision, the Court
observes that in its first decision the Internal Security Office admitted in
essence that injuries had been inflicted on the applicant but stated that they had
been a result of the authorised use of force (see paragraph 29 above). Seized
to examine the lawfulness of the above decision, the supervising prosecutor of
the Rīga City Centre District Prosecutor’s Office upheld it, but in
addition relied on the fact that the medico-legal expert had not confirmed with
certainty that the applicant had already had the chest injury before his arrest
(see paragraph 31 above). The supervising prosecutor expressed a similar
argument before the adoption of the impugned decision (see paragraph 27 above).
That decision in essence was upheld by a superior prosecutor of the Rīga
City Centre District Prosecutor’s Office (see paragraph 32 above). Disregarding
the findings of the regional prosecutor’s office who considered that the force
used to restrain the applicant was not necessary and was in any event
disproportionate or the fact that the criminal case had been remitted for an additional
investigation in order to identify the perpetrators, the additional
investigation concluded that the fact of injury could not be established (see
paragraph 37 above). That conclusion was concordant with the three previous
decisions of two levels of prosecutors within the hierarchy of the Rīga City
Centre District Prosecutor’s Office, which, according to the Government, had to
be addressed in order to exhaust domestic remedies in
this case. Bearing also in mind the failure to follow their
instructions, the Court considers that it would be
unreasonable to require the applicant to launch a ‘second
round’ of appeals within the hierarchy of the prosecutor’s office where the
same supervising authority had already clearly expressed its opinion about the
principal issue of the complaint and where there is no new evidence which could
change their opinion. This conclusion is strengthened by the fact that with the
passage of time, investigation becomes more problematic.
(c) Conclusion
The foregoing considerations are sufficient to
enable the Court to conclude that the investigation into the alleged
ill-treatment was not effective. In the light of the above, the Court therefore
dismisses the Government’s objections as to the exhaustion of domestic remedies
previously joined to the merits.
There has accordingly been a violation of the procedural limb
of Article 3 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant also makes numerous complaints
under Articles 5 and 6 of the Convention concerning his detention,
trial and conviction. These complaints were not communicated to the Government.
In the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court considers that the remainder of the application does not
disclose any appearance of a violation of any of the Articles of the Convention
relied on. It follows that these complaints are inadmissible under
Article 35 § 3 (a) as manifestly ill-founded and must be
rejected pursuant to Article 35 § 4 of the Convention
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicant claimed 100,000 euros (EUR) in
compensation for non-pecuniary damage.
The Government disagreed with the claim.
Having regard to the nature of the violation
found in the present case and deciding on an equitable basis, the Court awards
the applicant EUR 5,000 in compensation for non-pecuniary damage.
B. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT
1. Joins unanimously to the merits the
Government’s objection regarding the non-exhaustion of domestic remedies
available under the Criminal Law;
2. Declares unanimously the complaint
concerning Article 3 of the Convention admissible and the remainder of the
application inadmissible;
3. Holds by six votes to one that there has
been a violation of the substantive aspect of Article 3 of the Convention;
4. Holds unanimously that there has been a
violation of the procedural aspect of Article 3 of the Convention and dismisses
the objection regarding the non-exhaustion of domestic remedies raised by the
Government;
5. Holds unanimously:
(a) that the
respondent State is to pay the applicant, within three months of the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention EUR 5,000 (five thousand euros) plus any tax that may be
chargeable, in respect of non-pecuniary damage, to be
converted into Latvian lati at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
6. Dismisses unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 2 July 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise
Elens-Passos David Thór Björgvinsson
Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the partly dissenting opinion of Judge
Wojtyczek is annexed to this judgment.
D.T.B.
F.E.P.
PARTLY DISSENTING OPINION OF JUDGE WOJTYCZEK
1. I respectfully disagree with
the majority’s finding that there has been a violation of Article 3 of the
Convention in its substantive aspect. At the same time, I agree with the view
that the investigation carried out by the authorities was ineffective and that
there has been a violation of the procedural limb of Article 3.
2. It has been established by the
Court that the applicant tried to escape from the apartment where he was
apprehended by the police and that he resisted arrest. It is not disputed that
the police had to use force to arrest the applicant. It is also clear that
because of his resistance and aggressive behaviour the
applicant suffered some kind of injuries during the arrest.
However, the exact circumstances of the
arrest and detention at the police station on 9 June 2006 are disputed by the
parties. It is not possible to establish these circumstances on the basis of
the evidence provided by the parties. In particular, it is not possible to
establish what kind of injuries were caused to the applicant during the arrest or
whether further injuries were inflicted at the police station. The available
evidence does not allow the conclusion that the injuries were necessarily
inflicted on the applicant when he was detained at the police station. Given
the lack of detailed information on what exactly happened during the arrest and
in the police station, it is not possible to assess whether the measures
applied by the police were justified and proportionate. It remains unclear to
what extent the injuries were the result of the applicant’s behaviour and to what extent they were caused by the action of the police.
The fact that the applicant was handcuffed before his arrival at the police
station does not necessarily mean that he was unable to assault the police
officers. Furthermore, I do not know what the atmosphere was like at the police
station. Whereas I agree that it is not possible to conclude from the case file
that the applicant’s conduct justified the deployment of strict restraint
measures by the police, I cannot exclude the fact that his conduct might have
justified such measures.
3. I cannot agree with the finding
that the Government had not furnished any information indicating that the
injuries might have been sustained before his arrest. The Government presented
arguments that cast doubt on the version of events given by the applicant. They
expressly stated that, in their view, the injuries had been inflicted during
his apprehension. They gave an account of events that demonstrated the
necessity of the use of force during the arrest.
The Government drew attention to the fact
that the applicant had been under the influence of narcotics when he was arrested.
This fact could have had a major impact on the course of events. They also pointed
out that the applicant had been diagnosed by medical experts as having an
inclination towards self-harm. I am not in a position to assess the credibility
of that statement, but I consider that it should not be ignored.
4. The adjudication of complaints
under Article 3 of the Convention requires a clear division of the burden of
proof between the parties. In the present case the presumption that arises from
the fact that someone was taken into police custody in good health does not
apply. It is not clear for me how the burden of proof was divided between the
applicant and the Government. Whereas the standard of proof “beyond reasonable
doubt” imposes a burden that may be impossible to meet for applicants, it is
also necessary to take into account the unavoidable limits of a most effective
investigation carried out in good faith by the authorities.
5. In the case of Grimailovs v.
Latvia (no. 6087/03, 25 June 2013) the Court, when considering an
allegation of ill-treatment by the police, was confronted with similar
difficulties in establishing the facts. The reasons in that judgment state that
the Court found it “impossible to establish, on the basis of the evidence
before it, whether or not the applicant’s injuries were caused as alleged”.
Therefore the Court could not find a violation of the substantive aspect of
Article 3 of the Convention. I do not see any reason to depart from the
approach adopted in that case.
