FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 47709/99 by Piotr RACHWALSKI and Agata FERENC against Poland

The European Court of Human Rights (Fourth Section), sitting on 21 October 2008 as a Chamber composed of:

Nicolas Bratza , President, Lech Garlicki , Giovanni Bonello , Ljiljana Mijović , Ján Šikuta , Mihai Poalelungi , Nebojša Vučinić , judges, and Lawrence Early , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 18 October 1998,

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

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Piotr Rachwalski (“the first applicant”) and Ms Agata Ferenc (“the second applicant”) , are Polish nationals who were born in 1973 and 1976 respectively and live in Wą growiec. The Polish Government (“the Government”) are r epresented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs .

A. The circumstances of the case

The facts of the case are disputed by the parties . They may be summarised as follows.

1. As presented by the applicant

The second applicant lived with a group of friends, including the first applicant, mostly students, in an old and decrepit house they had rented in Wrocław . They occasionally invited their friends to spend a night or a couple of days in their house.

On the night of 14 June 1997 there was a group of students sleeping in the house. At 3 a.m. they were awakened by two police officers patrolling the area. The police enquired whether the inhabitants knew the owner of an unlocked car parked in front of the house.

The applicants and one of their friends, D. S., started a polite discussion with the police officers about the car. The police intended to tow the car away to the police car park. The applicants argued that it was not forbidden or illegal to keep the car unlocked. At the police ' s request, they produced their identity cards and the registration card of the car, whose owner was asleep in the house.

The police were not satisfied with their explanation and the dispute became more intense. In reaction to the opinions expressed about the intervention, in particular by D. S., the policemen used truncheons. They hit D. S. several times and handcuffed him. The applicants tried to argue with the policemen, to no avail. The police called other police officers and shortly afterwards approximately ten other policemen arrived. They hit the first applicant with their truncheons several times and the second applicant once. Thereupon D. S. was taken to the police car where he was beaten. The applicants were ordered to stand against the fence. They were pushed and jostled and the policemen insulted them referring to them as “scum”, “slobs”, “queers” ( ho łota, brudasy, pedały ).

Subsequently, a group of policemen , armed with truncheons and guarded by police dogs, entered the house, woke up the other occupants and ordered them to stand against the wall. Then the police searched the house. No information was provided about the grounds, purpose and legal basis for the search. During this time the police showered abuse on the students. They pushed and shoved them. This lasted for about half an hour. Afterwards, the police left the house and warned the students that some of them were in an illegal situation as they were not registered as inhabitants of the house, and threatened that they would be in trouble if they submitted a complaint about the events.

The police left, taking D. S. with them.

On 16 June 1997 the applicants requested to be examined by a forensic medicine specialist. It was established that the first applicant had two elongated bruises on his left arm, and other bruises on his palm. The second applicant had a blue mark on her bottom (13 by 9 cm). It was stated that these bruises could have been caused by the use of police truncheons.

2. As presented by the Government

The second applicant and her friend D. S. lived in the house with the owner ' s permission. They often received young visitors from all over the country. On the night in question the unlocked car parked in front of the house had seemed very suspicious to the policemen A. C. and R. S., who thought it was stolen and considered that it should be towed away. They had knocked at the window and the second applicant informed them that the owner was in the house. She first objected to the police action at night, and then went to look for the owner of the car among the fourteen young people who were sleeping in the house. The applicants behaved aggressively, loudly expressing opinions about the purpose and sense of the intervention. D. S. raised his voice to the police and pushed A. C.

The police action was a result of the fact that the applicants did not comply with the police requests to provide necessary information. The applicants talked to the police with a raised voice and took a very active part in the struggle with the policemen.                          

The police officer misinterpreted the first applicant ' s intentions when he had handed him his documents and had hit him to prevent his being attacked. The applicant was most probably hit once.

The atmosphere was tense. The owner of the car gave the police the keys and documents to the car. As D. S. was unruly and continued to express objections, the policemen decided to arrest him. While he was being taken into custody by the police, he hit one of them in the face. Thereupon truncheons were used against him. Given the attitude of D. S. and of other persons present, the police called for assistance. Two other police patrols and an emergency team arrived. As the applicants were interfering with the arrest of D. S., they were hit with truncheons.

Police officers D. R. and J. G. then entered the house to check the identity of the persons present. After that, the intervention was terminated.

3. Criminal proceedings

On 16 June 1997 the applicants requested the Wrocław District Prosecutor to institute criminal proceedings against the police for abuse of power. On 23 December 1997 the prosecutor refused to do so. He found that no criminal offence had been committed.

The prosecutor considered that the police action had been justified. The police could have reasonably suspected that the unlocked car had been stolen, even though it had not been reported as such. The further developments had certainly come as a surprise to both the police and other persons involved in the incident. The second applicant had objected in a pretentious tone (“ pretensjonalny ton głosu ”) to having been woken up and to the check on the car taking place at night. She had been informed that the car would be towed away if the owner was not found. She could not locate the owner of the car, as there were many people in the house who did not know each other. The second applicant had woken all of them up in an attempt to find the owner.

D. S. had objected in a loud voice to the police intervention. He had insisted that the intention of the police was to harass the persons in the house. As he had not obeyed the police requests to calm down and the verbal exchange between him and the police officer A. C. had become increasingly heated, it had been decided that he should be taken to the police car. The prosecutor considered that this had been justified in the light of D. S. ' s aggressive behaviour. Given that D. S. had been displaying aggressive behaviour, direct force had been used against him, including the use of truncheons and handcuffs. It was true that the applicants ' versions of facts diverged, and these divergences could not be clarified on the basis of evidence from other witnesses, but it was clear that, in the face of his resistance, it had been necessary to use such force in order to take D. S. to the car.

The police had had to call assistance given the behaviour of the applicants. They had also felt threatened by the presence of other persons at the scene of the incident. The applicants had been hit as they had ignored the order to let D. S. go so that he could be taken to the car. In the darkness, the police had not noticed that the first applicant had in fact had his documents in his hand in order to show them to the police, and they had thought that he intended to hit them.

It was finally noted that the accounts of the facts given by the persons present at the scene, other than the police, were highly divergent, making it impossible to establish the facts of the case. However, the testimony given by the policemen was coherent. Therefore, the submissions of the other persons could not be considered credible and had to be assessed critically.

The prosecutor concluded that the measures taken by the police had been appropriate to the situation.

The first applicant appealed. He argued that the police brutality and aggression had been totally unjustified. Nothing in the behaviour of the persons present had justified the use of force. The police had entered private property and effected a search of the house without any sound reasons, hitting and insulting the persons sleeping in the house. He argued that he was a law-abiding citizen, a student of two university faculties and a member of the Municipal Council of his town. He had not given any reason to be beaten, verbally insulted and humiliated just at the whim of the police. The police should not intervene in private property at night and hit, insult and humiliate people just because they looked, or lived, differently. The facts as established by the prosecutor did not correspond to what had happened. All the facts had been established on the basis of the arguments of the police, who had apparently been instructed by police lawyers as to what they should say. During the questioning the prosecutor had made unpleasant remarks about the hairstyles, clothes and views of the young inhabitants of the house, which had influenced her decision to discontinue the proceedings. He submitted that the police had humiliated both himself and the others.

The second applicant submitted that the assessment of the evidence was biased and that the police had clearly abused their powers, insulting and humiliating her and other participants in the incident.

On 20 May 1998 the Wrocław Regional Prosecutor upheld the contested decision. He considered that the intervention of the police had been justified in so far as they wanted to verify the identity of the owner of the car. D. S. had behaved aggressively, both verbally and physically. Regardless of whether he had intended to hit A. C in the face or not, his behaviour could have been perceived as an intentional assault. It was for that reason that a decision to arrest him had been taken. The identity check of the persons present in the house was necessary as they had insulted the policemen.

The social status of the young people, namely the fact that they were students, imposed certain obligations on them, in particular an obligation to cooperate with the police in the interest of law and order.

The findings of the inquiry did not establish that the students had been insulted verbally by the police, as the policemen consistently denied this. Nothing was found to support the first applicant ' s submission that the testimony of the policemen had been suggested to them by the police lawyers.

The prosecutor concluded that the contested decision had to be upheld.

B. Relevant domestic law

The Code of Criminal Procedure contains the following provisions on the search of premises by the police:

Article 221

§ 1 Searches of inhabited premises can be made during the night only in cases when it is indispensable to carry out such searches without delay. Night-time lasts from 10 p.m. until 6 a.m.

§ 2 A search which has commenced during the day can be continued during the night.

§ 3 Only premises which are accessible at this time to a particular person or persons, or premises designed for storage, can be searched at night.

The police ' s competence as to the use of coercive measures is regulated by the Police Act of 6 April 1990 and by the Ordinance of the Council of Ministers of 17 September 1990 setting out the conditions and method of application of coercive measures.

Pursuant to section 14 of the Police Corps Act, within the limits of their competence, the police shall – in order to examine, prevent and detect offences and petty offences – carry out operational and reconnaissance activity, take part in an investigation or inquiry, or carry out administrative activity and safeguard public order. In the exercise of their powers the police shall respect human dignity and human rights (section 3).

Section 16 of the Police Corps Act provides that police officers may use, if a person does not comply with the lawful request of policemen, such coercive measures as, for instance, truncheons.

The police are bound by the principle of minimal use of coercive measures. In accordance with this principle the police shall only use such measures when they are absolutely necessary in the given circumstances in order to enforce execution of orders issued by the police (section 16 § 2).

The ordinance setting out the conditions, circumstances and method of application of coercive measures by the police, issued on the basis of section 16 § 4 of the Police Corps Act, indicates – among other coercive measures – the use of truncheons. When using physical force, the police are not allowed to strike a person unless acting in self-defence or averting an unlawful attack on a third person ' s life, health or property (section 5).

Pursuant to section 13 of the ordinance a truncheon may be used to repel an active attack, overcome active resistance or prevent the destruction of property.

The use of truncheons is forbidden in relation to persons resisting passively, unless the use of physical force has been ineffective, and to persons on whom handcuffs, straitjackets or restraint belts or nets have already been used.

Pursuant to section 142 § 1 of the Police Corps Act a police officer who in the performance of official duties oversteps his competences and violates the personal interests and dignity of a citizen, shall be liable to imprisonment for up to five years.

COMPLAINTS

The applicants complained that the treatment to which they were subjected by the police officers, namely the unjustified use of force and verbal abuse, constituted degrading treatment contrary to Article 3 of the Convention.

They complained under Article 5 of the Convention that the conduct of the police officers had infringed their right to liberty and security.

They complained under Articles 6 and 13 of the Convention that they had been deprived of the right to a fair trial as the prosecutors in giving the decision refusing to institute criminal proceedings against the police officers lacked impartiality and that this decision was not subject to judicial review.

They complained that their right to respect for their private life and for home had been breached as the police officers broke into the house without any legal right to do so.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

1. The applicants complained under Article 3 of the Convention that the police conduct towards them had amounted to degrading treatment.

Article 3 of the Convention reads:

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

A. The Government ' s submissions

The Government argued that the applicants had not been subjected to degrading treatment and that the police had made a legitimate intervention in the applicants ' case, showing due diligence when performing their official duties.

The Government submitted that the applicants had disturbed the legitimate police action aimed at arresting one of the students, who had assaulted a policeman and had actively resisted the attempt to arrest him. The Government further stressed that the police officer misinterpreted the first applicant ' s intentions when he had handed his documents and hit him to prevent his alleged attack. In the Government ' s opinion, the applicant was most probably hit once.

According to the Government ' s further submissions, the applicants did not comply with the police requests. The situation was very tense and the applicants talked to the police with a raised voice and took a very active part in the struggle with the policemen. However, the policemen never intended to arrest the applicants.

The Government emphasised that the police intervention had been necessary. The applicants had behaved aggressively and had refused to obey police orders. The use of direct force against them had therefore been indispensable and proportionate.

In the Government ' s view, the level of suffering and humiliation in the applicants ' case did not reach the threshold that would justify the applicability of Article 3 of the Convention.

With respect to the procedural aspect of the case, the Government argued that the investigation had complied with the requirements of Article 3 of the Convention. In order to collect more evidence the prosecutor had twice decided to extend the investigation. Twenty-eight witnesses to the incident were heard and some of them confronted. In the Government ' s view the investigation conducted by the public prosecutor was an effective one.

The Government also submitted that the applicants could have brought private prosecutions against the police officers once the ex officio investigation conducted under section 142 of the Police Corps Act had been discontinued.             

B. The applicants ' submissions

The applicants argued that the police action had constituted a penalty for their unconventional lifestyle. In their opinion the policemen had intended to humiliate and harass them and had acted with a feeling of impunity.

The applicants further submitted that they and their friends had on several occasions been harassed by police officers who apparently did not like their appearance. In view of the fact that it had never been established that they had done anything against the law, the applicants argued that the insults directed at them during the incident had manifestly indicated prejudice on the part of the police officers against them.

The applicants disagreed with the Government ' s opinion and argued that the use of truncheons against them had been unjustified and excessive. Hitting one of the applicants, a young woman, had been humiliating and punitive. They disputed the Government ' s argument that their behaviour had been aggressive and that one of the applicants had been hit only once by the policemen.

The applicants submitted that they had been insulted, assaulted and humiliated by having been expelled from the house by the policemen using truncheons and police dogs and placed against the wall in their pyjamas. They argued that the investigation had been lodged only after their repeated motions and following press releases concerning the incident. The applicants also questioned the impartiality and objectivity of the prosecution authorities in the conduct of the investigation.

C. The Court ' s assessment

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 requires an examination of the merits. The Court concludes therefore that this 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. It sh ould therefore be declared admissible.

II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

The applicants further complained that their right to respect for their private life and home had been breached as the police officers had broken into the house without any legal right to do so.

Article 8 of the Convention reads:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

A. The Government ' s submissions

The Government submit that the police had not searched the house but solely entered and requested the persons to leave the apartment.

The Government argued that the applicant s had voluntarily let the policemen enter his flat. They submitted that there was no proof that a search of the house took place and that if the applicants and the car ' s owner had complied quickly with the police officers ' request, the intervention would not have happened.

In the Government ' s opinion this complaint was manifestly ill-founded.

B. The applicants ' submissions

The applicants refuted the Government ' s submissions and maintained that the policemen had entered the flat by force without their consent and had police dogs and truncheons with them.

C. The Court ' s assessment

The Court notes that it is uncontested that the police entered the house at night, woke up the occupants and warned the students that some of them were in an illegal situation as they were not registered as inhabitants of the house.

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 requires an examination of the merits. The Court concludes therefore that this 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. It sh ould therefore be declared admissible.

III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

The applicants also complained that the conduct of the police officers had infringed their right to liberty and security guaranteed by Article 5 of the Convention.

Article 5 § 1 of the Convention reads, in so far as relevant:

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

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;”

The Court considers, in the light of the parties ' submissions, that the complaint is closely linked to the complaint under Article 3 and so raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this 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. It sh ould therefore be declared admissible.

IV. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION

The applicants further argued, relying on Articles 6 and 13 that they had been deprived of their right to a fair trial as the prosecutors involved in the investigation against the police officers had lacked impartiality.

Article 6 § 1 of the Convention reads, in so far as relevant:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

Article 13 of the Convention reads:

“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 notes that the Convention does not confer any right to “private revenge” or to an actio popularis. Thus, the right to have third parties prosecuted or sentenced for a criminal offence cannot be asserted independently: it must be indissociable from the victim ' s exercise of a right to bring civil proceedings in domestic law, even if only to secure symbolic reparation or to protect a civil right such as the right to a “good reputation” (see Perez v. France [GC], no. 47287/99, § 70), Golder v. the United Kingdom , judgment of 21 February 1975 , Series A no. 18, p. 13, § 27 and Tolstoy Miloslavsky v. the United Kingdom , judgment of 13 July 1995, Series A no. 316-B, p. 78, § 58). In the present case the applicant has not asserted that any of his civil rights ha d been involved in the relevant proceedings.

Having regard to the above, the Court considers that the proceedings request ed by the applicant s do not concern “the determination of their civil rights and obligations or of any criminal charge against them ”. Consequently, they do not fall within the scope of Article 6 and Article 13 cannot therefore be invoked .

It follows that this aspect of the case is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicants ' complaint s that during the incident of 14 June 1997 they were subjected to humiliating treatment by the police officers ; that the entering by the police and the search of their house amounted to a breach of their right to respect for home and that they were deprived of their liberty in breach of Article 5 of the Convention ;

Declares inadmissible the remainder of the application.

Lawrence Early Nicolas Bratza Registrar              President