FOURTH SECTION

DECISION

Application no. 72040/01 by Artur MARTYNA against Poland

The European Court of Human Rights (Fourth Section), sitting on 15 January 2008 as a Chamber composed of:

Nicolas Bratza , President, Giovanni Bonello , Kristaq Traja , Lech Garlicki , Ljiljana Mijović , Ján Šikuta , Päivi Hirvelä , judges, and Lawrence Early, Section Registrar ,

Having regard to the above application lodged on 12 August 1999,

Having regard to the unsuccessful friendly settlement negotiations,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together ,

Having regard to the Government ’ s request to strike the case out of its list of cases and the text of a unilateral declaration made with a view to resolving the issues raised by the application,

Having regard to the applicant ’ s comments on the Government ’ s proposal for a unilateral declaration,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Artur Martyna, is a Polish national who was born in 1966 and lives in Lublin . The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

A. The circumstances of the case

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

1. The criminal proceedings against the applicant

On 17 July 1997 at about 3.30 a.m. the applicant and two other men (J.P.B. and K.S.) were arrested by police officers in a basement of a building beneath a shop.

The applicant was subsequently charged with attempted burglary and detained on remand. On 15 October 1997 he complained to the Lublin District Court about the prosecutor who had been in charge of the investigation and claimed that he had been ill-treated during his arrest.

The applicant and two of his co-accused were indicted on a charge of attempted burglary. The applicant claimed that he had not known the other co-accused. He maintained that he had hidden from the police in the basement fearing that he would be detained in a sobering-up centre because of his drunken state.

On 9 February 1998 the Lublin District Court convicted the applicant as charged and sentenced him to 22 months ’ imprisonment and a fine. The court took into account the fact that the applicant was a habitual offender.

The applicant appealed against the first-instance judgment. He referred in his appeal to the fact that he had been ill-treated by police officers during his arrest.

On 19 May 1998 the Lublin Regional Court upheld the District Court ’ s judgment.

On 3 September 1998 the applicant lodged a cassation appeal against the judgment of the Regional Court . On the same date he requested the Regional Court to appoint a legal-aid lawyer for him with a view to lodging a cassation appeal, claiming that he was indigent.

On 14 September 1998 the President of the Regional Court refused his request. He found that the applicant had not duly justified his financial and family situation. In addition, his request had been submitted too late.

On 1 October 1998 the President of the Regional Court refused to proceed with the applicant ’ s cassation appeal. He held that the cassation appeal had been filed outside the statutory time-limit and had not been signed by a lawyer. The applicant appealed against that decision.

On 15 January 1999 the Supreme Court refused to entertain the applicant ’ s appeal. It found that the appeal had not been prepared and signed by a lawyer as required by the applicable rules.

The applicant unsuccessfully requested the Ombudsman and the Minister of Justice to file a cassation appeal on his behalf.

2. The alleged ill-treatment of the applicant during his arrest and the subsequent investigation

Shortly after his arrest, on 22 July 1997, the applicant filed a criminal complaint against the police officers who had arrested him, alleging that they had ill-treated him during his arrest.

On 10 September 1997 the Lublin District Prosecutor refused to institute an investigation into the alleged abuse of power by the police officers which had resulted in the applicant sustaining minor bodily injuries, finding that no criminal offence had been committed and that his injuries had resulted from acts of self-harm.

The applicant appealed and alleged that police officers had beaten him during his arrest.

On 24 October 1997 the Lublin Regional Prosecutor quashed the contested decision and ordered the District Prosecutor to carry out an investigation into the applicant ’ s allegations.

On 3 November 1997 the Lublin District Prosecutor instituted an investigation into the allegations of abuse of power by police officers which had resulted in the applicant sustaining serious bodily harm.

On 19 December 1997 the prosecutor ordered the preparation of a forensic report on the injuries sustained by the applicant. Such report was submitted on 1 January 1998 . According to the report, the applicant had asserted that on 17 July 1997 he had been punched and kicked in the face by police officers. At the time of his admission to the sobering-up centre on 17 July 1997 at 4.10 a.m. he had a blood-alcohol level of 2.12 milligrams and, as regards external injuries, he had a scratch under his left eye. Furthermore, the applicant had been seen by a doctor in the Lublin hospital on 17 July 1997 at 9 p.m. That doctor noted a suspected fracture of the applicant ’ s jawbone and referred the applicant to a specialist in dental surgery. The applicant had been consulted by such specialist on 18 July 1997 at 0.50 a.m. The applicant had stated that he had been beaten by police officers and had complained about pain in his jawbone. Later on that day an X-ray of the applicant ’ s jawbone had been taken. The X-ray had indicated a fracture of the jawbone.

On the basis of all the medical evidence, the forensic report concluded that the applicant had sustained bodily injuries in the form of small haematomas under his eyes, a haematoma in the mucous membrane of his lower lip with a lesion of the mucous membrane and a fracture of the jawbone. The report stated that the haematomas on the applicant ’ s face had not been initially visible and that they would appear only after a few or a dozen or so hours after the injury had been sustained. According to the report, the above injuries to the applicant ’ s face had been caused by some unspecified blunt and hard object(s) which could correspond to a fist and a shod foot as alleged by the applicant.

On 26 March 1999 the prosecutor obtained an additional forensic report.

In the course of the investigation, the prosecutor established that on 17 July 1997 at about 3.30 a.m. two police officers, Z.W. and M.D., had been ordered to intervene at the scene of an alleged burglary. At that location the police officers had arrested the applicant and two other men, J.P.B. and K.S. Subsequently, five other police officers had arrived. The applicant and two other men had been taken to a sobering-up centre.

The applicant gave evidence in the course of the investigation. He stated that o n the night of 16 to 17 July 1997 he had been at the “Keya” café located on the 1-go Maja Street until 3 a.m. Subsequently, he had gone to a kiosk near the central railway station to buy some cigarettes. He stated that as he had been walking down the 1-go Maja Street he had noticed a police car and decided to hide in the nearest entrance fearing that he would be detained in a sobering-up centre. The police car stopped and two police officers followed him to the entrance. Subsequently, the applicant moved to a basement and he had been followed there by the police officers.

He further stated that the police officers apprehended him in a hall of the basement, and one of them had ordered him to lie down on the ground. The applicant had crouched down and had been handcuffed in that position. One of the police officers had held his neck, while the other kicked him in his right cheek. Subsequently, the applicant had been placed in the police car and he had stayed there for a few minutes before being moved to another police car. Then, before two other suspects had been brought to the police car, the applicant was slapped 3 or 4 times by a police officer who was quite tall and had blond hair. The applicant claimed that he had reported the beating at the time of his admission to the sobering-up centre.

The prosecutor had regard to the conclusions of the forensic report in respect of the applicant ’ s injuries.

The prosecutor further considered that the applicant ’ s version of events in respect of the place of his apprehension and his ill-treatment was in major contradiction with the account given by the police officers, in particular Z.W. and M.D. They stated that they had arrested the applicant and two of his companions inside one of the rooms in the basement. The applicant had been ordered to leave that room. He had come out and had been handcuffed by Z.W. while crouching down. Subsequently, police officer M.D. had placed him in the police car. A few minutes later, after the reinforcements had arrived, the applicant was moved to a police van by two other police officers, J.D. and M.S.

The prosecutor heard evidence from W.M., one of the police officers who had arrived with the reinforcements. He stated that he had stood by the police van for about 10 minutes while talking to police officer M.S. During that time the applicant, who had been placed in the police van, had been insulting and threatening police officer M.S. W.M. further stated that the light had been on inside the van and that he had not noticed on the applicant ’ s face or elsewhere on his body any signs of beating.

According to the statements made by J.P.B. and K.S. during the investigation into the attempted burglary (see above), nothing had happened in the police van or on their way to the sobering-up centre. They also stated that the applicant had not said anything about the circumstances of his arrest.

The prosecutor also heard evidence from two doctors, A.J. and W.P., who had been present during the applicant ’ s admission and release from the sobering-up centre. They stated that the applicant had not reported any injuries and had not complained about the conduct of the police officers.

Having assessed all the evidence in the case, the prosecutor considered that he was unable to determine which of the conflicting versions of the events concerning the applicant ’ s arrest had been true. Consequently, he could not determine whether the police officers had abused their powers and caused the applicant ’ s injuries or whether the injuries had resulted from acts of self-harm. The prosecutor considered that the statements of both sides had been logical and consistent, and had been corroborated by other evidence. In his view, there was no other evidence available which could assist in resolving the conflict between two contradictory versions of the relevant events.

Accordingly, on 30 April 1999 the Lublin District Prosecutor discontinued the investigation into the applicant ’ s allegations of an abuse of power committed by police officers on 17 July 1997. The prosecutor refused to prosecute the police officers, finding that there was not enough evidence pointing to the conclusion that they had committed offences specified in Articles 231 § 1 and 157 § 1 of the Criminal Code.

On an unspecified date the applicant lodged an appeal against this decision with the Lublin Regional Prosecutor. He contested the District Prosecutor ’ s decision and, in particular, the suggestion that the fracture of his jawbone could have resulted from acts of self-harm. On 6 July 1999 the Regional Prosecutor informed the applicant that he had not established any grounds for allowing his appeal and had therefore transmitted it to the Lublin District Court for review.

On 28 September 1999 the Lublin District Court quashed the District Prosecutor ’ s decision and remitted the case for further investigation. It held that the decision to discontinue the investigation had been premature as the prosecutor had not heard evidence from J.P.B. who had been an eyewitness to the applicant ’ s arrest.

On 29 October 1999 the District Prosecutor stayed the investigation on the ground that J.P.B. was abroad and could not be heard. On 24 January 2000 the investigation was resumed. J.P.B. was heard by the prosecutor on the same date. J.P.B. confirmed the statements which he had made during the investigation into the attempted burglary. He further stated that about 90 seconds before his arrest he had walked down a hall in the basement with his lighter on and that he had not noticed anyone there. He had seen the applicant for the first time inside the police van. He noticed that the applicant had been pushed by a police officer but had not been hit. J.P.B. further stated that the applicant had been insulting police officers and that he had not noticed any injuries or blood marks on the applicant. He also stated that the applicant could not have been beaten during his arrest.

On 31 January 2000 the District Prosecutor again discontinued the investigation. The prosecutor held that there was insufficient evidence to support the applicant ’ s assertions that the police officers had committed an offence.

The prosecutor considered that the evidence obtained in the course of the investigation pointed to two differing versions of events surrounding the applicant ’ s arrest. Both of them, namely the version presented by the applicant and the version presented by the other witnesses, were logical and consistent. The prosecutor found that it was indisputable that the applicant had sustained the injuries described above, and that at the same time there were no grounds to hold that these injuries had resulted from acts of self-harm. On the other hand, he considered that the police officers ’ statements could not be challenged simply because they had contradicted the applicant ’ s account of events. In that regard, the prosecutor referred to the fact that two men arrested with the applicant had given a different account of the relevant events from the applicant.

The prosecutor also considered that the applicant ’ s assertions concerning his arrest, namely that he accidentally happened to be present at the location of the attempted burglary, had been known to the courts which had nevertheless finally convicted him of attempted robbery.

Finally, the prosecutor held that at the current stage of the investigation he could not establish which version of the relevant events was true, and consequently he could not determine who had caused the applicant ’ s injuries.

On 14 February 2000 the applicant lodged an appeal against that decision.

On 2 March 2000 the Lublin Regional Prosecutor upheld the District Prosecutor ’ s decision, finding that the assessment of evidence in the present case had been correct. The Regional Prosecutor informed the applicant that he could bring a private prosecution against the police officers, since the investigation had been discontinued for the second time. Such a private bill of indictment had to be prepared and signed by a lawyer.

On 13 March 2000 the applicant requested the Lublin District Court to appoint a legal-aid lawyer for him with a view to preparing a private bill of indictment. The applicant claimed that he had not received any reply to his request.

The Government acknowledged that the applicant ’ s request had been lost and that the procedure for appointing a legal-aid lawyer for him had not been put in motion.

After the Government had been given notice of the application, a copy of the applicant ’ s request was transmitted through the offices of the Ministry of Justice to the Lublin District Court for examination.

On 19 July 2006 the Lublin District Court dismissed the applicant ’ s request to appoint a legal-aid lawyer for him with a view to preparing a private bill of indictment. It found that the applicant had not demonstrated that he had been unable to pay the relevant costs.

B. Relevant domestic law

L egal provisions concerning the use of force by the police applicable at the material time are set out in paragraphs 41-42 of the Court ’ s judgment in the case of Dzwonkowski v. Poland , no. 46702/99, 12 April 2007 .

COMPLAINTS

1. The applicant complained under Article 3 of the Convention that he had been subjected to inhuman and degrading treatment by police officers during his arrest. He also complained under Article 13 of the Convention about the lack of an effective investigation into his allegations of ill-treatment.

2. The applicant alleged a breach of Articles 6 § 3 (c) and (d) and 13 of the Convention on account of the refusal to appoint him a legal-aid lawyer in the criminal proceedings against him and the refusal to take evidence from defence witnesses. He further complained about the refusal to entertain his cassation appeal.

THE LAW

A. Complaints under Article 3

The applicant complained under Article 3 of the Convention that he had been subjected to inhuman and degrading treatment during his arrest. He also complained under Article 13 of the Convention about the lack of an effective investigation into his allegations of ill-treatment. The Court considers that the latter complaint should be examined under the procedural limb of Article 3 of the Convention. This provision provides as follows:

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

By letter dated 30 October 2007 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue s raised by this part of the application. They further requested the Court to strike out the relevant part of the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“ (...) Having regard to the fact that the Government is unable to provide satisfactory and convincing explanations as to how the applicant ’ s injuries occurred, in particular to prove to the point of certitude that they do not originate in the maltreatment by the police officers during his arrest, the Government wish to express – by way of the unilateral declaration – its acknowledgement of the violation of Article 3 of the Convention in its material aspect . At the same time, the Government admit that the investigation in the alleged abuse of power of the police officers when arresting the applicant did not meet the standard of “a thorough and effective investigation” as established by the case-law of the European Court and therefore they express their acknowledgement of the violation of Article 3 of the Convention in its procedural aspect as well as of Article 13 of the Convention.

Consequently, the Government are prepared to accept to pay to the applicant the sum of 25,000 PLN, which they consider to be reasonable in the light of the Court ’ s case law. The sum referred to above, which is to cover any pecuniary and non - pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default periods plus three percentage points.

The Government would respectfully suggest that the above declaration might be accepted by the Court as ‘ any other reason ’ justifying the striking out of the case of the Court ’ s list of cases, as referred to in Article 37 § 1 ( c) of the Convention.

(...)”

The applicant resisted the Government ’ s application to have the case struck out. He reasoned that the compensation proposed was inadequate.

The Court observes at the outset that the parties were unable to agree on the terms of a friendly settlement of the case. It recalls that, according to Article 38 § 2 of the Convention, friendly-settlement negotiations are confidential and that Rule 62 § 2 of the Rules of Court further stipulates that no written or oral communication and no offer or concession made in the framework of the attempt to secure a friendly settlement may be referred to or relied on in contentious proceedings. However, the above declaration was made by the Government outside the framework of the friendly-settlement negotiations.

The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

Article 37 § 1 in fine includes the proviso that:

“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

The Court also recalls that under certain circumstances, it may strike out an application under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.

To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment ( Tahsin Acar v. Turkey (preliminary objection), [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI ; see also Meriakri v. Moldova (striking out), no. 53487/99 , §§ 29-32, 1 March 2005 ; Van Houten v. the Netherlands (striki ng out), no. 25149/03 , §§ 34-37, ECHR 2005 ‑ IX; and Swe dish Transport Workers Union v. Sweden ( striking out), no. 53507/99, §§ 24-27, 18 July 2006 ).

The Court notes that it has specified in a number of cases the nature and extent of the obligations which arise for the respondent State under Article 3 of the Convention in respect of both the substantive and procedural aspects of this provision (see, for example, Iwańczuk v. Poland , no. 25196/94, 15 November 2001 ; Berliński v. Poland , nos. 27715/95 and 30209/96, 20 June 2002 ; Olszewski v. Poland (dec.), no. 55264/00, 13 November 2003 ; Dzwonkowski v. Poland , no. 46702/99, 12 April 2007 ; and Jasiński v. Poland, no. 72976/01, 6 December 2007). Where the Court has found a breach of this Article it has awarded just satisfaction, the amount of which depended on the particular features of the case.

It has carefully examined the terms of the Government ’ s declaration. The Court notes that the Government unreservedly acknowledged that in the present cases there had been a violation of both the substantive and procedural limbs of Article 3 of the Convention. Having regard to the admissions contained in the Government ’ s unilateral declaration and the amount of compensation proposed ( which can be considered reasonable in comparison with the Court ’ s awards in similar cases ), the Court finds that it is no longer justified to continue the examination of the relevant part of the application pursuant to Article 37 § 1 (c) (see, for the relevant principles, Tahsin Acar , cited above ).

In the light of all the above considerations, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application ( Article 37 § 1 in fine ) in so far as it concerns the complaints under Article 3 of the Convention.

The Court further notes that this decision constitutes a final resolution of this application only in so far as the proceedings before the Court are concerned. It is without prejudice to the use by the applicant of other remedies before the domestic courts to claim further compensation in respect of the impugned facts .

Accordingly, this part of the application should be struck out of the list.

B. Rema ining complaints

The applicant also alleged a breach of Articles 6 § 3 (c) and (d) and 13 of the Convention on account of the refusal to appoint him a legal-aid lawyer in the criminal proceedings against him and the refusal to take evidence from defence witnesses. He further complained about the refusal to entertain his cassation appeal.

As regards the remaining complaints, the Court, having examined them, and regardless of other possible grounds of inadmissibility, finds nothing in the case file which might disclose any appearance of a violation of the Convention. It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

C. Article 29 § 3 of the Convention

In view of the above conclusions, it is appropriate to discontinue the application of Article 29 § 3 of the Convention.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government ’ s declaration in respect of the complaint s under Article 3 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in so far as it relates to the above complaint s in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible.

Lawrence Early Nicolas Bratza Registrar President