FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43378/98 by Helena LAMPÁŠOVÁ against Slovakia

The European Court of Human Rights, sitting on 9 July 2002 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr A. Pastor Ridruejo , Mrs E. Palm ,

Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 25 May 1998 and registered on 9 September 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the partial decision of 9 November 2000,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs Helena Lampášová, is a Slovakian national, who was born in 1942 and lives in Považská Bystrica . The respondent Government were represented by Mr P. Vršanský, their Agent.

A. The circumstances of the case

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

On 25 April 1997 the Považská Bystrica District Court ( Okresný súd ) convicted the applicant of an offence on the ground that she had run her business without a trade licence between 18 March 1996 and 25 April 1997. A suspended three months’ prison sentence was imposed on the applicant. The judgment became final on 23 September 1997. By a decision of 22 June 1998 the District Court pardoned the applicant with reference to the Prime Minister’s decision on amnesty of 3 March 1998.

In the meantime, on 13 April 1998, new criminal proceedings were brought against the applicant as she continued running her business without a trade licence.

On 28 April 1998 the applicant was examined by the police. She refused to sign the report. The applicant informed the police investigator in advance that she could not come to a further examination as she was ill.

On 5 June 1998 two police investigators in plain clothes apprehended the applicant when she was leaving a hospital and brought her in a car to the District Office of Investigation in Považská Bystrica . The circumstances of the applicant’s apprehension are disputed between the parties.

The Government refer to a record concerning the applicant’s apprehension on 5 June 1998 which indicates that the applicant had to be brought to the investigation office in accordance with Section 17 of the Police Corps Act as she had repeatedly refused to appear for examination. When bringing the applicant the investigators had to use self-defence grips and holds as the applicant had disobeyed the order to get into a police car and used physical force with a view to resisting the police. The applicant was brought to the investigation office at 12.30 p.m. and she was released at 2.05 p.m. on 5 June 1998.

A different record of 5 June 1998 indicates that the applicant was heard at the investigation office in Pova žská Bystrica from 1.30 p.m. to 2 p.m. The applicant stated that she did not wish to be assisted by a lawyer and contested the allegation that she had committed an offence while running her business. The record further stated that the applicant had refused to sign it as it did not indicate that two men had taken her under the arms and that she had been pushed into a car as a result of which she had had a shock. The applicant stated for the record that she had accepted to be heard by the police only after she had been treated by a doctor.

The Government also point out to a medical certificate indicating that an ambulance was called to the investigation office at 12.34 p.m. on 5 June 1998 on the ground that the applicant had fainted. According to the record, the applicant had recovered her consciousness by the time the doctor arrived. The doctor examined the applicant and diagnosed an attack of hysteria. After having administered a medicament to the applicant the doctor left as no further immediate treatment was necessary.

The applicant maintains that on 5 June 1998 two men grasped her under her arms in the street and dragged her to a car without any explanation. She was shocked, cried out for help several times but did not resist. Subsequently she lost consciousness. When she recovered consciousness she was lying on the ground in the premises of the investigation department in Pova žská Bystrica . She presumes that the investigator had kicked her as subsequently she had bruises and swellings on her body and submits that she has no recollection of having been examined by a doctor. The applicant was distressed and it took her some forty minutes to recover from the shock. According to the applicant, the police investigator threatened that she would be placed in a cell if she refused to sign the record of a previous examination. After she had refused to sign the record the applicant was told to leave.

In the afternoon of 5 June 1998 the applicant was examined by a doctor. In a report established on 5 August 1998 the doctor stated that the applicant’s arms, left hand and possibly also the upper part of her spine were contused. The applicant was treated as an out-patient until 15 July 1998.

By a letter sent on 8 June 1998 the applicant complained to the Presidium of the Police Corps that the police had ill-treated her on 5 June 1998. She complained that she had suffered a shock, that she had pains in the upper part of her body and that her glasses had been damaged.

On 3 August 1998 the Inspection Department of the Police Corps in Bansk á Bystrica delivered a decision, with reference to Section 159(1) of the Code of Criminal Procedure, concluding that the police investigators involved had acted in accordance with the law. The Inspection Department found, after having heard the applicant, the investigators in question, a witness and a doctor, that the applicant had refused to obey the police and that the latter had therefore used holds and grips in accordance with Section 51(1)(c) of the Police Corps Act. In the car the applicant had an attack of hysterics and a doctor was called. Prior to the doctor’s arrival, the applicant fell deliberately to the ground. The doctor administered a medicament to the applicant and informed the police that she could be heard. The applicant was heard in the presence of a witness who confirmed that no physical force had been used against her. Neither the police nor the doctor noticed any visible injuries on the applicant’s body.

The applicant’s complaint was also examined, pursuant to the relevant provisions of the Complaints Act of 1998, by the Police Corps Regional Office of Investigation in Tren čín. A record was drawn up on 10 August 1998. It indicates that prior to apprehending the applicant the two police investigators showed their police cards to her and asked her repeatedly to follow them to the District Office of Investigation in Pova žská Bystrica where she was to be heard in the context of criminal proceedings brought against her. The applicant refused to obey and one of the officers warned her that she would be brought forcibly. Subsequently the two policemen took the applicant under her arms and walked with her toward their car which was parked nearby. The applicant  shouted offensive remarks in respect of the police and asked the persons passing by to help her. One of the policemen then produced his police card and informed the persons standing around that he was carrying out his duty. When they reached the car, the applicant started defending herself by means of physical force against the attempts to make her enter the car. The investigators therefore used professional holds and grips and forced the applicant to take a seat in the car. While defending herself the applicant bit the hand of one of the policemen and kicked the other one in the chest.

During the drive the applicant complained that she was weak and gave the impression that she was about to lose consciousness. Urgent medical service was called. The doctor found that the applicant had hysterics and provided her with medicaments. The doctor diagnosed no visible injuries and concluded that neither hospitalisation nor further medical treatment was necessary.

The above record of the Regional Office of Investigation of 10 August 1998 further indicates that the investigator who examined the applicant’s complaint about her ill-treatment had regard to further explanations submitted by the applicant on 26 June 1998 and on 3 July 1998 respectively, to explanations provided by the policemen concerned, to the criminal file concerning the applicant’s case as well as to a statement by the doctor whom the police had called to examine the applicant on 5 June 1998. According to that statement, the applicant had had no visible injuries when the doctor had examined her in the premises of the investigation office and the state of her health had not excluded questioning by the police. At the applicant’s request the investigator also asked another person to make a statement about the circumstances under which the applicant had been apprehended. The witness denied that she had seen the incident and stated that the applicant was a liar. Furthermore, the doctor whom the applicant visited prior to her apprehension on 5 June 1998 confirmed that the applicant’s health did not prevent her from attending the examination to which she had been summoned.

The investigator pointed out in the record that his findings were contrary to the applicant’s allegations. He concluded that the complaint was unsubstantiated. The investigator’s conclusion was served on the applicant on 17 August 1998.

On 5 August 1998 the doctor who had treated the applicant as an out-patient between  5 June 1998 and 15 July 1998 established a report for the applicant’s insurance company. The doctor confirmed that the mechanism and scope of the injury corresponded to the applicant’s description of the facts, namely that two men had grasped her under arms and had pushed her into a car. According to the report, the injury did not cause any permanent damage to the applicant’s health.

On 12 August 1998 the applicant complained to the Regional Prosecutor’s Office in Bansk á Bystrica about the decision of the Inspection Department of the Police Corps of 3 August 1998. The complaint was dismissed, on 10 September 1998, by the District Prosecutor’s Office in Považská By strica on the ground that the applicant lacked standing to file it.

B. Relevant domestic law and practice

Code of Criminal Procedure

Section 158(1) provides that public prosecutors, investigators and police are obliged to receive information about facts indicating that an offence was committed and to deal with such information without delay.

Under Section 159(1), public prosecutors, investigators or police shall deliver a decision to the effect that the case is to be disposed of when there is no suspicion that an offence was committed unless further action is required.

The Police Corps Act of 1993

Section 17(2) entitles the police to bring a person to a police department when such a person fails, without justification, to respect the request that he or she appear with a view to explaining facts which may be of importance for the investigation into a possible criminal offence. A report shall be drawn up in such a case.

Under Section 51(1)(c), the police may use holds, grips, blows and kicks of self-defence with a view to overcoming the active resistance and attacks by a person who, inter alia , is to be brought to a police department.

Section 51(2) provides that a policeman may use holds and grips against a person who passively resists his or her being brought to a police department, apprehension or arrest.

Pursuant to Section 78(5), the State is liable for damage caused by the police in the context of the exercise of their functions unless such damage has been the consequence of an unlawful action of the person concerned or of a justified action of the policemen. Paragraph 6 of Section 78 provides that the damages are payable by the Ministry of the Interior. The latter’s decision on a claim for compensation can be reviewed by a court.

The State Liability Act of 1969

Section 18(1) of Act No. 58/1969 on the liability of the State for damage caused by a State organ’s decision or by its erroneous official action ( Z ákon o zodpovednosti za škodu spôsobenú rozhodnutím orgánu štátu alebo jeho nesprávnym úradným postupom - “the State Liability Act”) renders the State liable for damage caused in the context of carrying out functions vested in public authorities which results from erroneous official actions of persons entrusted with the exercise of these functions. A claim for compensation under this provision can be granted when the plaintiff shows that he or she suffered damage as a result of an erroneous action of a public authority,  quantifies its amount, and shows that there is a causal link between the damage and the erroneous action in question.

A claim for damages is to be lodged with the competent central government authority. The latter’s decision on it can be challenged before a court.

Regulation No. 32/1965

Regulation No. 32/1965, as amended, governs compensation for damage caused to a person’s health.

Pursuant to section 2(1), adequate compensation shall be awarded in respect of pain resulting from damage to a person’s health, subsequent medical treatment and the elimination of the effects of damage to health. The amount of the compensation is to be determined in accordance with the principles and rates attached to the regulation.

COMPLAINTS

The applicant complains under Articles 3 and 13 of the Convention that she was ill-treated by the police on 5 June 1998 and that she had no effective remedy at her disposal in this respect.

THE LAW

1. The applicant complains that she was ill-treated by the police on 5 June 1998. She alleges a violation of Article 3 of the Convention which provides as follows:

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

The Government maintain that the applicant failed to comply with the requirement as to the exhaustion of domestic remedies as she did not claim compensation under the State Liability Act of 1969.

As to the merits, the Government submit that the use of physical force in respect of the applicant was caused by her behaviour and that it was not excessive in the particular circumstances of the case. In their view, the treatment complained of did not attain a degree of gravity warranting the conclusion that the applicant’s right under Article 3 was thereby infringed.

The applicant considers that her possible action for damages under the State Liability Act of 1969 would have no prospect of success as the competent authorities dismissed her complaint about the conduct of the police by whom she was apprehended. She further submits that there existed no relevant reason for using physical force against her and concludes, with reference to the injuries which she suffered, that the treatment to which she was subjected was contrary to Article 3 of the Convention.

The Court recalls that the aim of the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention is to afford Contracting States an opportunity to put matters right through their own legal system before having to answer before an international body for their acts. When there is a choice of several domestic remedies open to the applicant, Article 35 § 1 must be applied to reflect the practical realities of the applicant’s position in order to ensure the effective protection of the rights guaranteed (see Yağiz v. Turkey, application no. 19092/91, Commission decision of 11 October 1993, Decisions and Reports (DR) 75, p. 207).

In the present case the applicant’s complaint about the incident of 5 June 1998 was examined by the Inspection Department of the Police Corps in Bansk á Bystrica and by the Police Corps Regional Office of Investigation in Tren čín which apparently carried out a thorough investigation. However, it is questionable whether such investigation can be considered effective for the purposes of Article 3 of the Convention as the applicant’s complaint concerns the alleged ill-treatment by members of the Police Corps of which the above authorities form a part. Furthermore, the documents submitted indicate that the applicant lacked standing to challenge the conclusions of those authorities before a public prosecutor, and it was not open to her to have brought private prosecution against the investigators concerned.

The Court notes that an action for damages under the relevant provisions of the Police Corps Act of 1993 and the State Liability Act of 1969, in conjunction with Regulation no. 32/1965, gave the applicant the possibility of having the relevant facts of the case examined by a court and of obtaining redress for the wrong suffered. In the Court’s view, such a remedy was adequate and should have been attempted by the applicant in the particular circumstances of the case.

It follows that this complaint must be rejected under Article 3 5 §§ 1 et 4 of the Convention for non-exhaustion of domestic remedies.

2. The applicant further complains that she had no effective remedies at her disposal as regards her complaint under Article 3. She alleges a violation of Article 13 of the Convention which provides as follows:

“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 Government maintain that the applicant had an effective remedy at her disposal as required by Article 13, namely a claim for damages under the State Liability Act of 1969 in conjunction with Regulation No. 32/1965 and also under Section 78(5) of the Police Corps Act.

The applicant contends that the remedies invoked by the Government were not effective in her case as the police authorities had earlier dismissed as unsubstantiated her complaint about the incident of 5 June 1998.

Even assuming that the applicant had an arguable claim under Article 3 of the Convention, the Court recalls that the word “remedy”, within the meaning of Article 13, does not mean a remedy bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of a complaint (see, e.g., Z.R. v. Poland (dec.), no. 32499/96, 5 October 2000).

In the present case, the applicant had an opportunity for her allegations to be examined by the national authorities in accordance with the relevant provisions of the Code of Criminal Procedure and of the Complaints Act of 1998. It was also open to her to file a claim for damages and, if need be, have the facts of the case examined by a civil court in that context.  Accordingly, the applicant had effective remedies before the national authorities as required by Article 13.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the remainder of the application inadmissible.

Michael O’Boyle Nicolas Bratza Registrar President