FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 55264/00 by Grzegorz OLSZEWSKI against Poland

The European Court of Human Rights ( First Section) , sitting on 14 December 2000 as a Chamber composed of

Mrs E. Palm , President , Mr L. Ferrari Bravo , Mr Gaukur Jörundsson , Mr J. Makarczyk , Mr R. Türmen , Mr B. Zupančič , Mr R. Maruste , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced on 20 February 1999 and registered on 1 March 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Polish national, born in 1958. He is a welder and lives in Zaborów Stary , Poland.

The facts of the case, as submitted by the applicant and apparent from copies of official documents submitted by him , may be summarised as follows.

1. Events of and following 29 September 1998

On 29 September 1998 the applicant got involved in a domestic dispute between his wife and stepdaughter. No violence was used during the dispute. Subsequently, the applicant’s stepdaughter called the police. When the police officers arrived they woke up the applicant and informed him that he would be taken to a sobering-up centre ( izba wytrzeźwień ). The applicant submits that although he had drunk wine before the dispute started, he was sober when the police officers arrived. He therefore told the officers that he was not drunk and refused to follow them to the sobering-up centre. The police officers pushed the applicant on the floor and handcuffed him. The handcuffs were so tight that his hands became swollen. The applicant and the police officers started to swear at each other.

The applicant was then placed in a police car. On the way to the Gostynin District Police Station ( Komenda Rejonowa Policji ) the police car stopped and the police officers kicked the applicant. Subsequently, he was taken in the police car from the District Police Station to the sobering-up centre in PÅ‚ock . When the car arrived at the centre, he was dragged by the police officers inside the building.

Once inside the premises of the Płock Sobering-up Centre, the applicant was thrown on a concrete floor. He asked for a doctor but his request was ignored. The applicant was then kicked by the police officers and the employees of the sobering-up centre. He heard somebody saying: “beat so that marks do not show”. He was kicked in testicles and fainted.

When the applicant regained consciousness he was in a straitjacket and was tied up with elastic bandages. He was shouting for the whole night “give me a doctor” but his requests were ignored. The employees of the sobering-up centre covered his face with a dirty cloth and twisted and squashed his testicles. They also burned his scrotum. The applicant submits that he fainted for the second time during the night.

On 30 September 1998 the applicant was released from the sobering-up centre. He visited several doctors and asked them to issue a forensic certificate ( obdukcja ) of his medical condition but they refused. The applicant was then seen by a general practitioner at the local Health Centre ( Ośrodek Zdrowia ), who agreed to describe his injuries in his medical file. He also sent the applicant to the Chief Surgeon of the Gostynin Hospital. When the Chief Surgeon saw the applicant, he initially considered that the applicant should stay in the hospital because of the discharge of yellow fluid from his nose and the symptoms of brain concussion. However, he later changed his mind, examined the applicant and issued a forensic medical certificate. The applicant claims that the certificate does not indicate his following injuries: a bruise on his thigh and swollen testicles.

Subsequently, the applicant requested the Gostynin District Prosecutor ( Prokurator Rejonowy ) to initiate criminal proceedings against the police officers and the employees of the sobering-up centre who ill-treated him on 29 and 30 September 1998. He asserted, inter alia , that the employees of the centre had burned his scrotum with a cigarette.

On 21 December 1998 the Gostynin District Prosecutor discontinued the investigation of the allegations made by the applicant and refused to prosecute police officers P. G. and W. W. and the employees of the Płock Sobering-up Centre involved in the applicant’s arrest and detention on 29 and 30 September 1998. The prosecutor based his decision on the evidence taken from the following persons: the applicant, the applicant’s wife, mother-in-law and stepdaughter, the police officers P. G. and W. W., the employees of the Płock Sobering-up Centre, a certain K. N. who on 29 September 1998 was held overnight in the Płock Sobering-up Centre and a certain H. S. who on 29 September 1998 was transferred from the Gostynin District Police Station to the Płock Sobering-up Centre. He also relied on the record of the applicant’s detention in the sobering-up centre, the forensic medical certificate submitted by the applicant and the applicant’s medical file held by the local Health Centre.

The Gostynin District Prosecutor observed that the record of the applicant’s detention in the sobering-up centre showed that he had been heavily intoxicated and had been unable to take the breathalyser test. During his examination the applicant had wanted to fight with the employees of the sobering-up centre. The examination had revealed that he had had only slight skin abrasions on the right temple. As he had been agitated, the applicant had been forced to wear a straightjacket between 11.15 p.m. and 5 a.m.

The prosecutor also referred to the forensic medical certificate of 1 October 1998 submitted by the applicant, which indicated the following injuries: a skin abrasion on the right temple measuring 4 x 2 centimetres, loose two front teeth (one upper and one lower) and a first/second-degree burn on the scrotum measuring 6 millimetres in diameter (the operative part of the prosecutor’s decision refers to a first/second-degree burn on the scrotum measuring 6-8 millimetres in diameter – rana oparzeniowa Ø 6 ‑ 8 na mosznie I o / II o ).

Furthermore, the prosecutor relied on the applicant’s medical file held by the local Health Centre, which revealed that on 15 August 1998 he had visited a general practitioner who had diagnosed him with dental caries and swollen face and had recommended to him a dental examination. It also confirmed that on 1 October 1998 the applicant had complained to the general practitioner that he had been beaten by the police officers and that since he had had injuries to his face and burns on his scrotum he had been sent to a surgeon.

The Gostynin District Prosecutor considered that the applicant’s claims were contradicted by the testimony of the members of his family, the police officers and the employees of the sobering-up centre. The prosecutor concluded his reasoned decision as follows:

“As for the injuries on the victim’s body described in the forensic medical certificate it should be stated that the skin abrasions on the right side of the face resulted from the use of force by the police officers when they were overpowering Grzegorz Olszewski in his home. Loose upper and lower teeth could result from caries and related swelling of the face already in August 1998 – note in the medical file of the Health Centre. However, it is not possible to establish in what circumstances the victim’s scrotum was burned. Twenty-four hours elapsed between the release of the victim from the sobering-up centre and the diagnosis of [the burns] by the doctor who issued the forensic medical certificate.

The use of physical force and handcuffs against Grzegorz Olszewski constituted an activity resulting from the rights of the police to use the measures of direct coercion against the victim under Article 16 section 1 point 1 of the Law on Police of 6.4.1990.

In view of the above considerations, it should be stated that the police officers from the Gostynin District Police Station who intervened, did not exceed their powers and did not act against the private interest. Also the employees of the sobering-up centre did not exceed their powers and did not beat the victim.

For those reasons, it should be stated that the behaviour of the police officers and the employees of the sobering-up centre did not constitute an offence under Articles 231 § 1 and 158 § 1 of the Criminal Code.

On the basis of the above considerations I have decided as in the operative part [of the decision].”

The applicant filed with the PÅ‚ock Regional Prosecutor ( Prokurator OkrÄ™gowy ) an appeal against the decision of the District Prosecutor. On 12 March 1999 the Regional Prosecutor advised the applicant that he had not seen any grounds for allowing his appeal and had therefore transmitted it together with the case file to the Gostynin District Court ( SÄ…d Rejonowy ). 

On 8 April 1999 the Gostynin District Court dismissed the applicant’s appeal. The court justified its decision as follows:

“The appeal is unsubstantiated. In the course of the investigation no breach of law by the intervening police officers was found. The evidence taken from witnesses shows that G. Olszewski , while intoxicated, behaved aggressively, whereas the police used measures provided by law. The court shares the arguments contained in the reasoning of the prosecutor’s decision and having regard to the above decides as in the operative part [of the decision].”

On 22 April 1999 the President of the Gostynin District Court rejected the applicant’s appeal against that decision because no appeal lay against it.

2. Criminal proceedings against the applicant

On 28 December 1998 the applicant was arrested. On 30 December 1998 the Gostynin District Court remanded him in custody on a charge of robbery. The court’s decision was based on the submissions of the Gostynin District Prosecutor who asserted that on 15 December 1998 the applicant together with an accomplice had robbed a certain Mr S.S.

On 14 January 1999 the Płock Regional Court ( Sąd Okręgowy ) dismissed the applicant’s appeal against the decision of the District Court. It considered that the applicant’s detention was justified by the existence of serious evidence of his guilt and the risk of interference with the proceedings. In addition, the Regional Court was of the view that the applicant’s health and the situation of his family did not require his release.

The applicant made an application for release but it was dismissed by the Gostynin Regional Prosecutor on 15 February 1999. The applicant’s appeal against that decision was dismissed by the Płock Regional Prosecutor on 12 March 1999.

On 25 March 1999 the Gostynin District Court extended the applicant’s pre-trial detention until 30 June 1999. It referred to the existence of serious evidence of the applicant’s guilt and the risk of interference with the proceedings. The court also pointed out that the offence for which the applicant had been detained carried a penalty exceeding eight years’ imprisonment. The applicant appealed against that decision to the Płock Regional Court.

On 15 April 1999 the Płock Regional Court dismissed the appeal. It relied on the existence of serious evidence of the applicant’s guilt and the risk of interference with the proceedings. The court also observed that the offence for which the applicant had been detained carried a penalty exceeding eight years’ imprisonment. Moreover, it considered that the applicant had not shown that his release was necessary because of his ill-health or the medical condition of either his wife or mother. In addition, the applicant had not lived with his mother before he was detained.

The applicant made a fresh application for release but it was dismissed by the Gostynin District Court on 21 June 1999. It considered that the applicant’s detention was justified by the existence of serious evidence of his guilt and the fact that the offence for which the applicant had been detained carried a high prison sentence. Furthermore, it considered that the applicant had not shown that his release was necessary because of his ill-health or the medical condition of his mother. In addition, the applicant had not lived with his mother before he was detained. The court also considered that the difficult financial situation of the applicant’s wife did not justify his release from detention.

On 14 July 1999 the applicant was released from detention.

On 28 July 1999 the PÅ‚ock District Court acquitted the applicant. The Gostynin District Prosecutor appealed that decision.

On 21 December 1999 the PÅ‚ock Regional Court quashed the decision of the trial court and remitted the case to the Gostynin District Court.

The proceedings are still pending.

COMPLAINTS

The applicant alleges that the events of 29 and 30 September 1998 gave rise to a violation of Article 3 of the Convention. In this connection, he also complains that the prosecuting authorities and the Gostynin District Court rejected his request to prosecute individuals responsible for his ill-treatment.

The applicant further raises a complaint under Article 5 about the length of his pre-trial detention. He also appears to complain that it resulted from the conspiracy of the police officers who trumped up evidence against him.

The applicant claims that the criminal proceedings against him exceeded a reasonable time in breach of Article 6.

Finally, the applicant invokes Articles 13 and 17 of the Convention.

THE LAW

1. The applicant complains about a breach of Article 3 of the Convention.

Article 3 of the Convention prohibits torture, inhuman or degrading treatment or punishment.

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

2. The applicant further raises a complaint under Article 5 about the length of his pre-trial detention. He also appears to complain that it resulted from the conspiracy of the police officers.

Article 5 provides, in so far as relevant:

“3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

The Court firstly recalls that the issue of whether a period of detention is reasonable cannot be assessed in abstracto . Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 152).

The Court notes that the applicant was arrested on 28 December 1998. On 30 December 1998 he was remanded in custody on a charge of robbery. The applicant was released on 14 July 1999, i.e. after six months and fifteen days. The criminal proceedings against the applicant are still pending before the trial court. Having regard to the particular circumstances of the instant case, the Court considers that the period of the applicant’s detention is reasonable and complies with the requirements of Article 5 § 3 of the Convention.

Furthermore, the applicant appears to complain that his pre-trial detention resulted from the conspiracy of the police officers who trumped up evidence against him. However, the Court considers that he has failed to provide any prima facie evidence in support of his allegations.

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

3. The applicant further complaints that the criminal proceedings against him exceeded a reasonable time in breach of Article 6, which insofar as relevant provides:

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

The Court notes that the impugned proceedings began on 28 December 1998, when the applicant was arrested. On 28 July 1999 the trial court acquitted the applicant but that decision was on 21 December 1999 quashed by the appellate court, which remitted the case for reconsideration. The proceedings are still pending. Accordingly, they have lasted so far one year and over eleven months. The Court considers that, in the particular circumstances of the instant case, such a period does not constitute an unreasonable delay in the criminal proceedings against the applicant. It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

4. Finally, the applicant invokes Article 13 (the right to effective remedies for Convention breaches) and Article 17 (prohibition of abuse of rights). However, the Court finds that the applicant’s assertions about the violations of the above provisions of the Convention are wholly unsubstantiated. It follows that these complaints are inadmissible as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously,

Decides to adjourn the examination of the applicant ’s complaints about a breach of Article 3 of the Convention;

Declares inadmissible the remainder of the application.

Michael O’Boyle Elisabeth Palm Registrar President