FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37609/97 by Zdzislaw SKOWRONSKI against Poland

The European Court of Human Rights ( Fourth Section) , sitting on 30 November 2000 as a Chamber composed of

Mr G. Ress , President , Mr A. Pastor Ridruejo , Mr L. Caflisch , Mr J. Makarczyk , Mr V. Butkevych , Mr J. Hedigan , Mrs S. Botoucharova , judges ,

and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 13 February 1997 and registered on 2 September 1997,

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 deliberated, decides as follows:

THE FACTS

The applicant, a Polish citizen born in 1957, resides in Pabianice .

A. The circumstances of the case

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

The applicant is a disabled person, his sight is impaired.

On 26 November 1993 at 8 p.m. approximately, at a badly lit part of a street, the applicant inadvertently bumped into a patrol of two municipal guards. They regarded the collision as an assault. He was knocked down, and then one of the guards held his hands behind his back, while the other kicked him in the face and the abdomen. He was then put for a short time in the local of the municipal guards, where he was several times hit on the face with a fist. He was then handed over to the police. The police did not bring any criminal charges against him, and did not order the applicant’s arrest, but brought him to the Łódź sobering-up centre ( Izba Wytrzeźwień ).

The staff of the centre treated him with verbal insults and physical brutality. As the applicant resisted, he was put in constraining belts and locked in a separate cell. He remained so constrained for ten hours. He was later released.

On 27 November 1993 the applicant was examined by a specialist in forensic medicine.

The report of the specialist first recalled the applicant’s submissions that on 26 November 1993 he had been beaten by two municipal guards. They had knocked him down, whereupon one of them held his hands behind his back, and the other kicked him in the face and in the abdomen. He had lost consciousness for a short time. He had been then taken to the local of the Municipal Guard and then to the sobering up centre in Łódź . While at the local of the Guard, he had several times been hit on the face with a fist. He still felt pain where he had been hit. For several years the applicant could not see with one eye, after a trauma he had suffered. During the accident he spat out a broken teeth.

The findings of the physical examination were the following: the applicant had bruises and swelling at the base of the nose, covered by red and brownish scabs. On the left side of the chin an excoriation covered by a reddish scab. On the upper lip at the left an excoriation. On the mucuous membrane of the lips, red and bluish bruises, in the central part of the mouth. Lips swollen. One molar broken. Under the rib cage, centrally, a slight bluish -reddish lividity . Lower on the abdomen, further bluish-reddish lividity , and several small excoriations . Abdomen soft, no peritoneal symptoms. No further injuries were established.

The physician concluded that the applicant’s injuries could have originated either from having been kicked, or from falling on a hard, uneven surface. However, it was more probable that they had originated from kicking, as, had the applicant fallen only once, he would have had a bruise at the end of the nose. His bruises were, however, located at its both sides. The fact that the crown of his tooth had been broken did not seem to originate from a blow, as there were no haematomas of the adjacent muqueuse . It could have been caused by the fact that the teeth hit each other.

By a letter of 28 December 1993 the Director of the Łódź sobering-up centre apparently apologised to the applicant for the rough treatment that he had fallen a victim of on 26 November 1993.

On an unspecified later date the applicant talked with the Chief of the Municipal Guards and complained that he had been ill-treated on 26 November 1993.

On an unspecified later date the two guards involved in the incident lodged a criminal complaint against the applicant. Subsequently, criminal proceedings were instituted against the applicant on charges of assault and insulting municipal guards.

On 29 May 1995 the Łódź Regional Court set aside a first-instance judgment of the Pabianice District Court, given on an unspecified date, by which the applicant had been convicted on both charges, an ordered that the case be reconsidered.

On 12 January 1996 the Pabianice District Court acquitted the applicant from charges of assault against a civil servant, committed on 26 November 1993 against Z.Z. and J.T. , members of the Municipal Guard, by pushing them and by attempting to hit J.T. with a fist. The court also discontinued the proceedings insofar as they related to the charges that he had insulted the guards.

The prosecutor lodged an appeal against this judgment, submitting that the first-instance court had committed substantial error of fact in that it regarded that the applicant’s testimony as credible, whereas considering that the evidence given by the guards entirely lacked credibility. The prosecution further submitted that the court had wrongly established facts relating to the insults used by the applicant, which led to erroneous conclusions as regards the seriousness of this offence.

On 19 April 1996, following an appeal lodged by the public prosecutor’s office, the Łòdź Regional Court upheld the contested judgment.

The court observed, inter alia , that the first-instance court had thoroughly assessed the evidence it had had at its disposal, in particular having carefully weighed against each other the evidence for and against the applicant. In particular, the conclusion of that court that the applicant had had his glasses on at the material time, seemed to be justified in the light of a medical expert opinion in the case-file that the applicant’s eyesight was so damaged that without his glasses he could not move freely about. Also, the evidence given by witness A.P. and the declarations of the applicant himself confirmed that he had his glasses on.

The court further noted that the question of whether the applicant had then been in a state of intoxication had not been unequivocally determined since he had not been tested for the quotient of alcohol in his blood, whereas the evidence of the witnesses in this respect was divergent. However, even the municipal guards Z. and T. had stated that the applicant had been walking steadily. This was corroborated by further evidence given by witness H., and also by witness A. Thus, alcohol had not manifestly influenced the applicant’s behaviour (“ stwierdzić należy zatem , że alkohol nie wpływał ewidentnie na zachowanie oskarżonego ”).

On the other hand, the court continued, there had been a manifest disproportion between the applicant’s behaviour and that of the municipal guards, two young and fit men, who caused numerous injuries to the applicant. This was further corroborated by two medical forensic opinions to the effect that the injuries which he had suffered could not have originated in a manner described by the two guards.

The Regional Court shared the opinion of the District Court that the applicant’s evidence should be regarded as credible. He did not have any criminal record and was a law-abiding citizen.  He had already during the investigations made exhaustive and detailed submissions, which merited to be regarded as coherent and logical. Subsequently, he upheld them in the proceedings before the court.  As to the evidence given by the two guards involved in the accident, it would defy the logic to accept their submissions that the applicant, a disabled person, would first walk calmly towards them and suddenly, without there being any reasons for it, had attacked them aggressively. It had also to be emphasised that the guards had lodged a complaint that the applicant had committed a criminal offence only after they learnt that the applicant complained about their behaviour to the Chief of the Municipal Guards. This supported the applicant’s argument that they had done so only in order to have their behaviour put into a favourable light.

As regards the charges of proffering injuries against the personnel of the sobering-up centre, the court noted that the applicant’s aggressive behaviour should be regarded as justified and caused by the situation in which he found himself. The municipal guards had treated the applicant in an aggressive and vulgar manner, which was supported by the evidence of witnesses H. and S., who had seen the incident at the street from a certain distance. Thus the applicant had only reacted to their attack, being under a strong emotional stress. This part of the proceedings should therefore be discontinued, regard being had to a insignificant danger presented by the conduct in question. 

By a letter of 7 January 1997 the applicant, relying on the judgment which had acquitted him of assault charges, submitted a request to be reimbursed the costs of his detention in the sobering-up centre. He stressed that in the light of this judgment he should also be paid compensation for moral damage he had suffered as a result of his detention, which not only lacked any adequate legal basis, but was also in breach of the European Convention of Human Rights.

On 21 January 1997 the Director of the Łòdź sobering-up centre informed the applicant that no compensation would be paid. He emphasised that the judgment given by the criminal court did not contain any ruling as to whether the applicant’s detention had been lawful. The court had only stated that the issue of the applicant’s  inebriated state had not been unequivocally determined, given that no blood test had been made, and the relevant testimony of the witnesses were divergent. For the centre, it was decisive that the physician who had examined the applicant at his admission found that he had been intoxicated. This diagnosis amounted to a basis on which the decision on the applicant’s detention was taken.

B. Relevant domestic law

1. Domestic remedies against ill-treatment by the State's agents

a) Under criminal law

In principle, acts of ill-treatment causing physical harm amount to criminal offences prosecuted under the relevant provisions of the Criminal Code on various forms of assault. In instances concerning ill-treatment amounting to moral harm, in particular an attack on the privacy or dignity of the person concerned, a victim may avail himself of two remedies. Firstly, in cases concerning acts committed by police officers he may, under Article 142 of the Police Act of 6 April 1990 (as amended), request the prosecutor to institute criminal proceedings against police officers who have infringed his or her privacy or other personal rights (including dignity and physical inviolability). Secondly, he could bring, under Articles 181 and 182 of the Criminal Code, as applicable at the relevant time, a private prosecution against any other person who has insulted him or trespassed against him.

b) Under civil law

Article 417 § 1 of the Civil Code provides that the State Treasury shall be liable for damage caused by a civil servant in the course of his duties.

Pursuant to the case-law of the Polish Supreme Court, a plaintiff seeking damages under Section 417 of the Civil Code must show that the act or omission in question is unlawful and that the State's agent committed a fault (the Supreme Court judgments : no. I PR 468/70 of 29.12.1970, unpublished, no. I CR 24/71 of 19.4.1971, unpublished, and no. I CR 152/74 of 11.4.1974, unpublished).

2. Arrest of intoxicated persons under the Law of 26 October 1982 on Education in Sobriety and Counteracting Alcoholism

The Law on Education in Sobriety and Counteracting Alcoholism ( Ustawa o wychowaniu w trzeźwosci i przeciwdziałaniu alkoholizmowi ) provides for measures which may be applied in respect of intoxicated persons. Articles 39-40 set out measures which may be applied to such persons.

Pursuant to Article 39 of the Law, sobering-up centres shall be set up and managed by the authorities of municipalities with more than 50,000 inhabitants. Article 40 of the Law, as applicable at the relevant time, provided, insofar as relevant:

“1. Intoxicated persons who behave offensively in a public place or a place of employment, are in a condition endangering their life or health, or are themselves endangering other persons' life or health, may be taken to a sobering-up centre or a public health-care establishment, or to their place of residence.”

2. In the absence of a sobering-up centre, such persons may be taken to a [police station].

3. [Intoxicated] persons who have been taken to a sobering-up centre or a [police station] shall remain there until they become sober but for no longer than twenty-four hours. ...”

A person arrested and, subsequently, confined in a sobering-up centre under Article 40 of the Law is not entitled to bring proceedings challenging the lawfulness of deprivation of his liberty since, according to Article 206 of the Code of Criminal Procedure, only a person arrested on suspicion of having committed an offence may appeal against a decision to arrest him (see the Supreme Court judgment No. I KZP 43/91 of 12 February 1992 reached by a bench of seven judges, published in OSNKW 1992 No. 5-6/32).

The Ordinance of the Minister of Administration, Local Economy and Environmental Protection of 7 May 1983 on taking intoxicated persons to sobering-up centres, the organisation of those centres, the medical care provided by them and the fees for transportation to and staying in sobering-up centres or police stations (repealed by an Ordinance of the Minister of Health and Social Care of 23 October 1996) set out detailed rules relating to detention in a sobering-up centre.

Paragraph 9 of the Ordinance, as applicable at the material time, provided that a person brought to a sobering-up centre shall promptly be given a medical examination in order to ascertain whether he or she should be placed in a sobering-up centre, or in a hospital or other medical establishment, or whether there are no signs of intoxication justifying a placement in a sobering-up centre.

No provision obliged the authorities to carry out in addition any tests (e.g. blood or breath tests) to establish whether or not a given person was intoxicated. Paragraph 16 of the Ordinance provided that an alcohol test should be carried out at the request of the intoxicated person.

3. Proceedings for compensation for unjustified detention

Chapter 50 of the Code of Criminal Procedure of 1969, as applicable at the material time, provided in its Article 487 § 4 for compensation regarding damages arising out of obviously unjustified detention on remand and for police arrest and detention up to 48 hours. The Regional Court in whose region the detained person had been released was competent to examine whether the conditions for awarding compensation were met. The decision of the Regional Court could be appealed to the Court of Appeal.

According to Article 489 of the Code, a request for compensation for manifestly unjustified detention on remand had to be lodged within one year from the date on which the final decision terminating the criminal proceedings in question had become final. In respect of a compensation claim arising out of a manifestly unjustified arrest, such a claim had to be lodged with a competent court within three months from the date of release.

COMPLAINTS

The applicant complains invoking Article 3 of the Convention that he was beaten first by the municipal guards, and later, after he was admitted to the sobering-up centre, by its agents. He was, in particular, put into restraining belts for ten hours. He felt deeply humiliated. This amounted to inhuman and degrading treatment within the meaning of this provision of the Convention.

The applicant further complains under Article 5 § 1 of the Convention that his detention in the sobering-up centre was in breach of the Convention in that this kind of detention did not fall into the ambit of any of the grounds of deprivation of liberty permitted under this provision of the Convention. He further submits that he was not intoxicated, that his detention was arbitrary and unjustified, and that in view of his handicap he should not have been detained.

The applicant further complains under Article 5 § 4 of the Convention that under Polish law he had no remedy available to him in order to call in question the fact that he was deprived of liberty in the sobering-up centre. In particular, he was not entitled to take judicial proceedings by which the lawfulness of his detention could be decided. He also invokes Article 13 of the Convention.

The applicant further complains, relying on Article 5 § 5 of the Convention, that under Polish law he cannot obtain compensation for his unlawful detention in breach of the provisions of the Convention.

THE LAW

1. The applicant complains invoking Article 3 of the Convention that he was beaten first by the municipal guards, and later, after he was admitted to the sobering-up centre, by its agents. He was, in particular, put into restraining belts for ten hours. This amounted to inhuman and degrading treatment within the meaning of this provision of the Convention, which insofar as relevant, reads:

“No one shall be subjected … to inhuman or degrading treatment …”

Under Article 35 of the Convention the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law.

The Court first notes that it is not alleged that domestic law did not provide for a relevant and sufficient remedy in respect of complaints of alleged ill-treatment by the State agents. The Court further observes that the applicant failed to set in motion any procedure in order to have his complaints concerning the alleged ill-treatment by the municipal guards and by the agents of the sobering-up centre on 26 November 1993 examined by the competent domestic authorities. In particular, he did not request that criminal investigations be commenced in order to have his allegations that an offence of assault had been committed examined by the prosecutor. Against a refusal of the first-instance prosecutor, he could ultimately lodge an appeal with the appellate prosecutor.

It follows that this part of the application is inadmissible for failure to exhaust domestic remedies and must be rejected under Article 35 § 1 of the Convention read together with Article 35 § 4 of the Convention.

2. The applicant further complains under Article 5 § 1 of the Convention that his detention in the sobering-up centre was in breach of the Convention in that this kind of detention did not fall into the ambit of any of the grounds of deprivation of liberty permitted under this provision of the Convention. He further submits that he was not intoxicated, and that in view of his handicap he should not have been detained. His detention was therefore unlawful and arbitrary.

The applicant further complains under Article 5 § 4 of the Convention that under Polish law he had no remedy available to him in order to call in question the fact that he was deprived of liberty in the sobering-up centre. In particular, he was not entitled to take judicial proceedings by which the lawfulness of his detention could be decided.

The applicant finally complains, relying on Article 5 § 5 of the Convention, that under Polish law he cannot obtain compensation for his unlawful detention in breach of the provisions of the Convention.

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.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant’s complaints about the allegedly unlawful and unjustified decision to place him in the sobering-up centre, about the lack of domestic remedy to have the lawfulness of his detention in the sobering up centre reviewed by a judicial authority, and also the complaint that under Polish law he cannot obtain compensation for his detention in breach of the provisions of the Convention;

DECLARES INADMISSIBLE the remainder of the application.

Vincent Berger Georg Ress

Registrar President