FOURTH SECTION

DECISION

Application no . 43974/08 Wiesław BUCHOWIECKI against Poland

The European Court of Human Rights (Fourth Section), sitting on 7 March 2017 as a Committee composed of:

Nona Tsotsoria, President, Krzysztof Wojtyczek, Marko Bošnjak, judges, and Andrea Tamietti, Deputy Section Registrar ,

Having regard to the above application lodged on 2 September 2008,

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

1. The applicant, Mr Wiesław Buchowiecki was a Polish national, who was born in 1949 and lived in Brzeg. On 27 April 2014 the applicant died. His heirs, namely his widow Ms Irena Buchowiecka and daughter Ms Marzena Buchowiecka, informed the Court that they wished to pursue the application in his stead. The applicant was represented by Mr G. Stasikiewicz, a lawyer practising in K ę dzierzyn Ko ź le.

The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs .

A. The circumstances of the case

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

3. On an unspecified date a c riminal investigation into charges of embezzlement was instituted by the Opole Regional Prosecutor ( Prokurator Okr Ä™ gowy ) against the applicant and other individuals.

4. On 1 December 2006 the Opole District Prosecutor decided to remand the applicant in custody.

5. On 2 December 2006 the officers of the Central Anti-Corruption Bureau ( Centralne Biuro Antykorupcyjne – “CAB”) went to the applicant ’ s apartment and arrested him. He was handcuffed in front of his family and escorted out of his apartment wearing handcuffs. He was subsequently taken to a police station.

6 . The applicant ’ s arrest and him leaving the apartment wearing handcuffs were filmed and photographed by the officers, allegedly for the CAB ’ s own purposes (see paragraph 12 below); however, at least some of the footage and photographs were later disclosed to the media and broadcast on several nationwide television channels.

7. The applicant did not lodge an appeal against his arrest ( za ż alenie na zatrzymanie ).

8. On 20 April 2007 an anonymous request was lodged with the Świdnica Regional Prosecutor for an investigation into alleged abuse of authority during the applicant ’ s arrest. It was argued, in particular, that the officers of the CAB had handcuffed the applicant without having any valid legal basis to do so at the material time. Reference was made to the fact that the Cabinet ’ s Ordinance of 17 November 2006 on measures of direct restraint used by agents of the CAB ( Rozporz ą dzenie Rady Ministrów z dnia 17 listopada 2006 r. w sprawie ś rodków przymusu bezpo ś redniego stosowanych przez funkcjonariuszy Centralnego Biura Antykorupcyjnego – “the 2006 Ordinance”) had entered into force on 12 December 2006, after the date of the applicant ’ s arrest.

9. By a decision of 28 May 2007 the Świdnica Regional Prosecutor refused to open an investigation into alleged abuse of authority. The prosecutor acknowledged that the 2006 Ordinance, which specifically provided for the use of handcuffs by agents of the CAB, had not been in force at the material time. However, the prosecutor referred to section 15(1) of the Act of 9 June 2006 on the CAB ( ustawa z dnia 9 czerwca 2006 r. o Centralnym Biurze Antykorupcyjnym – “the CAB Act”), which stated that officers of the CAB could use physical, technical and chemical measures of direct restraint. Accordingly, as handcuffing was one such measure, it was the provision of the CAB Act that authorised officers of the CAB to have recourse to it. The purpose of the 2006 Ordinance had only been to implement this statutory provision. Hence, in the applicant ’ s case, the officers of the CAB had acted in accordance with the relevant law, and it could not be said that they had abused their authority by using handcuffs.

10. The applicant ’ s lawyer appealed against this decision, arguing that the contested decision was in breach of the substantive law, in that no legislation had been in force at the material date allowing CAB officers to use handcuffs. Section 15(3) of the CAB Act expressly provided that the Cabinet was to specify in an ordinance the types of measures of direct restraint and the circumstances and ways in which they could be used. Accordingly, the lawfulness of the use of handcuffs by CAB officers depended on whether the measure in question was specified in the 2006 Ordinance. CAB officers could therefore only use handcuffs lawfully after the entry into force of the 2006 Ordinance.

11. He further argued that the prosecutor had failed to conduct any evidentiary proceedings and, in particular, to call and examine witnesses. Furthermore, the first-instance authority had failed to examine whether there had been any grounds for handcuffing the applicant, who had not disobeyed any orders. He also argued that the case required further examination because the applicant had been taken out of his house several times to allow the arrest to be filmed by the CAB officers.

12 . Following the applicant ’ s appeal, the Świdnica Regional Prosecutor opened the investigation into alleged abuse of authority by the officers of the CAB. In the course of the investigation the applicant, his wife and the officers who had been involved in the operation were heard as witnesses. The prosecution authorities also obtained the footage of the applicant ’ s arrest as prepared by the CAB (see paragraph 6 above).

13. On 21 December 2007 the prosecutor discontinued the investigation, on the grounds that the constituent elements of a criminal offence were missing ( brak znamion czynu zabronionego ). It was established that the CAB officers had handcuffed the applicant in the course of his arrest. He had subsequently been escorted in handcuffs to the police station. The arrest had been filmed in part by the officers. As to the alleged unlawfulness of the handcuffing, it was again stated that the fact that the CAB Act had been in force, even in the absence of the 2006 Ordinance specifying the forms of lawful force, was sufficient for concluding that the arrest complied with the law. All the more so as use of that means of physical restraint had subsequently been expressly allowed by the 2006 Ordinance. As to the complaint concerning the filming of the arrest, the prosecutor found that it had been carried out not for the purposes of the ongoing investigation in respect of the applicant but “for CAB purposes”. No abuse of authority had been committed.

14. The applicant ’ s lawyer appealed. He submitted that section 15(1) of the CAB Act did not provide a sufficient legal basis for the applicant ’ s handcuffing. He further argued that this provision only allowed CAB officers to have recourse to measures of restraint “in the event of a failure to follow lawful orders”. The officers had not been entitled to handcuff the applicant, as there was no evidence that he had been resisting arrest, resistance or failure to follow orders being an essential legal requirement for the lawful use of force under that Act.

15. On 7 March 2008 the Brzeg District Court ( S ą d Rejonowy ) dismissed the applicant ’ s appeal. It was of the view that section 15(1) of the CAB Act expressly allowed for the handcuffing of arrested persons for the purposes of escorting them. Hence, the applicant ’ s argument that resistance or refusal to follow orders was the only legally acceptable situation where an arrested person could be handcuffed was untenable. In so far as the applicant relied on the absence of any legal basis, the court considered that the aim of the 2006 Ordinance had been merely to systematise the statutory regulation. Accordingly, the 2006 Ordinance did not extend the scope of application of restraint measures beyond the limits set by the CAB Act.

B. Relevant domestic law and practice

1. Provisions concerning the use of handcuffs by officers of the CAB

16. The CAB Act was adopted by Parliament ( Sejm ) on 9 June 2006 and entered into force on 24 July 2006. On the basis of its section 1, the CAB was created as a special service to combat corruption in public and economic life and to fight against activities detrimental to the economic interest of the State.

17. At the material time section 15 read as follows:

“1. In the event of a failure to follow lawful orders given ... in the exercise [of their duties], officers of the CAB may use physical, technical and chemical measures of direct restraint for the purposes of immobilising or escorting persons or for stopping vehicles.

2. In the cases referred to in subsection 1 only measures of direct restraint shall be used which correspond to the needs of the situation and are necessary for the purposes of ensuring compliance.

3. The Cabinet shall specify in an ordinance the types of measures of direct restraint referred to in subsection 1 above, the circumstances and ways in which they may be used, as well as the means of recording their use, having regard to protection of the interests of persons to whom the measures were applied.”

18. The 2006 Ordinance was adopted by the Cabinet on 27 November 2006 and entered into force on 12 December 2006.

19. Paragraph 2 provided:

“1. A [CAB] officer may use measures of direct restraint, having ordered a person to comply with the law and informed them that measures of direct restraint may be used in respect of them.

2. A [CAB] officer may use measures of direct restraint without having ordered the person concerned to comply with the law or informed them that measures of direct restraint may be used, if the delay in using a measure of direct restraint could result in danger to life, health or material property (mienie ).”

20. Paragraph 4 read, in so far as relevant:

“A [CAB] officer may have recourse to the following kinds of restraint: ...

2. equipment designed for immobilisation and escorting purposes such as:

(a) handcuffs, ...”

21. Paragraph 6 provided, in so far as relevant:

“1. Handcuffs and joined shackles may be used in respect of detained, arrested or convicted persons in order to stop them from absconding and to prevent them from using force or active resistance.

2. Handcuffs and shackles may be used:

(1) on the order of the court or prosecutor;

(2) in respect of persons suspected or accused of committing offences against life or health, or convicted of such offences.

...

4. Handcuffs should be put on with the hands in front. However, if a person acts aggressively, handcuffs should be put on with the hands behind the back.

...

7. Handcuffs and shackles should be taken off immediately on arrival at places secured against absconding, remand centres and hearing rooms, unless the court decides otherwise.”

22. Paragraph 13 provided that officers of the CAB should record any use of measures of direct restraint in a note ( notatka ) which should be submitted to their direct supervisor . The provision further specified the information to be included in such notes.

2. Code of Criminal Proceedings

23 . Article 246 of the Code of Criminal Proceedings provides, in so far as relevant, as follows:

“§ 1. An arrested person shall be entitled to lodge an appeal with a court challenging the legitimacy ( zasadno ść ), lawfulness ( legalno ść ) and correctness ( prawid ł owo ść ) of the arrest.

§ 2. Such appeals must be promptly transmitted to the competent District Court (...) which is required to examine it speedily.

§ 3. In cases where the District Court has established that the arrest was illegitimate or unlawful, it must order the immediate release of the person concerned.

§ 4. In cases where the District Court has established that the arrest was illegitimate, unlawful or incorrect, it must notify the prosecutor who had applied the arrest and the supervisory authority of the prosecutor concerned.”

3. Judgments of the Constitutional Court

(a) Judgment no. U 5/07

24. On 1 June 2007 the Ombudsman applied to the Constitutional Court for paragraph 6(1) and (2) of the 2006 Ordinance to be declared unconstitutional and incompatible with section 15 of the CAB Act. On 25 March 2010 the Ombudsman withdrew the part of the application relating to paragraph 6(1).

25. On 10 March 2010 the Constitutional Court held that paragraph 6(2) of the ordinance was in breach of section 15(3) of the CAB Act and was unconstitutional in so far as it overstepped the statutory authority for regulation of the use of handcuffs by officers of the CAB and provided a separate legal basis for such a limitation of personal liberty. The court observed that under Article 92 § 1 of the Constitution, an ordinance could only be issued on the basis of a specific authority contained in statute and for the purpose of its implementation. It also found that the impugned provisions were incompatible with Article 41 § 1 read in conjunction with Article 31 § 3 of the Constitution, which provided that any deprivation or limitation of personal liberty should be specified by statute.

26. The court considered that it did not have jurisdiction in the case to rule on the constitutionality of section 15(3) of the CAB Act or the remaining provisions of the impugned ordinance. It nevertheless noted that section 15(3) of the CAB Act authorising the Cabinet to issue the 2006 Ordinance was not sufficiently precise, as it did not specify the content of the regulations of the ordinance. It further considered that the remaining provisions of the ordinance also concerned limitations of personal liberty which, in accordance with the above-mentioned provisions of the Constitution, should have been specified by statute.

(b) Judgment no. K 10/11

27. On 29 March 2011 the Prosecutor General ( Prokurator Generalny ) applied to the Constitutional Court for, among other things, section 15(3) of the CAB Act to be declared unconstitutional. He argued that the impugned provision was incompatible with Article 92 § 1 and Article 41 § 1 read in conjunction with Article 31 § 3 of the Constitution, as it authorised the Cabinet to regulate by ordinance the use of measures of direct restraint which, under the relevant provisions of the Constitution, should be regulated by statute.

28. On 17 May 2012 the Constitutional Court declared section 15(3) of the CAB Act unconstitutional in so far as it authorised the Cabinet to specify in an ordinance the types of measures of direct restraint, the circumstances and ways in which they could be used, and the means of recording their use. It further held that, in accordance with its settled case-law, the repeal of this provision would result in the repeal of the ordinance issued on its basis. The judgment entered into force after twelve months from its publication.

THE LAW

A. The applicant ’ s heirs ’ standing in pursuing the application

29. The Court first notes that the applicant died on 27 April 2014. On 2 December 2014 the applicant ’ s lawyer informed the Court that the late applicant ’ s wife and daughter had expressed their wish to continue the application. The Court reiterates that in a number of cases in which an applicant had died in the course of the proceedings it has taken into account the statements of the applicant ’ s heirs or of close family members expressing the wish to pursue the proceedings before the Court. In the present case, the Court considers that, apart from explicitly expressing their wish to do so, the widow of the applicant and his daughter have sufficient legitimate interests in obtaining the Court ’ s ruling (see, Malhous v. the Czech Republic (dec.) [GC], no. 33071/96 , ECHR 2000 ‑ XII, with further references ).

B. Complaint under Article 8 of the Convention

30. Relying on Article 3 of the Convention, the applicant complained that the measures applied by the officers of the CAB during his arrest, in particular his handcuffing, had not had sufficient legal basis. In this connection, he also complained that his arrest and handcuffing had been recorded on film by the officers, and that the recording had later been made available to the media.

31. The Court, being the master of the characterisation to be given in law to the facts of any case before it (see, among other authorities, Guerra and Others v. Italy , 19 February 1998, § 40, Reports of Judgments and Decisions 1998 ‑ I, and Halil Yüksel Akıncı v. Turkey , no. 39125/04, § 54, 11 December 2012 ) considers that the applicant ’ s complaint falls to be examined under Article 8 of the Convention which provides, in so far as relevant:

“1. Everyone has the right to respect for his private ... life ...

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.”

1. The parties ’ submissions

32. The Government argued that the applicant had not exhausted the domestic remedies available to him, as required by Article 35 § 1 of the Convention.

33. Firstly, they referred to the fact that the criminal proceedings concerning the actions of the CAB officers during the applicant ’ s arrest had been instituted following an anonymous request. In their opinion, the applicant could not be considered to have availed himself of the criminal-law remedy.

34. Secondly, they submitted that in any event, the criminal-law remedy was not adequate in the circumstances of the present case. They argued, in this connection, that not every irregularity of conduct of CAB officers could be classed as a punishable offence.

35. They submitted that the applicant should have appealed against his arrest under Article 246 of the Code of Criminal Procedure. A review under that provision would have enabled him to contest its legitimacy ( zasadność ), lawfulness and correctness ( prawidłowość ).

36. They also argued that by virtue of Articles 23 and 24 of the Civil Code the applicant could have lodged a civil action against the State Treasury, represented by the head of the agency concerned, for compensation for a breach of his personal rights under the Civil Code.

37. Lastly, proceeding on the assumption that the criminal-law remedy could not be considered normal and effective, the Government argued that the applicant had failed to comply with the six-month time-limit, since he had been arrested on 2 December 2006 and his application was lodged with the Court on 2 September 2008.

38. The applicant submitted that he had availed himself of the remedy available, as he had attempted to have criminal proceedings instituted against the officers of the CAB for abuse of authority. Even though the proceedings had been triggered by an anonymous request, he had subsequently acted in those proceedings as an injured party and, more to the point, had submitted appeals against the relevant decisions. In those proceedings, both the prosecutor and domestic court had examined the lawfulness of the measures applied during his arrest and had found them to be fully in accordance with the law. Thus, the essence of his grievance before the Court had been duly submitted to the domestic authorities, which had found his complaints ill-founded.

39. He further submitted that the investigation had been discontinued because no irregularities at all had been found in the conduct of the CAB officers. Accordingly, the civil-law remedy would not serve any other purpose in the particular circumstances of his case. He argued in this context that his principal objective was to expose the unlawful conduct of the public officers, which he considered criminal in nature.

40. As regards the appeal against arrest relied on by the Government, he argued that in the circumstances of the case this remedy would not add any elements that were unavailable through the use of the criminal-law remedy. He noted in this connection that challenging the correctness of the arrest under Article 246 of the Code of Criminal Procedure could not have resulted in his release, only a notification to the relevant supervisory authority about any irregularities found.

2. The Court ’ s assessment

41. As regards the Government ’ s contention that the applicant could not be considered to have made use of the criminal-law remedy, the Court notes that, following an anonymous notification about an offence allegedly committed by CAB officers during the applicant ’ s arrest, the Ś widnica Regional Prosecutor refused to open an investigation. Only at the applicant ’ s appeal against this decision did the same prosecutor open the investigation but, after examining the relevant evidence, eventually discontinued the proceedings. The applicant acted as an injured party throughout the whole proceedings; he also lodged an appeal with a competent court against the prosecutor ’ s decision to discontinue the investigation. Accordingly, the Court concludes that the applicant in the present case should be considered to have made use of the remedy provided for by criminal procedure law.

42. It remains to be established whether the applicant was required to make use of the other remedies indicated by the Government, namely an appeal against arrest under Article 246 of the Code of Criminal Procedure and a claim for the protection of his personal rights.

43. The Court reiterates that it is well established in its case-law that an applicant must make normal use of those domestic remedies which are likely to be effective and sufficient. In the event of there being a number of domestic remedies which an individual can pursue, that person is entitled to choose a remedy which addresses his or her essential grievance. In other words, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see, among many others, Kozacıoğlu v. Turkey [GC] , no. 2334/03, § 40, 19 February 2009; and Leja v. Latvia , no. 71072/01 , § 46, 14 June 2011).

44. In Miroslaw Garlicki v. Poland ( no. 36921/07, § 77, 14 June 2011) where the applicant complained that in the course of his arrest a series of measures aimed at humiliating him had been applied by the authorities the Court considered that the most appropriate remedy to be exhausted had been a civil action for compensation for the infringement of his personal rights. It found that the applicant should have availed himself of such a remedy to assert that he had been exposed to degrading treatment in breach of his personal rights and to claim compensation from the State.

45. The Court notes in this connection that in the present case the applicant ’ s complaint about the measures applied during his arrest is two-fold. Firstly, he complained that the use of direct restraint measures during his arrest had not had sufficient basis in domestic law. Secondly, he alleged that the circumstances of his arrest had caused him humiliation and distress, in a manner much similar to the applicant in the Miros ł aw Garlicki case.

46. As regards the first part of the applicant ’ s complaint, where he raised lack of sufficient basis for the use of direct restraint measures during his arrest, the Court notes that Article 246 of the Code of Criminal Procedure provides for an appeal against the arrest order. In the appeal an arrested person may seek to have examined the legitimacy, lawfulness and correctness of the arrest. If the court examining the appeal finds that the arrest complained of was not justified or lawful, it must order an immediate release of the arrested person. If, additionally the arrest is found to be incorrect, the relevant court must notify of it the prosecutor who applied the arrest and the prosecutor ’ s supervisory authority.

47. The Court notes that the applicant did not avail himself of the appeal against his arrest. Had he appealed, he would have enabled the domestic courts to examine all the relevant circumstances of the arrest, namely its legitimacy, lawfulness and correctness. It is true that only finding that the arrest was illegitimate or unlawful could lead to the applicant ’ s immediate release (see paragraph 23 above). The Court considers however that in principle an appeal against the applicant ’ s arrest could lead to his release, because examination of legitimacy of an arrest should normally involve examination of its proportionality. In any event, the applicant, having decided not to appeal against his arrest, deprived the domestic authorities of the possibility to reexamine and correct their decision.

48. The Court agree with the Government ’ s argument that a criminal action against the police officers could not be considered an effective remedy in the circumstances of the present case, since not every irregularity at the arrest amounts to an offence of abuse of powers by the police.

49. It follows that the first part of the applicant ’ s complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

50. As regards the second part of the applicant ’ s complaint, the Court notes that he failed to raise the essence of this grievance in the criminal investigation, in which he focused on the alleged unlawfulness of his handcuffing. Having regard to the fact that he also failed to use a civil action for the protection of his personal rights, the Court considers that the applicant failed to exhaust the remedies provided for by Polish law and that the Government ’ s objection should be allowed in this respect (see, Miros ł aw Garlicki , cited above, § 79).

51. It follows that the complaint that the measures applied in the course of the applicant ’ s arrest had been humiliating in nature must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

C. Complaint under Article 5 § 1 of the Convention

52. The applicant also complained under Article 5 § 1 (c) that his arrest had not been effected in a lawful manner, again alleging that his handcuffing had not had sufficient basis in domestic law.

53. Article 5 § 1 of the Convention provides, in so far as relevant:

“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;

...”

54. The Government contested that argument.

55. The Court notes that the applicant in the present case did not complain about any procedural issues pertaining to his arrest, rather that his handcuffing had had no basis in domestic law. The Court observes that there is no appearance that the issue of whether his handcuffing in the course of his arrest had had basis in domestic law had any bearing on the lawfulness of his deprivation of liberty, whether understood as conformity with substantive and procedural rules of domestic law, or as conformity with the Convention including the “general principles expressed or implied therein” (see, mutatis mutandis , Simons v. Belgium (dec.), no. 71407/10, §§ 28-29 and 32-33, 28 August 2012).

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

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 30 March 2017 .

Andrea Tamietti Nona Tsotsoria              Deputy Registrar President