FOURTH SECTION

DECISION

Application no . 4972/14 Kamil BRAHMI against Poland

The European Court of Human Rights ( Fourth Section ), sitting on 24 November 2015 as a Committee composed of:

Nona Tsotsoria , President, Krzysztof Wojtyczek , Gabriele Kucsko-Stadlmayer , judges , and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 18 December 2013 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Kamil Brahmi , is a Polish national, who was born in 1986 and lives in Wieliczka .

The circumstances of the case

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

1. The applicant ’ s account

The applicant claimed that at the night of 28 to 29 March 2013 he came to a police station to find out why there was no night public transport running. He also wanted to inquire whether the police could give him a lift to a bus/tram stop. The police refused to satisfy the applicant ’ s demands. T he officer on duty requested the applicant to leave the premises but in vain. Subsequently, three police officers arrive d and placed the applicant in a police car (special car with a separated area for transporting persons) to transport him to a sobering-up centre (“the centre”). The applicant claimed that during the journey the police car stopped and that he was punched in the face by two officers. The applicant smeared his blood inside the car. Then, the police sprayed pepper gas on the applicant. Upon arrival at the centre, police officers handcuffed his hands behind his back. The applicant refused to empty his pockets and then the staff of the centre forced him to do so. The applicant was escorted to a room where he was to spend the night. In the morning he complained to a doctor on duty about pain in his arm. The doctor placed his arm in a sling. The applicant was released from the sobering-up centre at about midday on 29 March 2013. He went to a hospital where he was examined and received a medical certificate.

2. The investigation into the applicant ’ s allegations of ill-treatment

On 29 March 2013 the applicant filed a criminal complaint against the police officers (excess of powers and causing bodily harm). He alleged that the police officers had used disproportionate force at the police station and when placing him in the car; they punched him in the face, kicked him and sprayed gas on him. At the centre they handcuffed him without a good reason. As a result he had hematomas on his legs and a broken elbow bone. He also filed a criminal complaint against the staff of the centre (causing bodily harm). He alleged that the staff had forcefully immobilised him, twisted his arms, strangled him and pushed him to the floor. As a result he suffered the hematomas and broken elbo w bone.

The prosecutor opened an investigation. On 2 April 2013 he heard the applicant. The prosecutor obtained the following evidence: statements of all police officers involved, police records, statements of the staff of the centre, the applicant ’ s medical records, CCTV recordings from the police station and the centre , as well as an opinion of a forensic expert. The prosecutor also viewed the relevant sites. On the basis of the medical records, the forensic expert established that the applicant sustained hematomas on his legs and a broken elbow bone. He found that these injuries could have resulted from the use of blunt object at the time of the applicant ’ s arrest and detention.

On the basis of the evidence, the prosecutor established that the police officers had not exceed ed their powers. He found that the allegations made by the applicant were not credible. He described the applicant ’ s attitude at the police station as arrogant since it was established that he had been drunk and demanded to be taken home by the police. The applicant resisted his arrest and had to be placed in a police car by a few officers. The most controversial event concerned the applicant ’ s transport to the centre. The applicant alleged that at one point police officers entered the back of the car and punched him in the face. Later, when the applicant started to smear his blood in the car one officer sprayed gas at him. According to the police officers, the applicant started hitting his face against the wall of the car, smearing blood from his running nose and kicking the car door. In reaction to this behaviour, they sprayed pepper gas on him. Having regard to the medical evidence, the prosecutor found that the applicant ’ s allegations were not credible. In particular, the prosecutor had regard to the medical certificate issued shortly after the applicant ’ s release which recorded no injuries to his face. The staff and doctor of the centre also testified that the applicant did not have any injuries to his face. In view of this evidence, the prosecutor found that the applicant ’ s allegations of the alleged punching in the face were not credible.

With regard to the allegations concerning the staff of the centre, the prosecutor relied on evidence from the CCTV recording. The recording showed that the applicant was brought to the centre at about 3 a.m. and asked to wait seated in a reception area. The applicant twice disregarded this instruction and moved to another room from which he was brought back. He threatened police officers with dismissal and uttered obscenities. When he refused to wait in the reception area the police officers handcuffed his hands behind his back. The applicant attempted and succeeded to move his arms in front of him. Later, the applicant refused to empty his pockets. Three members of the staff immobilised him on the floor and emptied his pockets. The applicant refused to be examined by a doctor on duty. The doctor noted that the applicant was in a medium state of intoxication and should be detained at the centre for 12 hours. Subsequently, the applicant calmed down. At 8.42 a.m. the applicant was tested for the presence of alcohol in his blood. At that time his blood contained 0.41 mg of alcohol per litre.

The prosecutor established that the actions of the police officers at the centre were lawful. They handcuffed the applicant when this turned out to be necessary in view of the applicant ’ s refusal to follow the orders and his verbal aggressiveness. Likewise, the actions of the staff of the centre were lawful and justified. The applicant refused a personal check which had to be applied to every person admitted to the centre and the use of force to carry out the check was necessary in the circumstances.

The prosecutor attempted to establish when the applicant broke his elbow bone. He found that this had happened when the applicant remained in the custody of the police or the centre. However, it was difficult to determine the exact moment. It could have happened when (1) the applicant was hitting the inside of the police car, (2) when he was handcuffed at the centre and tried to move his handcuffed arms or (3) when he was immobilised on the floor. The prosecutor had regard to the opinion of the forensic expert. The expert opined that such an injury may have resulted from twisting arms, tight handcuffing or a fall on the ground. The prosecutor noted that force and handcuffs had been used against the applicant. He established that the applicant could have sustained the injury in the course of these actions. As to the hematomas sustained by the applicant, the prosecutor found that they resulted from a legitimate use of force by the police and the staff of the centre.

The prosecutor found the evidence of the police officers and the staff of the centre credible. They were consiste nt with the CCTV recordings.

In his decision of 8 August 2013 the prosecutor discontinued the investigation. He concluded that the actions of the police officers during the applicant ’ s transport to the centre and at the centre were lawful and that the use of force remained proportionate to the circumstances of the case. The police officers did not exceed their powers but reacted in a lawful manner to a dangerous behaviour of the applicant who was drunk and aggressive. Likewise, the intervention of the staff of the centre was aimed at forcing the applicant ’ s compliance with the rules applicable to persons detained in the centre. All actions complained of by the applicant were lawful and adequate in the circumstances of the case. Even assumin g that the applicant suffered a broken elbow bone in the course of the events, the prosecutor found that it resulted from the necessity to use force to control the applicant ’ s aggressive behaviour. The prosecutor ’ s decision run to 32 pages.

The applicant appealed. He alleged that the prosecutor had wrongly established the facts of the case, erroneously assessed the evidence and failed to interview all persons who had relevant information about the incident.

On 31 January 2014 the Kraków-Śródmieście District Court upheld the prosecutor ’ s decision. It found that the prosecutor had obtained all evidence necessary to determine the case and properly assessed the evidence. In particular, the court agreed with the prosecutor that the applicant ’ s allegations had not been credible. His account was inconsistent with the evidence of other witnesses and indicated that the applicant ’ s behaviour at the relevant time was confrontational. The court underlined that the applicant had come to the police station and asked to be taken home by the police. It found irrational the applicant ’ s allegation that he had been punched in the face by the police officers during his transfer to the centre. This allegation was entirely inconsistent with his behaviour recorded at the CCTV monitoring of the centre. Furthermore, the applicant refused to be examined by a doctor of the centre which, in case of his alleged injuries to the head, would have been much desirable. The court obtained as evidence transcript of conversations of police officers which confirmed the version of events as presented by the police officers. The court concluded that the use of force by the police officers and the staff of the centre had been legitimate and adequate to the circumstances of the case.

3. Lawfulness of the applicant ’ s detention

On an unspecified date the applicant filed an appeal against his detention at the centre under section 40 § 3a of the Education in Sobriety and the Fight against Alcoholism Act (“the 1982 Act”). On 19 June 2013 the Kraków-Śródmieście District Court found that the applicant ’ s detention was lawful under section 40 of the 1982 Act and dismissed his appeal. It had regard to the evidence obtained in the course of the investigation concerning the alleged ill-treatment of the applicant. The court found that at the relevant time the applicant had been drunk and aggressive. Furthermore, he obstructed the police officers in their work and refused to voluntarily leave the police station. He was taken to the centre where he refused to be tested for presence of alcohol in his blood but the centre ’ s doctor authorised his detention in the centre. The applicant could not have been taken to his place of residence given the distance from the police station. The decision to detain the applicant at the centre was further justified given the adverse weather conditions. The court concluded that the applicant ’ s detention was entirely lawful and justified.

4. Fee for the applicant ’ s detention in the centre

The centre issued an invoice for the applicant ’ s detention in the amount of PLN 250 (approx. 60 euros) . It seized PLN 90 as an advance for the fee in question from the applicant ’ s deposit. The applicant contested the legality of the fee. He filed a criminal complaint in this respect, alleging misappropriation of his property. On 24 May 2013 the prosecutor refused to open an investigation in the case, finding that no offence had been committed. On 6 September 2013 the court upheld the prosecutor ’ s decision. The applicant did not institute any other proceedings challenging the alleged illegality of the fee .

COMPLAINTS

1. The applicant complained under Article 3 that he had been ill ‑ treated by the police officers and th e staff of the centre. He claimed that he had not been provided with adequate medical care at the centre given that his elbow bone was fractured and that the centre was not properly supplied with medical utensils. As a result of these failures, he was exposed to a risk to his life a nd limb. The applicant complained under Article 6 that the proceedings before the Kraków-ÅšródmieÅ›cie District Court had been unfair. He claim ed that when reviewing the prosecutor ’ s decision the court had not had at its disposal all relevant evidence (part of CCTV recordings from the centre).

2. The applicant complain ed under Article 5 that his detention in the centre had been unlawful.

3. The applicant complain ed under Article 14 that the staff of the centre had discriminated against him on the ground of his origin. He claimed that they had made references to his foreign-sounding name (his father was of Algerian origin) and his look (“he lo oked like an Indian”). He alleged that the staff had been biased against him and threatened to cut off his hair.

4. Lastly, the applicant allege d a violation of Articles 7, 13 and 17 in that the fee charged for his stay in the centre did not have a legal basi s in the domestic law. He referred in this respect to a judgment of the Constitutional Court which found that an ordinance which regulated the fees at issue was unconstitutional, in particular as there was no upper limit on the fees.

THE LAW

A. The complaints under Article 3

The Court considers that the complaint concerning the alleged unfairness of the proceedings before the Kraków-Śródmieście District Court falls to be examined under the procedural limb of Article 3.

With regard to the complaint under the substantive aspect of Article 3 , the Court considers that it was convincingly established in the domestic proceedings that the use of force against the applicant was made necessary by the applicant ’ s own conduct and it was not excessive. It was established that t he police officers and the staff of the centre reacted adequately to the applicant ’ s aggressive behaviour and his failure to follow their lawful orders. The Court notes that the allegation of the purported punching in the applicant ’ s face was not found credible. With regard to the injury sustained by the applicant (broken elbow bone) the prosecutor established that it resulted from the indispensable use of force applied to control the applicant ’ s aggressive behaviour (see, BerliÅ„ski v. Poland , nos. 27715/95 and 30209/96, 20 June 2002; and, compare and contrast, Lewandowski and Lewandowska v. Poland , no. 15562/02, § 65, 13 January 2009). The authorities complied with their obligation to provide a plausible explanation of how the applicant ’ s injuries were caused ( see Rehbock v. Slovenia , no. 29462/95, §§ 68 ‑ 78, ECHR 2000 ‑ XII). Furthermore, there is no indication that the applicant was not provided with adequate medical care while in detention.

With regard to the complaint under the procedural limb of Article 3 , the Court finds that the authorities carried an effective and thorough investigation into the alleged ill-treatment of the applicant by the police and the staff of the centre. They obtained a comprehensive body of relevant evidence and assessed it in a meticulous manner. The authorities e stablished all relevant circumstances of the case. Furthermore, the investigation was carried out promptly (from 29 March 2013 to 31 January 2014).

Having regard to the above considerations, the Court finds that the complaints under both limbs of Article 3 are manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. The complaint under Article 5 § 1

The Court notes that the domestic court found that the applicant ’ s deprivation of liberty was in conformity with section 40 of the 1982 Act. It was established that the applicant had been intoxicated and that his behaviour had been offensive and therefor e the placement in the centre had been justified . The Court further finds that the applicant ’ s detention was free from arbitrariness ( compare and contrast, Witold Litwa v. Poland , no. 26629/95, § 78, ECHR 2000 ‑ III).

It follows that the complaint under Article 5 § 1 is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

C. The complaint under Article 14 and the complaint concerning the fee

In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that the above complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols or were not properly substantiated .

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 17 December 2015 .

FatoÅŸ Aracı Nona Tsotsoria              Deputy Registrar President