FOURTH SECTION

DECISION

Application no . 49284/10 Andrzej PRĄDZYŃSKI against Poland

The European Court of Human Rights ( Fourth Section ), sitting on 25 March 2014 as a Committee composed of:

Nona Tsotsoria , President, Paul Mahoney, Krzysztof Wojtyczek, judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 20 August 2010,

Having regard to the declaration submitted by the respondent Government on 22 May 2013 requesting the Court to strike the application out of the list of cases,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Andrzej Prądzyński , is a Polish national, who was born in 1971 and lives in Warszawa .

The applicant, who had been granted legal aid, was represented by Ms M. Gąsiorowska , a lawyer practising in Warsaw . 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

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

1. The events of 8 August 2009

On 8 August 2009 at 10 p.m. the applicant was returning home from a party. He was stopped by the police. The applicant was under the influence of alcohol but there is no appearance that he was aggressive or disturbing public order. The police found on him 0.4 grams of a substance which later was confirmed to be marijuana.

At the police station the applicant was insulted by two police officers. After he had signed a record of arrest ( protokół zatrzymania ) the police officers beat him up. The applicant was hit on his head and face. He was also kicked on his leg, back and chest. The police officers refused to call his girlfriend and to inform her about the applicant ’ s arrest. The applicant was tested positive for alcohol (0.9 mg/l in breath).

Afterwards the police transported the applicant to the Warsaw Sobering ‑ up Centre. Upon his arrival the applicant saw a doctor but the latter did not examine him in detail. It was noted however that the applicant had bruises on his jaw and back. The applicant complained about pain in his chest and legs and received painkillers.

The next morning, on 9 August 2009 at 10 a.m., the applicant was transported back to the police station. He was heard by a police officer who threatened him in order to find out from whom he had bought the drugs. The applicant signed the record of the arrest stating that he was healthy and he would not appeal against the arrest. The applicant submits that he made such statements out of fear of being beaten up again. At 1 p.m. he was released.

2. The medical evidence

The applicant claims that he went to a doctor on 10 August 2009 but obtained an appointment only for the following day. On 11 August 2009, a Tuesday, the applicant was examined by a radiologist who established a fracture of one rib on his right side. He received the results of the x ‑ ray on 14 August 2009.

On 14 August 2009 the applicant was examined by a dentist who found that some of his teeth had been chipped.

On 17 August 2009 the applicant was examined by two other doctors who confirmed the fracture of the rib, haematomas on the right side of his back and on the leg as well as pain of the side of his skull.

In November 2009 an expert from the Forensic Institute at the Warsaw Medical University prepared her opinion for the prosecutor. The expert concluded that the injuries sustained by the applicant could have happened in the circumstances explained by him. However, it could not be excluded that they happened in the circumstances described by the police officers “who transported an aggressive and drunk person who, trying to escape, hit his side and leg against the door of the police car. While hitting his head and face against the window of the car he could have sustained the bruises on the forehead and face.”

3. The investigation into the applicant ’ s allegations

On 17 August 2009 the applicant informed the prosecutor about the events at the police station and asked him to initiate an investigation into his ill ‑ treatment by the police.

On 17 November 2009 the prosecutor decided to have an expert medical opinion prepared concerning the applicant ’ s injuries and their possible origin.

On 30 November 2009 the Warsaw District Prosecutor decided to discontinue the investigation finding that the police officers had not overstepped their powers. The police officers stated to the prosecutor that during the arrest and at the police station the applicant had been aggressive and vulgar. He had to be restrained by application of an armlock . They submitted that during his transport to the sobering ‑ up centre the applicant started hitting his head and shoulder against the door of the car in which he had been transported. The prosecutor referred to the expert medical opinion which had not excluded that the applicant ’ s injuries happened in the circumstances described by him. The prosecutor also quoted the forensic opinion in the part which had not excluded that his injuries happened in the circumstances described by the police officers, in particular, since the applicant had been drunk and had been hitting the door of the car with his body in order to escape. The prosecutor further referred to the fact that the applicant had not complained to the staff of the sobering ‑ up centre about being beaten up by the police and had signed the record of arrest denying any health problems.

The applicant lodged an appeal against this decision. He complained that the record of arrest had contained no information about his alleged aggressiveness towards the police officers. The first mention of it was made in a note prepared by one of the intervening officers on 31 August 2009, after he had lodged his complaint with the prosecutor. Moreover, the prosecutor failed to notice inconsistencies in the statements of the police officers as regards the type of the car used to transport him. He also argued that he had complained about being beaten up, orally, to the police officers who had searched his apartment and at the police station. He failed to put it in writing on the record of arrest out of fear of being beaten up again.

On 23 February 2010 the Warsaw District Court dismissed the applicant ’ s appeal. The court considered that the prosecutor ’ s assessment of facts had been correct. As confirmed by the forensic expert, there were two possible but contradictory versions of events, one submitted by the applicant and the second by the police officers. It was also of importance for the assessment of the case that the applicant had been under the influence of alcohol and in possession of drugs. The court concluded that there had been no evidence proving beyond doubt that the version of events presented by the applicant should have been retained.

4. Other proceedings

On 14 August 2009 the applicant lodged an appeal against his arrest of 9 August 2009 and the manner in which it was carried out. On 8 December 2009 the Warsaw District Court dismissed it. It found that the applicant was stopped on the street because of his intoxication and drugs were found on him. That constituted a sufficient basis for his arrest.

On 24 February 2010 the Warsaw District Court discontinued the criminal proceedings against the applicant for possession of 0.38 grams of marijuana finding that it must had been for his personal use.

B. Relevant domestic law

Section 5 of the Ordinance of the Council of Ministers of 17 September 1990 on the Use of Coercive Measures by the Police (“the 1990 Ordinance”) provides:

“1. Physical force shall be used in order to restrain a person, to counter an attack or to make [a person] obey an order.

2. When using physical force, no one shall hit a person, unless he has to do so in self ‑ defence or in order to counter an unlawful attack against life, health or property of others.”

COMPLAINT

The applicant complained that he had been ill ‑ treated by the police officers, and that the authorities had failed to carry out an effective investigation.

THE LAW

The applicant ’ s complaint falls to be examined under Article 3 of the Convention, which reads as follows:

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

By letter dated 22 May 2013 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“The Government hereby wish to express – by way of the unilateral declaration ‑ their acknowledgement of the violation of Article 3 of the Convention on account of failure to conduct an effective investigation in the present case. Simultaneously, the Government declare that they are ready to pay to the applicant the sum of EUR 5,000 which they consider to be reasonable in the light of the Court ’ s case-law (see , inter alia, Majkowski v. Poland, application no. 32272/11, decision of 20 November 2012; Karbowniczek v. Poland , application no. 22339/08, judgment of 27 September 2011; Polanowski v. Poland , application no. 16381/05 , judgment of 27 April 2010 ). The sum referred to above, which is to cover any pecuniary and non ‑ pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three ‑ month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default periods plus three percentage points.

With respect to the first question of the Court – whether the applicant was subjected to inhuman or degrading treatment contrary to Article 3 of the Convention, the Government indicate that they are unable to assess whether there was a vio lation of this provision in its substantive limb due to the inadequacy of th e investigation in the case in question . For this reason , they refrain from submitting any observations in this part. At the same time, they respectfully ask the Court to examine the present case only in the light of its procedural limb (see Majkowski v Poland , cited above ; Polanowski v. Poland , cited above, § 59, Karbowniczek v. Poland , cited above, § 58).

The Government respectfully suggest s that the above declaration might be accepted by the Court as “any other reason” justifying the striking out of the case of the Court ’ s list of cases, as referred to in Articl e 37 § 1 (c) of the Convention. ”

The applicant did not comment of the Government ’ s unilateral declaration.

The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“ for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.

To this end, the Court examined carefully the declaration in the light of the principles emerging from its case ‑ law, in particular the Tahsin Acar judgment ( Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75 ‑ 77, ECHR 2003 ‑ VI; WAZA Spółka z o.o . v. Poland ( dec. ), no. 11602/02, 26 June 2007; and SulwiÅ„ska v. Poland ( dec. ), no. 28953/03).

The Court has established in a number of cases, including those brought against Poland, its practice concerning complaints about the violation of Article 3 of the Convention (see, for example, Wiktorko v. Poland , no. 14612/02, § 70, 31 March 2009; Grzywaczewski v. Poland , no. 18364/06 , § 110, 31 May 2012; Karbowniczek v. Poland , cited above, § 93.)

Having regard to the nature of the admissions contained in the Government ’ s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).

Moreover, in light of the above considerations, and in particular given the clear and extensive case ‑ law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine ).

Accordingly, it should be struck out of the list.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government ’ s declaration of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.

Fatoş Aracı Nona Tsotsoria Deputy Registrar President