FIFTH SECTION

DECISION

Application no. 22419/18 Ondřej KONOPÍK and Ondřej HURDÁLEK against the Czech Republic

The European Court of Human Rights (Fifth Section), sitting on 6 October 2022 as a Committee composed of:

Arnfinn BÃ¥rdsen , President,

Kateřina Šimáčková ,

Mykola Gnatovskyy , judges,

and Martina Keller, Deputy Section Registrar ,

Having regard to:

the application (no. 22419/18) against the Czech Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 3 May 2018 by two Czech nationals, Mr Ondřej Konopík and Mr Ondřej Hurdálek (“the applicants”), who were born in 1982 and 1986 respectively and live in Prague and Červený Kostelec, and were represented by Ms Z. Candigliota, a lawyer practising in Brno;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The application concerns the alleged ill-treatment of the applicants by police officers (Article 3 of the Convention).

2. On 30 June and 1 July 2012 the applicants, together with other persons, took part in an event organised near a villa in Prague which had previously been used as a squat. During the event the participants decided to enter the villa by force. The tenant of the villa called the police, who attempted to negotiate with those occupying the premises to persuade them to leave, but they refused.

3. What happened during the subsequent police intervention was subject to dispute. The applicants claimed that the police had broken into the villa and started to destroy a barricade which the occupants had erected and that later, police officers had entered the building by a window and, despite a lack of resistance, had evacuated the occupants by force and beaten them. The police denied the allegations.

4 . Four participants, including the applicants, brought an administrative action seeking a determination that the police intervention had been unlawful on the grounds that the police officers had used disproportionate force and subjected them to ill-treatment, and had failed to secure the full video footage of their intervention. The first applicant alleged that he had been attacked and beaten with a truncheon: according to a doctor’s report dated 5 July 2012, he had had bruises consistent with his description of events. The second applicant asserted that as a result of being beaten, he had suffered a bruised rib and a wound to his head: a hospital report dated 1 July 2012 stated that he had had a laceration to his head requiring stitching and skin abrasion with a bruise under one eye.

5 . The Prague Municipal Court heard the applicants; some other participants in the event, none of whom had directly witnessed the alleged ill-treatment; several police officers, who emphasised that they had used force only after an unsuccessful attempt to negotiate and several warnings to the participants and that they had acted in a calm and professional manner; two members of the medical emergency unit, who stated that medical care had not been denied to anyone leaving the building and that no one had complained about the use of a truncheon or about a beating; and a journalist. It further examined the medical reports provided by the applicants (see paragraph 4 above), official reports on the use of force, several DVD recordings and photographic documentation submitted by the police. It concluded that the force used had been lawful, proportionate and necessary in order to achieve the aim of evacuating the unlawful occupants from the building, and that the applicants had not suffered any disproportionate harm. While it was undisputed that they had been injured, it had not been established that their injuries had been caused by the police during the intervention. The court emphasised that the villa had been in a dilapidated condition and barely lit, that the applicants could have been injured when erecting the barricade or amid the general confusion or, admittedly, by the lawful use of force; it noted, however, that none of the persons present outside the building (medical staff, public and media) had heard any complaints about the conduct of the police. After the evacuation, the police had sent several slightly injured persons for medical treatment.

By a judgment of 25 June 2014, the court therefore dismissed the applicants’ action, concluding that there had been no unlawfulness or ill-treatment.

6 . On 25 May 2015, following a cassation appeal by the applicants, the Supreme Administrative Court quashed that decision and remitted the case to the Municipal Court. In doing so it pointed to the distribution of the burden of proof, as established by the Court’s case-law (citing Rehbock v. Slovenia , no. 29462/95, ECHR 2000-XII; and Fyodorov and Fyodorova v. Ukraine , no. 39229/03, 7 July 2011): while the complainants had to prove that ill-treatment or injuries had occurred, the police had to prove either that the complainants had caused injuries to themselves or that the injuries had occurred in some other manner or resulted from a lawful use of force. In that connection, the Supreme Administrative Court reproached the Municipal Court for not having examined whether there had been any interference with the applicants’ freedom of assembly and for not having adequately assessed whether the police intervention had been proportionate, who precisely had decided on the use of force and whether the same aim could have been achieved by less severe means. Furthermore, the Municipal Court was directed to assess the evidence as a whole and to comment on the fact that the key phase of the police intervention had not been video-recorded.

7 . On 24 June 2016, the Municipal Court dismissed the applicants’ action. After admitting further documentary evidence, accepting additional submissions from the applicants and hearing the chief police officers, it pointed out that since the parties differed in their account of the events, it had to rely mainly on evidence from independent sources. The court accepted that no video recordings could be made inside the villa because it was impossible to ensure the safety of the camera operator and because of technical difficulties.

The court concluded that the applicants’ conduct could not be considered to amount to the exercise of their freedom of assembly; that force had been used only after unsuccessful negotiations, in order to ensure the safety of persons and property; and that the police conduct had been proportionate and any interference with the participants’ rights and freedoms had been necessary to achieve the aim pursued. As to the injuries sustained by the applicants, the court found that their statements differed on several points, that the medical staff present had not witnessed any serious injuries and that the medical report concerning the first applicant had been drawn up five days after the incident and only stated that the injury was consistent with the applicant’s description of events. Both applicants could have reported their alleged ill-treatment to the independent persons present immediately after the evacuation but had failed to do so. The second applicant had only mentioned the origin of his injuries to the doctor at the hospital, whose report was based solely on the applicant’s statement. In the court’s view, it was not possible to conclude that the applicants’ injuries had been caused by the police since they could have been caused by something else that had happened before the police intervention; the court listed fifteen possible scenarios. The court held that therefore the burden of proof had not shifted to the State.

8 . On 1 March 2017, the Supreme Administrative Court dismissed a cassation appeal by the applicants. It endorsed the Municipal Court’s finding that the applicants had failed to prove that they had sustained the injuries at the hands of the police. They had not made a credible assertion of ill-treatment, so the burden of proof did not shift to the State and therefore the police had not been obliged to submit a video recording of the whole intervention. The Supreme Administrative Court also held that the applicants’ injuries were minor, superficial and probably sustained in the general course of events rather than as a result of intentional ill-treatment.

9. The applicants lodged a constitutional appeal, contending that they had made an arguable claim of ill-treatment and that the burden of proof regarding what had happened inside the villa should have shifted to the State.

10 . By judgment no. II. ÚS 1398/17 of 17 October 2017, the Constitutional Court dismissed the applicants’ appeal. Referring extensively to the Court’s case-law, it held, unlike the Supreme Administrative Court, that the applicants had had an arguable claim of having been subjected to ill-treatment by the police, which had been supported by medical reports. It held, however, that it followed from the very detailed examination of the evidence by the Municipal Court, as a body with full jurisdiction, that the police had managed to show that the applicants’ injuries had not necessarily occurred as a result of disproportionate use of force and that the nature of those injuries did not correspond to the alleged beating with a truncheon.

Regarding the lack of video footage, the Constitutional Court admitted that the events inside the villa ought to have been recorded for evidential purposes but held that the police had convincingly explained why the recording could not have been made, pointing notably to the darkness, the poor state of repair of the villa and the increasingly unruly conduct of its occupants. Moreover, the police concerns about the safety of the camera operator appeared justified because two police officers had been hurt during the intervention.

Lastly, the Constitutional Court observed that, in the present case, the participants had entered the villa unlawfully, prepared themselves for a conflict with the police and refused to leave peacefully. Their situation was therefore considerably different from cases where an individual was under the control of the police, in detention for example, and could not freely choose to avoid a potential interference with his rights.

THE COURT’S ASSESSMENT

11. The applicants complained under Article 3 of the Convention that they had been ill-treated by police officers.

12. The Court will examine the case in the light of its well-established case-law (see Assenov and Others v. Bulgaria , 28 October 1998, § 93, Reports of Judgments and Decisions 1998-VIII, and Berliński v. Poland , nos. 27715/95 and 30209/96, § 59, 20 June 2002).

13. The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. It observes in this connection that the applicants did not submit the relevant medical reports, claiming that those were not in their possession but had been part of the evidence examined by the Municipal Court. It is true that it was not disputed before the domestic courts that the applicants had sustained certain injuries, confirmed by doctors’ reports, and that force had been used against them. Even assuming, however, that the applicants had an arguable claim in respect of their alleged ill ‑ treatment, as held by the Constitutional Court (see paragraph 10 above), the Court considers that their application is in any event inadmissible for the reasons stated below.

14. The Court notes that the merits of the applicants’ complaint and their account of events were duly examined during adversarial proceedings before the administrative courts. It finds it significant that the Supreme Administrative Court, applying the principles stemming from the Court’s case-law, remitted the case to the Municipal Court for further examination and directed it to duly address the key issues arising from those principles. As a court with full jurisdiction, the Municipal Court questioned the applicants about the circumstances of the police intervention and the alleged beatings; studied the medical evidence; admitted a substantial quantity of evidence; and heard the police officers, as well as numerous witnesses. On the basis of that evidence, notably the statements of independent witnesses, the applicants’ allegations were rejected as unfounded and the police were found to have met the burden of proof by showing that either the applicants’ injuries had not been attributable to the police officers or they had resulted from the force which had been made necessary by the nature of the intervention. The force used was assessed as lawful and not excessive given the participants’ refusal to leave the building, their increasingly unruly conduct and the difficult conditions inside the villa.

15. The Court has no reason to question the facts as established and interpreted by the domestic courts, which are ultimately better placed to assess the matter (see Dergachenko v. Ukraine (dec.), no. 18060/13, § 37, 18 February 2021), or to reach a different conclusion from their assessment. It finds, therefore, that while the applicants suffered injuries during the events in issue, the use of force against them cannot be held to have been unnecessary or disproportionate in the circumstances of the case.

16. The application is accordingly manifestly ill-founded and must be rejected under 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 3 November 2022.

Martina Keller Arnfinn BÃ¥rdsen Deputy Registrar President