Lexploria

Information Note on the Court’s case-law 66

July 2004

Balogh v. Hungary - 47940/99

Judgment 20.7.2004 [Section II]

Article 3

Degrading treatment

Ill-treatment by police, and adequacy of investigation: violation

Facts : The applicant, who is of Roma ethnic origin, worked by selling coal from a truck with some companions. The police took him in for questioning after receiving a complaint from a group of persons to whom he had agreed to sell coal. The applicant alleges that during the police interrogation, which lasted two hours, one of the officers repeatedly slapped him across the face and left ear. Two days after his release, on his return to his hom e, the applicant consulted a doctor about his injury and was operated on for a reconstruction of his ear drum. Criminal proceedings were opened against the police officers on the basis of a medical certificate submitted by the applicant. The Investigation Office heard the applicant’s witnesses, as well as the police officers that had been on duty. In the absence of direct witnesses and the inconclusive medical opinion, which could not determine whether the injury had been caused before, during or after the applicant’s interrogation, the proceedings were discontinued. Although the applicant did not file a complaint against the discontinuation order, “the Legal Defence Bureau for National and Ethnic Minorities” (NEKI), whom he had appointed to represent him, s ubsequently requested the reopening of the proceedings on the basis of an additional medical report. The Public Prosecutor’s Office concluded that the case should nonetheless be discontinued, since it was impossible to prove the allegations.

Law : Governme nt’s preliminary objection (non-exhaustion): Although the applicant had not used the ordinary remedy invoked by the Government against the order discontinuing the criminal proceedings, his legal representative, on the basis of new evidence, had requested t hat the proceedings be continued under another provision of the Code of Criminal Procedure: objection dismissed.

Article 3 – The injury which the applicant had suffered was sufficiently serious to amount to ill-treatment within the scope of this article. The applicants’ witnesses, who were other detainees at the police station, had stated that he had displayed signs of having been hit when leaving the police station. This contradicted the Government’s version of the events, which relied on an alleged remar k by the applicant during questioning that he was afraid of “something untoward happening to him from his companions”. However, the applicant’s companions had not been questioned about such a remark and it was not a persuasive explanation for the cause of the injury. Whilst the applicant had not sought medical help immediately after the alleged incident and had waited until he was back in his home town, decisive importance could not be attributed to such a delay or undermine his case under Article 3. Notwi thstanding the fact that an independent investigation into the applicant’s allegations had been carried out and contradictory statements had been confronted, the authorities had not provided a plausible explanation for the injuries nor had they satisfactor ily established that these had been caused otherwise than by treatment in police custody.

Conclusion : violation (4 votes to 3).

Article 13 – Three prosecution instances had examined the applicant’s complaints, and the investigations conducted had been thor ough and capable of leading to the identification and punishment of any State agent found to be responsible.

Conclusion : no violation (unanimously).

Article 14 – There was no substantiation of the applicant’s allegation that he had been discriminated agai nst on account of his ethnic origin.

Conclusion : no violation (unanimously).

Article 41 – The Court awarded the applicant 14,000 euros in respect of pecuniary and non-pecuniary damage. It also made an award in respect of costs and expenses.

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