Communicated on 25 June 2018

FOURTH SECTION

Application no. 30598/16 Fernando Jorge PINHEIRO DE MELO against Portugal lodged on 24 May 2016

STATEMENT OF FACTS

The applicant, Mr Fernando Jorge Pinheiro de Melo , is a Portuguese national, who was born in 1948 and lives in Pindelo . He is represented before the Court by Mr C. Ribas , a lawyer practising in São João da Madeira.

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

A. Background to the case

On 30 July 2011 the applicant was driving his car when he was approached by an officer of the National Republican Guard ( Guarda Nacional Republicana – hereinafter, “the GNR”) who ordered him to stop, to get out of the car, and to take a breath test using alcohol-screening devices. Instead of complying with the order, the applicant restarted the car and drove to the nearby GNR post located in Cesar (Oliveira de Azeméis ), where he stopped the car. The applicant was pulled out of the car, handcuffed and taken into custody in that same post by an unknown number of GNR officers.

According to the applicant ’ s submissions, he was physically assaulted by some GNR ’ s officers, first outside and later inside the post. He was kicked more than once outside the post while being handcuffed; once inside the post, the officers sat him on a chair, kicked him every once in a while, punched him until he fell off the chair and continued kicking him while he lay on the floor, where he was left for around one hour.

B. Criminal proceedings

On 1 August 2011 the applicant lodged a criminal complaint against unknown persons for physical assault ( ofensa à integridade física ) with the Oliveira de Azeméis public prosecutor ’ s office. He claimed that while he was in custody he had been violently kicked and punched by police officers. The same day, the applicant was subjected to a forensic medical examination. The conclusions of the examinations showed that the applicant had four abrasions on the head, one on the lips, one on the thorax and one on the right leg; he also had contusions, namely one on the head, one on the face and one on the thorax. According to the report, it was possible that the described injuries resulted from the alleged assault.

During the inquiry ( inquérito ), the Oliveira de Azeméis public prosecutor ’ s office heard evidence from witnesses called by the applicant, questioned the applicant himself, and conducted investigations for the purpose of identifying the perpetrators.

On 2 November 2012 the public prosecutor ’ s office decided not to bring charges against anyone on the grounds that different versions of the facts had been presented and it had not been possible to identify the perpetrators. By way of example the prosecutor referred to the fact that one of the defence witnesses had at first stated that she had not seen any of the alleged aggressive actions, but at a later stage she had identified one of the officers as one of the aggressors.

On 6 December 2012 the applicant requested the intervention in the proceedings of the hierarchical superior of the public prosecutor in charge of the case, and argued that more investigative acts could have been conducted to identify the perpetrators.

On 21 December 2012 the hierarchical superior of the public prosecutor in charge of the case agreed to the applicant ’ s request, ordering the hearing of evidence from the applicant and the defence witnesses and the identification of the officers on duty on the date of the alleged acts.

Following the decision by the prosecutor ’ s hierarchical superior, some investigative acts were repeated (the defence witnesses and the applicant were questioned again) and the officers on duty on the day of the alleged facts were identified, made defendants and questioned.

On an unspecified date in June 2013, the public prosecutor ’ s office decided not to bring charges against any of the defendants, as it had still not been possible to arrive at one single version of the facts in the light of the different versions that had been recounted by the applicant ’ s witnesses and the applicant himself.

On 23 September 2013 the applicant sought to intervene in the proceedings as an assistant to the public prosecutor ( assistente ) and challenged the previous decision, requesting that a judicial investigation be opened ( requerimento de abertura de instrução ).

On 27 November 2013 the applicant ’ s request to intervene in the proceedings as an assistant to the public prosecutor was granted.

On 2 March 2015 the investigating judge of the Aveiro Criminal Investigation Court issued a decision to dismiss the case ( despacho de não pronúncia ) in relation to five of the defendants and to indict ( despacho de pronúncia ) one of the defendants, D.G.

The decision to dismiss the case in relation to five of the defendants was founded on the fact that the forensic medical report did not correspond exactly to the assault the applicant claimed to have suffered, together with the lack of credibility of the statements made by both the applicant and some of the defence witnesses.

The investigating judge noted, in particular, that some of the defence witnesses and the applicant himself had presented different versions of the facts at the different stages of the proceedings and that it had therefore been impossible to identify the perpetrators. For instance, the applicant had at first stated that the first police officer addressing him did not ask him to take an alcohol screening test, whereas he later admitted that he had in fact done so. The defence witnesses all confirmed that the applicant had been kicked after being pulled out of the car. They all agreed that not all the officers had kicked him, but none of them could identify any one officer who specifically had kicked the applicant.

With regard to the connection between the assault complained of and the reported physical injuries, the investigating judge considered that these did not seem to correlate with each other, since the alleged assault would have resulted in many more physical injuries being recorded if it had been as violent as described.

Contrary to the evidence produced regarding the other five defendants, the witness statements concerning the actions of D.G. on the night of the events were consistent. In particular, one of the defence witnesses had consistently referred to that defendant having punched the applicant in the face. The injury resulting from this type of ill-treatment correlated with the results of the forensic medical report, which mentioned an abrasion on the applicant ’ s lips.

In April 2015 the applicant appealed against the decision to dismiss most of the defendants on the grounds that it was, in his opinion, evident that he had left the GNR post with injuries that he did not have before going there and that it was clear from the witness statements that he had been physically assaulted by some of the officers.

On 25 November 2015 the Porto Court of Appeal upheld the decision of the Aveiro Criminal Investigation Court.

At the time the applicant lodged his application with the Court (24 May 2016), the criminal proceedings against D.G. were still pending at first instance.

COMPLAINTS

Under Article 3 of the Convention the applicant complains that on 30 July 2011 he was ill-treated by the five GNR officers who were on duty at the Cesar GNR post and in relation to whom the case was dismissed by the domestic authorities.

Under Articles 3 and 6 of the Convention, the applicant also complains about the lack of an effective investigation into his allegations of physical assault by the five GNR officers in relation to whom the case was dismissed.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention ( Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VI, and Bouyid v. Belgium [GC], no. 23380/09, ECHR 2015)?

2. Having regard to the procedural protection from inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the domestic investigation into the charges of physical assault by the five GNR officers in relation to whom the case was dismissed in breach of Article 3 of the Convention?