Communicated on 8 December 2017

FIRST SECTION

Application no. 76813/16 Robert KUCHTA and Sebastian M Ę TEL against Poland lodged on 2 December 2016

STATEMENT OF FACTS

The applicants, Mr Robert Kuchta (“the first applicant”) and Mr Sebastian M ę tel (“the second applicant”), are Polish nationals who were born in 1976 and 1980 respectively and live in Cracow. They are represented before the Court by Mr A. Majewski , a lawyer practising in Cracow.

A. The circumstances of the case

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

1. Background

During the night of 6 and 7 February 2015 the second applicant ’ s neighbour was attacked with a knife in Cracow. The police received information that the persons involved in the attack were hiding in the second applicant ’ s flat.

2. The applicants ’ account of the events of 7 February 2015

After midnight the police officers began banging on the door to the second applicant ’ s flat. The second applicant lived there with his girlfriend (K.G.) and their five-month-old baby girl (N.). Since he thought that someone was trying to break in he called the emergency number, 112. The person who took the call informed him that this was a police intervention and he should open the door. During the telephone conversation the police officers broke the door down and entered the flat, spraying tear gas around.

As soon as the officers entered the flat they threw the second applicant to the ground. He submits that they started hitting and kicking him; they also sprayed tear gas directly into his face.

When the officers discovered that there was a baby in the flat, and as it was not sure whether she had been affected by the tear gas, an ambulance was called. K.G. and N. were taken to a hospital for examination. While she was in the ambulance K.G. called the first applicant, who is the second applicant ’ s friend, informing him of the situation and asking him to come to the flat.

Shortly afterwards the first applicant arrived at the flat. As soon as he entered the flat he was hit in the face by one of the officers and thrown to the ground. He was handcuffed and the officers began kicking him, hitting him with truncheons and twisting his leg (in which he has metal bolts, about which he had informed the officers).

During that time, other officers were searching the flat in order to find the weapon (which they believed to be a knife or a machete) allegedly used in the attack.

No weapon was found and the applicants were transported to a police station for further questioning. On their arrival they were ordered to undress and were handcuffed. They were also again beaten. The first applicant was allegedly kicked by one of the officers in his bad leg.

Both applicants repeatedly asked the officers to call an ambulance and inform their lawyers of their arrest.

The first applicant was taken to a hospital emergency ward when the officers noticed that his condition was deteriorating.

A few hours later, after the new officers ’ shift had come to work in the morning, the second applicant was also transported to a hospital emergency ward.

3. Medical examinations

Both applicants were brought by the police to the emergency ward of the Ministry of the Interior and Administration Hospital in Cracow in the early hours of 7 February 2015.

Regarding the first applicant, the doctor on duty noted that he had a broken left tibia, a swollen and painful knee and a hematoma on his forehead. He had 60 millilitres of fluid extracted from his knee and his left leg was put into a long plaster cast ( szyna gipsowa ).

The second applicant was diagnosed with numerous hematomas on his head and neck, a nose bleed, bruising to his chest, pain in the stomach, and bruising to his back and left leg.

Both applicants were released from detention on 9 February 2015.

On the same day they went to the medical examinations laboratory at the Faculty of Forensic Medicine of the Jagiellonian University in Cracow ( Pracownia Ekspertyz S Ä… dowo Lekarskich , Katedry Medycyny Sadowej UJ CM ) were they both underwent body searches ( ogl Ä™ dziny lekarskie ).

In his opinion delivered on that day, the doctor who examined the applicants noted that the first applicant had a slight swelling on his right brow ridge and right cheek, hemophthalmia in respect of the right eye, swelling on the left side of his face, pain in his nose, slight swelling over the lower part of the occipital bone, a stiff neck, bruising on both wrists, bruising on both hands, long bruises on his buttocks and thighs, and a long plaster cast on the left leg.

In his opinion regarding the second applicant the same doctor noted that he had bruising around his left eye and around his nose, bruising around his right eye and slight swelling over the right zygomatic bone, slight swelling around his left ear, bruising on the left side of his neck, slight swelling on and pain in the nape of the neck, bruising on his chest, bruising and abrasions on his wrists, bruising and slight swelling on his left thigh, bruising and abrasions on his left knee, more bruising on his lower legs, a long bruise on his right thigh, abrasions and bruising on his right knee, and bruising on his left and right forefeet.

4. Criminal proceedings in respect of the allegations of ill-treatment

On 2 April 2015 the applicants asked the Cracow Nowa-Huta District Prosecutor to institute criminal proceedings.

On 29 April 2015 the Cracow- Nowa Huta District Prosecutor instituted an investigation into the alleged abuse of powers by the police officers on the night of 7 February 2015.

During the proceedings the prosecutor heard evidence from several witnesses (the applicants, eighteen police officers, the second applicant ’ s partner and her friend, the firefighters who had participated in the intervention and the medical staff from the ambulance), obtained a report from an expert psychologist and a report from the Forensic Department of the Cracow University.

The applicants asked that the case be referred to a prosecutor in a different district; however, their request was refused.

On 29 February 2016 the Cracow- Nowa Huta District discontinued the proceedings regarding the applicants ’ allegations of ill-treatment, holding that there was not enough evidence to conclude that the alleged offences had indeed been committed.

With regard to the injuries sustained by the first applicant the prosecutor noted in particular that the broken left tibia could have been sustained in the manner described by the applicant and that the other witnesses (police officers) had not submitted any other credible explanation for the origin of that injury. Moreover, the hemophthalmia of the right eye could have been caused by the use of force or it could have been the result of excessive physical effort. Since the first applicant had had no visible injuries around his right eye socket and no ophthalmologic examination had been undertaken after the incident it was not possible to determine the origins of that injury. Lastly, the long bruises on the first applicant ’ s right thigh could have been caused by a long linear tool and could have occurred as described by the applicant. On the other hand, the testifying officers had not described any circumstances which could have explained the origins of these injuries.

With reference to the injuries sustained by the second applicant the prosecutor described numerous bruises and hematomas and concluded that they had been caused by a hard blunt object. However, there had been no specific features which could have allowed a more detailed description of that object. As regards the alleged broken coccyx, in an opinion dated 26 February 2015 a radiologist had not described this injury in detail but had had merely stated that “it appears there is a broken coccyx”. However, this injury had not been confirmed by an X-ray examination; the radiologist had based his description solely on the second applicant ’ s complaint.

The prosecutor concluded that there were two contradictory versions of the events of 7 February 2015: that presented by the applicants and that presented by the police officers. Neither of these versions had been confirmed by the adduced evidence. Moreover, the prosecutor noted that the applicants had been charged with assaulting and insulting police officers and causing light bodily harm, so it could not be excluded that they had instituted proceedings as part of a line of defence.

Lastly, the incident had been dynamic – the officers had acted in a life ‑ threating situation. They had undertaken measures against a person suspected of an assault with a knife; they had not known who else had been in the flat. The applicants had not been passive during the intervention; consequently they could have sustained superficial injuries as a result of the struggle and the arrest.

Having regard to the in dubio pro reo principle, the prosecutor discontinued the proceedings for lack of sufficient evidence that the alleged offence had been committed.

On 14 March 2016 the applicants ’ lawyer lodged an appeal against this decision, pointing to numerous procedural and material errors committed by the prosecution authorities.

On 20 July 2016 the Cracow- Nowa Huta District Court upheld the prosecutor ’ s decision. The court shared the prosecutor ’ s conclusion that there was no sufficient evidence that the alleged offences had been committed. The decision is final.

B. Relevant domestic law and practice

The relevant part of section 16 of the Police Act of 6 April 1990 ( Ustawa o Policji ) reads:

“1. If a lawful order given by a police authority or police officer has not been complied with, a police officer may apply the following coercive measures:

1) physical , technical and chemical means to restrain or escort persons or stop vehicles;

2) truncheons ;

...

2. Police officers may apply only such coercive measures as correspond to the exigencies of a given situation and are necessary to ensure that their orders are obeyed.”

COMPLAINTS

The applicants complain under Article 3 of the Convention that at the time of their arrest on 7 February 2015 and during their questioning at the police station they were subjected to inhuman and degrading treatment. They also complain , invoking Article 6 of the Convention, that the investigation into the events complained of was not “thorough and effective”.

QUESTIONS TO THE PARTIES

1. Were the applicants subjected to inhuman or degrading treatment during their arrest, in breach of Article 3 of the Convention? In particular, was the force used by the police officers to arrest the applicants appropriate and proportionate in the circumstances (see Bouyid v. Belgium [GC], no. 23380/09, § 88, ECHR 2015) ?

2. As regards the procedural aspect of Article 3, was the investigation in the present case “thorough and effective”, as required by this provision (see Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV, § 131)?