Communicated on 29 November 2017

FOURTH SECTION

Application no. 40885/16 István PÓSA against Hungary lodged on 19 April 2016

STATEMENT OF FACTS

1. The applicant, Mr István Pósa , is a Hungarian national who was born in 1975 and lives in Őrbottyán . He is represented before the Court by Mr I. Szikinger , a lawyer practising in Budapest.

A. The circumstances of the case

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

3. In 2011, criminal proceedings were initiated against the applicant on suspicion of involvement in an armed robbery. On 2 October 2011 the Pest county police requested the assistance of the police ’ s Anti-Terrorism Task Force (“TEK”) in the arrest of the applicant.

4. On 3 October 2011 at 1.40 a.m. a TEK unit appeared at the applicant ’ s home and ordered him to come out from the house backwards and on his knees, lie on the ground and put his hands behind his back for handcuffing. The applicant objected that he was unable to do so because of his disability (he had suffered serious injuries previously when he had jumped from the eighth floor of the National Police Headquarters attempting suicide), but otherwise complied with the order: he left the house backwards in a crouched position and lay down. Given his corpulence, the applicant was unable to put his wrists sufficiently close to each other behind his back. Two TEK officers knelt on him and forced, twisted and kicked his arms, while a third one, standing at his head, hit him with a blunt object. When they at last managed to handcuff the applicant, he was pulled, with his knees on the gravelled ground behind the TEK car standing in front of the applicant ’ s house, where he was kicked several times and was then forced into the car. In the car, he was also punched repeatedly.

5. The applicant ’ s wife and two minor children were also present at the scene.

6. The applicant ’ s arrest was videoed by the TEK and an edited and cut version (of forty-eight seconds ’ length) thereof was made available to the media.

7. According to the relevant TEK report, the applicant was examined on the spot by a doctor of the TEK and was found to be uninjured. On 3 October 2011 at 3 a.m. he was handed over to the Budaörs police.

8 . At 3.00 p.m. on the same day the applicant was transferred to the detention facility of the National Investigation Office. On that occasion, at 3.30 p.m., he was examined by a doctor of the Institute for Forensic Sciences ( Bűnügyi Szakértői és Kutatóintézet ) and then, around 7.30 p.m., at Szent János Hospital.

9. According to the examinations conducted in the afternoon and evening of 3 October 2011 (see paragraph 8 above), the applicant suffered bruises to his arms and back as well as abrasions to his back and his left knee.

10. On the basis of the medical findings, the National Investigation Office initiated e proprio motu criminal proceedings in the context of the applicant ’ s potential ill-treatment in official proceedings, under Article 226 of the Criminal Code in force at the material time (Act IV of 1978).

11. On 14 October 2011 the prosecutor requested further factual clarifications and documents from different authorities, in order to decide whether an investigation was necessary.

12. On 29 February 2012 the prosecutor requested a copy of the original video recording on the applicant ’ s arrest.

13. On 5 September 2012 the prosecutor discontinued the investigation. He found that, although the applicant had suffered injuries during his arrest, it could not be established that those injuries had resulted from a deliberate offence, rather than from a police operation carried out lawfully and in compliance with the relevant regulations. He also noted that the video recordings of the applicant ’ s arrest were no longer available, as they had been destroyed following the statutory thirty-day period, during which they could have been obtained for the purposes of an investigation. Although the edited version of the recordings was available, it did not contain the footage of the applicant ’ s handcuffing.

14. The applicant ’ s complaint against the decision was dismissed on 16 November 2012.

15. The applicant brought a private prosecution, acting as a substitute private prosecutor under Articles 229-30 of the Criminal Procedure Code, against the TEK officers who had carried out his handcuffing.

16. On 5 February 2015 the Budapest Surroundings High Court dismissed the charges and acquitted the defendants. The High Court held that the offence of ill-treatment in official proceedings could only be committed intentionally, whereas the applicant ’ s injuries (which had required a healing time of less than eight days) had been caused unintentionally by a lawful, necessary and proportionate measure. It noted the forensic medical expert opinion, according to which the applicant ’ s injuries may have resulted from a lawfully conducted handcuffing and which did not corroborate the applicant ’ s account as regards the alleged blows to his head. The forensic medical expert had also held that the compression and misalignment of the applicant ’ s lumbar vertebrae, detected during the medical examinations, had not been connected to the handcuffing but had resulted from a previous injury. From the medical reports and the expert opinion the High Court inferred that, beyond the actual handcuffing, the applicant ’ s injuries did not corroborate any other interference with the applicant ’ s physical integrity.

The High Court accepted that the prosecutor had only deemed it necessary to acquire the recordings of the applicant ’ s arrest in the light of other documents and witness statements that it had been possible to gather only after the expiry of the time-limit for the obligatory destruction of the TEK recordings.

17. The applicant appealed against the judgment.

18. On 9 February 2016 the Budapest Court of Appeal upheld the first instance judgment.

B. Relevant domestic law

19. The Criminal Code (Act no. IV of 1978), as in force at the material time, provided as follows:

Article 226 Ill-treatment in official proceedings

“(1) Any public official who physically abuses another person during his or her official duties is guilty of an offence punishable by imprisonment of up to three years.

(2) Any person who engages in preparations for the criminal act referred to in subsection (1) is guilty of a misdemeanour punishable by imprisonment of up to one year.”

20. The Police Act (Act no. XXXIV of 1994), as in force at the material time, provided as follows:

Section 42

“(1) The police may make [video recordings, take still photographs], make sound recordings or make video and sound recordings of a person subject to a [police operation], of his or her surroundings, or of a circumstance or object that is of importance for the operation in question.

(6) The recording made under subsection (1) ... may only been used for the purposes of criminal ... proceedings concerning an offence ... committed at the scene of the recording ... or for the purposes of an examination, in administrative proceedings, of the lawfulness of a police operation, or for the defence of the rights of the person concerned.

(7) If it is not needed for the procedure described in subsection (6) above or for the other purposes enumerated therein,

a) the recording made in application of subsection (1) shall be deleted when thirty days have elapsed from the time of the recording.

Section 42/A

“(1) Within the time-limit set out in section 42(7) ... and for the purposes of [its statutorily defined] crime prevention ... activity, the investigating authority, ... the prosecutor, the court ..., [and] the person concerned – for the defence of his or her rights –... may request [access to] the recordin g made under section 42(1) ... ”

COMPLAINT

The applicant complains under Article 3 of the Convention of ill-treatment allegedly sustained in the course of his arrest, as well as of the lack of a thorough and effective investigation into his grievances.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention?

2. Having regard to the procedural protection from inhuman or degrading treatment (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention? Did the competent authorities act with the required diligence and promptness (see Menesheva v. Russia , no. 59261/00, § 67, ECHR 2006 ‑ III; M. and Others v. Italy and Bulgaria , no. 40020/03 , § 100, 31 July 2012; and Zalevskiy v. Ukraine , no. 3466/09 , § 51, 16 October 2014) in securing the evidence concerning the applicant ’ s case, in particular the video recording of his arrest?