Communicated on 12 January 2017

FOURTH SECTION

Application no. 65290/14 R. S . against Hungary lodged on 26 September 2014

STATEMENT OF FACTS

The applicant, Mr R. S . , is a Hungarian national who was born in 1980 and lives in Püspökladány . He is repres ented before the Court by Mr T. Fazekas , a lawyer practising in Budapest.

The circumstances of the case

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

On 6 March 2010 the applicant got into a fight in a car park in front of a nightclub in Püspökladány , apparently under the influence of alcohol and drugs. The incident was reported to Püspökladány police station.

The applicant asserts that around 3 a.m. he and his girlfriend were sitting in his car, not in traffic, pulled over to the side of the road, when patrolling police officers approached them. According to the file produced in the subsequent criminal proceedings, the applicant refused to take a breathalyser test for alcohol. Following an identity check and a search, he was handcuffed and taken to Püspökladány police station to be held for questioning ( előállítás ), on suspicion of having committed an offence. According to the police reports, the police officers believed that he was under the influence of either alcohol or drugs.

At the police station the applicant started to insult the police officers and was handcuffed again and placed in leg restraints, during which time he suffered injuries. He was then transported to the Püspökladány medical emergency service by four police officers for a blood and urine test.

The applicant asserts that he told a doctor that he was unable to urinate, but would give a sample later. According to the police reports, the applicant was “uncooperative, making the insertion of a catheter necessary”, and was “violent and resisted the procedure”. Furthermore, “it was necessary to physically restrain him and have recourse to force” to obtain the necessary urine specimen.

The doctor on duty proceeded with the applicant ’ s catheterisation while the latter ’ s arms were handcuffed. Afterwards, t he doctor cut the applicant ’ s shirt and took a blood sample. He also issued a medical report on the applicant ’ s injuries.

On 22 April 2010 the applicant was fined 50,000 Hungarian forints (HUF – approximately 180 euros (EUR)) for the offence of failing to comply with police measures. That decision was subsequently overturned, and the minor offence proceedings discontinued by a decision of the Püspökladány District Court of 22 April 2011. Furthermore, criminal proceedings were instituted against the applicant in respect of charges of disorderly conduct, drunk driving, and violence against a representative of public authority.

The applicant lodged a complaint with the Independent Police Complaints Board (“the Board”), challenging the use of handcuffs and leg restraints, his being held for questioning, the ill-treatment at the hands of the police officers, and the forcible taking of urine and blood samples. The Board inquired with the doctor on duty about the incident, who stated in his reply that the applicant had agreed to the insertion of a catheter before a number of witnesses, and that he had interpreted the fact that the applicant had removed his clothes as consent to the procedure. According to the doctor, the applicant had been cooperative and had only turned violent at a later stage.

The Board commissioned an expert opinion from the Executive Medical Doctor of the Budapest Institute of Forensic Medicine, who stated that, although some medical institutions required written consent for catheterisation , this was not the policy of the majority of institutions. In his opinion, such a procedure was not general practice, and recourse to “emergency” intervention was professionally unreasonable. In any event, according to professional guidelines, if a urine test could not be carried out, a blood test was sufficient.

In its opinion of 4 August 2010 the Board found that the use of handcuffs had been legitimate and that the alleged ill-treatment could not be established. However, as regards the catheterisation and the use of leg restraints, the Board concluded that these measures had infringed the applicant ’ s right to dignity, physical integrity, health and a fair trial.

A complaint by the applicant against the police measures, lodged with the National Police Service, was dismissed on 26 October 2010. The decision established that the applicant had agreed to his catheterisation and had only been restrained to prevent him from causing injuries to himself or the doctor. Moreover, the forcible taking of a sample was justified in situations where there were grounds to believe that the driver of a vehicle was under the influence of alcohol or drugs.

The applicant sought judicial review of the decision. On 7 February 2012 the Budapest Regional Administrative and Labour Court dismissed his action. It observed that the procedure had been in compliance with the provision of Act no. XXXIV of 1994 (“the Police Act”) setting out that a police officer could oblige a driver to provide a sample of breath, blood and urine for the purposes of a test. The court also indicated that the question as to whether consent was required for catheterisation, and whether the procedure should not have been carried out against the applicant ’ s will, was outside the scope of its examination. The court also took note of several witness testimonies and concluded that the use of leg restraints could not be established in the applicant ’ s case.

The applicant lodged a petition for review with the Kúria arguing that the first-instance court had failed to establish the facts of the case. In particular, it had not commissioned a medical report capable of substantiating the use of leg restraints, had not heard him in person, and had drawn erroneous conclusions as regards his consent to the catheterisation. The applicant further submitted that the first-instance court had erred in defining the characteristics of the medical examination, since it had been neither obligatory under the provisions of the Police Act, nor reasonable or proportionate according to medical standards.

The Kúria upheld the first-instance judgment on 25 March 2014, endorsing its reasoning. The judgment was served on the applicant on 11 July 2014.

COMPLAINTS

The applicant complaints that his forcible catheterisation in order to obtain evidence of a drug offence constituted inhuman and degrading treatment prohibited by Article 3 of the Convention, and an unjustified interference with his private life as protected by Article 8 of the Convection.

Relying on Article 3 of the Convention, he also submits that the use of leg restraints amounted to degrading treatment.

He further claims that the investigation into his allegations of ill-treatment was ineffective.

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 paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?

3. Has there been an interference with the applicant ’ s right to respect for his private life, within the meaning of Article 8 § 1 of the Convention?

4. If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?