Communicated on 13 June 2016

FOURTH SECTION

Application no. 37023/13 Maciej KANCIAŁ against Poland lodged on 28 May 2013

STATEMENT OF FACTS

The applicant, Mr Maciej Kanciał , is a Polish national who was born in 1985 and lives in Gdańsk .

The circumstances of the case

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

1. The investigation against the applicant

On 9 June 2011 the Gdansk Appellate Prosecutor ’ s Office opened an investigation into the kidnapping of J.R. The investigation was delegated to the police. The kidnappers had demanded a ransom of 1,000,000 euros from J.R. ’ s husband. Part of the ransom was paid on 15 June 2011.

The police identified a number of possible suspects, including the applicant, among the friends of J.R. ’ s family and employees of the family company. On 16 June 2011 the prosecutor ordered that the applicant and other suspects be arrested. The applicant and other suspects denied that he had been involved in the kidnapping. DNA tests had not confirmed the applicant ’ s and the other suspects ’ involvement. They were released on 18 June 2011. In the ensuing investigation, the police arrested the actual kidnappers.

On 20 April 2012 the prosecutor discontinued the investigation against the applicant and other suspects, having found that they had not committed the alleged offence. The prosecutor noted that the evidence available as of 16 June 2011 had fully justified the decision to arrest the applicant and other suspects.

2. The applicant ’ s arrest and the investigation into the alleged abuse of powers by the police

On 16 June 2011 the applicant was arrested by a special police squad on suspicion of kidnapping. On the following day he was charged with that offence and questioned by the Gdansk Appellate Prosecutor. The applicant was released on 18 June 2011.

On 27 June 2011 the applicant made a criminal complaint against police officers in connection with his arrest. He alleged that he had been ill-treated during his arrest and while subsequently in police custody. The applicant attached a copy of a medical examination report of 17 June 2011, which attested to bruises on his face and wrists and included photographs documenting his injuries.

The applicant ’ s criminal complaint was transferred for examination to the Bydgoszcz Regional Prosecutor ’ s Office. On 27 July 2011 the Bydgoszcz Regional Prosecutor instituted an investigation into the allegation of abuse of powers by the police officers under Article 231 of the Criminal Code.

On the same day the applicant was heard as a witness. He stated that on 16 June 2011 he and his girlfriend had visited their friends, Ł .W. and D.W. in their flat in Tczew . A sister of D.W. was present too. Between 6 and 7 p.m. the applicant had heard some explosions. Shortly after this a group of armed and masked police officers had stormed the flat. The applicant and others had followed the police orders to get down on the floor. The applicant had seen one of the police officers hit Ł.W. in the face with a rifle and Ł.W. bleeding. The other police officer had kicked the applicant in the face. The applicant had also been hit in the head, back and legs. Later, one of the officers had handcuffed him. The applicant alleged that electroshock weapons had been used on his back, buttocks, genitals and ears. One of the police officers had pressed the applicant ’ s face into a pool of Ł.W. ’ s blood on the floor. When being taken to a police car he was stifled. In the police car, electroshock weapons were continually used on the applicant ’ s back until he started suffocating. The applicant was taken to a police station, where he was made to kneel down in front of a wall for half an hour. The police wanted to know where the money was and who he had worked with to kidnap a woman. The applicant was forced to sign a document which he could not read. The applicant was then taken to a police detention facility in Gdynia. The following day he was taken to a hospital for a medical examination. Subsequently, a prosecutor charged the applicant with kidnapping. The prosecutor had apparently noted the applicant ’ s injuries and informed him that a separate complaint was necessary in respect of ill-treatment. The applicant was released on 18 June 2011 at 10 a.m. After his release, the applicant went to a hospital in Gdansk for a medical examination. He also consulted a surgeon, a neurologist and a psychologist.

The prosecutor noted that due to a technical error it had not been possible to examine the CCTV footage dated 17 June 2011 from the Gdansk Appellate Prosecutor ’ s office (“the prosecutor ’ s office”).

The prosecutor established that on 9 June 2001 the prosecutor ’ s office had opened an investigation into the kidnapping of J.R. and a ransom demand of 1,000,000 euros (EUR). On 16 June 2011 the appellate prosecutor from that office ordered the arrest of a number of suspects, including the applicant and his girlfriend.

The prosecutor heard evidence from other individuals arrested with the applicant.

The applicant ’ s girlfriend stated that police officers in balaclavas and bulletproof vests had forced the door of the apartment. One of the officers had handcuffed her. The applicant ’ s girlfriend had heard the applicant screaming and had seen blood on the floor of the flat. She had been taken to a police station, where she was threatened with an electroshock weapon. After her release, she had seen the applicant with a swollen face, a black eye and his back covered with little scabs from the electroshock weapon.

Ł.W. testified, inter alia , that the police had forced the door and thrown a stun grenade into the apartment. The police officers had ordered everyone to get down on the floor. One of the officers had hit Ł.W. in the face with his rifle. He had also hit Ł.W. on the side of the head and the back. Ł.W. stated that the applicant had been kicked and hit by three police officers and that the electroshock weapon had been used on him. All the officers were wearing balaclavas and bulletproof vests. While being taken to the police station, Ł.W. had been hit in the face by a police officer. He had been made to kneel for an hour. After his release he had been treated by a doctor for, inter alia , a cut on his face.

D.W. stated that one of the police officers had hit her husband, Ł.W., in the face with a rifle. Z.M. confirmed this. Ł.W., D.W. and Z.M. were arrested on suspicion of possession of drugs.

The prosecutor ordered that a forensic opinion on the applicant ’ s injuries be prepared. This was done, and the forensic opinion stated that the applicant had sustained swelling of the right wrist, tenderness of the left temple, and swelling of the left side of the face, with haematomas and abrasions on his wrists and his back. The applicant also had haematomas on his left arm, the side of his torso and below his navel, and abrasions on his knees. The forensic expert stated that the haematomas on the face and torso could be linked with being kicked; however, being kicked with military ‑ type boots would be more likely to have caused abrasions or bruises. The expert further stated that the angular abrasions on the applicant ’ s back could have resulted from the use of an electroshock weapon. The forensic opinion concluded that the applicant ’ s injuries had resulted in impairment to his health for a period not exceeding seven days.

The prosecutor also heard evidence from the police officers. She established that the arrest had been carried out by a special police squad composed of eight officers. They had been accompanied outside the flat by another seven police officers from the Gdansk Central Bureau of Investigation. The police had considered it necessary to use the special squad because the suspects had been involved in a kidnapping, their methods had been brutal, and there was a risk that they possessed dangerous implements. Members of the police squad were equipped with rifles. They had worn balaclavas, bullet-proof vests and helmets on the occasion. The police squad had forced the door open and used a stun grenade. The applicant was arrested by officer Z.R. This officer stated that the applicant had refused to be handcuffed and had kept his hands down. Given the risk that the applicant might have a firearm, officer Z.R. had decided to use an electroshock weapon on the applicant. The applicant was then arrested. Members of the special squad stated that they had not used any other force.

On 26 July 2012 the Regional Prosecutor discontinued the investigation against the police officers for lack of sufficient evidence of a criminal offence.

The prosecutor found that members of the special squad had explained in detail the course of the arrest and the manner of using coercive measures. The members of the special squad had stated that they had only used measures which were justified by the situation. The officers had categorically denied that they had hit, kicked or hit with a rifle any of the arrestees. The electroshock weapon had been used only against the applicant, because he had refused to follow the orders of officer Z.R. The prosecutor found that the arrestees could have sustained some unintended injuries as a result of the use of a stun grenade in a small flat.

The prosecutor noted that the applicant had not recorded any objections to the manner of his arrest in the arrest report, despite the allegedly drastic actions of the police officers. Furthermore, on 11 October 2011 the GdaÅ„sk ‑ PoÅ‚udnie District Court had dismissed the applicant ’ s appeal against the decision of the GdaÅ„sk prosecutor of 16 June 2011 ordering his arrest. The court had found that the arrest had been carried out lawfully.

In conclusion, the prosecutor accepted that the applicant had sustained the injuries described in the forensic opinion. Nonetheless, having analysed the totality of the evidence in the case, the prosecutor could not unequivocally establish that the injuries had resulted from the officers ’ actions. The police officers had presented a consistent version of events. Having regard to the principle of in dubio pro reo , the prosecutor decided to discontinue the investigation for lack of sufficient evidence of the alleged offence.

The applicant appealed against the prosecutor ’ s decision. He alleged that the prosecutor ’ s assessment of the evidence had been one-sided and had been aimed at exonerating the police officers concerned. In particular, the applicant claimed that the prosecutor had disregarded the fact that the decision to arrest him was not supported by sufficient indications that he had been involved in the kidnapping of J.R. Hence, the reliance on the argument that he and other suspects had to be arrested quickly and that they were dangerous was entirely arbitrary.

The applicant argued that he had not presented any danger to the police and that the police had acted in a brutal manner. He submitted that it was undisputed that he had sustained numerous injuries in the course of his arrest, as this had been confirmed by the forensic opinion. Those injuries could not have resulted from anything but ill-treatment on arrest, namely the use of an electroshock weapon, being hit with a rifle, and being kicked. The applicant also underlined that all the arrestees had consistently described brutal behaviour on the part of the police officers. All the arrestees had confirmed that none of them had offered any resistance and that they had all followed the police orders.

On 18 March 2013 the Gda ń sk-P ół noc District Court upheld the prosecutor ’ s decision. It found that the prosecutor had correctly assessed the evidence in the case and had reached proper conclusions.

COMPLAINT

The applicant complains under Article 3 of the Convention that he was ill-treated by the police. He asserts that before his arrest he was in good health, while on release he had numerous signs of beating on his face and body and of the use of an electroshock weapon.

In respect of the investigation into his ill-treatment, the applicant complains that the assessment of the evidence by the prosecutor was aimed at exonerating the police. The applicant also contested the prosecutor ’ s decision, given the independent acknowledgment of his injuries.

QUESTIONS TO THE PARTIES

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

2. Having regard to the procedural protection from torture or 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?