Communicated on 22 March 2016

FOURTH SECTION

Application no. 44153/15 Ryszard SKORUPA against Poland lodged on 31 August 2015

STATEMENT OF FACTS

The applicant, Mr Ryszard Skorupa, is a Polish national, who was born in 1951 and lives in Czerwionka-Leszczyny.

The circumstances of the case

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

1. Background

The applicant is a 62-year old man.

On 12 March 2014 at 9 p.m. he was stopped by two police officers when he was on his way home from a nearby bar. He was then taken to a local sobering-up centre from which he was released the following day at about 11:30 a.m.

2. The applicant ’ s arrest and placement at the sobering-up centre

(a) Submissions by the applicant

On the day of the incident, the applicant had a beer in the early afternoon at home and then, two 0.5 litre-beers and one not full bottle of beer in the bar where he stayed from 4:30 to 7:30 p.m.

On his way home the applicant had impression of walking straight. Three hundred meters away from his house, he saw a female police officer calling to him “Sir, are you feeling unwell?” A police car was parked nearby in the street and a male police officer was standing next to it. The applicant replied that he was all right. The policewoman told the applicant politely that he was walking on the wrong side of the road and that he was staggering. She also inquired about the scratch on his forehead and asked the applicant to show his identity card. The applicant told the policewoman that his ID was at his house which was nearby. The applicant refused to tell his surname.

At this point the male police officer approached and immediately, without any warning, twisted the applicant ’ s arms behind his back and pushed him in a way that the applicant hit his head against the police car. The policeman handcuffed the applicant ’ s arms behind his back. The applicant mocked the police officer and refused to get into the police car. The policeman pushed the applicant onto the car ’ s floor. The applicant was driven to the police station situated 500 m farther down the road (in the same street as his home).

He was then walked inside by the male police officer and pushed into the cell so violently that he fell on the floor. This position was very uncomfortable to the applicant but he did not ask that his handcuffs be loosened up. The applicant was verbally insulted by an unidentified police officer. Later, an unidentified police officer loosened (or, in another part of the applicant ’ s submissions, taken off) the applicant ’ s handcuffs and then kicked him several times in the chest, ribs and the abdomen. The applicant later told the doctor appointed for the purpose of the investigation (see below) that that treatment had not left any visible traces, all the injuries described in the certificate of 13 March 2014 (see below) being the result of the treatment at the sobering-up centre.

The applicant was later taken to the Zabrze sobering-up centre, which is situated 35 km away from his home. During the 25-minute ride he was on the car ’ s floor with his arms still handcuffed behind his back, despite his requests to take them off.

Upon his admission to the sobering-up centre, he was insulted and beaten by two staff members. He received at least 30 blows to his face and chest. The police officer who had escorted the applicant to the sobering-up centre witnessed the beating. The applicant ’ s further account of these events contains the following divergence. The applicant told the doctors who later examined him that the beating had been in revenge for his refusal to take a breathalyser test. When testifying to the police, his refusal to take the breathalyser test constituted his own revenge for the beating.

Ultimately, the applicant undressed and was taken away. His multiple requests to call for a doctor and to telephone his wife remained unanswered. The applicant was told to keep quiet otherwise the person with whom he was sharing the room would hurt him.

The breathalyser test taken by the applicant the next morning at about 11 a.m. was negative. A doctor arrived when the applicant was already dressed and was waiting to be released. The applicant left the sobering-up centre at about 11:30 a.m.

(b) Submissions by the applicant ’ s son

The applicant ’ s son, who collected the applicant from the sobering-up centre in the morning of 13 March 2014 testified that he had seen bruises on the applicant ’ s face and redness on his chest.

(c) Submissions by the applicant ’ s fellow patient

A certain P.P. who was admitted to the sobering-up centre right after the applicant testified that the applicant had told him that he had been beaten by the police officers and the sobering-up centre ’ s staff.

(d) Submissions by the arresting officers

(i) Female officer

The female police officer testified that the applicant had been walking on the road, staggering. He was nearly run over by several cars. When called, the applicant started walking away. He then refused to answer any questions, asked to be left alone and addressed the officers as “little girl” and “little boy”. The officers moved the applicant off the road.

The applicant became agitated, tried to walk away and then, to walk onto the road. He was also clenching his fists and mumbling insults and threats at the police officers. Unable to make the applicant stand still and to obtain any coherent information from him, the police officers handcuffed the applicant ’ s arms behind his back and sat him on the back seat of the police van. The female officer sat in front of the applicant. Inside the van, the applicant tried to stand up and ultimately, he sat down on the floor leaning against the back seat.

The applicant did not say that he lived nearby and that he could fetch his identity card from home.

The male officer told the applicant that he was handcuffing him. He did not push the applicant against the car or onto the floor. The applicant was handcuffed because he was aggressive and he was clenching his fists and trying to walk away, because he did not stand still or answer questions, and because he shouted at the police officers.

(ii) Male officer

The male officer corroborated all of his colleague ’ s submissions. He stated that the applicant had a passive aggressive attitude. He used force to place the applicant in the police van by pushing his shoulders.

It was decided not to take the applicant to his house to avoid a family argument.

The male officer denied pushing the applicant onto the police van, pushing him inside of the police station or witnessing anyone insulting the applicant or kicking him in his abdomen or ribs.

(e) Submissions by the officers of the Czerwionka police station

Two officers from the Czerwionka police station testified that the applicant had not had any visible injuries when he had arrived and that he had not voiced any complaints. The applicant was visibly inebriated.

His handcuffs were changed at the police station. They were not too tight on the applicant ’ s wrists.

The police officers did not witness that the applicant was beaten or insulted at the station.

He was taken to the sobering-up centre in Zabrze. One police officer drove the car and the other one sat with the applicant at the back. The applicant uttered threats, confusing the two police officers who were driving him with those who had taken him from the road.

One police officer did not remember if the applicant had been examined by a doctor upon his arrival at the sobering-up centre. The other one stated that he had not seen any doctor examine the applicant.

There was no quarrel or commotion. The officers did not see anyone at the sobering-up centre hitting the applicant.

(f) Submissions by the employees of the sobering-up centre

(i) Guards

The two employees of the sobering-up centre who were present at the applicant ’ s admission, testified that whenever a person was admitted a breathalyser test was proposed and a doctor was present unless the person concerned refused to be examined.

The men denied that they had hit or insulted the applicant. One of the employees stated that the applicant had been aggressive, waving his arms and uttering threats. It was therefore necessary to use a withholding-grip for 30 seconds.

(ii) Doctor on duty

Doctor A.D. who was on duty at the sobering-up centre on 12 March 2014, testified that she did not remember the applicant. She also submitted that she was always present whenever a person was being admitted; she always asked whether the person concerned wished to be medically examined. Whenever she saw that the person concerned was unwell, she called for an ambulance and the person was then taken to the hospital for a further examination. If the person refused to be examined, she would make a record of any visible injuries but would not touch the person and would not use the stethoscope. If the person refused to take a breathalyser test, the doctor would check the approximate level of intoxication by observing the person ’ s talk, movements and smell. A written entry at the sobering-up centre ’ s record would be made to this effect. The place where such examination took place was monitored via a camera.

The doctor also submitted that she had seen the video-recording of her attempt to examine the applicant. The image shows that she put on her rubber gloves and approached the ap plicant with a stethoscope. The applicant made an abrupt movement and the doctor got scared of him. The applicant was withheld by the guards of the sobering-up centre. He refused to be examined and to take the breathalyser test.

If the doctor remembered correctly, the applicant had not had any visible injuries and had not voiced any complaints.

She remembered that the applicant had been uttering threats. The doctor did not witness any beating of the applicant at the sobering-up centre.

The doctor was present at the applicant ’ s admission for several minutes.

She made an entry in the sobering-up centre ’ s records that the applicant had not wanted to say how much alcohol he had consumed and had not wanted to take the breathalyser test. His inebriation was confirmed by his staggering, unintelligible talk and smell of alcohol.

( iii ) Head of the sobering-up centre

The Head of the sobering up centre testified that the area where patients undressed and were examined, which was called an intimacy zone, was left invisible to the monitoring system.

He submitted that on 12 April 2014 the applicant had complained to him about his ill-treatment by the sobering-up centre ’ s employees. Following this complaint he watched the video recording of the applicant ’ s admission to the sobering-up centre. The last time he viewed the recording was in early May 2014.

The recording showed Doctor A.D. approaching the applicant twice, holding a stethoscope and a breathalyser in her hands. The recording also showed one employee on duty suddenly rushing towards the applicant and the doctor leaving the room soon afterwards .

The Head of the sobering-up centre did not save the video-recording and did not make paper copies of any of the images in question. The disc of the monitoring system is re-used every six weeks. Consequently when the prosecutor asked to have access to it on 22 May 2014, the video recording of 12 March 2014 had already been erased.

(iv) Chief accountant of the sobering-up centre

Similar submissions were made by the Chief Accountant who had watched the video recording in question. She saw Doctor A.D. and two employees approaching the applicant. Because of the intimacy zone, it was impossible to know what happened afterwards.

3. The applicant ’ s injuries

The applicant submitted that earlier on the day of his arrest he had hit his head against a tree, which left a scratch on the right side of his forehead.

The medical certificate issued on 13 March 2014 by a local physician, specialising in pediatrics and respiratory diseases, stated that the applicant had the following injuries: skin abrasions and swelling covering the area of 5x5 cm on his forehead near the hairline; a black-eye (right); swelling and bruising of procerus; redness and abrasions of the left eye-corner; swelling and aching in the area behind the left ear; aching of left-side lower ribs ‑ with suspicion of cracked ribs; and redness and aching of the applicant ’ s chest in the area of 1x 1.5 cm.

The x-ray of the applicant ’ s rib cage, which was taken on 19 March 2014 did not reveal any injuries.

A forensic report prepared for the purpose of the investigation on 15 October 2014 contains the following conclusions about the applicant ’ s injuries. The skin abrasions on the applicant ’ s forehead had most likely resulted from the applicant ’ s fall during his walk in the forest earlier on 12 March. The injuries to on his face, head and chest had resulted from repeated blunt blows, for example punching. Because the applicant had submitted that his kicking at the Czerwionka police station had not left any traces, the forensic expert did not elaborate on this. The injuries confirmed in the medical certificate of 13 March, could have been caused in the circumstances as described by the applicant. They led to the applicant ’ s incapacity inferior to 7 days.

The applicant submitted that handcuffing his arms behind his back and pushing him into the car caused him a lot of pain because he had undergone two surgeries to his backbone and had chronic problems with his right shoulder. Since the incident his left thumb has been left completely numb. The documents submitted by the applicant reveal that he suffers from chronic backbone hernia and cardiological disorders; that sometime in the past he had broken one vertebra; that in 2012 and 2013 he had two glaucoma surgeries, that in 2006 he had a heart attack and in 1998 a hernia surgery.

4. Criminal investigation against the police officers and staff of the sobering-up centre

On 18 March 2014 the applicant filed a crime notice at the police station in Czerwionka, stating that on 12 March 2014 he had been ill-treated by the police officers and the staff of the sobering-up centre. He had submitted the medical certificate of 13 March 2014 which has been described above.

On an unspecified date the applicant gave testimony presenting his version of events as described above.

On 4 April 2014 the case was registered with the Racibórz District Prosecutor and on 6 May 2014 a decision to open a criminal investigation was issued.

The following evidence was obtained in the course of the investigation:

1) The applicant ’ s criminal notice and his subsequent testimony obtained on 24 April 2014;

2) Medical certificate of 13 March 2014 and report of a forensic expert dated 15 October 2014;

3) Witness testimony of the two police officers who arrested the applicant in the street (obtained in early and mid-May 2014 respectively), of three officers from the Czerwionka police station, two of whom had contact with the applicant on 12 March (obtained in late May 2014) and of three employees of the sobering-up centre, two of whom had had contact with the applicant on 12th March (obtained in late June and early July 2014, respectively);

4) Witness testimony of Doctor A.D. – obtained in 2014;

5) Witness testimony of the Head of the sobering-up centre (obtained in October 2014) and its Chief Accountant.

6 ) Witness testimony of the applicant ’ s son and a fellow patient at the sobering-up centre (obtained in October 2014);

7) Reports from confrontations between witnesses including the applicant, carried out in late July, August and early September 2014. The applicant recognised one of the employees of the sobering-up centre as the one who had beaten him);

8) Copies of the entries which had been made by the policemen in their officers ’ notebooks ( kopia notatnika slużbowego );

9) A copy of the report which had been prepared by the arresting police officers, which read: that the applicant had been intoxicated and had posed a threat to his own limb and life because he had been found staggering on a road-side lawn and that at 9:25 p.m the applicant had been stopped by the police in order to be taken to the sobering-up centre;

10) The video recording from the police station in Czerwionka, which did not reveal that the applicant had been beaten, however, a portion of the image, namely the room for arrested persons was invisible and there was no sound;

11) A copy of the report from the applicant ’ s stay at the sobering-up centre, which contains the following information in so far as relevant: the applicant was stopped by the police on 12 March at 9:10 p.m. and was taken to the sobering-up centre at 10:45 p.m.; he underwent a medical examination at 10:45 p.m.; he refused to have a breathalyser test; he was obscene, resentful, vexatious, disobedient and he threatened the staff with a beating; he was staggering and his speech was unintelligible; the applicant refused to have a physical check-up (a stamp and an illegible signature of Doctor A.D. is visible in this part of the report); a restraining measure in the form of “holding down” was employed for 30 seconds because the applicant was clenching his fists, brandishing his arms and uttering threats; during the “holding down” and during the rest of his stay at the sobering-up centre, the applicant was cursing and uttering threats and insulting the employees; the applicant was medically examined on 13 March, that is 12 hours (in so far as legible) since his placement at the sobering-up centre; he was sober and his breathing and blood circulation were good (a stamp and illegible signature of another doctor is visible in this part of the report); the applicant was released on 13 March at 11:30 a.m. The report has been signed by the applicant.

On 22 May 2014 the prosecutor ordered that the video recordings from the Czerwionka police station and from the sobering up centre be viewed for the purpose of the investigation. The video from the police station was produced (see, item no 10 in the list of evidence above). The video from the sobering-up centre had not been secured under six weeks, after which the disc had been re-used to record other images.

On 28 October 2014 the Racibórz District Prosecutor dismissed the applicant ’ s motions for evidence, which had been lodged in July and September 2014. The applicant asked in particular that following evidence be produced: that it be verified whether or not the doctor had in fact been present at the sobering-up centre when she had been on duty on 12 March 2014 by means of checking her phone-calls, internet connections and employment records; that the work history of the two employees of the sobering-up centre be looked into to verify whether similar accusations to those made by the applicant had been ever made against them in the past; that the video-recording from the Czerwionka police station be examined by experts in order to find any traces of image manipulation; that an experiment be carried out to establish how long it took to switch handcuffs and that a number of the witnesses be heard again in order to confirm that they had committed perjury when testifying that they had seen the video ‑ recording from the sobering-up centre. The prosecutor considered that the information which is to be obtained was either useless to the investigation or that the indicated evidence could not prove the circumstances as sought.

On 30 October 2014 the Racibórz District Prosecutor discontinued the investigation on the ground that the police officers involved in the applicant ’ s stopping in the street, his transfer to and his admission at the sobering-up centre and the employees of the Zabrze sobering-up centre had not breached their powers and duties.

The decision to take the applicant to a sobering-up centre was in compliance with the law and aimed at protecting the applicant ’ s life and limb as he was visibly inebriated and was walking/standing in the middle of the road. Also the use of handcuffs was lawful and justified in view of the applicant ’ s refusal to comply with the orders given by the officers and his aggressive behaviour. The latter was demonstrated by the applicant clenching his fists, uttering threats and his attempts to walk away. It has not been proven that the applicant had been pushed into the police van or handled with any force when he had been taken to the police station. The applicant ’ s submissions that he had been driven to the police station lying on the van ’ s floor; that he had not been allowed to call his family and that a doctor had not been called to him; and that he had been insulted and hit by the employees of the sobering-up centre, were not corroborated by any evidence. The prosecutor acknowledged that in the absence of the video ‑ recording from the sobering–up centre, it was impossible to objectively and convincingly establish whether or not the doctor had been present when the applicant had been taken there. It was also acknowledged that the medical certificate obtained by the applicant shortly after his release indeed listed some injuries. On the other hand, in view of the sequence of events and the number of people who handled the applicant on 12 March, it was impossible to determine what or who had caused those injuries. The applicant ’ s version of the events was not corroborated by any evidence whereas a completely different and more or less coherent version was supported by all the other witnesses.

On 1 April 2015 the Rybnik District Court upheld that decision.

5. Appeal against placement at the sobering–up centre

On 17 March 2014 the applicant lodged a complaint ( zażalenie ) against his placement at the sobering-up centre.

On 22 May 2014 the Zabrze District Court dismissed this complaint on the ground that the applicant ’ s placement at the sobering–up centre was lawful and justified. It was considered that the case-materials clearly showed that on 12 March 2014 the applicant had been inebriated, staggering and stumbling near a busy road. He was therefore posing a threat to his limb and life. All the procedural requirements were also complied with. The alleged breach of powers by the police officers and employees of the sobering-up centre was beyond the scope of the examination of the complaint.

COMPLAINTS

The applicant complains under Article 3 of the Convention about ill-treatment by the arresting police officer and subsequently, at the Czerwionka police station and the Zabrze sobering-up centre. In particular, the applicant complains about the unjustified and disproportionate use of handcuffs and his assaults and battery by the policemen and sobering-up centre ’ s staff.

He also complains about ineffective criminal investigation.

The applicant also complains under Article 5 of the Convention that his arrest and placement in the sobering-up centre were arbitrary and unjustified. In particular, the applicant appears to argue that his admission to the sobering-up was unlawful because the doctor had not been present and because he had refused to have a breathalyser test. He also complains that he had not been informed of the reasons for his placement at the sobering ‑ up centre and that his family had not been informed about his whereabouts.

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. Was the applicant ’ s deprivation of liberty at the sobering-up centre on 12 March 2014 “in accordance with a procedure prescribed by law” (see Witold Litwa v. Poland , no. 26629/95, ECHR 2000 III)?