Communicated on 17 March 2016

FOURTH SECTION

Application no. 76505/14 Konrad Tomasz BEDNARZ against Poland lodged on 28 November 2014

STATEMENT OF FACTS

The applicant, Mr Konrad Tomasz Bednarz , is a Polish national, who was born in 1990 and lives in Stalowa Wola . He is represented before the Court by Mr K. Bednarz , a lawyer practising in Stalowa Wola .

A. The circumstances of the case

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

1. The applicant ’ s account

On the night of 23 June 2013 the applicant was drinking alcohol with a group of friends in a public square in Stalowa Wola . At around 11 p.m. a police patrol arrived, reminded them to keep quiet during night hours, checked their documents and ordered them to disperse. Part of the group, including the applicant, moved on to a different spot. Subsequently, two police officers, K.P. and D.Z., found them and proceeded to arrest them. The police officers used truncheons in order to put the applicant and his friends into the police car. The applicant alleges that he was also punched in the face by one of the police officers.

At the Stalowa Wola District Police Station the applicant asked to go to the toilet, but instead was taken to a room without closed-circuit television (CCTV). Once there, he was thrown to the ground. One of the officers kicked him on his left knee. He was subsequently beaten by another officer with a truncheon. When leaving the room, one of the officers slammed the door in the applicant ’ s face. As a result, the applicant injured his nose, broke his tooth and damaged his dental braces.

2. The investigation into the applicant ’ s allegations of ill-treatment

Subsequently, the applicant and two of his friends, K.W. and J.B., were charged with resisting lawful arrest and insulting police officers in the performance of their duty. On 23 July 2013 the Stalowa Wola District Prosecutor severed to a separate set of proceedings complaints against the two police officers who had arrested the applicant and J.B. (in relation to allegations that they had exceeded their powers and caused physical harm).

On 30 July 2013 the Mielec District Prosecutor instituted an investigation into the alleged abuse of powers by the police officers on the night of 23-24 June 2013.

During the proceedings the prosecutor heard evidence from witnesses (people who had been involved in the incident and police officers) and also obtained a report from a visual techniques expert. In his report of 30 July 2013, the expert confirmed in particular that the CCTV footage demonstrated that the applicant had begun to limp after he had left the room without CCTV. There was no footage of him limping before he had entered the room.

On 23 December 2013 the Mielec District Prosecutor discontinued the proceedings regarding the applicant ’ s allegations of ill-treatment. The prosecutor established that, during the police intervention on the night of 23 June 2013, the applicant and his friends had behaved aggressively, insulted the officers and resisted arrest. Since the applicant had refused to get into the police car, the officers had warned him that they would use direct restraint measures ( środki przymusu bezpośredniego ), and eventually they had hit him with truncheons on his lower legs, thighs and forearms. During the intervention the police had arrested seven people, including the applicant. At the police station he had undergone a breathalyser test, which had shown an alcohol level of 0.76 mg/l in his breath. Subsequently, the applicant had been taken to another room in order to undergo a body search. He had resisted the officers while leaving his cell and had continued to behave aggressively towards them. Eventually, four of the people who had been arrested had been released, while the applicant, K.W. and J.B. had been detained on charges of resisting lawful arrest and insulting police officers.

The prosecutor also established that on 26 June 2013 the applicant had been admitted to Stalowa Wola District Hospital, where he had complained of bruising to his thigh and a knee sprain. He had been discharged on the following day. The doctor on duty had diagnosed him with chronic instability of the knee, with no swelling or fluid accumulation in the joint.

The prosecutor further referred to the report of a forensic expert (who had not examined the applicant, but who had given his opinion on the basis of medical documents in the file). The expert had confirmed that the applicant had experienced bruising and swelling to his left knee. In his opinion, the injury had occurred earlier than the applicant had alleged, however there had been no medical documentation in this respect. In addition, the applicant had had bruises on his lower legs and thigh, bruising and abrasions on his nose, a broken tooth and damaged dental braces. As to the origins of these injuries, the expert confirmed that the bruising had been typical of the kind caused by truncheons, while the knee injury could have occurred when the applicant had resisted getting into the police car or going to another room.

The prosecutor acknowledged that the police officers had used force against the applicant as he had been aggressive during the arrest, but he had not been beaten by the police officers whilst at the Stalowa Wola District Station. The prosecutor was of the view that the evidence given by the applicant ’ s friends was not consistent, while the testimonies given by the police officers were coherent and logical. He concluded that the use of force against the applicant had been necessary in view of his aggressive behaviour .

The applicant appealed, referring to the testimonies of five witnesses who had all confirmed that he and his friends had not resisted arrest on 23 June 2013. He further relied on the opinion prepared by the visual techniques expert, who had analysed the CCTV footage and noted that his injury could have occurred in the room without CCTV (while he had been searched).

On 3 July 2014 the Stalowa Wola District Court upheld the prosecutor ’ s decision. The court held that the testimonies of the applicant ’ s friends who had been involved in the incident had not been coherent. Although they had all agreed that the applicant had been beaten by police officers in the car and at the police station, they had not been able to give a consistent version of events. Furthermore, none of the witnesses had seen the incident at the police station. They had only heard noises and noticed the applicant ’ s bruises and that he had begun to limp. On the other hand, the court considered that the evidence given by the police officers had been logical and coherent. Consequently, the court agreed with the prosecutor that the applicant ’ s aggressive and provocative behaviour during his arrest had justified the use of force by the police. There were further no indications that the police officers had abused their powers or used disproportionate force against the applicant. In so far as the applicant had referred to the visual techniques expert ’ s report, the court noted that, even if the applicant had begun limping after leaving the room where the body search had taken place, the possibility that his knee injury had occurred earlier on and that he had only begun to feel pain in that leg at a later stage could not be excluded. Also, the medical opinion had not been explicit in this respect, since the applicant suffered from chronic instability of the knee, and the swelling might have resulted from the resistance he had demonstrated while getting into the police car.

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 applicant complains under Article 3 of the Convention that excessive and unlawful force was used against him. He further alleges that the authorities uncritically accepted the police officers ’ version of facts and disregarded evidence to the contrary.

Questions TO THE PARTIES

1. Has the applicant been subjected to inhuman or degrading treatment during his arrest, in breach of Article 3 of the Convention? In particular, was the force used by the police officers to arrest the applicant appropriate and proportionate in the circumstances?

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)?