Communicated on 10 June 2015

FOURTH SECTION

Application no. 16009/12 Krzysztof GRUSZKA against Poland lodged on 6 March 2012

STATEMENT OF FACTS

The applicant, Mr Krzysztof Gruszka , is a Polish national, who was born in 1970 and lives in Myszków .

A. The circumstances of the case

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

1. The events of 8 May 2010

Just after midnight , on 8 May 2010 the police in Bytom was informed that a black Audi A4 had been stolen in the area. A few minutes later the stolen car was seen around Bytom, together with another car, a Seat driven by the applicant. The police received information that the stolen Audi was being piloted by the driver of the Seat. Later it was discovered that the car that the applicant drove, had also been stolen one month earlier. A police car started following the Audi and Seat which were moving at high speed, at times over 200 km per hour. They were overtaking dangerously other cars; at some point the Audi overtook the Seat.

After several minutes of the pursuit, the driver of the Seat slowed the car down and stopped perpendicularly to the road, thus blocking the police car. This allowed the Audi to drive away; it was found abandoned some kilometres farther down.

A few minutes before 1 a.m. the police officers A, B and C came out of the car and attempted to arrest the applicant who was sitting behind the steering wheel of the Seat. At some point the second police car arrived. Police officer A shouted “police” and urged the applicant to leave his car. The applicant disobeyed and backed his car hitting police officer A on his leg. Police officers A and B started shooting at the applicant ’ s car. The applicant drove away but after some meters he crashed into a small chapel by the road. Police officers A, B and C approached the car and found that the applicant was injured and blocked in the car. A prof e s s ional radio equipment tuned for police frequency was found on the passenger seat, emitting conversations between police officers and the operator. The police officers called for an ambulance.

At 1:15 a.m. the ambulance arrived. Its staff managed to remove the applicant from the car. The applicant was conscious and arrogant. He insulted the police officers. He complained about not having any feeling in his legs. He was taken to the hospital.

The applicant suffered from a fracture of his spine (Th12-L1) due to a bullet that lodged in it and a fracture of the left forehand. In consequence of the spinal injury the applicant is paraplegic – he is paralysed from his waist down. He has been hospitalised on many occasions and in July 2010 the bullet was removed from his spine. His condition has not been considered suitable for a surgery. The applicant suffers from urological problems and constant pain.

It appears that on 23 June 2010 the authorities formally acknowledged his severe disability. On 23 January 2014 the relevant authority declared him permanently disabled to a severe degree.

2. The investigation against the police

After the incident of 8 May 2010 the prosecutor opened an investigation into excessive use of force by the police officers and use of firearms during the applicant ’ s arrest. In its course it heard police officers A, B and C, the applicant, two witnesses, a doctor and a paramedic from the ambulance. The prosecutor also ordered that an expert medical opinion be prepared.

The applicant submitted his version of events according to which he had been coming back home by car when he noticed another car, an Audi, following him. At some point his car was hit by the Audi and he braked to stop. Other unmarked cars appeared and men jumped out of them. They wore plainclothes bearing no visible signs that would indicate that they were from the police. When he tried to escape from what he had perceived as a robbery, he was shot at and wounded. Around six men appeared next to him and he was hit on the face with a handle of a gun. His left hand was handcuffed to the door of his car in such a way that his elbow was twisted; this caused the fracture of his forearm.

Two inhabitants of the area testified as witnesses. They saw unmarked cars, with blue warnings switched on, which followed a speeding car. One of them heard sounds of gunshots.

The doctor and the paramedic also testified. When the doctor arrived , the applicant ’ s hand had been handcuffed to the car, but the police had unlocked him upon his request. The doctor noticed holes from the bullets on the back and left back side of the car. The front of the car was totally destroyed by the crash. The applicant was conscious but his legs were blocked. After having removed him the doctor realised that he had been hit by a bullet on his back. There was a hole on the back of his t-shirt and jacket. The applicant was taken to a hospital where a scan showed a bullet lodged in his spine.

On 28 February 2011 the Będzin District Prosecutor discontinued the investigation against the police. He considered as reliable the account of events provided by the police officers. They maintained that both police cars had visual warnings switched on at all times. The siren was active except when the officers were communicating by radio with the operator. When the applicant directed his car against police office A the latter fired a warning shot in the air. Afterwards he fired again. In total police officer A fired 16 shots. Police officer A admitted to aiming at the boot of the car, the left front tyre and, later, left back tyre. Police officer B was also shooting aiming at the back right tyre as the car was already driving away. Police officer C was standing at the back protecting his colleagues; he did not use his firearm.

The prosecutor concluded:

“The content of the expert opinion on firearms confirms the police officers ’ version of events. They all claim that when the police officer [A] found himself in front of the boot of the Seat he fired a warning shot. Afterwards he fired again, from the front of the car towards its back –into the boot of the car aiming at stopping of the engine. Therefore, the police officer [A] had the right to use his firearm in defence from a direct and unlawful attack on [his] life and health.”

The prosecutor thus decided to discontinue the investigation as no crime had been committed.

The applicant, represented by a lawyer, lodged an appeal against the decision. He contested the prosecutor ’ s conclusion, maintaining that the police officers fired many shots towards the back of the escaping car with the obvious intention to hurt its driver.

On 20 March 2012 the Będzin District Court dismissed the appeal and upheld the prosecutor ’ s decision. It held that the applicant had been clearly aware of the police following him as he had had radio equipment allowing overhearing police communications. Nevertheless, he desperately tried to escape hitting one police officer. This police officer felt in danger having found himself behind the applicant ’ s car which suddenly started moving towards him. The police officer fired first a warning shot and then aimed at the boot – from the front towards the back of the car. He also aimed at the front tyre and then back tyre. Police officer B fired at the car moving away aiming at the back right tyre. Facing such dangerous situation the police officers had right to use their firearms. The applicant had a possibility to surrender but he chose to escape making himself responsible for the consequences of such behaviour. The court considered, in reply to the applicant ’ s complaint, that the great number of shots fired had been without importance. The court also disregarded additional evidence submitted by the applicant allegedly proving injuries to his face. The injuries were not confirmed by the expert opinion and were not complained about at the investigation stage.

The decision was final and no appeal lay against it.

3. The proceedings against the applicant

On an unspecified date the applicant was charged with assault on the police officers. On 11 April 2014 the Będzin District Court held a hearing (VII K 17/14). The course of this set of proceedings is unknown.

B. Relevant domestic law

The relevant provisions of the Police Act of 6 April 1990 are set out in the judgment of Wasilewska and Kałucka v. Poland , nos. 28975/04 and 33406/04 , § § 30-31 , 23 February 2010 .

COMPLAINT

The applicant complains , without invoking any Article s of the Convention , about discontinuation of the investigation by the authorities without thoroughly elucidating the events . The applicant complains that due to the police ’ s actions he is severely disabled, paraplegic. The prosecutor did not clarify why so many shots were fired at the escaping car and how the fatal shot passed through the car seat and lodged in his spine. The bullet retrieved from his body was not examined. The applicant also complains that he was hit by the police officers on his face.

QUESTIONS TO THE PARTIES

1. Has the applicant ’ s right to life, ensured by Article 2 of the Convention, been violated in the present case?

In particular, was it absolutely necessary for the purposes of Article 2 § 2 to resort to use of force which threatened the applicant ’ s life?

Having regard to the procedural protection of the right to life (see paragraph 104 of Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII), was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention?

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

Having regard to the procedural protection from torture, 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. The Government are invited to submit copies of the following documents:

- decision of the Będzin District Prosecutor of 28 February 2011 with reasons (all pages);

- medical expert opinions obtained in the course of the investigation against the police officers;

- all decisions issued in the criminal proceedings against the applicant originating in the events of 8 May 2010 (bill of indictment, judgments, expert opinions).