Communicated on 22 October 2014

SECOND SECTION

Application no. 45855/12 M.F. against Hungary lodged on 20 July 2012

STATEMENT OF FACTS

The applicant, Mr M. F., is a Hungarian national who lives in Gy . The President of the Section to which the application was attributed granted the applicant ’ s request for his identity not to be disclosed to the public (Rule 47 § 4). He is represented before the Court by Mr L. Baltay , a lawyer practising in Gyál .

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

On 12 August 2010 at about 1.50 a.m. the applicant was committed to Gyöngyös Police Department on suspicion of theft. Shortly afterwards, for about 20-30 minutes the applicant was ill-treated by altogether six officers and two security guards, with the apparent intention of extorting his confession to the offences. He was slapped in the face, forced on his knees, kicked repeatedly; a paper bag was then pulled over his head and his soles were hit many times with a piece of wood. The officers insisted that he should admit to at least three counts of theft so that they would stop hitting him, and they repeatedly insulted him, making references to his Roma origin. One of them said that they would not mind if he died, there would be just one gypsy less.

Later that morning, at about 6 a .m. the applicant was escorted to the toilet, where the officers again started hitting and kicking him. One of them removed a towel-holder from the wall and used it to hit the applicant ’ s hand. During the incident in the toilet, the officers again made repeated references to the applicant ’ s being a Roma.

The applicant was released at 12.50 p.m. Later that day, he went to the emergency room of Bugát Pál Hospital. At 7.34 p.m. he was issued with a medical certificate stating that he had a bruise on the forehead and the nose, another one on his left shoulder and an abrasion on the right hip, both hands and arms were swollen and hyperaemic; and the back surface of both thighs as well as both soles were swollen, red and sore. In sum, according to the opinion, the applicant had numerous contusions originating in hits, kicks, bangs and scratches by other persons. At about 8 p.m. on the same day, X-rays were taken at Albert Schweitzer Hospital, according to which the applicant had contusions of the chest and of the skull.

According to the forensic expert subsequently appointed by the Miskolc Investigating Prosecutor, the injuries were consistent with the applicant ’ s account of the ill-treatment and the injuries had most probably been sustained 24-48 hours prior to the medical inspection.

The applicant was safe and sound when committed to the police department. Between his release and the medical inspection, he was continuously accompanied by his relatives who testified that he had not suffered any injuries outside the police department.

On 27 September 2010 the applicant filed a criminal complaint. The territorially competent Eger Investigating Prosecutor was excluded from the investigation, which was carried out by the Miskolc Investigating Prosecutor.

On 28 December 2010 the latter ’ s office discontinued the investigation, holding in essence that the applicant ’ s version was not plausible. The prosecutor observed that several hours had elapsed between the applicant ’ s release from the Police Department and the hospital inspection, during which time a general practitioner had examined him but found no injuries. It was also of concern that the applicant had been uncertain when confronted with the alleged perpetrators and contradicted himself on several occasions, and that he had complained about the incident only on 23 November 2010, not before.

On 16 January 2012 the Borsod-Abaúj-Zemplén County Public Prosecutor dismissed the applicant ’ s complaint (service: 23 January 2012). In this decision, the date of the applicant ’ s criminal complaint about the incident was rectified; and it was established that this had occurred on 27 September 2010. The prosecutor was satisfied that the investigation had been adequate and comprehensive, and that the obtaining of further evidence, as suggested by the applicant, was superfluous. No reaction was triggered by the applicant ’ s allegations about the racist motives behind the ill-treatment complained of.

On 21 March 2012 the applicant filed a motion of private prosecution against the police officers involved. On 28 November 2012 the Eger High Court acquitted the officers. It relied on documentary evidence relating to the applicant ’ s apprehension and interrogation, documents relating to the service particulars of the officers involved, the testimonies of the applicant, medical documentation, and the testimonies of the officers.

The officers denied the charges. The High Court heard in particular as a witness the general practitioner, who confirmed that she had found no injuries on the applicant ’ s body when examining him on the day of the incident. The court noted that the applicant was somewhat confused when being presented with photos of the officers to be recognised and that the testimonies of his relatives were inconclusive. A medical expert stated in court that had the applicant had the injuries in question when examined by the general practitioner, the latter ought to have noticed such injuries.

Relying on the service documents of the Police Department that were supported by testimonies of other officers, the court was satisfied that three defendants had alibis for the time of the incident, namely that early in the morning of that day, they had been instructed to leave the police building to perform mobile patrol service, and this after having had a briefing held by the lieutenant in charge. Thus, the High Court acquitted those officers.

As to the accusation against the two other officers, the court highlighted that despite the allegations of the applicant that he had been ill-treated by the officers in order to force him to admit to at least three counts of theft – which he finally did – there were not any references in the minutes to any further counts of thefts that might be attributable to the applicant. The court also emphasised that contrary to the statements of the applicant the two officers could not have been continuously present in the police building in Gyöngyös since they had meanwhile been carrying out some on-site inspections in Gy . Thus the High Court, in the absence of any duly proven accusations, acquitted these officers as well.

The applicant did not appeal against the High Court ’ s judgment. He submits that the motion of private prosecution by itself cannot be considered an effective remedy; neither can an appeal be so. The applicant presents statistics demonstrating that the chances of a successful motion of private prosecution are very limited in Hungary, in particular in criminal complaints against public officers.

The applicant submits that some of the officers who were accused and acquitted in these proceedings were convicted by another court in a case where the court found that these officers had indeed committed ill-treatment in a similar manner.

COMPLAINTS

The applicant complains under Article 3 of the Convention about ill-treatment by the police . Under the procedural head of this provision, he also complains about the decision of the Public Prosecutor to terminate the investigation, dismissing his complaints .

Moreover, the applicant complains under Article 14 of the Convention read in conjunction with Article 3 that the crime in question had racist motives, an element the authorities failed to properly examine.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, was the substitute private prosecution an effective remedy within the meaning of this provision in respect of the applicant ’ s complaint under Article 3?

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

3. 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?

4. Has the applicant suffered discrimination in the enjoyment of his Convention rights on the ground of his Roma origin, contrary to Article 14 of the Convention read in conjunction with Article 3?

5. Have the authorities taken all reasonable steps to investigate any possible racist motivation behind the alleged attack on the applicant, as required by Article 14 of the Convention, read in conjunction with Article 3 (see, mutatis mutandis , Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 160, ECHR 2005 ‑ VII)?