Communicated on 1 September 2014

FOURTH SECTION

Application no. 2037/14 Kazimierz WOŁKOWSKI and Krystian JACYNO against Poland lodged on 19 December 2013

STATEMENT OF FACTS

The applicants, Mr Kazimierz Wołkowski (“the first applicant”) and Mr Krystian Jacyno (“the second applicant”) , are Polish nationals, who were born in 1960 and 1979 respectively and live in Lidzbark Warmiński . They are represented before the Court by Mr A. Bodnar , a lawyer with the Helsinki Foundation of Human Rights, a non-governmental organisation based in Warsaw.

The circumstances of the case

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

1. The arrest and ill-treatment of the first applicant

On an unspecified date the first applicant found two weight plates and took them home. He wanted to sell them at the scrap metal shop. However, the shop employee told him that he would not buy them because the police had received information about the theft of similar plates from a cellar. The first applicant took them back home.

In the morning of 1 March 2012 the police officers of the Lidzbark Warmiński District Police Station arrived at the first applicant ’ s home and arrested him. He was taken to the police station for questioning. He was tested for the presence of alcohol in his blood. The result showed that the first applicant had 0.29 ‰ of alcohol in his blood.

The first applicant was suspected of involvement in a burglary. He was questioned by two police officers. He was repeatedly asked how had he obtained the plates and responded that he had found them. One of the police officers waved his truncheon in the air and then hit the table with it. Subsequently, the first applicant was ordered to take off his shoes and socks and to kneel down on a chair facing the wall. He was hit with a truncheon on the soles of his feet . After a few minutes the first applicant was hit again in the same way. He was held at the police station overnight because he refused to confess to a burglary.

The following morning the questioning and the beating on the feet continued in the presence of four police officers AZ, AR, KS and MK. At some point the first applicant could no longer stand the beating. He stated that he had received the weight plates from Mr Krystian Jacyno , the second applicant. It appears that on the same day the first applicant retracted his statement incriminating the second applicant.

After leaving the police station at about 4 p . m. the first applicant went to the hospital. However, he could not receive a medical certificate because he did not have a document attesting that he had a medical insurance. He was administered a pain-killer and received a prescription. After three weeks the first applicant took photographs of his injuries.

2. The arrest and ill-treatment of the second applicant

The second applicant was arrested on 2 March 2012 and taken to the Lidzbark Warmiński Police Station. The police officers told him that he had committed a burglary. The second applicant denied it. Then, he was slapped by a police officer and told to confess. At some point the first applicant was brought to the room and stated that he had received the weight plates from the second applicant. The second applicant denied it. Subsequently, the second applicant was told to sign something. He refused to do so. Then, other police officers entered the room when the questioning was taking place. They took off by force his shoes and socks and forced him to kneel down on a chair with his face facing the all. One of the police officers held the second applicant, while the other hit him on his feet, legs, kidneys and head. One of the police officers kicked the se cond applicant in the head. The questioning and beating lasted from 12 a.m. to 2.30 p.m. After the questioning the police officers forced the second applicant to sign three empty sheets of paper. On leaving the room where he was questioned the second applicant said that he would file a complaint against the police officers. Then, he was hit in the face by one of the police officers.

The second applicant left the police station in pain and in the state of mental anxiety. The fiancée of his brother took him to the hospital but there was no doctor available. Three hours l ater he returned and obtained a medical certificate describing his injuries.

3. Investigation concerning the applicants ’ ill-treatment

On 4 March 2012 the second applicant informed the Olsztyn Regional Police Commander about the ill-treatment to which had been subjected. On 25 March 2012 the first applicant sent a similar letter to the Regional Police Commander. Both applicants described the manner in which they had been treated by the police officers and how they had been forced to make a confession.

On 21 March 2013 the Lidzbark Warmiński District Prosecutor ’ s Office informed the second applicant that it opened an investigation into the abuse of authority by the police officers of the Lidzbark Warmiński District Police Station.

On 10 April 2012 the Olsztyn Regional Prosecutor ’ s Office transferred the investigation to the Bartoszyce District Prosecutor ’ s Office. The complaints of both applicants were to be examined jointly.

On 17 July 2012 the Bartoszyce District Prosecutor ordered a forensic opinion on the injuries sustained by the applicants. According to the forensic expert, the first applicant had extensive hematomas on his feet which could have resulted from hitting the soles of feet wi th a truncheon. The expert identified similar injuries on the second applicant. In addition, the second applicant had a hematoma near his left eye. This injury could have resulted from slapping. The expert found that it was unlikely that the injuries could be self-inflicted.

On 31 October 2012 the Junior District Prosecutor ( Asesor Prokuratury Rejonowej ) discontinued the investigation into the case of abuse of authority by the police officers and the use of violence to extract confession (Article 231 § 1 in conjunction with Article 246 of the Criminal Code). The prosecutor found that it was not possible to individually identify the police officers responsible. The prosecutor further discontinued the investigation into the case of failure to assist the applicants who had been ill-treated in the presence of the police officers (Article 231 § 1 of the CC) on the same ground.

The prosecutor heard evidence from eleven police officers.

She established that police officers AZ and AR arrested the second applicant. Police officer AZ testified that the second applicant was aggressive and refused to obey the police orders. He said to the police officers that he was mentally ill. The questioning of the second applicant took place in the presence of police officers AZ, AR, KS and, at a later stage, MK. At one point the second applicant wanted to leave the room. Then the officer AR grabbed his arm and pulled it towards him. As a result, the second applicant fell down and hit his head against the floor. He injured his left supraorbital ridge but stated that he did not need medical assistance. Subsequently, the first applicant was brought to the room to explain contradiction in the testimonies of the applicants. The first applicant stated that he had received the weight plates from the second applicant, but the latter continued to deny it. Some time later the first applicant retracted his statement incriminating the second applicant and stated that he had found the weight plates. This version of events was confirmed by police officers AR and KS. Police officers AZ, AR and KS stated that they had not hit the applicants or forced them to confess. Six other police officers (MDM, MW, WK, AW, DK and MK) testified that they had not noticed anything unusual on 2 March 2012.

The prosecutor heard evidence from doctor KP who had examined the applicants on 2 March 2012. The doctor detected that the feet of the first applicant were bruised. In respect of the second applicant, he also identified hematomas near his left eye and on both feet. The doctor stated that the injuries most likely resulted from beating and that it could be difficult to imagine other origin of the injuries. The prosecutor also noted that the injuries sustained by the applicants were also confirmed by their relatives who had seen the injuries shortly after their release.

The prosecutor obtained a report of the forensic expert. The forensic expert confirmed the injuries sustained by the applicants. He opined that the injuries to the feet could have resulted from hitting with a truncheon. The injury to the face of the second applicant could have resulted from slapping. In his opinion, it was unlikely that the injuries could be self-inflicted or related to an illness.

According to the opinion of the Lidzbark Warmiński District Police Commander submitted to the prosecutor, the police officers acted in accordance with the Police Act and other relevant regulations.

In order to establish who of the police officers were responsible, the prosecutor arranged an identity parade. However, the applicant s could not indicate the police officers who had i ll-treated them. In addition, a confrontation was held between the first applicant and police officer AZ and between the second applicant and police officer AR. The confrontations were inconclusive. The applicants could not categorically indicate how many officers ill-treated them and identify them during the identity parade. The prosecutor concluded that she was unable to determine which particular police officers ill-treated the applicants.

Having regard to the evidence, the prosecutor concluded that the applicants had been beaten by the police officers and that the former had failed to assist the applicants. However, it was not possible to determine which particular police officer or officers had committed the above o ffences.

On 20 November 2012 the applicant s appealed. They argued that the investigation had been carried out ineffectively. They criticised the decision to discontinue the investigation despite that the fact that the criminal offences had been committed. They also pointed that the number of potential offenders was fairly limited. The applicant s submitted that during the identity parade he had indicated the officer likely responsible for the ill-treatment. In addition, t he y noted that the identity parade had been arranged eight months after the relevant events and that some of the police officers had in the meantime changed their appearance (moustache or beard).

On 14 February 2013 the Helsinki Fou ndation of Human Rights filed a brief supporting the first applicant ’ s appeal.

On 15 February 2013 the Bartoszyce District Court quashed the prosecutor ’ s decision and remitted the case.

On 19 June 2013 the same Junior District Prosecutor again discontinued the investigation.

The prosecutor heard evidence from other police officers of the Lidzbark Warmiński Police Station. This evidence did not shed new light on the relevant events. The prosecutor also noted that a police disciplinary inquiry did not establish any fault of the officers involved.

The prosecutor also heard a witness AU who had claimed to obtain information about the perpetrator of the beating from police officer WK. According to AU, police officer DK was responsible for ill-treatment. However, police officer WK categorically denied to have passed any such information to AU. The prosecutor attempted to run a polygraph test for the police officers but they refused to give their consent.

The prosecutor concluded that the police officers had ill-treated the applicants and failed to provide assistance to the m . However, the prosecutor was unable to determine which particular police officer or officers had committed these offences. Accordingly, she discontinue d the investigation for the lack of perpetrator.

4. Criminal proceedings against the applicants

On 1 March 2012 the Lidzbark Warmiński Police opened an investigation into the cellar burglary which took place on 29 February 2012. The applicants were arrested in connection with this investigation.

On 19 April 2012 the investigation was discontinued on the ground that the perpetrator had not been identified.

COMPLAINTS

1. The applicants allege a breach of Article 3 of the Convention in its substantive aspect. They claim to have been subjected to torture on account of severe beating by the police officers who aimed to extract confession from them. The injuries sustained by the applicants were confirmed by medical evidence. In addition, the second applicant is a disabled person and his ill-treatment by the police was particularly odious.

2. The applicants complain under the procedural limb of Article 3 of the Convention that the authorities did not carry out an effective investigation into their ill-treatment.

QUESTIONS TO THE PARTIES

1. Ha ve the applicant s been subjected to torture in breach of Article 3 of the Convention?

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