Communicated on 14 April 2014

FOURTH SECTION

Application no. 65970/12 Roman DZIUNIKOWSKI against Poland lodged on 2 October 2012

STATEMENT OF FACTS

The applicant, Mr Roman Dziunikowski, is a Polish national, who was born in 1964 and lives in Warszawa. He is represented before the Court by Ms A. Pankowska, a lawyer practising in Warszawa.

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 arrest and detention on remand

The applicant is a doctor specialising in emergency medicine. He had two heart attacks in 2005 and in 2008; he is overweight and suffers from coronary artery disease and kidney disorders.

At the material time he worked at the first-aid station in Babice Stare. On 12 January 2011 at 6 o ’ clock in the morning when the applicant ’ s night shift was almost over several policeman and anti-terrorist brigade officers arrived at the first-aid station where the applicant worked in order to arrest him. The applicant claims that one of the officers kicked him on his chest and on his stomach. Subsequently, following the officers ’ orders he lay on the floor face down and was handcuffed behind his back.

Subsequently, the applicant was taken to one of his apartments in Warsaw where the police officers searched the premises. The handcuffs were too tight and the applicant had a pain in his hand. He claims that only nearly half an hour after he had requested the handcuffs were loosen and he was handcuffed again, this time with his hands at the front. He also claims that he had a strong pain in his chest but he was not offered any help or allowed to take medications. He further submits that at the time of the search the police officers shouted at him with offensive words like “you whore, you bandit, you fat pig!” apparently without any particular reason.

Then the applicant was taken to his second apartment in Warsaw which was searched as well. Subsequently, the applicant was transported to a police station where, according to his statements he was hit on his face and then beaten by several policemen who kicked him on his stomach and thighs.

After that, still on 12 January 2011, the applicant was taken to the Solec Hospital where he was hospitalised.

On 13 January 2011 the applicant was transported to the Ministry of Internal Affairs Hospital where he underwent coronary catheterization.

On 14 January 2011 the Warsaw District Court asked the doctor responsible for the applicant whether his state of health allowed for him to be questioned as suspect by the court and whether he could be detained on remand including detention in the detention centre ’ s hospital ward. The court ’ s letter was marked “urgent”.

On the same day the doctor responsible for the applicant replied that:

“At the present moment the patient R.D., born ( ... ) does not require further hospitalisation in the Clinic of Interventional Cardiology (Klinika Kardiologii Inwazyjnej) . At the same time there are no medical reasons which would exclude the applicant ’ s questioning today.”

On the same day at 1 p.m. the Warsaw District Court decided to detain the applicant on remand for three months. The court relied on a strong suspicion that the applicant committed offences with which he had been charged. It did not however indicate the evidence relied on because a large part of the investigation material was classified as confidential. The court also considered that the applicant might try to obstruct the proceedings.

On 21 January 2011 the applicant ’ s lawyer lodged an appeal against the detention decision.

On 10 February 2011 the Warsaw Regional Court found the appeal ill ‑ founded and upheld the challenged decision.

On 31 March 2011 the Warsaw District Court extended the applicant ’ s detention for further three months that is until 12 July 2011. This time the court additionally relied on a probability that a heavy penalty might be imposed on the applicant, because he had been additionally charged with illegal possession of arms and psychoactive substances; four cartridges and 3.5 grams of illegal psychoactive substance were found in his apartment.

The applicant ’ s lawyer appealed and, on 9 May 2011, the Warsaw Regional Court upheld the challenged decision.

On 6 July 2011 the Warsaw District Court, relying on the same grounds as previously, extended the applicant ’ s detention for further three months that is until 12 October 2011.

On 10 August 2011 the Warsaw Regional Court dismissed the applicant ’ s lawyer ’ s appeal and upheld the decision extending the detention.

On 5 October 2011 the Warsaw District Court again extended the applicant ’ s detention, until 12 January 2012.

The applicant ’ s lawyer ’ s appeal was dismissed by the Warsaw Regional Court on 10 November 2011.

On 21 December 2011 the Warsaw District Court extended the applicant ’ s detention until 29 February 2012.

On 12 January 2012 the Warsaw Regional Court dismissed the appeal lodged against this decision by the applicant ’ s lawyer.

On 24 February 2012 the Warsaw District Court extended the applicant ’ s detention until 6 April 2012. This decision was upheld by the Warsaw Regional Court on 27 March 2012.

At the hearing on 3 April 2012 the Warsaw District Court decided to lift the applicant ’ s detention and to impose on him a prohibition of leaving the territory of Poland.

2. The applicant ’ s injuries and criminal proceedings against the police officers

The applicant submits that due to the state of shock in which he found himself following his arrest he did not demand the examination of his body as regards injuries sustained at the time of his arrest.

Only twelve days after the alleged events, on 24 January 2011, when he was questioned by the prosecutor, he complained about the alleged beating.

The applicant underwent then a body search (ogl Ä™ dziny) . According to the record of the body search, on 24 January 2011, the applicant had the following body injuries:

“Irregularity of the mucous membrane on the inner part of lips, three colourings of skin on the right side of stomach, one about 5-5.5 cm., the remaining about 3 cm., inside in the yellow colour with blue borders and one on the other side of umbilicus barely seen with yellow colouring; on the right arm close to elbow on the inner side three yellow colourings; one yellow colouring on the right thigh.”

For the first four months the investigation was conducted by prosecutor N.M., the same who had ordered the applicant ’ s arrest.

On 13 May 2011 the proceedings were severed and the part of it which concerned the alleged abuse of power by the police officers was transferred to the Warszawa Pó ł noc District Prosecutor.

According to the applicant ’ s submissions the first interrogations in the investigation took effect on 20 June 2011 and the police officers who arrested the applicant were questioned only in August 2011 that is about seven months after the event.

An expert opinion was ordered in the course of the investigation. A relevant part of the opinion dated 2 December 2012, read as follows:

“If the injuries of the applicant ’ s mucous membrane are treated as scar it should be stated that this injury was sustained in a result of a dull blow. It cannot be excluded that such injury might be a result of a strong slap (...).

The haematoma on the applicant ’ s right arm and right thigh are the result of three dull blows of moderate power. The nature of the injuries especially those on the applicant ’ s arm indicates that they might be a result of holding him firmly.

( ... ) taking into consideration the nature of injuries of the applicant ’ s stomach and the fact that the body search was conducted several days after the events it is impossible to establish whether those injuries were the result of injecting a medication Clexane or as a result of dull blow (for example kick).

Summing up the injuries sustained by the applicant as recorded in the course of body search on 24 January 2011 are not typical for numerous blows and kicks on somebody ’ s head, torso and limbs.”

The prosecutor heard several witnesses, in particular the applicant ’ s two colleagues who worked with him at the time of his arrest. They did not however see the events about which the applicant had complained. The prosecutor also heard all the police officers and members of anti-terrorist brigade who came to arrest the applicant in the morning on 12 January 2011. They all declined having abused their power by beating or hitting the applicant. One of the police officers, T.R. who was also a doctor confirmed that when they were in the applicant ’ s apartment in Warsaw, he had complained of pain in his chest and had informed the police officers that he suffered from coronary artery disease and hypertension. T.R. testified that, as a doctor, he had not observed any symptoms which would require medical intervention and declined that in the apartment the applicant requested to be allowed to take medications. He confirmed however that when the applicant, when taken to the police station, had requested to be allowed to take medication his request was then granted.

On 21 December 2011 the Warsaw Północ District Prosecutor discontinued the investigation. Having analysed the witnesses ’ submission and the expert opinion referred to above the prosecutor concluded that “it was not possible to establish facts as regards the suspicion of the offence of abuse of power by the police officers”.

On 4 January 2012 the applicant ’ s lawyer appealed.

On 26 March 2012 the Warsaw District Court upheld the challenged decision. It endorsed the prosecutor ’ s reasoning and held that the version of events as described by the applicant could not be confirmed by the evidence produced in the course of proceedings.

B. Relevant domestic law and practice

1. As regards exceeding of authority by a public official

Article 231 § 1 of the Criminal Code provides as follows:

“A public official who, exceeding his authority, or not performing his duty, acts to the detriment of a public or individual interest shall be subject to the penalty of deprivation of liberty up to three years”.

2. As regards the applicant ’ s detention on remand

The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe) , the grounds for its extension, release from detention and rules governing other so-called “preventive measures” (środki zapobiegawcze) are set out in the Court ’ s judgments in the cases of Gołek v. Poland , no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland , no. 17584/04, §§ 22-23, 4 August 2006.

COMPLAINTS

The applicant complains under Article 3 of the Convention that at the time of his arrest and while being questioned at the police station on 12 January 2011 he was subjected to inhuman and degrading treatment. He also complains under the procedural limb of Article 3 that the investigation into the events complained of was not “thorough and effective”. He further complains under Article 5 § 3 of the Convention about the excessive length of his pre-trial detention.

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to inhuman or degrading treatment in breach of Article 3 of the Convention at the time of his arrest and while being questioned at the police station on 12 January 2011?

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)?

3. Did the length of the applicant ’ s pre-trial detention exceed a “reasonable time” within the meaning of Article 5 § 3 of the Convention?