FOURTH SECTION

Application no. 51487/11 Juliusz MAKOWSKI against Poland lodged on 9 August 2011

STATEMENT OF FACTS

The applicant, Mr Juliusz Makowski , is a Polish national, who was born in 1989 and lives in Warszawa.

A. The circumstances of the case

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

1. Events after the football match on 12 June 2005

On 12 June 2005 the applicant went to P ł ock to attend the football match between Wis ła Płock and Legia Warszawa. Some three thousand Legia supporters came from Warsaw. In the Płock stadium they were placed in special “sectors for guests”.

After the match the applicant was leaving the stadium in the crowd of Legia supporters who started a fight with the police officers securing the stadium. They threw stones and other objects at police officers and at cars parked outside the stadium. The applicant was identified as one of the persons throwing stones and the officer who conducted the action, A.M., ordered T.D. and G.G. to arrest him.

According to the applicant he was hit on his head and lost consciousness. When he regained consciousness he was lying on the ground, handcuffed, and several policemen were hitting him with truncheons.

According to the domestic courts ’ findings, the applicant was conscious, he resisted arrest, tried to break out and get away and therefore the police officers had to use force against him. They were hitting him with truncheons; he fell down and tried to stand up. Then they pressed him to the ground and incapacitated him by sitting on his back and legs. When he calmed down, he was handcuffed.

The applicant sustained injuries during the arrest. His brow ridge was broken – according to the courts ’ findings this happened just before the arrest. He had multiple but superficial injuries to his head and face, torso, arms and legs.

When the applicant was handcuffed he was taken to an ambulance where a doctor decided that he should be taken to a hospital.

The police officers who arrested the applicant went with him to the P Å‚ ock hospital in the ambulance. They arrived there at 9.50 p.m. and left the hospital about 20 minutes after midnight. In the hospital the applicant was examined and had his brow ridge sutured. A doctor who examined the applicant issued a certificate allowing the applicant to be taken to the Police Youth Shelter ( Policyjna Izba Dziecka ) ; the applicant was a minor at the time of the events.

Subsequently, the applicant was taken to the police station in a police car. He submitted that on the way to the police station the car stopped and he was ordered to get out of the car. Then he was again beaten with truncheons by other police officers, kicked and hit. He also submitted that later he was hit at the police station.

At the police station, at 0:44 a.m. the following day the applicant underwent a breath-test which showed no alcohol in his blood.

Subsequently, the applicant was brought to the Police Youth Shelter where he was detained until the next day. On 13 June 2005 the applicant ’ s parents came and collected him from the police station where the applicant was brought from the Youth Shelter. The applicant ’ s mother demanded that her son be examined by a doctor but apparently no doctor was available at that time. The applicant was sent to hospital because he complained of headaches. He was examined and an x-ray of his right arm and right hand was taken. Only then it was discovered that one the applicant ’ s palm bones was broken.

On 14 June 2005 the applicant went to a private medical practice where he underwent a forensic examination according to which he sustained the following injuries:

1. head wound around left brow ridge, stitched, three stitches,

2. numerous small bruises and chafes on his face,

3. bruises and chafes behind his right ear,

4. numerous hematomas on both shoulders, arms, legs and loin on the left side,

5. third metacarpal bone broken,

6. numerous bruises and scratches of both palms and hands.

The broken metacarpal bone was the only injury which caused an impairment of the applicant ’ s health for a period exceeding seven days.

The applicant ’ s parents complained to the police about mistreatment of their son. On an unspecified date the Radom Regional Police Station issued a document in which it stated that:

“ the complaint is ill-founded; from preliminary findings it emerges that the police officers had not exceeded their powers and there is no basis to open disciplinary proceedings against them ( ... )”.

2. Criminal proceedings against the police officers

On 18 June 2005 the applicant ’ s parents lodged a notification of commitment of a crime. The accused were the two police officers who arrested the applicant, T.D. and G.G accused of abuse of powers and M.J. who conducted the action after the football match, accused of uttering threats.

On 2 July 2008 the P Å‚ ock District Court gave judgment and acquitted all police officers. The court heard the applicant, his parents, all police officers from the Sochaczew Police Station who participated in the action on 12 June 2005, the commanding officer and all police officers who had had contact with the applicant after the match on 12 June 2005. The court also heard two further witnesses J.P. and P.K., reporters who took photographs during and after the match, and based its findings on the photographs in which the applicant can be seen with his face covered with blood and being hit by the policemen.

The court also allowed as evidence a film recorded after the match; however the crucial part of the film could not be seen due to some technical problems.

A forensic expert T.G., who did not examine the applicant but gave his expertise on the basis of the medical documentation produced right after the events on 12 and 13 June 2005, found that the injuries sustained by the applicant could have been “caused by falling on the ground or by hitting with an oval or dull object”. A further expert J.K. found that the medical documentation produced in the instant case was incomplete, laconic and lacked details and therefore it was impossible to establish precisely the source of the applicant ’ s injuries.

Both the prosecutor and the applicant appealed against this judgment.

On 13 February 2009 the P ł ock Regional Court quashed the judgment as regards the accused T.D. and G.G. and upheld the remainder thereof. The court found that the first-instance court had failed to examine all the circumstances of the case, in particular it failed to establish the actual course of the applicant ’ s arrest. The Regional Court ordered the first-instance court to examine whether there was a basis for the police intervention and whether the use of truncheons was necessary and proportionate.

On 30 December 2009 the P ł ock District Court again acquitted the police officers. It heard again the key witnesses and based its findings on the expertise of a forensic expert J.K. who admitted that the medical documentation was incomplete and that “it was impossible to establish the mechanism of sustained injuries”.

The prosecutor and the applicant appealed again. He claimed, among other things, that handcuffing him was illegal, because at that time the relevant provisions forbade handcuffing a person under 17 years of age.

On 27 October 2010 the P ł ock Regional Court upheld the challenged judgment. As regards the handcuffs it stated that indeed it was forbidden to use handcuffs on minors but “the police officers did not know his age and besides the situation required effective action which, taking into account the applicant ’ s attitude, was necessary”.

The applicant lodged a cassation appeal.

On 12 April 2011 the Supreme Court dismissed the cassation appeal as manifestly ill-founded.

B. R elevant domestic law and practice

1. Use of force by the police

The regulations on permissible use of direct coercive measures by the police are laid down in section 16 of the Police Act, which provides that in situations in which a police order is not obeyed, such measures can be resorted to only in so far as they correspond to the requirements of a particular situation and in so far as they are necessary to obtain compliance with that order.

Article 5 § 1 of the Ordinance of 17 September 1990 on the use of coercive measures by the police provide d at the relevant time that direct physical force could be used to overpower a person, to counter an attack and to ensure compliance with an order. When such force was being used, it wa s forbidden to strike the person against whom the action is being carried out, except in self-defence or to counter an attack against another person ’ s life, health or property.

According to Article 6 § 2 of the Ordinance at the relevant time it was forbidden to use handcuffs in relation to persons under 17 years of age.

2 . T he Criminal Code

Article 15 7 of the Criminal Code sets the threshold between minor and more serious bodily injury or impairment to health. According to that provision, if the bodily injury or impairment to health lasts less than seven days, the perpetrator is subject to a fine, the penalty of restriction of liberty or deprivation of liberty for up to two years. In such case the prosecution occurs upon a private charge. If the bodily injury or impairment to health lasts longer than seven days, the perpetrator is liable to a heavier penalty.

Article 158 § 1 of the Criminal Code provides as follows:

“Whoever participates in brawl or a beating in which a human being is exposed to the immediate danger of the loss of life or to a consequence referred to in Article 156 § 1 or in Article 157§ 1 shall be subject to the penalty of deprivation of liberty for up to three years.”

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”.

COMPLAINT

The applicant complains under Article 3 of the Convention that he was subjected to inhuman and degrading treatment by the police officers at the time of his arrest on 12 June 2005.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to inhuman or degrading treatment in breach of Article 3 of the Convention at the time of h is arrest?

2. In particular, was the force used by the police officers to arrest the applicant proportionate in the circumstances?

3. 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)?