FOURTH SECTION

Application no. 11921/09 Dariusz MILCZAREK against Poland lodged on 23 February 2009

STATEMENT OF FACTS

The applicant, Mr Dariusz Milczarek , is a Polish national, who was born in 1973 and lives in Warsaw. He is repres ented before the Court by Mr J. Brydak , a lawyer practising in Warsaw.

The circumstances of the case

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

On 1 October 1996 the applicant was arrested and beaten up by the police at the police station in Warsaw.

On 2 October 1996 the prosecutor questioned the applicant in connection with charges of alleged failure to comply with the traffic police order to stop his car and of using a stolen car. He noted in the minutes that the applicant had numerous bruises on his body and that he complained about having been beaten by the police on the previous day. On the same day the prosecutor requested the court to remand the applicant in custody. During the relevant court session held on 3 October 1996 a judge of the Warsaw ‑ City District Court, having regard to the applicant ’ s injuries and to his submissions about having been beaten up, called the emergency medical services to the courtroom. A doctor summoned by the court submitted that the applicant ’ s condition indicated that he could be suffering from cerebral concussion.

The applicant was admitted to a hospital immediately afterwards. In the evening of 3 October 1996, the court refused to remand him in custody, having regard to the fact that more than forty-eight hours had elapsed since his arrest.

The applicant was discharged from the hospital on 11 October 1996. His medical record showed numerous bruises on his body.

On 4 October 1996 the applicant ’ s mother requested the prosecuting authorities to institute an investigation into her son ’ s ill-treatment by the police.

Two medical expert reports prepared for the purposes of the investigation and dated 11 December 1996 and 2 January 1997 confirmed that the applicant ’ s injuries could have been caused by ill-treatment by the police in the circumstances which he had described during the investigation.

The investigation was discontinued on 11 June 1997, the Warszawa Wola District Prosecutor being of the view that no criminal offence had been committed as the force used against the applicant had not been excessive. This decision was later quashed by the Warsaw Regional Prosecutor and the case remitted for a further investigation on 9 October 1997.

On an unspecified date in 1997 the District Prosecutor brought a bill of indictment against the applicant before the Warsaw Regional Court on charges of attempted murder and causing imminent danger of a traffic accident, claiming that on 1 October 1996 he had allegedly failed to stop his car when stopped by the police and tried to knock down one of the officers.

On 19 January 1999 the Warsaw Regional Court acquitted the applicant. It found that on 1 October 1999 the applicant had been arrested and subsequently beaten up by the police officers and that he had suffered multiple injuries. It referred to the events during the court session of 3 October 1996 (see above). The court considered that the testimony given by the police officers as to the applicant ’ s allegedly criminal conduct was contradictory in many aspects and lacked credibility.

The prosecution appealed.

On 19 October 1999 the Warsaw Court of Appeal dismissed the appeal. It observed that the applicant had been beaten up by the police. The court noted that the assessment of the credibility of the police officers had to be made in the light of the fact that they had earlier beaten up the applicant. It could not be excluded that the testimonies of various police officers maintaining the applicant ’ s guilt were motivated by their own unlawful conduct towards him.

On 16 February 1998 the Warszawa Wola District Prosecutor discontinued the investigation against the police officers on the ground that he could not establish the address of one of the officers allegedly involved in the incident.

The proceedings were resumed on 15 February 2008.

On 10 March 2008 the Warszawa Wola District Prosecutor discontinued the investigation, finding that the charges of abuse of powers against the officers had become time- barred on 1 October 2001.

The applicant appealed. He argued that all standards applicable to the criminal investigation had been breached in the case. An innocent man had been seriously beaten by the police. The investigation had been discontinued. The ill-treatment had been repeatedly confirmed during the criminal proceedings against the applicant, including by the courts. The applicant had been pursued on criminal charges which had ultimately been found ill-founded. The prosecuting authorities had needed two years to prepare a bill of indictment against him in that case, whereas the charges against the police officers had become prescribed after over eleven years of incompetently conducted investigation. The criminal case against the applicant had been brought essentially with the purpose of covering up the police ’ s responsibility for the ill-treatment.

The a pplicant concluded that Article 3 of the Convention had been breached thereby.

On 27 August 2008 the Warszawa Praga- Pó łnoc District Court upheld the contested decision. It was of the view that it was lawful as it was not open to doubt that the offence of abuse of official powers had become prescribed five years after the events concerned, in 2001. The court criticised the manner in which the proceedings had been conducted. After the judgment acquitting the applicant in 1999, consideration should have been given to pressing charges of unlawful use of force against the police officers involved in the 1996 incident. The prosecution had failed to reassess the ill-treatment case in the light of the 1999 judgment and the courts ’ conclusions as to the credibility of the evidence given by the police in that case. The reading of the decisions given in the case could legitimately give rise to suspicion that the police and prosecution had tried to cover up the conduct of the police during the original incident while, at the same time, pursuing vigorously the charges against the applicant which had ultimately proved to be contrived. The court noted that the police had treated the applicant in the manner contrary to Article 3 of the Convention.

COMPLAINT

The applicant complains under Article s 3 and 6 of the Convention that he was ill ‑ treated by the police in 1996. The ill-treatment was later confirmed by the courts who found that the evidence made by the police officers as to the original incident lacked credibility. The investigation into his allegations was not thorough and effective. The police and the prosecution tried to protect the police officers involved while at the same time pursuing criminal charges against him on the basis of fabricated evidence. The investigation was exceedingly long and the charges ultimately became time-barred after the investigation which had lasted for over eleven years.

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QUESTIONS TO THE PARTIES

1 . Can the applicant claim to be a victim of a breach of the Convention, regard being had to the comments on the conduct of the investigation of the charges of ill-treatment made by the Warszawa Praga - Pó łnoc District Court in its decision of 27 August 2008?

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 by the domestic authorities into the allegations of ill-treatment in breach of Article 3 of the Convention?