FOURTH SECTION

Application no. 48803/12 Wojciech MAJEWICZ against Poland lodged on 13 July 2012

STATEMENT OF FACTS

The applicant, Mr Wojciech Majewicz, is a Polish national, who was born in 1976 and lives in Pozna ń . He is rep resented before the Court by Mr A. Reichelt, a lawyer practising in Poznań.

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 the investigation against the police officers

On 8 June 2009 D.O. notified the police that the applicant had attempted to extort money from him by threats. The applicant was to meet D.O. on 9 June 2009 at a mobile phone shop. The police equipped D.O. with an audio-video recording device with a view to keeping the meeting under surveillance. It was decided to deploy sixteen police officers, including a number of them from the special anti-terrorist unit having regard to the previous aggressive behaviour of the applicant and the fact that he possessed a knife. The police officers were hiding outside the shop.

On 9 June 2009 D.O. met the applicant who was accompanied by two persons (M.P. and P.P.) at the back of the shop. D.O. informed the applicant that he did not want to take a bank loan on the basis of forged documents. Then, the applicant became aggressive, hit D.O. and threatened to kill him. The police decided to enter the shop to protect D.O. They stormed in shouting “Police, on the floor!”. Five employees of the shop were present. Most of the persons followed the police orders and were arrested.

Two companions of the applicant, MP and PP did not obey the orders; however they were soon immobilised by the police officers. They were arrested, taken to the police station and released on the following day.

The applicant refused to follow the police orders. The police officer RM who entered first the room where the applicant was present struck him by a Taser. Then he and other police officers tried to handcuff the applicant. They eventually overcame the applicant ’ s resistance and handcuffed him. They found a jack-knife on him.

The applicant was taken to the Poznań Police Station. Since he complained about his injuries he was taken for examination to the Hospital of the Ministry of Internal Affairs in Poznań. The doctors diagnosed a bruised chest and an injured finger. The x-ray examination did not reveal any fractures. The applicant was also diagnosed with haematomas under his eyes, a wound at the back of his head and abrasions on the right wrist, knee and the back of the right thigh. The doctors considered that the applicant ’ s stay in hospital was not necessary. The applicant was detained at the Poznań Police Station in one cell with T.K.

On 10 June 2009 the applicant was questioned by the Poznań – Wilda District Prosecutor in the presence of his two counsel (L. Relewicz and P. Binas). The applicant was charged with extortion. The counsel requested the prosecutor to order a forensic expert opinion on the injuries sustained by the applicant.

On the same day the Poznań – Nowe Miasto and Wilda District Court remanded the applicant in custody for a period of three months. In the court hall the counsel P. Binas took photographs of the applicant.

The applicant was examined by a doctor at the time of arriving in the Poznań Remand Centre. He was diagnosed with a bruised chest, an injured finger, haematomas under his eyes and abrasion on his forehead.

On 12 June 2009 the applicant filed with the Poznań – Wilda District Prosecutor ’ s Office a criminal complaint against the police officers who had arrested him. He alleged that during his detention at the Poznań Police Station he had been severely beaten. He had been repeatedly hit in his face and other parts of the body. The applicant submitted that his counsel L. Relewicz who had been present at his questioning on 10 June 2009 stated for the record of the questioning that on the previous day the applicant had had no injuries. The applicant requested the prosecutor to question him and to order an expert opinion to formally establish the presence his injuries.

On 15 June 2009 the Poznań – Wilda District Prosecutor refused the request to have the applicant examined by a forensic expert. He found that the requested opinion would be irrelevant for the examination of the case against the applicant.

On 16 June 2009 the applicant ’ s newly-appointed counsel A. Reichelt wrote to the Poznań Regional Prosecutor requesting him to take under his supervision the investigation conducted by the Poznań – Wilda District Prosecutor ’ s Office against the applicant. The counsel complained that the District Prosecutor had carried out the investigation in an improper manner.

On 17 June 2009 the applicant was examined by a doctor of the Poznań Remand Centre at the request of the District Prosecutor. The doctor diagnosed the applicant with a bruised chest, an injured finger and haematomas under his eyes. He found that all of these injuries could be treated in the remand centre.

On 24 June 2009 the counsel A. Reichelt wrote to the Poznań – Wilda District Prosecutor ’ s Office enquiring why the applicant ’ s criminal complaint of 12 June 2009 had not been formally registered. He complained that the Prosecutor ’ s Office had done nothing in the follow-up to the complaint of 12 June 2009. The counsel underlined that the applicant had not been examined by a forensic expert despite the fact that the injuries had been gradually disappearing with the passage of time. The counsel again requested that the applicant be immediately examined by a forensic expert. He also requested that the photographs of the applicant taken on 10 June 2009 be adduced in evidence and that counsel L. Relewicz be heard. He also adduced the photographs of the floor of the shop where the applicant had been arrested which contained the traces of the applicant ’ s blood. They were supplied by the applicant ’ s family. The counsel lastly adduced the medical certificate made by the doctors of the Hospital of the Ministry of Internal Affairs on 9 June 2009 and the medical certificate made on the applicant ’ s admission to the remand centre.

On 25 June 2009 the Poznań Regional Prosecutor dismissed the counsel ’ s complaint about the actions of the District Prosecutor. He noted that during his questioning on 10 June 2009 the applicant stated that his health condition had been good. It was only during the subsequent court hearing on the same day that the applicant complained that he had sustained injuries during his arrest. In reaction to this, the District Prosecutor requested the Director of the Poznań Remand Centre to have the applicant examined by a doctor.

On an unspecified date in June or July 2009 the Poznań – Grunwald District Prosecutor ’ s Office opened an investigation into the abuse of authority by the police officers who had arrested the applicant on 9 June 2009 (case no. 3 Ds 34/09). She was to examine the complaint that the police officers had assaulted the applicant, used Taser without justification and caused the following injuries: a bruised chest, an injured finger, haematomas under his eyes, a wound (cut) at the back of his head and abrasions on the right wrist, knee and the back of the right thigh.

On 17 July 2009 the Poznań – Grunwald District Prosecutor ordered a forensic expert report to be prepared with regard to the applicant ’ s health. He also requested the expert to establish whether at the present moment the applicant had any injuries and if yes, when and how could they come about.

On 31 December 2009 the Poznań – Grunwald District Prosecutor discontinued the investigation into the abuse of power by the police officers. She found that they had no case to answer. The prosecutor noted that the investigation was instituted on the criminal complaint filed by the applicant ’ s mother on 23 June 2009 who alleged that the police officers had assaulted her son. The prosecutor did not refer to the earlier complaint filed by the applicant on 12 June 2009.

The prosecutor relied on the evidence of D.O., the applicant ’ s mother and sister, his two counsel (L. Relewicz and P. Binas) , the police officers, the employees of the mobile phone shop and the two doctors of the Hospital of the Ministry of Internal Affairs (R.P. and J. G.).

It also had regard to the report of a forensic expert concerning the applicant ’ s health, the medical certificates from the Hospital of the Ministry of Internal Affairs in PoznaÅ„ and the PoznaÅ„ Remand Centre, documents of the police detention, documents of the police internal inquiry and the case ‑ file of the investigation against the applicant.

In the course of the investigation the applicant ’ s mother stated that when she had seen her son on 10 June 2009 in the court building he had had swollen wrists and bloody hands. His clothes had been ripped and covered with blood. She stated that after the court hearing she had gone to the mobile phone shop to take photographs of the place where her son had been arrested. The applicant ’ s sister testified that her brother had been battered, had his face covered with haematomas, had swollen eyes, blood on his face, neck and the clothes. He also had had a cut on his head.

The counsel L. Relewicz testified that when she had seen the applicant on 10 June 2009 at the Poznań – Wilda District Prosecutor ’ s Office he had looked like after an assault. The blood had been visible at the back of his head, his face and hands had been swollen and his face covered with haematomas. She stated that the applicant could hardly walk and that he complained that he had been assaulted by the police officers. The other counsel P. Binas confirmed these facts. He had taken the photographs of the applicant to document the applicant ’ s condition after his arrest.

The applicant stated that during his arrest he had been hit and kicked all over his body. He had been struck with a Taser on a number of occasions. The applicant stated that he had been assaulted after he had been immobilised at the mobile phone shop and subsequently during his transfer to the police station and at the police station.

All the police officers testified that the force used during the applicant ’ s arrest was adequate to the circumstances. They all denied that the applicant had been hit or kicked.

Assessing the evidence obtained in the case, the prosecutor found that in the course of the applicant ’ s arrest the police officers had not abused their powers and had acted in accordance with the Police Act and the Ordinance of the Council of Ministers of 17 September 1990 on the Use of Coercive Measures by the Police.

The prosecutor did not consider the applicant ’ s statements credible since they had not been corroborated by other evidence obtained in the case. On the other hand, he found the police officers ’ statements credible as they had been consistent and logical. It followed from their statements that they had used force against the applicant with a view to making him to obey their orders and to immobilise him. Taser had been used only once with the same intention. The applicant had not been hit or kicked. The prosecutor found that the applicant had provoked the use of force by his failure to obey the police orders.

In addition, the prosecutor found that the nature of the injuries sustained by the applicant did not indicate that the force used by the police had been disproportionate. The arrest could have also been hampered by the furniture located in the room. The forensic expert stated that the applicant ’ s injuries had resulted from the strike by a hand, fist, boot, hard surface etc. but it had not been possible to determine the exact cause of those injuries. In conclusion, the forensic expert found that he could not confirm or exclude that the applicant had been assaulted by the police officers as alleged.

Assessing the statements of the two counsel and the applicant ’ s mother and sister, the prosecutor found that they had been only of limited significance for the establishment of the facts. She noted that none of these persons had witnessed the applicant ’ s arrest. Their statements had concerned mostly the applicant ’ s appearance and his health. The prosecutor noted that the evidence of doctors who had treated the applicant after his arrest, his medical certificates and the report of the forensic expert was more objective and precise to assess the applicant ’ s health which resulted from his arrest.

The prosecutor concluded that the police officers acted in compliance with the law. With regard to the use of Taser, she found that it had been used lawfully in reaction to the applicant ’ s refusal to comply with the police orders. She also noted that the circumstances concerning the applicant ’ s arrest had been changing very rapidly and that the police had intervened to protect the life and limb of D.O. The applicant had not obeyed the orders of the police officers and had been aggressive and thus had prompted the use of force by the police. Having regard to the fact that the applicant had been a wrestler and carried a jack-knife it had been necessary for the police to act in a very robust manner.

The prosecutor underlined that the injuries sustained by the applicant did not indicate that the police intervention had been disproportionate to the circumstances. She noted that the injuries could have resulted from the aggressive behaviour of the applicant and his resistance to handcuffing. Furthermore, the forensic expert could not determine the manner in which the applicant ’ s injuries had come about.

The prosecutor also referred to the Court ’ s case-law. She noted that similarly to the case of Berliński v. Poland (nos. 27715/95 and 30209/96, 20 June 2002 ), the police had had to rapidly react to unexpected developments and the applicant had not complied with the police orders which had resulted in the use of force against him.

On 21 January 2010 the applicant ’ s counsel filed an appeal against the prosecutor ’ s decision with the Poznań – Nowe Miasto and Wilda District Court. She argued that the force used against the applicant had been disproportionate in the light of the injuries sustained by the applicant. She submitted that after the applicant had been immobilised he had been assaulted at the shop as well as during his transfer to the police station and at the police station. He had been hit and kicked in his head, face, chest and other body parts as well as struck by Taser without any justification and that these acts amounted to ill-treatment. The counsel argued that the injury to the applicant ’ s head, the haematomas under his eyes and bruised chest had resulted from an unnecessary assault on the applicant. In addition, the arrest was carried out by the officers of the anti-terrorist unit who received special training.

The counsel further alleged that the prosecutor had failed to examine certain relevant evidence in the case, in particular the recording made by the device implanted on D.O. She also submitted that the prosecutor had not thoroughly scrutinised the statements of the police officers. There was nothing in the statements of the police officers that the applicant had had a heavy bleeding from his head and that he had urinated on himself at the place of his arrest. These facts were established in the separate set of proceedings in which the applicant contested the lawfulness of his arrest (case no. III Kp 444/09). According to the counsel the applicant had urinated as a result of serious beating and being repeatedly struck by Taser. Neither did the officers state that the applicant had hit the furniture during his arrest.

The counsel also complained that the prosecutor had failed to promptly order an examination of the applicant by a forensic expert and that such examination had taken place only 6 weeks after the arrest. As a result, the expert had been unable to properly establish the applicant ’ s injuries and their cause.

The counsel further argued that the medical certificate issued on 9 June 2009 by two doctors of the Hospital of the Ministry of Internal Affairs had not given the real account of the applicant ’ s injuries. It had not mentioned that the applicant had a wound on his head and injuries to his face (haematomas and abrasions). The presence of these injuries had been confirmed by two of the police officers. Furthermore, one of the doctors (R.P.) questioned by the prosecutor had admitted that the applicant had numerous abrasions on his face, head and limbs. In conclusion, the counsel submitted that the medical examination of the applicant on 9 June 2009 had been improper and contrary to professional standards.

Lastly, the counsel argued that the first complaint concerning the assault by the police had been filed on 12 June and not on 23 June 2009 as indicated by the prosecutor.

On an unspecified date the Poznań – Nowe Miasto and Wilda District Court quashed the prosecutor ’ s decision and remitted the case.

On 12 April 2010 the Poznań – Grunwald District Prosecutor suspended the investigation in view of the fact that it ordered an expert opinion on the recording made on the day of the applicant ’ s arrest. The investigation was resumed on 1 June 2011.

On 13 June 2011 the Poznań – Grunwald District Prosecutor again discontinued the investigation into the alleged abuse of power by the police officers. The decision for the most part contained identical reasoning to the one given on 31 December 2009. With regard to the expert opinion on the recording, the prosecutor noted that it was not relevant for the case since it had ended at the moment of storming the shop by the police.

The prosecutor had not examined the various arguments raised by the applicant ’ s counsel in his appeal concerning, inter alia , the allegations of the use of unnecessary force after the applicant had been immobilised, the issue of bleeding wound on the head and the fact that the applicant had urinated on himself, the significant delay in the ordering of the forensic expert opinion, the discrepancies between the medical certificate issued on 9 June 2009 and the applicant ’ s injuries.

On 30 June 2011 the applicant ’ s counsel filed an appeal with the Poznań – Grunwald and Jeżyce District Court against the prosecutor ’ s decision. He alleged that the prosecutor had wrongly established the facts of the case. In particular, the prosecutor had wrongly found that the police officers had not abused their powers by having assaulted the applicant. The counsel argued that the extent of the applicant ’ s injuries indicated that they had resulted from the excessive use of force.

On 23 February 2012 the Poznań – Nowe Miasto and Wilda District Court upheld the prosecutor ’ s decision. The court concurred with the prosecutor ’ s findings concerning the circumstances of the arrest and the use of force by the police which had been justified by the applicant ’ s aggressive behaviour.

2. The appeal challenging lawfulness of the applicant ’ s arrest

On 3 August 2009 the applicant ’ s counsel filed an appeal with the Poznań Nowe Miasto and Wilda District Court challenging the lawfulness of his arrest. He alleged that the police officers had ill-treated the applicant during and after his arrest without any justification. He referred to the applicant ’ s injuries, in particular to a cut at the back of his head and numerous haematomas on his face. The counsel relied, inter alia , on Article 3 of the Convention.

On 28 June 2011 the Poznań Nowe Miasto and Wilda District Court found that the applicant ’ s arrest had been justified and lawful. It found that the applicant had resisted the arrest and thus the use of force by the police officers had been justified. It also considered that the injuries sustained by the applicant had resulted from his resistance to the arrest.

COMPLAINT S

The applicant complains under Article 3 of the Convention that he was ill-treated by the police officers of the Poznań Police during his arrest and subsequent detention.

He also complains that the authorities did not carry out an effective investigation concerning the allegations of his ill-treatment. In particular, he alleges that the authorities did not examine the allegation that he was ill ‑ treated during his detention at the police station. He further complains that the prosecutor ordered a forensic expert report only six weeks after his arrest.

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QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to inhuman or degrading treatment after he had been immobilised in the course of his arrest, in breach of Article 3 of the Convention?

2 . 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 with regard to the applicant ’ s allegations that he had been ill ‑ treated after he had been immobilised in the course of his arrest in breach of Article 3 of the Convention?

The Government are requested to address the following alleged shortcomings:

a) why no official action appears to have been taken on the applicant ’ s criminal complaint filed on 12 June 2009 and his request for urgent forensic examination and the similar request repeated by the applicant ’ s counsel on 24 June 2009;

b) why did not the Poznań – Grunwald District Prosecutor address in her decision to discontinue the investigation the applicant ’ s allegations that he had been ill-treated without any justification after he had been immobilised in the course of his arrest having regard to serious injuries to his head and face;

c) why did not the Poznań – Grunwald District Prosecutor address in her second decision to discontinue the investigation all shortcomings concerning the first investigation raised by the applicant ’ s counsel (concerning, inter alia , the presence of the applicant ’ s blood and urine at the place of his arrest).

3 . The Government are requested to produce copies of the following documents:

a) transcript of the applicant ’ s questioning by the prosecutor on 10 June 2009;

b) minutes of the Poznań – Nowe Miasto and Wilda District Court ’ s session held on 10 June 2009 at which the court ordered the applicant ’ s detention on remand;

c) photographs of the applicant taken by the counsel P. Binas on 10 June 2009;

d) medical certificate issued by the doctors of the Hospital of the Ministry of Internal Affairs in Poznań on 9 June 2009;

e) medical certificates issued by a doctor of the Poznań Remand Centre on 10 and 17 June 2009;

f) report by the forensic expert on the applicant ’ s injuries ordered by the Poznań – Grunwald District Prosecutor;

g) decision quashing the Poznań – Grunwald District Prosecutor ’ s decision of 31 December 2009 to discontinue the investigation.