THIRD SECTION

Application no. 49111/08 M.J.M. WIESMAN against the Netherlands lodged on 10 October 2008

STATEMENT OF FACTS

1 . The applicant, Mr M arcus J ohannes Maria Wiesman , is a Dutch national, who was born in 1965 and lives in Groenlo . He is represented before the Court by Mr C.W.J. de Bont , a lawyer practising in Doetinchem .

A. The circumstances of the case

2 . The following summary of the facts of the case is based on the submissions of the applicant and on replies received from the respondent Government to factual questions put to them pursuant to Rule 49 § 3 (a) of the Rules of Court.

1. The circumstances surrounding the applicant ’ s arrest and subsequent events

3 . In the evening of Thursday 7 July 2005 the applicant went out in Deventer . At some point in the evening he used cocaine.

4 . On Friday 8 July 2005, at approximately 1.05 a.m., two specially uniformed police officers of the bicycle team of the IJsselland police force, Officers A and B, were notified by bystanders that the applicant might need assistance.

5 . The police officers found the applicant walking in a confused state on the pavement next to a busy road, the intersection of the Bokkingsham and the Wilhelminabrug . One of the police officers called a taxi for the applicant and was informed it would take 30 minutes for a taxi to arrive.

6 . Meanwhile the applicant tried several times to walk from the pavement onto the road.

7 . The police officers asked the applicant for his identity documents. As he was not able to provide identification and as the police officers considered that the applicant was possibly endangering himself and others, they told the applicant that he would be transferred to the police station. Upon this notice the applicant ran away, onto the road.

8 . The applicant strenuously resisted arrest and had to be forced to the ground in order to be handcuffed. A second team of police officers, consisting of Officers C and D, arrived at the scene and took the applicant to the police station by car.

9 . At the police station the applicant was frisked and a plastic bag with a small amount of white powder was discovered in a pocket of his jacket. The powder was seized and handed over to the Netherlands Forensic Institute ( Nederlands Forensisch Instituut ).

10 . Before being taken into custody the applicant was checked by a doctor of the Municipal Health Service ( Geestelijke Gezondheidsdienst , hereafter “GGD”), who happened to be present in the police station. The doctor decided that the applicant could be taken into custody. The applicant was locked into an observation cell.

11 . About half an hour later the applicant started complaining of pain in his shoulder. The doctor of the GGD, still present in the police station, decided that he had to be taken to the accident and emergency department of a hospital.

12 . The applicant was taken to the local hospital by two police officers, where he was treated for a dislocated shoulder. This treatment did not lead to the desired result and an X-ray photograph showed a fracture of the applicant ’ s left shoulder, which could only be remedied by surgery. In the hospital three blood samples were taken from the applicant for examination.

13 . The applicant chose to have the surgery in another hospital and he was taken home by police.

14 . On 19 July 2005 the applicant ’ s shoulder was replaced by shoulder prosthetics. This treatment led to a loss of functional capacity of the left shoulder.

2. Medical information

15 . According to the referral note of 8 July 2005, the doctor of the accident and emergency department of the Deventer hospital established that the applicant had welts on his wrists, several scrapes on his arms and head, and that his left shoulder was broken.

16 . In a letter of 1 May 2006, the surgeon treating the applicant, Dr van T., stated that the applicant ’ s loss of capacity and pain was persistent. According to the surgeon the serious fracture might have come about in one of two ways: either as a result of the hold in which the applicant had been placed when he was arrested, or as a result of the failed attempt to relocate the applicant ’ s shoulder in the accident and emergency department.

3. The applicant ’ s criminal complaint against the police officers

17 . On 11 July 2005 the applicant lodged a criminal complaint against the police of aggravated assault causing bodily harm. The applicant claimed that the use of cocaine had made him anxious. He had asked for help, but instead he had been provoked by two police officers of a bicycle team. The applicant had got scared and wanted to flee. While trying to run away, one of the police officers had taken hold of him from behind and throttled him. As the applicant had been unable to breathe, he had put up strenuous resistance. One of the officers had told him to lie on the ground. The applicant had refused to do so and he had been forced to the ground. Meanwhile the officers had hit him several times. The applicant had subsequently been handcuffed and placed into the police car. One of the police officers had shouted at him to sit up straight and punched him in the face, on the head and on the left shoulder. The applicant had asked the police officers several times to loosen the handcuffs because of pain in his wrists, but they had not obliged. At the police station he had twice been checked over by a doctor. After the applicant had complained of pain in his shoulder, he had been taken to hospital.

4. Investigative measures by the IJsselland police force

18 . On 26 July 2005 the seized plastic bag containing a white powder and one of the blood samples taken from the applicant were sent to the Netherlands Forensic Institute.

19 . In a report of 8 August 2005 the Netherlands Forensic Institute stated that the 4,452 grams of cream- coloured powder in the plastic bag contained cocaine.

20 . On 18 August 2005 the applicant was questioned as a suspect. He declared, in addition to the information he had given in his criminal complaint, that he had also several times been kicked by the police officers. Moreover, he stated that he had also been hit by the police officer who sat next to him in the back of the car when he was being transferred to the police station.

21 . In reaction to the applicant ’ s complaint, police commissioner N concluded on 29 August 2005 that the use of force by the police against the applicant had not been unlawful.

22 . In a report of 17 October 2005 the Netherlands Forensic Institute set out the results of the toxicological examination, which showed that the blood sample taken from the applicant contained an active concentration of cocaine and an inactive product of THC (cannabis).

23 . In a letter of 18 October 2005 the public prosecutor of the Zwolle- Lelystad region agreed with the proposal made by the head of the IJsselland police district that an investigation into the applicant ’ s claims be conducted by the IJsselland Intelligence and Security Department ( Bureau Inlichtingen en Veiligheid ).

24 . In October 2005 police commissioner Ter S . ordered two police inspectors of the IJsselland Intelligence and Security Department, Messrs De G. and De B., to conduct a disciplinary investigation into the conduct of the police officers involved prior to, during and after the applicant ’ s arrest.

25 . The course of the disciplinary investigation into the conduct of the police officers involved prior to, during and after the applicant ’ s arrest was laid down in a report of 12 April 2006, which contained inter alia the following:

(a) Statement of Officer C

26 . Police officer C was questioned on 2 December 2005 and stated that on 7 July 2005 he had been on the night shift together with officer D. They were in a marked police car.

27 . On instruction of the Control Room ( meldkamer ) the two officers had gone to the Bokkingsham , where two colleagues were attempting to arrest a rather aggressive suspect.

28 . On the Wilhelminabrug Officer C had seen Officers A and B. One of them was holding the suspect, who was handcuffed with his hands on his back and lying on the ground. The suspect was shouting and trying to break free. Officer C had noticed that his colleagues were having difficulties in arresting the suspect, as they were both out of breath.

29 . Officer C stated that when the suspect had been placed in the back of the car nothing special had happened. Officer C had sat next to the suspect and had seen that he had white powder around his nose and mouth and that he was wet with perspiration. In the car the suspect had kept shouting and acting crazily.

30 . At the police station the suspect had been frisked, undressed and the handcuffs had been taken off. He had kept refusing to cooperate. In order to be frisked, the suspect had had to be restrained by twisting his arm. He had been placed in an observation cell in his underpants.

31 . Some time later Officer C had been requested to transport the suspect to the hospital together with his colleague Officer D. He had noticed that the suspect was holding his left arm in front of his chest and that he appeared to be in pain. Prior to transporting the suspect to the hospital, Officer C had not seen or noticed that he was hurt.

(b) Statement of Officer D

32 . Police officer D was questioned on 5 December 2005 and stated that on 7 July 2005 he had been on the night shift together with Officer C.

33 . After their colleagues A and B had asked for assistance via the two-way radio, they had quickly driven to the Wilhelminabrug .

34 . Upon arrival Officer D had seen a man lying on the ground. The man was handcuffed and being restrained by Officers A and B, who were sitting or lying at either side of the man. Officer De V., a police-dog handler, had also arrived at the scene.

35 . The man had been helped into the back of the car by Officers C, A, B and De V. Officer D had noticed that the man had white powder around his nose. The man initially lay on the backseat and he was put upright by the police officers. Officer C had sat next to the man and was able to restrain him somewhat during the drive to the police station. The man had been talking in a disjointed fashion. Nothing had happened in the car.

36 . At the police station Officer D had assisted in taking the man to the observation cell. The man had not really cooperated. In the cell Officers D and C had removed the handcuffs, each holding one of the man ’ s arms. They had also undressed him. The man had stayed calm and did not show that he was in pain. The man had been checked over by a doctor of the GGD.

37 . Officer D had discovered a small plastic bag containing white powder in the man ’ s jacket, which he had seized and handed to the Netherlands Forensic Institute.

38 . About one hour later Officer D had heard that the man was complaining about pain. The doctor of the GGD had concluded that his shoulder might be dislocated. Officers D and C had transported the man to the hospital. By that time the man had been calm and approachable, and apparently ashamed of his earlier behaviour .

39 . After treatment in the hospital the man had mentioned to Officers D and C that he had been beaten up by the police.

(c) Statement of Officer E

40 . Officer E was questioned on 17 January 2006. He works as a custody officer at the Deventer police station. On 7 July 2005 he had been working the night shift.

41 . Via the two-way radio Officer E had heard that a man was being arrested. He had also heard that something was the matter.

42 . In the observation cell the arrested man had been placed against the wall by Officers D and C in order to take off his clothes and handcuffs. The man had occasionally shouted. Officer E had not had the impression that the man was in pain at that moment. He had not seen any injuries either.

43 . Officer E had gone to look for the doctor of the GGD, who had checked the man over and decided that he should be kept under observation. Officer E had noticed that at that moment the man had already been calmer than when he had been brought in.

44 . At approximately 2.10 a.m. the man had complained of pain in his shoulder. The doctor had examined the man again. Officer E had seen that the man was supporting one of his arms with the hand of the other arm. He had also seen that the man appeared to be in pain , but he had not seen any injuries. The doctor had decided that the man needed to go to hospital for further examination.

(d) Statement of Mr M .

45 . Mr M . was questioned on 16 February 2006. He works as a nurse in the Deventer hospital. In the night of 8 July 2005 he had been informed by telephone by a GGD doctor that a patient with a possibly dislocated shoulder would be brought in.

46 . Mr M . still remembered the patient who had been brought in, as he had had white powder around his nose and mouth.

47 . Mr M . had taken the patient into a treatment room, where he had examined him. Suspecting that the patient ’ s shoulder was dislocated, Mr M . had treated the patient in the prescribed manner, whereby no force is used. The treatment had not had the desired result and an X-ray photograph had been taken. The photograph had shown a severe fracture of the left shoulder, which could only be remedied by surgery. The patient had been given the choice of staying in the hospital overnight or to have the surgery in a hospital nearer his home. The patient had chosen the latter option.

(e) Statement of Officer A

48 . Police officer A was questioned on 29 March 2006. In the night of 7 July 2005 he had been on duty in the bicycle team together with his colleague B. They had worn special uniforms.

49 . At approximately 1 a.m. their attention had been drawn to a man who might need assistance. Officer A had seen a man walking near the sliproad to the Wilhelminabrug . He had heard the man shouting and he had had the impression that the man was under the influence of something.

50 . Despite the time of day there had been a lot of traffic on the road and Officer A had seen that some cars had to brake or move out of the way, since the man was occasionally walking onto the road. Officer A had approached the man and asked him, for his own and other people ’ s safety, to come to the pavement.

51 . Upon Officer A ’ s request for identity documents, the man had handed over his wallet. The wallet had not contained any identity document.

52 . Officer A had called a taxi for the man, but been told that it might take about half an hour for a taxi to arrive.

53 . The man had kept walking onto the road. Officer A had considered it best to transfer the man to the police station. The man had kept shouting and raging. When Officer A told him that he would be transferred to the police station, the man had refused and immediately run away, causing the driver of a car to have to brake suddenly. Officer A had run after the man and got hold of him. He had tried to twist the man ’ s arm. The man had lashed out and Officer A had not succeeded in calming him down. He had been unable to take the man in a stranglehold either. Officer B had tried to get hold of the man ’ s other arm. In this skirmish they had all fallen onto the road. Officer A might have fallen on top of the man, but he was not sure about this. The man had kept lashing out. When the man lay on his back, the two officers had been able to take hold of his arms. Sitting on top of the man, Officer A had been able to attach a handcuff to one of the man ’ s wrists. Both officers had turned the man over onto his stomach which had enabled them to handcuff the other wrist as well. The man had continued to put up resistance and Officer A had had difficulties restraining him.

54 . Meanwhile Officer B had requested the Control Room for assistance. After the arrival of the police car, the man had been taken to the car, his head pressed between two police officers. The man had been placed in the backseat of the car. Even then he had managed to kick against the roof of the car.

55 . Officer A had not heard the man complain of pain. He had been screaming, but this had consisted mainly of cursing.

56 . Later on at the police station Officer A had seen that the man had white powder around his nose. He had not noticed this before.

(f) Statement of Officer B

57 . Police officer B was questioned on 30 March 2006. In the night of 7 July 2005 he had been on duty in the bicycle team together with his colleague A. They had worn special uniforms.

58 . At approximately 1 a.m. two boys had notified Officer B and his colleague that a bit further down the road there was a shouting man who might be in need of help. Officer B had seen the man walking, in a confused state, near the sliproad to the Wilhelminabrug . The man had shouted several things. The police officers had left their bicycles and walked towards the man. There had been a considerable amount of traffic and the man was walking on the sliproad , thus endangering himself and others. It had been visible that the man was under the influence of something. The man had not responded to the questions put to him by Officer A. Officer A had taken hold of one of the man ’ s arms in order to accompany him to the pavement. The man had kept talking to himself.

59 . The police officers had told the man several times that they were police officers and that they wanted to help him, but this had not seemed to get through to him. The man had been requested to show identity documents, but he had not had any on him. He had handed over his wallet, which had been glanced at by Officer A. Meanwhile the man had continuously tried to walk away towards the road. Some of the cars on the road had had to brake.

60 . The man had said that he had used cocaine.

61 . Officer A had called a taxi for the man, but it would take too long for the taxi to arrive. Officers A and B had decided to arrest the man and to transfer him to the police station. Officer A had told the man that he was under arrest. The man had immediately said that he disagreed and run away. A car had had to brake suddenly in order not to hit him. Officer A had run after the man, while Officer B had asked the Control Room for assistance. Officer B had seen Officer A attempting to get hold of the man and grabbing him by one of his arms, but the man had put up strenuous resistance. Officer B had tried to get hold of the man ’ s other arm. Both Officers had kept telling the man what he should do. All three men had fallen to the ground in the subsequent struggle. Officer B was not sure whether or not he might have fallen on top of the man. When the man lay on his back the police officers had been able to handcuff one of his wrists. He had continuously resisted. The man had been turned over and his other wrist handcuffed as well.

62 . By that time the police car had arrived. Either Officer B or Officer A had been sitting on top of the man in order to restrain him. The man had been helped to his feet and taken to the car bent over. Once placed in the car he had managed to kick against the roof. One of the colleagues who had arrived in the car had sat next to the man in order to be able to restrain him.

(g) Medical information

63 . On 13 March 2006 the GGD doctor, who had examined the applicant twice in the night of 8 July 2005, discussed the applicant ’ s case with Dr van T., the surgeon treating the applicant. According to Dr van T. the applicant ’ s fracture may have been caused in one of two ways: either as a result of having his arm twisted or as a result of the attempt to relocate the shoulder. In both scenarios the fracture of the shoulder was not probable, but not impossible either.

5. Proceedings brought by the applicant

64 . On 29 May 2006 the public prosecutor wrote to the applicant informing him that he had decided on the basis of the investigation of the Intelligence and Security Department of the IJsselland police force not to bring a prosecution against police officers A and B. The applicant lodged a complaint with the Arnhem Court of Appeal on 4 August 2006 against the decision not to prosecute, pursuant to Article 12 of the Code of Criminal Procedure ( Wetboek van Strafvordering – see below). In a letter of 2 May 2007 the applicant supplemented further grounds for his complaint.

65 . On 20 February 2007 the Advocate General to the Leeuwarden Court of Appeal submitted an opinion in response to the applicant ’ s complaint against the decision not to prosecute police officers A and B. The Advocate General considered it was clear that the police officers had not committed any criminal offence by using excessive force.

66 . Following a hearing conducted by a judge of the Court of Appeal, sitting in chambers in Leeuwarden , on 15 May 2007, the Court of Appeal ruled on 25 June 2007 that the investigation had not been complete and ordered a further investigation into the circumstances of the applicant ’ s injuries. The court ordered that the further investigation should focus on the moments when the applicant had been stopped, when he had been arrested, and when he had been taken to the police station.

67 . On 10 July 2007 the public prosecutor requested that a preliminary judicial investigation ( gerechtelijk vooronderzoek ) be conducted in relation to Officers A and B who were suspected of deliberately having caused grievous bodily harm to the applicant on, or around, 8 July 2005. This request was granted by the investigating judge ( rechter-commissaris ) on 27 August 2010.

68 . On 7 December 2007 the investigating judge questioned Officer De V. as a witness, who stated that the actual arrest had already taken place the moment he had arrived at the scene. He had gone over to the car in which the applicant had been placed and had seen that the applicant was shouting and kicked against the roof of the police car. Together with his colleagues Officer De V. had put the applicant upright. The applicant had not resisted. The police officers had neither used nor needed to use any force to put the applicant upright.

69 . On 10 December 2007 the investigating judge questioned chief superintendent (and assistant public prosecutor) Van de G . , who declared that the applicant had been brought into the police station in an agitated state and had initially been placed in a holding cell. A GGD doctor, who happened to be present in the police station, had examined the applicant, as it had been difficult to approach him and he had been sitting in an awkward position. The applicant had been brought before him.

70 . In a letter of 10 December 2007 the public prosecutor concluded he would refrain from further prosecution .

71 . On 17 and 19 December 2007 the investigating judge closed the preliminary judicial investigation.

72 . In a letter of 1 February 2008 the Advocate General of the Leeuwarden Court of Appeal informed the Arnhem Court of Appeal of the results of the preliminary judicial investigation. The Advocate General and the chief public prosecutor concluded that the further investigation had not cleared up the issue of the origin of the applicant ’ s injuries.

73 . The applicant reacted by letter of 17 March 2008. In his view the further investigation had not been complete. He referred to a number of inconsistencies in the statements of the police officers and to the fact that the preliminary judicial investigation had not fully complied with the instructions of the Court of Appeal, which in his submission justified a further investigation.

74 . On 15 April 2008 the Court of Appeal dismissed the applicant ’ s complaint against the public prosecutor ’ s decision not to prosecute police officers A and B, holding that there was insufficient evidence that the two police officers had assaulted the applicant.

B. Relevant domestic law

The relevant provisions of the Code of Criminal Procedure provide as follows.

Article 12

“1. If the perpetrator of a punishable act is not prosecuted, or if the prosecution is not pursued to a conclusion, then anyone with a direct interest [ rechtstreeks belanghebbende ] may lodge a written complaint with the Court of Appeal within whose area of jurisdiction the decision has been taken not to prosecute or not to pursue the prosecution to a conclusion . ...

... .”

Article 12i

“1. If the complaint falls within the Court of Appeal ’ s jurisdiction, t he complainant can be admitted [ de klager ontvankelijk is ] , and if the Court of Appeal finds that a prosecution ought to have been brought or pursued to a conclusion, the Court of Appeal shall order the prosecution to be brought or pursued in respect of the fact to which the complaint relates.

2. The Court of Appeal may also refuse to give such an order for reasons relating to the general interest.

3. The order may also include the direction [ last ] that the p ublic p rosecutor shall make the request referred to in Article 181 or Article 237 § 3 [ namely, a request to the investigating judge to initiate or continue a preliminary judicial investigation] or that the person whose prosecution is being sought shall be summoned for tr ial.

4. In all other cases the Court of Appeal shall ... dismiss the complaint.”

COMPLAINTS

The applicant complains that the State authorities failed to conduct an effective investigation into his allegations of having been ill-treat ed by police officers . He argues that this breached his right to respect for his private life as guaranteed by Article 8 of the Convention .

ITMarkFactsComplaintsEND

questions to the parties

1. W as the applicant subjected to treatment in breach of Article 3 of the Convention?

2. Having regard to the fact that Article 3 requires that, where an individual makes a credible assertion that he has suffered treatment in breach of that provision at the hands of the police, there should be an effective official investigation capable of leading to the identification and punishment of those responsible (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 compliance with Article 3 of the Convention? For the purposes of the Court ’ s examination of this issue, the Government are requested to submit a copy of the entire investigation file.