FOURTH SECTION

Application no. 43974/08 Wiesław BUCHOWIECKI against Poland lodged on 2 September 2008

STATEMENT OF FACTS

The applicant, Mr Wiesław Buchowiecki , is a Polish national who was born in 1949 and lives in Brzeg .

A. The circumstances of the case

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

On an unspecified date a c riminal investigation was instituted against the applicant and other persons concerning charges of embezzlement. The applicant was summoned by the prosecutor on several occasions. He complied with all summonses and gave testimony.

On 2 December 2006 the agents of the Central Anti-corruption Bureau (CAB) came to the applicant ’ s apartment and arrested him. He was handcuffed in front of his family and then led out of the apartment in front of TV cameras. His leaving was filmed and even rehearsed several times, allegedly for the purposes of being broadcast later. He was taken to the police station.

By a decision of 28 May 2007 the Świdnica Regional Prosecutor dismissed an anonymous request for an investigation to be instituted into an alleged abuse of powers at the time of the applicant ’ s arrest, namely handcuffing him without there being a valid legal basis for doing so at that time. The prosecutor confirmed that the Ordinance (see Relevant domestic law) had not been in force at the time of the applicant ’ s arrest. However, the CAB Act had been in force at the material time. Hence, it could not be accepted that the officers had abused their powers, the more so as they had had recourse to means of physical restraint (handcuffs) which had subsequently been expressly allowed by the Ordinance.

The applicant ’ s lawyer appealed. He argued that the decision was in breach of the substantive law in that no law was in force on the material date allowing for the use of handcuffs in respect of persons under arrest. He submitted that the decision was also in breach of procedural obligations in that the prosecutor had failed to call and examine any witnesses. Furthermore, the first-instance authority had failed to examine whether there were any grounds for handcuffing the applicant, who had not offered any resistance. Moreover, the applicant had been taken out of his house several times to allow the arrest to be filmed by the CAB officers.

On 21 December 2007 the Świdnica Regional Prosecutor discontinued the investigation, finding that there was no case to answer. As to the alleged unlawfulness of the handcuffing, it was again stated that the fact that the CAB Act was in force, even in the absence of the Ordinance specifying the forms of lawful force, was sufficient for concluding that the arrest complied with the law. As to the complaint concerning the filming of the arrest, the prosecutor held that it had been carried out “for the CAB ’ s purposes”. No offence of abuse of powers had been committed.

The applicant ’ s lawyer appealed. He submitted that section 15 of the CAB Act did not provide a legal basis for the applicant ’ s handcuffing; that the officers could not handcuff him as there was no evidence that he had been resisting arrest, resistance or failure to follow orders being an essential legal condition for the lawful use of force under that Act.

On 7 March 2008 the Brzeg District Court dismissed the appeal. It was of the view that section 15 of the CAB Act expressly allowed for the handcuffing of arrested persons for the purposes of transporting them. Hence, the applicant ’ s argument that only the probability or refusal to follow orders was the only legally acceptable situation where an arrested person could be handcuffed was untenable. In so far as the applicant relied on the absence of a legal basis, the court noted that he had failed to raise an argument that the Ordinance had extended the scope of use of direct force beyond the limits set by the CAB Act.

B. Relevant domestic law

The Central Anti-corruption Bureau (CAB) Act was adopted by Parliament ( Sejm ) on 9 June 2006. Its section 15 reads:

“1. In case of failure to follow lawful orders given by the CAB officers in the exercise [of their mandate], they may use physical, technical and chemical means of restraint for the purposes of immobilising persons or for transporting them or for stopping vehicles.

2. When means of restraint are used under paragraph 1, they shall correspond to the situation and be necessary for the purposes of obtaining compliance.

3. The Council of Ministers shall specify, by way of ordinance, ways and means of use of force, referred to in paragraph 1 above.”

On 27 November 2006 an Ordinance on powers of the CAB to use force was adopted. It entered into force on 12 December 2006. Its section 4 reads, inter alia :

“A [CAB] officer is empowered to have recourse to the following kinds of restraint: (...)

2. equipment designed for immobilisation and transport purposes such as:

a) handcuffs, (...) “

COMPLAINTS

The applicant complains, relying on Articles 3 and 5 of the Convention, about being handcuffed during his arrest. He argues that his arrest was not effected in a lawful manner as his handcuffing lacked a legal basis.

QUESTIONS

1. Has the applicant exhausted all effective domestic remedies in respect of his complaint under Articles 5 § 1 of the Convention, as required by Article 35 § 1 of the Convention? In particular, was the request to institute criminal proceedings against the officers of the Central Anti ‑ corruption Office an effective remedy within the meaning of this provision?

2. Was the manner in which the applicant ’ s arrest was carried out compliant with the procedural requirements specified by Article 5 § 1 (c) of the Convention (see, among many other authorities, Assenov and Others v. Bulgaria , 28 October 1998, § 139, Reports of Judgments and Decisions 1998 ‑ VIII) ? Reference is made to the fact that at the time of his arrest no provision of domestic law authorised the use of handcuffs in respect of persons arrested by officers of the Central Anti-corruption Office.

3. Was the applicant ’ s arrest carried out in violation of Article 8 of the Convention? Did the applicant exhaust relevant domestic remedies in respect of this complaint? Reference is made to the applicant ’ s allegation that during his arrest he was taken out of his house several times in order for that scene to be filmed by the CAB officers.