FOURTH SECTION

Application no. 32272/11 W Å‚ odzimierz MAJKOWSKI against Poland lodged on 18 May 2011

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Włodzimierz Majkowski , is a Polish national who was born in 1940 and lives in Krakó w .

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

On 21 June 2010 the applicant ’ s wife called the police, complaining that he was uttering threats against her. Two police officers came to their apartment and took the applicant to the police station. He was released on the same day. On the same day the applicant went to a hospital. An X-ray was taken which showed that he had three ribs broken.

The applicant requested the prosecuting authorities to institute investigation against the police officers for abuse of powers and ill ‑ treatment.

On 9 July 2010 the Kraków-Podgórze District Prosecutor refused to institute investigation of the applicant ’ s allegations, having regard to testimony given by T.P., the police officer who had arrested the applicant and to a note he had prepared concerning the applicant ’ s arrest. The prosecutor found, in a very succinct decision, that there were no indications that the police officer had abused his powers or used disproportionate force against the applicant who had been aggressive.

The applicant appealed, submitting that the prosecutor had failed to question witnesses and to establish the facts properly. In particular, she had accepted uncritically the submissions made by the police officer.

By a decision of 5 October 2010 the Kraków-Podgórze District Court quashed the contested decision. It was of the view that it was premature as the prosecuting authorities had failed to take any measures to verify the statements made by the police officer concerned and by the applicant. In particular, other police officers present at the police station on the material day had not been questioned. No evidence has been taken from the official records of that police station. No expert opinion had been prepared in order to establish when the applicant ’ s injuries had arisen and whether they could have been caused by the applicant having been beaten up by the police. It was further noted that the prosecutor should have checked whether the applicant ’ s wife had requested that criminal investigation against him be instituted concerning threats which he had allegedly uttered against her.

On 22 December 2010 the Kraków-Podgórze District Prosecutor discontinued the investigation again. It was established, with reference to testimony given by the police officers T.P., S.L. and R.J., that during the applicant ’ s arrest and transport to the police station the applicant had been calm. However, after the arrival to the police station he had started to scream and became agitated. He had told the police officers that he would complain about his unjustified arrest. As he had been aggressive, an altercation between him and T.P. had arisen. T.P. had overpowered him, the applicant had fallen on the floor and his nose had started bleeding. T.P. had taken him to the bathroom. Another officer, J.K., had stated that he had seen the applicant at the police station but did not see any injuries and the applicant had not complained to him about anything.

It was further noted that on 21 June 2010 the applicant ’ s wife had requested the police to institute criminal proceedings against him concerning threats which he had uttered against her. She had been questioned and had said that the applicant had not told her anything about the alleged beating by the police on that date. She had also said that when the police officers came to their flat as she had called them, the applicant ’ s behaviour had been aggressive and provocative.

The prosecutor further referred to T.P. ’ s service notebook which contained a note about the altercation and about the nosebleed. The prosecutor also referred to a forensic expert opinion prepared for the purposes of the investigation. It concluded that the applicant ’ s injuries could have originated from circumstances he had described, that is from use of force by T.K. against him.

The prosecutor concluded that there was no indication that a criminal offence of abuse of powers had been committed. The evidence given by the police officers as to the circumstances of the arrest was logical and coherent. The evidence given by the applicant ’ s wife and by officer J.K. indicated that they had not seen any injuries. It was further noted that the forensic expert had not ruled out that the applicant ’ s injury could have been caused by lawful use of force by the police during the incident at the police station.

The applicant appealed. He submitted that the contested decision had to be regarded as a manifestation of solidarity between the police and the prosecuting authorities. The prosecutors had failed to examine his testimony seriously and to establish the facts properly. The testimony given by T.P. was obviously untrue as the applicant ’ s injury could not have been caused by use of force as described by him, i.e. by the applicant being merely overpowered and falling on the floor. The prosecutor had failed to assess, having regard to the gravity of the injury, whether the use of force was proportionate. The applicant ’ s wife ’ s testimony should not have been considered credible as the prosecutor had known that they were in serious conflict. The prosecutor should have questioned the applicant ’ s lady friend to whom he had complained about the incident. He had not insulted the police officers; to the contrary, they had repeatedly insulted him, using vulgar terms.

On 17 February 2010 the Kraków Podgórze District Court upheld the contested decision, finding that the police officers had no case to answer. The court noted that the forensic opinion indicated that the applicant ’ s injury could have originated in the use of force by the police against him. It had transpired from the applicant ’ s wife testimony that he had been aggressive and provocative towards the police officers. The note made by T.P. indicated that there had been an altercation between him and the applicant. The applicant ’ s inju ry must have been caused by th e officer using lawful force against the applicant.

COMPLAINT

The applicant complains under Article 3 of the Convention that excessive and unlawful force was used against him. He did not give any reasons that would justify the use of force of such magnitude. The prosecutors uncritically accepted that the police officers ’ version of facts was true. He was not afforded adequate legal protection and his serious injuries went unpunished as neither the prosecutors nor the courts were able to examine his case with impartiality.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to inhuman or degrading treatment, 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 in breach of Article 3 of the Convention?