FIFTH SECTION

Application no. 32133/11 by Vladimír KUMMER against the Czech Republic lodged on 18 May 2011

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Vladimír Kummer, is a Czech national who was born in 1956 and lives in Aš. He is represented befor e the Court by Mr D. Netušil, a lawyer practising in Prague .

A. The circumstances of the case

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

On 1 May 2010 at about 3 a.m., the applicant, having be en merry drinking alcohol in a bar, was on his way home, wh en a patrol of municipal police stopped him and asked him to show his identity papers. He did not have any identity or car document with him , but told the patrol that he lived just fifty metres away and that they could accompany him home where he could prove his identity. The patrol, however , insisted on taking him by car to the Aš police station where the applicant indicated his name and address. After wards, he was told that he had committed an administrative offence ( přestupek ) of urinating at a public space. A breath alyzer test gave a result of 2 per mille of alcohol in the applicant ’ s blood.

1. The applicant ’ s version of the events

After establishing his identity and the level of alcohol in his blood, the applicant was invited to enter another room . He refused to do so and asked for an explanation why he was brought a t the police station. A policeman twisted his arm, handcuffed him and took into a police cell where th e applicant was handcuffed to an iron ring on the wall. He attempted to free himself but was punched with fists to his chest and to the back part of his head and cheek-bone. H e was left handcuffed with one hand to the wall .

After some time , the applicant started to kick around in order to draw attention of some other policemen that would rescue him. However , the same policeman entered the cell and knocked him to the ground. He then knelt on the applicant ’ s chest and hit him several times with both hands. T he policeman stretched then the second arm of the applicant and handcuffed it to an iron ring on the other side of the room. T he policeman kicked applicant ’ s legs so that he was hanging on his stretched arms. He then shackled the applicant ’ s legs and hit him several times on his back. Another policeman was watching these events in the cell.

After being left in this allegedly agonising position for about 30 minutes , the applicant was told to go home. However, while still at the police station , he called an ambulance and asked that a document be issued to him confirming his injuries. Yet, the doctor that arrived only briefly looked at him and concluded that his injuries were older and that he did not need any medical treatment.

2 . The ensuing investigation s

Later i n the morning of 1 May 2010 the applicant went to a hospital. The doctor issued him a certificate stating that he had some old injuries on his back but also fresh injuries on his back, neck and head, contusions on wrists and that his sternum was painful. He was given a sick leave for 16 days.

Still on the same day, the applicant approached the Cheb police station with the medical certificate and file d a criminal complaint that he had been ill-treated by the police.

After questioning the applicant, the police sent the file to the Police Inspectorate ( Inspekce Policie ) on 3 May 2010. The file contained also a report on inspection of the applicant ’ s cell in the Aš Police Station conducted by the policemen from that station that were responsible for the alleged ill-treatment.

On 26 May 2010 the applicant asked the Plzeň-město Prosecutors ’ Office to supervis e the investigation complaining , inter alia , that the policem e n had not been questioned yet, which gave them time to coordinate their testimonies. He also asked it to conduct several other investigative s teps .

On 5 June 2010 he complained that some colleagues of the policemen against whom he had lodged his criminal complaint had been threatening him in order to withdraw his complaint.

On 21 July and 28 July 2010 respectively, the Inspectorate questioned the policemen present at the AÅ¡ Police Station at the relevant night. They all testified that they had not ill-trea ted the applicant and that they had handcuffed and shackled him in the cell for his own protection and the protection of the property because he had been drunk and had been kic king into the door of the cell.

The Inspectorate also questioned two persons from the bar who testified that when the applicant had left the bar in the morning of 1 May 2010 he had been slightly inebriated but had had no injuries. On t he next day t he applicant told them that he had been beaten by the police and showed his injuries.

Further, the doctor who came to the police station after the events was questioned. She stated that the applicant had been drunk and had been insulting people around him. She had seen injuries on his back but they had been o f earlier origin. At the same time , he had had red wrists probably from handcuffs.

In the meantime, on 29 July 2010 , the Karlovy Vary Regional Directorate of Police had written to the applicant that his complaints had been found unsubstantiated and that, therefore, the internal investigation had been closed . The letter was very shortly reasoned .

On 28 August 2010 in the ongoing investigation of the Inspectorate an expert submitted a report on the nature and origin of the applicant ’ s injuries drawn on the basis of the information in the investigation file. He stated that the fresh injuries must have been sustained at the police station but he ruled out that they could result from beatings. In his view they had been caused by a bigger blunt object hitting the applicant as for example his head hitting the wall. The contusions on the wrists had been caused by an excessive movement of his hands in the handcuffs attached to a fixed object.

On 6 September 2010 the applicant requested the Police Inspectorate to provide him with all documentation in order to commission another expert opinion pointing out to serious deficiencies of the one commissioned by the Inspectorate. He also complained that for unknown reasons his notification of 5 June 2010 was not part of the investigation file.

Nevertheless, on 13 September 2010 the Police Inspectorate closed the investigation finding that no crime ha d been committed. According them, the events as submitted by the applicant contradict ed the version of events of all other witnesses. Moreover, two doctors had found that the applicant ’ s injuries had been older. Relying on the expert opinion , it stated that the newer injuries could not be caused in the way described by the applicant, that the wrist injuries had been self-inflicted by his movements in the handc u ffs and the other injuries could be caused by a violence of low intensity.

On 20 September 2010 the applicant appealed against the decision , challenging in particular the expert opinion as incorrect and one sided.

On 18 November 2010 the Plzeň-město District Prosecutors ’ Office , after having reviewed the investigation file , dismissed the applicant ’ s appeal finding the conclusions correct. As facts unfavourable to the applicant it pointed out that it had been established by a test that he had been drunk; that the ambulance doctor had testified that he had been insulting everybody around and that he ha d damaged the door of the cell.

On 30 December 2010 the applicant obtained an expert opinion by another certified expert who he had commissioned himself. The report concluded that the applicant had suffered injuries from hitting a blunt object. I t was , however , not possible to conclude , or rule out for that matter , whether the se injuries were caused by active force (the applicant was hit) or passive force (the applicant fell). In case they had been caused by an active force, it had been of medium intensity.

On 21 February 2011 the Constitutional Court dismissed the applicant ’ s appeal against the decisions to discontinue the investigation , holding that there was no constitutional right to have a third person prosecuted and that such a decision remained in the exclusive power of the prosecut ion .

3 . The Ombudsman ’ s report

On an unspecified date the applicant complained about his treatment by the police to the Ombudsman who , on 7 December 2010 , issued a report finding that the p olice had violated the Police Act in several ways .

First, due to his intoxication the applicant should not have been placed in a cell without prior medical examination. Secondly, his shackling in the cell had been disproportionate . Moreover, while shackled in the cell the applicant had had no other possibility to call attention to himself than by shouting or kicking the walls or door because he could not have reached the bell. Moreover, the shackling of his feet had not been noted in the police records. In his view , there had also not been any legal ground for the applicant ’ s detention at all and it thus looked as though the applicant had been placed there as a punishment for manifestations of his intoxication.

Regarding the alleged ill-treatment of the applicant, the O mbudsman noticed that it was not his primary task to investigate it as there were other bodies, such as the Police Inspectorate to do so . He nevertheless expressed some doubts about the veracity of the version of the events as submitted by the policemen. He noticed that the doctor that had come to the Police station and that had found that the applicant ’ s injuries had been older had examined him only very briefly and that at the same time another doctor had found new injuries on the applicant ’ s body in the morning. In his view, assuming that the injuries had been caused by the applicant himself when violently shaking his hands in the handcuffs and falling to the ground, the question arose whether, given his condition, he should have been placed in the cell and shackled at all .

B. Relevant domestic law

Under Article 12 § 2 of the Code of Criminal Procedure the Police Inspectorate is the investigative body when the alleged crime should have been committed by a policeman.

Under section 103 of the Police Act (no. 273/2008) the Police Inspectorate is a body of the Ministry of the Interior. Its head is a director appointed by the Government, to which he is responsible. It is composed of policemen who were called to conduct their duties at the Ministry of the Interior. These inspectors have the same powers in the course of their duties as policemen.

COMPLAINTS

The applicant complains under Articles 3, 6 and 13 of the Convention that he was ill-treated by the policemen while detained at a police station , that the investigation into those events was ineffective and that the conclusions reached were wrong.

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? In particular was it independent?