FIFTH SECTION

DECISION

Application no. 66069/16 Khosal Khan AHMADZAI against Hungary

The European Court of Human Rights (Fifth Section), sitting on 25 May 2023 as a Committee composed of:

Stéphanie Mourou-Vikström , President , Lado Chanturia, Mattias Guyomar , judges , and Sophie Piquet, Acting Deputy Section Registrar ,

Having regard to:

the application (no. 66069/16) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 8 November 2016 by an Afghan national, Mr Khosal Khan Ahmadzai (“the applicant”), who was born in 1991 and lives in Chevilly-Larue, France, and was represented by Ms B. Pohárnok, a lawyer practising in Budapest;

the decision to give notice of the application to the Hungarian Government (“the Government”), represented by their Agent, Mr Z. Tallódi, of the Ministry of Justice;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns the applicant’s complaints under Article 3 of the Convention that he was beaten by a police officer and several security guards while detained and that no effective investigation was carried out in that respect.

2. On the evening of 24 September 2012 an incident occurred in the Nyírbátor Detention Centre, where the applicant was being held in immigration detention. Police officer Á.P. made remarks about Islam and the applicant started arguing with him and shouting at the security camera. Fellow detainees pulled the applicant away. A commotion started and the guards ordered everyone to return to their cells. The detainees refused and tear gas was used. The applicant and the other detainees then returned to their cells, except for two detainees, X and one other, who refused to do so. After about half an hour, security guards J.A. and A.G. came to the applicant’s cell, identified him as one of the instigators of the incident and ordered him to follow them to the isolation room. The applicant refused, so they took him by the arms and led him away.

3. According to the applicant, before being taken to the isolation room, he had been taken to police officer Á.P., who had punched him several times in the head. Then Á.P. and several security guards, including J.A. and A.G., had hit and kicked him all over his body, including using a baton on his legs, even while he was lying on the ground.

4 . At 1 a.m. on 25 September 2012 the applicant was taken to a doctor. According to the medical report, he stated that he felt pain “on his left side”. A mark on his back in the shape of a palm and four fingers was noted. The applicant later complained that the doctor had only examined his upper body, that the examination had been superficial and that the authorities had ignored his subsequent complaints about headaches and limping.

5. After interviewing the applicant and detainee X, on 3 October 2012 the deputy head of the immigration centre filed a criminal report with the competent prosecution authority concerning ill-treatment in the course of official procedures. He stated that he had arranged for the archiving of the security camera recordings.

6 . An investigation was opened into the alleged ill-treatment of the applicant and X. X left the country and was no longer available to give evidence. The investigation was discontinued four times for lack of evidence and, following complaints by the applicant, was resumed each time on the grounds that further investigative actions were necessary. On one occasion the superior prosecution authority also found that there had been a breach of the applicant’s right to access the investigation case file.

7. On 2 February 2016 the investigation was discontinued for the fifth time. On 12 April 2016 the Attorney General’s Office dismissed a complaint by the applicant, holding that the prosecutor in charge of the case had undertaken all the necessary actions, that the applicant’s submissions throughout the investigation had been inconsistent and that the gathered evidence disproved his allegations. That decision was served on the applicant on 9 May 2016.

8. The applicant complained that he had been ill-treated by a police officer and security guards and that no effective investigation had been carried out in that respect, in breach of Article 3 of the Convention.

THE COURT’S ASSESSMENT

9. The Government contended that the injury sustained by the applicant, which consisted of a mark on his back in the shape of a palm and four fingers, did not reach the minimum level of severity to fall within the scope of Article 3 of the Convention and that the application was therefore incompatible ratione materiae with the Convention.

10. The Court reiterates that, where an applicant is wholly under the control of State agents, its examination shifts to the necessity, rather than the severity, of the treatment to which the applicant was subjected in order to determine whether the issue complained of falls within the scope of Article 3 of the Convention. If the treatment is not considered strictly necessary, it amounts to degrading treatment and thus a violation of Article 3 (see Bouyid v. Belgium , [GC], no. 23380/09, §§ 100-01 and 111-12, ECHR 2015). The Court will thus examine this issue under Article 3 (see paragraphs 19-23 below).

11. The Court considers that it is not necessary to examine the various further objections as to admissibility raised by the Government, as the application is in any event inadmissible for the reasons set out below.

12. The relevant general principles for the procedural aspect of Article 3 of the Convention are summarised in Bouyid (cited above, §§ 114-23).

13. Taking into account the statement which the applicant gave after the incident and his medical report, the Court considers that he had an arguable complaint requiring the domestic authorities to investigate his alleged ill ‑ treatment, which they did.

14. It is true that the investigation conducted was not without flaws. Indeed, the prosecutor in charge of the case did not request a copy of the immigration centre video recordings until 14 May 2013, by which time the recordings had already been deleted (compare Pósa v. Hungary , no. 40885/16, § 32, 7 July 2020). Several detainees were not immediately questioned, and they meanwhile left the country and became unavailable. However, the Court notes that, according to the applicant, he was beaten in an area not covered by security cameras, and away from the eyes of other detainees, meaning that there had been no witnesses.

15. Accordingly, reiterating that an adequate investigation requires diligence and promptness (see Menesheva v. Russia , no. 59261/00, § 67, ECHR 2006‑III), the Court is of the view that the above omissions did not prevent the domestic authorities from making sufficient findings of fact in order to verify the applicant’s allegations.

16. The Court notes that the prosecutor’s conclusion that there had been no evidence of ill-treatment was ultimately based on, inter alia , an assessment of statements given throughout the investigation by the applicant, security guards J.A. and A.G. and police officer Á.P., the circumstance that the applicant did not recognize Á.P. at an identification parade organized on the basis of photographs, and most notably the fact that a medical examination conducted shortly after the incident did not record any traces on the applicant’s body apart from a mark on his back in the shape of a palm and four fingers, for which an expert confirmed it could have been sustained during his removal from his cell.

17. Furthermore, although the superior prosecuting authority on one occasion found that there had been a breach of the domestic provision guaranteeing the victim the right to become familiarized with the investigation documents before a decision is rendered (see paragraph 6 above), the Court notes that each time the investigation was discontinued at first instance the applicant was given access to the case file, was able to comment on the gathered evidence and file motions, which were taken into account by the superior prosecuting authority, who ordered gathering further evidence. The Court reiterates that the investigating authorities do not have a duty to satisfy every request for a particular investigative measure in the course of an investigation and that requisite access may be provided for in other stages of the available procedures (see Stevan Petrović v. Serbia , nos. 6097/16 and 28999/19, § 109, 20 April 2021).

18. In view of the foregoing, the Court finds that the applicant’s complaints under the procedural aspect of Article 3 of the Convention must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

19 . As regards the alleged violation of the substantive aspect of Article 3 of the Convention, the Court firstly notes that the material available in the case file does not reveal any mark on the applicant’s body which would indicate that he had been severely beaten by the police officer and several guards, including with a baton on his legs, as he had alleged.

20 . The Court further notes that it was undisputed that two guards used force in order to remove the applicant from his cell. It reiterates that, in respect of a person deprived of liberty, any recourse to physical force which has not been made strictly necessary by his or her own conduct, whatever the impact on the person in question, diminishes human dignity and constitutes a violation of Article 3 of the Convention (see Bouyid , cited above, §§ 100-01).

21 . In view of the fact that the applicant, who had been identified as one of the instigators of the incident in the immigration centre, refused to be taken to the isolation room temporarily following the management’s decision, the Court considers that it has been shown that it had been strictly necessary for the security guards to resort to physical force in order to remove him from his cell.

22 . Noting that the medical examination conducted shortly after the incident only recorded a mark on his back in the shape of a palm and four fingers, which, as found by the domestic authorities, could have been sustained either during his removal from his cell or while he was being pulled away by other detainees after he had threatened the police officer, the Court finds that the Government have demonstrated that the extent of the physical force used against the applicant to take him from his cell was not excessive in the circumstances.

23 . In view of the foregoing, the Court finds that the applicant’s complaint under the substantive aspect of Article 3 of the Convention must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 15 June 2023.

Sophie Piquet Stéphanie Mourou-Vikström Acting Deputy Registrar President