D.D. v. POLAND
Inadmissible
Georg Ress
The applicant is a Polish national, a teacher born in 1957 and living in Bielsko-Biała. She is represented before the Court by Mr W. Hermeliński, a lawyer practising in Warsaw, Poland. The respondent Government are represented by Mr K. Drzewicki of the Ministry of Foreign Affairs, Agent. At the oral hearing on 19 October 1999 the parties were represented by: (a) the Government Mr K. Drzewicki, Agent, Mr K. Karpiński, Counsel, Mrs B. Drzewicka, Mr A. Kaliński, Mrs M. Wąsek-Wiaderek, Mrs R. Kowalska, Advisers; (b) the applicant Mr W. Hermeliński, Counsel The facts of the case, as submitted by the parties, may be summarised as follows. The applicant and her brother are co-owners of a house. The applicant lives on the first floor and her brother on the ground floor. In September 1993 the applicant complained to the local police that her brother had been harassing her and trying to coerce her, by disconnecting the heating system of her apartment, into agreeing to certain alterations in the house. On 25 April 1994 the Bielsko-Biała District Prosecutor discontinued the criminal proceedings against the applicant’s brother which had been instituted at the applicant’s request. On 23 June 1994 the Bielsko-Biała Regional Prosecutor dismissed the applicant’s appeal against this decision. Subsequently, the applicant complained to the Katowice Appeal Prosecutor, alleging that there had been serious deficiencies in the investigations. In September 1994 policemen from the local station kept coming to the applicant’s apartment, often as late as 11 p.m., to question her about the dispute with her brother. On 7 September 1994 the applicant complained thereof to the Bielsko-Biała Regional Prosecutor. On 7 September 1994 the applicant’s brother submitted a complaint to the local police station that the applicant had cut off the electricity in his apartment. On the same date the police took steps to contact the applicant. On 12 September 1994 she came to the Regional Police Headquarters and requested the Chief Regional Officer to explain the reasons for her being harassed by the Police. On 14 September 1994 at 6.40 a.m. two policemen and the electricians from the local electricity station, having stated that there was no electricity in the applicant’s brother apartment, made an unsuccessful attempt to visit the applicant’s apartment. In a letter of 14 September 1994 the Katowice Appeal Prosecutor informed the Bielsko-Biała Regional Prosecutor of the results of the inquiry into the applicant’s complaint about the alleged deficiencies in the criminal investigations against her brother, which had been discontinued in June 1994. It was stated in this letter that, in order to establish relevant facts, the applicant herself should have been given an opportunity to give evidence in those investigations. The purpose of the investigations had erroneously been limited to establishing whether her brother had forged her signature on certain documents relating to their property, even though there had been ample evidence to support coercion charges against him, in particular as he had cut off the heating system of the applicant’s apartment. The Appeal Prosecutor stressed that throughout the investigations the applicant’s requests that certain evidence be taken had been disregarded without any justification. In conclusion, the Appeal Prosecutor ordered that the criminal proceedings against the applicant’s brother be resumed in order to remedy these shortcomings. On 21 September 1994 the police instituted investigations concerning the complaint submitted by the applicant’s brother on 7 September and relating to charges of coercion committed by cutting off the electric current in his apartment. On 23 September 1994 two policemen came to the school where the applicant worked and tried to serve on her a summons to the police station for that day. She refused to accept it and requested that it be sent to her by post. On 26 September 1994 a hearing in civil proceedings between the applicant and her brother was held in the Bielsko-Biała District Court. At 11.30 a.m., as the applicant was leaving the court building, she was arrested by two policemen, one in plainclothes and one in uniform. She was subsequently asked to accompany them to the police car. The applicant refused to comply, whereupon she was warned that coercive measures would be used if she persisted in her refusal. The applicant said that she would not obey and tried to walk away. Upon her arrest she was hit several times, pushed and jostled, and pushed out of the court building. The policemen caught her by both hands and brought her to the police car, parked nearby. The applicant resisted arrest by trying to get away, kicking and crying. After she was brought to the car, she refused to get in. As she was being pushed, crying, by two policemen into an unmarked car, the parking assistant helped them to shove her into the car. At the police station the applicant was informed, at an unspecified time, that she had made it impossible for her brother, who lived in the same building, to use the electric installation. Later on, approximately at 2.30 p.m. a policeman received a prosecutor’s decision authorising a search of the applicant’s apartment, limited to an inspection of the electric installation. On the way to the applicant’s apartment, the policemen granted her request to fetch her father, who was present at the search. Having checked the installation, an electrician from the electricity board declared that one fuse in the fuse-box was blown and replaced it, whereupon the installation in the applicant’s brother’s apartment started to work normally. The applicant was not allowed to participate in the checking of the installation. The applicant was released at 6.30 p.m., after which the applicant was released at 6.30 p.m., she went to the emergency services, where she was given tranquillisers. On 27 September 1994 the applicant was given sick leave of eight days. On 28 September 1994 doctor S.S. issued a medical certificate at the applicant’s request, stating that she had several painful areas on her head and chest, and that she suffered from general nervous exhaustion. On 30 September 1994 the applicant complained to the Bielsko-Biała District Court about her wrongful arrest on 26 September 1994 and about the manner in which it had been effected. She submitted in particular that the detention had been unlawful as she had never received any summons before the date of her arrest, either by post or by hand. Thus the legal requirements of detention had not been complied with. She contended that the record of her arrest was inaccurate and failed to recount relevant details, such as her complaint that she had felt unwell throughout her detention. She further complained about having been pushed, jostled and intimidated by the policemen. She stated that one of them had been particularly aggressive towards her, pushing her violently and hitting her on the head. Her brother, who had been a witness to her arrest, had told her that she would finally be “dealt with”. When taken to the police station, she had been refused permission to use the telephone. She had also been refused permission to use the toilet. The policemen had intimidated her, and her complaints that she felt unwell had been ignored. She had briefly been presented with a document containing charges against her, but it had been immediately taken away. She had been told that her brother had lodged a complaint against her and that she had to be questioned to investigate this complaint. She also stated that her request to be given the record of the arrest had not been complied with, at least until the time when she was lodging her complaint with the District Court. The applicant concluded that she had been wrongfully arrested, especially given the nature of the offence concerned. She had not received any summonses by post, in particular none dated 20 September 1994. The following medical documents were submitted to the court as annexes to the applicant’s complaint: first, the copy of an information card, issued by the Regional Emergencies Centre in Bielsko-Biała on 26 September 1994 at 10.30 p.m. in which a physician on duty had recommended that the applicant undergo medical treatment on an outpatient basis in the local clinic; secondly, a copy of the applicant’s eight-day sick leave of 27 September 1994; and a copy of a medical certificate issued by doctor S.S. on 28 September 1994. Further, the applicant supplied the record of her arrest on 26 September 1994. She further submitted the search order for her apartment , given by the District Prosecutor and a copy of her complaint of 20 September 1994 to the Head of the Regional Police Headquarters. On 3 October 1994 the police charged the applicant with coercion in that she had refused her brother access to the electricity fuses. On the same day the applicant’s sick leave was prolonged for a further eleven days. On 4 October 1994 the President of the Bielsko-Biała District Court rejected the applicant’s complaint, finding that it had been filed with the court outside the forty-eight-hour time-limit. On 14 October 1994 the Bielsko-Biała Police station supplemented the charges of 3 October 1994 with a charge that the applicant had unlawfully resisted arrest on 26 September 1994. On 19 October 1994 the applicant filed an appeal with the Bielsko-Biała Regional Court against the decision of 4 October 1994, arguing that in fact the time-limit to complain about a wrongful arrest was seven days and not forty-eight hours as held by the District Court. On 20 October 1994 the applicant complained to the Bielsko-Biała Regional Police Headquarters about the manner in which her arrest had been effected. She submitted that the police had acted unlawfully in that her detention had been unjustified; that she had never received any summons prior to her arrest; that she had not committed any offence; and that she had been refused any information as to the grounds for her arrest. She contended that she had been intimidated by the police. She submitted that the police had arrested and harassed her as a “personal favour” to her brother, who had many friends among the police. She submitted that her arrest and detention were in breach of Articles 3 and 5 of the Convention and constituted an abuse of power within the meaning of the Police Act. On 3 November 1994 the applicant’s parents, in a letter to the Bielsko-Biała District Prosecutor, stated that the applicant’s brother had had electricity in his apartment during the material period and had never complained to them that the applicant had been causing him any difficulties in using the electric installations. On 22 November 1994 the Bielsko-Biała Regional Court quashed the decision of 4 October 1994, considering that the applicant had complied with the applicable time-limit of seven days for lodging complaints about wrongful arrest, and referred the case back to the District Court. On 30 December 1994 the Bielsko-Biała District Prosecutor lodged an indictment against the applicant with the Bielsko-Biała District Court. She was charged with coercion in that from 6 to 27 September 1994 she had refused her brother access to the main electricity fuses in her apartment and that this had deprived him of electricity. She was further charged with unlawfully resisting arrest on 26 September 1994. On 10 January 1995 the Bielsko-Biała District Court dismissed the applicant’s complaint about her wrongful arrest. The Government contend that the court considered, inter alia, the following evidence in the case-file: the applicant’s complaint of 20 September 1994 to the Regional Headquarters of the Police, two letters by the applicant’s brother dated 7 September 1994 requesting the prosecutor to institute proceedings against the applicant, seven reports of the police officers concerning the circumstances of the applicant’s arrest, the decision of 23 September 1994 to bring charges against the applicant, and records of testimony given by two eye witnesses. The case-file further contained records of the administrative proceedings undertaken following the applicant’s complaints filed with the Regional Police Headquarters. The Government contend that it was established in these proceedings that the policemen involved in the applicant’s arrest on 26 September 1994 had acted in conformity with the law and that there had been no abuse of their powers. In its decision of 10 January 1995, the Bielsko-Biała District Court found that the police had twice tried to visit the applicant in her apartment to inspect the electric installations, on 9 and 14 September 1994, and that the applicant had refused to let them in. On 20 September 1994 the applicant had received a summons for 23 September 1994 by registered post and she had failed to comply with it. The applicant had also refused to receive the summons at her workplace in the presence of her superior, A.P. In these circumstances the applicant’s arrest had been lawful as it was only by arresting her that the policemen could, acting upon the Public Prosecutor’s orders, question her and inform her of the charges. On 24 January 1995 the applicant filed an appeal against the decision of 10 January 1995 with the Bielsko-Biała Regional Court. She argued that there was no trace of evidence in the case-file that the police had tried to contact her at her apartment on 9 and 14 September 1994. As regards the summons for 23 September 1994, it was only at the same date that the post office had informed her that a registered letter was to be served on her, with a time-limit fixed for 27 September 1994. She further stated that she had taken this summons from the post office on that date and emphasised that there had not been any previous summonses. As to the summons which the applicant had allegedly refused to accept at her workplace in the presence of A.P., the headmaster, the applicant referred to a written statement of the latter in which she had declared that no attempt had been made to serve the summonses on the applicant at school. She further stressed that the irregularities in the issuing and service of the summonses were clearly attributable to the police. The applicant concluded that arresting in a public place a person who had not jeopardised the conduct of the investigations in any way, who had a permanent address and a permanent job, should therefore be seen as an abuse of power by the police. On 29 January 1995 a forensic medical expert stated in a certificate issued upon the applicant’s request that the injuries suffered by her as shown in the medical documents could have originated from the events of 26 September 1994 as described by the applicant. On 31 January 1995 the President of the Bielsko-Biała District Court rejected the applicant’s appeal as no appeal lay against the court’s decision of 10 January 1995. On 25 May 1995 the Bielsko-Biała Regional Court upheld the rejection of the applicant’s appeal against the decision of 31 January 1995, finding that the President of the District Court had been right in holding that no appeal lay against a dismissal of a complaint against a decision on allegedly unlawful arrest. On 15 September 1998 the Bielsko-Biała District Court found that the offence of coercion with which the applicant had been charged, had ceased to constitute a criminal offence under the provisions of the new Criminal Code which had entered into force on 1 September 1998, and, accordingly, discontinued the proceedings. On the same date the District Court discontinued the criminal proceedings against the applicant relating to the charges of resisting arrest. The court found that on 26 September 1994 two policemen, D.S. and W.M., came to the Bielsko-Biała District Court to arrest the applicant. On 12 a.m. approximately they had done so. They had given her their names, grades and ordered her to follow them to the police car. The applicant had said that she was under no obligation to obey their orders and had begun to walk away. Thereupon the policemen had caught her by arms and had led to the police car. The applicant had been crying, trying to get away and kicking. She had also refused to get into the car. Then D.S. had got into the car and, holding her by her arm, pulled her inside. A parking attendant S.S. had helped him by forcing the applicant’s head down. Subsequently the applicant had been taken by car to the police station. The court relied on evidence given by one of the policemen, D.S., by the applicant’s brother and by two other witnesses, S.S. and A.P. The court further observed that the applicant had denied all charges. She had stated that on the material date she had been approached by two men who assaulted her and forced her to go to the parking beside the court building. There she had been hit on the head several times and pushed into the car. The court had regard to the applicant’s submissions, but found that they were contradicted by the submissions of other witnesses. Witness D.S., a policeman, had submitted that he had arrested the applicant together with W.M., having given his name and grade to the applicant, and having ordered her to follow their orders. Since she had refused to comply, they had got hold of her and had taken her to the car. She had been kicking and trying to get away. The court noted that his submissions were corroborated by the testimony of the applicant’s brother who had also been present at the scene, and by those of S.S., the parking assistant, who had stated that he had helped the policemen to put the applicant into the car by pushing her head down. The latter witness had also confirmed that the applicant had been kicking and trying to get away. Also, witness A.P. had confirmed that the applicant had not wanted to get into the car and kept resisting. The court considered as credible the testimony of all the witnesses who had given a concordant recount of the material events. The testimony of D.S. had been corroborated by the evidence given by other impartial witnesses who had accidentally been present at the scene. The court further considered that the applicant’s conduct amounted to an offence with which she had been charged. However, the court decided to discontinue the proceedings, finding that the seriousness of the offence was infinitesimal. In taking this decision the court took into consideration the circumstances in which the offence had been committed, and in particular the context, i.e. the fact that the applicant had been involved in a conflict with her brother, which manifested itself in numerous civil and criminal proceedings to which they were parties. The court observed that the applicant had been acting under an intense emotional stress and her motives could not be considered as contemptible. Acts of ill-treatment causing physical harm amount to criminal offences prosecuted under the relevant provisions of the Criminal Code on various forms of assault. In instances concerning ill-treatment amounting to moral harm, in particular an attack on the privacy or dignity of the person concerned, a victim may use two remedies. Firstly, in cases concerning acts committed by police officers the victim can, under Article 142 of the Police Act of 6 April 1990, request the prosecutor to institute criminal proceedings against police officers involved in any incident which allegedly infringed his or her privacy or other personal rights, such as dignity or physical inviolability. Pursuant to Article 255 of the Code of Criminal Procedure of 1969, applicable at the relevant time, the authorities had to open criminal proceedings ex officio in any case in which suspicion arose that a criminal offence had been committed. Article 417 § 1 of the Civil Code provides that the State Treasury shall be liable for damage caused by a State agent in the exercise of his or her duties. According to the case-law of the Polish Supreme Court, a plaintiff seeking damages under Section 417 of the Civil Code must show that the act in question is unlawful and that the State agent committed a fault (the Supreme Court judgments: No. I PR 468/70 of 29.12.1970, unpublished, No. I CR 24/71 of 19.4.1971, unpublished and No. I CR 152/74 of 11.4.1974, unpublished). Under Article 205 of the Polish Code of Criminal Procedure, as applicable at the relevant time, the police could arrest a person if there were reasonable grounds for suspicion that he or she had committed an offence and if there was a risk of absconding or collusion. Chapter 50 of the Code of Criminal Procedure of 1969, provided in its Article 487 § 4 for compensation regarding damages arising out of obviously unjustified detention on remand and for arrest and detention up to 48 hours. The Regional Court in whose jurisdiction the detained person had been released was competent to examine whether the conditions for awarding compensation were met. The decision of the Regional Court could be appealed against to the Court of Appeal. According to Article 489 of the Code, a request for compensation for manifestly unjustified detention on remand had to be lodged within one year from the date on which the final decision terminating the criminal proceedings in question had become final. Therefore, in practice, a request for compensation for unjustified detention under Article 487 of the Code of Criminal Procedure could not be lodged until the criminal proceedings against the person concerned were terminated (see also the decision of the Supreme Court no. WRN 106/96, 9.1.96, published in Prok. iinter alia, the decision of the Supreme Court no. II KRN 124/95, 13.10.95, published in OSNKW 1996/1-2/7). Chapter 58 of the new Code of Criminal Procedure of 1997 provides for a request for compensation for, inter alia, unjustified detention. Current Article 552 § 4 of the Code is the equivalent of Article 487 § 4 of the Code of 1969. The modalities for permissible use of direct coercive measures by the police are laid down by Article 16 of the Police Act, which provides that in situations in which a police order is not obeyed, such measures can be resorted to only insofar as they correspond to the requirements of a particular situation and insofar as they are necessary to obtain compliance with that order. The Ordinance of 17 September 1990 on the Use of Coercive Measures by the Police provides in its Article 5 § 1 that direct physical force can be used to overpower a person, to counter an attack and to ensure compliance with an order. When such force is being used, it is forbidden to strike the person against which the action is being carried out, unless in self-defence or to counter an attack against another person’s life, health or property.