CASE OF BOUYID v. BELGIUM
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Aleš Pejchal;Alvina Gyulumyan;André Potocki;Ann Power-Forde;Dean Spielmann;Egidijus Kūris;Erik Møse;Ganna Yudkivska;Guido Raimondi;Helen Keller;Helena Jäderblom;Krzysztof Wojtyczek;Ledi Bianku;Mark Villiger;Nebojša Vučinić;Nona Tsotsoria;Paul Lemmens;Paul Mahoney;Paulo Pinto De Albuquerque;Vincent A. De Gaetano
9. The applicants were born in 1986 and 1979 respectively and live in Saint-Josse-ten-Noode (a district of the Brussels-Capital region). 10. The applicants are brothers who live with their parents, their brother and two sisters next to the local police station of Saint-Josse-ten-Noode. They both complained that they had been slapped in the face by police officers – which allegation is disputed by the Government – one on 8 December 2003 and the other on 23 February 2004. They submitted that those events had taken place in the context of tense relations between their family and certain officers in the police station. 11. The applicants submitted that on 8 December 2003 at around 4 p.m. the first applicant had been standing with a friend in the street outside the door of the building where he lived with his family, and, since he had forgotten his keys, had been ringing the bell so that his parents would let him in, when a plain-clothes policeman, A.Z., had asked him to present his identity card. The first applicant had refused to comply, asking the officer to show his credentials. The officer had then grabbed him by his jacket – tearing it – and taken him to the police station. The first applicant had been placed in a room and, while he was alone with A.Z., the officer had slapped him in the face as he was protesting about his arrest. 12. The applicants provided a certificate issued at 7.20 p.m. on the same day by a general practitioner, attesting that the first applicant had been “in a state of shock” and had presented the following injuries: “erythema on the left cheek (disappearing)” and “erythema on the left-side external auditory canal”. 13. The Government submitted that, on account of the first applicant’s refusal to show his identity card, officer A.Z. had had no choice but to take him to the police station for identification. The first applicant had then caused a scene, claiming to have suffered an injustice and been subjected to an unlawful identity check, and had insulted an officer who was telling him to calm down. He had been allowed to leave the police station once his identity had been verified and after being informed by A.Z. that a police report would be filed against him for forceful resistance to a public officer, abusive behaviour and verbal threats. He had returned to the police station a few minutes later with his parents, accusing A.Z. of having struck him, but the officer had always denied this. 14. At 6 p.m. A.Z. had lodged a criminal complaint against the first applicant, alleging forceful resistance to a public officer, abusive behaviour and verbal threats. The record drawn up on that occasion showed that A.Z. had notified his superiors of the events at 5.30 p.m., and also one “Superintendent K.”. 15. The applicants indicated that on 23 February 2004, between 9.44 a.m. and 10.20 a.m. (as shown by the record of the second applicant’s questioning), while the second applicant was at the Saint-Josse-ten-Noode police station and officer P.P. was interviewing him about an altercation involving him and his mother together with a third party (and about which the latter had filed a complaint), P.P. had slapped him in the face after asking him not to lean on his desk. He had then forced him to sign his statement by threatening to put him in a cell. 16. The applicants provided a medical certificate issued on the same day by a general practitioner, who observed “bruising [on the] left cheek” of the second applicant. The certificate did not specify the time at which it had been drawn up, although it must have been before 11.20 a.m., the time at which it was presented to Committee P (see paragraph 25 below). 17. The Government explained that the second applicant had been very arrogant during his interview: slouching in his chair, leaning casually on P.P.’s desk, laughing without any reason and giving pithy answers to questions. He had also had his statement changed several times, saying that the police were paid to do that, and had threatened the officers on leaving by shouting that they would be hearing from him again. The Government emphasised that, in spite of the attitude shown by the second applicant, who had clearly been intent on conflict, P.P. had remained calm and patient. 18. In the applicants’ submission, their family had been harassed by the Saint-Josse-ten-Noode police force. They stated that the problems had begun in 1999, when one of the officers had suspected their brother N. of deliberately scratching his car. N. had subsequently been charged with threatening the same officer and committing robberies, on which charges he had been acquitted by the Brussels Youth Court on 21 April 2000. According to the applicants, the case against him had been entirely fabricated by members of the Saint-Josse-ten-Noode police by way of reprisal. 19. They added that on 24 June 1999 the first applicant, then aged 13, had been “beaten” by another police officer in the police station, where he had been taken following a fight in the street. He had sustained a perforated eardrum. His mother and one of his sisters, who had been in the waiting room, had been shaken and manhandled by police officers. 20. On 25 November 1999 one of their sisters had been verbally abused by an officer of the Saint-Josse-ten-Noode police force, and on 11 March 2000 their brother N. had been searched, jostled and verbally abused by police officers. 21. They further stated that in 2000 a “case ... initiated by the SaintJosse-ten-Noode police force had been opened against N. and entrusted to an investigating judge”, but the proceedings had been discontinued. In the same year the second applicant had been “wanted for questioning” and even though the Saint-Josse-ten-Noode police had announced on 23 July 2002 that he was being taken off the relevant “wanted” list, he had still had to make various applications to the prosecutor’s office and wait until March 2005 for the process to be completed, causing him a great deal of inconvenience. 22. On 6 April 2001 and 12 July 2001 respectively, their brother N. and the second applicant had been verbally abused by officers of the Saint-Josse-ten-Noode police. 23. The applicants explained that they had systematically reported to the judicial authorities or police all the incidents of which they had been victims, and had filed complaints. 24. At 9.42 a.m. on 9 December 2003 the first applicant filed a complaint with the standing committee for the oversight of police services (known as “Committee P”) and was interviewed by a member of the investigation department. A copy of the medical certificate drawn up the previous day was appended to the initial record. 25. The second applicant followed suit at 11.20 a.m. on 23 February 2004. He indicated in particular that he considered that the “general attitude of the Saint-Josse police vis-à-vis [his] family [had become] absolutely intolerable and excessive to the point [where they had envisaged] moving house”. A copy of the medical certificate drawn up the same day was appended to the initial record. 26. The applicants’ mother was also interviewed on 23 February 2004 by the investigation department of Committee P in relation to the second applicant’s complaints. She pointed out that as soon as they had returned home she had called one “Superintendent K.” (see paragraph 14 above) to ask him to persuade P.P. to apologise. Superintendent K. had immediately come to their house, where he had found himself in the company of the physician who had drawn up the medical certificate. The applicants’ mother also filed a complaint, indicating, moreover, that she herself had been treated with scant respect by officer P.P. 27. On 5 May 2004 officer P.P. was interviewed by the director of internal oversight of the local police force in relation to the complaints by the second applicant and his mother. P.P. stated in particular that the second applicant had been particularly disrespectful towards him during his interview and that, although he had grabbed the youth by the arm to make him leave the office, he had not slapped him in the face. 28. On 17 June 2004 the applicants applied to intervene as civil parties in respect of charges of harassment, arbitrary interference with fundamental freedoms, abuse of authority, arbitrary arrest and wounding with intent. They gave an overview of all their difficulties with the SaintJossetenNoode police, and expressly stated that they wished to intervene as civil parties in relation to the events of 8 December 2003 and 23 February 2004. 29. Officers A.Z. and P.P. were charged with using violence against individuals in the course of their duties and, in particular, with intentional wounding or assault, and with engaging in arbitrary acts in breach of the rights and freedoms guaranteed by the Constitution. 30. On 26 June 2004 an investigating judge of the Brussels Court of First Instance gave directions to the investigation department of Committee P asking it to take note of the applicants’ civil-party application, interview them in order to ascertain the details of their complaint, draft a report on the conduct of the Bouyid family, draw up a list of the cases brought against them and complaints filed by them and explain what action had been taken in that connection. 31. Having regard to the fact that it had already taken testimony from the applicants when they had filed their respective complaints (see paragraphs 24-25 above), the investigation department of Committee P decided not to interview them again. On 26 July 2004 it forwarded a report to the investigating judge, based on the documents from the internal oversight department of the police district covering Saint-Josse-ten-Noode, describing developments in the relations between the applicants’ family and the local police force. The report then listed the cases against the family, noting in this connection that the first applicant had been implicated in proceedings opened in December 2003 for abusive and threatening behaviour and for obstructing a police officer, and N. in seven sets of proceedings opened between October 1997 and June 1999. It then noted that, in addition to the applicants’ complaints at issue in the present case, three judicial complaints had been filed by members of their family (two with Committee P, in June 1999 and July 2001, and one with the “Youth Division” in 1999) and two complaints had been dealt with by the internal oversight department of the police district covering Saint-Josse-ten-Noode. Lastly, citing a report drawn up in the context of a case against the first applicant and the findings of administrative inquiries, it noted the problematic nature of the relations between the local police and the Bouyid family and commented on the “general behaviour” of the latter, observing as follows: “In sum, according to the police officers, the Bouyid family (especially the women and the mother in particular) apparently refuse to admit that the children of the family bear any responsibility for the abusive conduct in question. They are thus supported in their behaviour by this protective attitude. More generally, the family members are said to behave aggressively and provocatively towards the police. Following the incidents involving police officer [B.], a dialogue facilitator apparently failed in an attempt at reconciliation, owing to an intransigent attitude on the part of the women in the Bouyid family. In 1999 and 2000 the situation required the appointment of a police cadet as a mediator for this family.” 32. On 3 August 2004 the investigating judge decided to close the investigation and sent the file to the prosecuting authorities. 33. On 16 November 2004 officer A.Z. was interviewed by a member of the investigation department of Committee P about the events of 8 December 2003. He stated in particular that he had not previously known the first applicant when he had taken him to the Saint-Josse-ten-Noode police station that particular day. 34. In an application of 10 November 2005 the Crown Prosecutor called for the discontinuance of the case on the ground that “the judicial investigation [had] not established that the facts constituted a serious or petty offence and [had] not adduced any evidence that would justify the taking of further measures”. 35. The applicants were informed that the case file would be finalised before the Committals Division of the Brussels Court of First Instance on 2 March 2006. On 1 March 2006 they sent an application to the investigating judge seeking twenty additional investigative measures. That request resulted in the adjournment sine die of the case before the Committals Division. 36. On 7 March 2006 the investigating judge ordered two of the requested measures and rejected the remainder of the application on the ground that it concerned facts that predated the events referred to him and that the measures sought were not necessary for establishing the truth. Consequently, recapitulating all their complaints against the SaintJossetenNoode police force, the applicants and other members of their family sent the investigating judge a request for an “extension of civil-party status”, but it was rejected. The two additional measures were performed on 25 April, 15 May and 24 May 2006. 37. In an order of 27 November 2007 the Committals Division, endorsing the grounds set out in the Crown Prosecutor’s application, discontinued the proceedings. 38. The applicants appealed against that order. 39. In an application of 3 December 2007 the Principal Crown Prosecutor requested that the discontinuance order be upheld. 40. On 5 February 2008 the applicants and other members of their family filed a complaint as civil parties in respect of all the facts that the investigating judge had considered not to have been referred to him (see paragraphs 43-44 below). 41. On 9 April 2008 the Indictments Division of the Brussels Court of Appeal, after refusing to join the case concerning the events of 8 November 2003 and 23 February 2004 to the new case that had been opened after the civil-party complaint of 5 February 2008, upheld the discontinuance order in a judgment that read as follows: “... The facts of the case can be summarised as follows: – On 8 December 2003 the defendant [A.Z.] is alleged to have engaged in illegal police conduct against the civil party Saïd Bouyid, described by the latter as follows: police officer [A.Z.], on stopping him outside his house, allegedly grabbed him by his jacket and tore it; he was then taken to the police station close by, where the same officer allegedly slapped him on the face with his right hand. – On 23 February 2004 the defendant [P.P.] is alleged to have engaged in illegal police conduct against the civil party Mohamed Bouyid, described by the latter as follows: on stopping his car in front of his house so that his mother could take out her shopping, he had a row with the driver of the car behind; he was summoned to the police station following a complaint by that driver; during the interview, Mohamed Bouyid was allegedly slapped by the defendant [P.P.] (see the medical certificate issued by Dr ...), who threatened to put him in a cell if he did not sign his statement, when in fact he wanted to change it. – The Bouyid family have apparently encountered great difficulties with certain members of the Saint-Josse-ten-Noode police force since March 1999, when police officer [B.] suspected Saïd Bouyid of having scratched his car, giving rise to a certain degree of tension and to persecution of this family by the police. – There is said to be constant provocation on the part of the police of Saint-Josse-ten-Noode making the life of the Bouyid family unbearable. Both the police’s internal oversight department for the police district [concerned] and the investigation department of Committee P conducted an in-depth investigation into the facts complained of by the civil parties. It transpires from all the findings of the judicial investigation, and in particular from the inconsistent statements of the parties in question, that there is no evidence against the defendants such as to justify their committal on the charges listed in the submissions of the Principal Crown Prosecutor, in respect of the period in which the offences were said to have been committed. The statements of the defendants, who deny the charges, are consistent; it is appropriate in this connection to refer to the detailed report concerning the general conduct of the civil parties’ family drawn up by Committee P, which sheds light on the general context of the case. The civil parties have not adduced before the court, sitting as the Indictments Division, any new, relevant and convincing information not previously brought to the attention of the court below and capable of revealing the slightest evidence against the defendants that might justify their committal for trial. Moreover, the judicial investigation did not bring to light sufficient evidence to show that a criminal offence had been committed by the defendants at the time of the incidents in which they were allegedly implicated. In addition, it does not appear from the case file that the provisions of section 37 of the Police Act of 5 August 1992 have not been complied with. As emphasised by the submissions of both the Crown Prosecutor of 10 November 2005 and those of the Principal Crown Prosecutor, and by the decision of the Committals Division, the facts of the present case do not constitute a serious or petty criminal offence. ...” 42. An appeal on points of law lodged by the applicants – relying in particular on Articles 3, 6 and 13 of the Convention – was dismissed on 29 October 2008 by the Court of Cassation. 43. On 5 February 2008 six members of the Bouyid family, including the two applicants, had filed a civil-party complaint with an investigating judge of the Brussels Court of First Instance concerning all their accusations against the Saint-Josse-ten-Noode police officers, in particular relating to facts that predated the events of 8 December 2003 and 23 February 2004. 44. The civil-party complaint led to the appearance of six officers before the Brussels Court of First Instance, hearing the case on the merits. In a judgment of 30 May 2012 the court declared that the prosecution of the relevant offences was time-barred. It does not appear from the file that an appeal was lodged against that judgment.