CASE OF HILDA HAFSTEINSDOTTIR v. ICELAND
Violation of Art. 5-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
Gaukur Jörundsson;Nicolas Bratza
9. The applicant was born in 1949 and lives in Reykjavík. 10. Her complaints under the Convention stem from her arrest and detention in police custody in Reykjavík on six occasions as described below. 11. The applicant was arrested and held on remand in police custody on six occasions on different dates between 31 January 1988 and 11 January 1992. Each time, she spent the night in a cell and was released in the morning. Further details about these events are given in the police reports compiled by the responsible police officers for the Reykjavík Police Commissioner and are set out below. (i) In the night of Sunday 31 January 1988 at 3.40 a.m., the applicant went to a local police station in a Reykjavík suburb accompanied by two taxi drivers. Although she only had ISK 100 in her possession, the taxi fare amounted to ISK 1.825. According to a police report (signed by Police Officer R.B.), the taxi drivers had stated that “they had been driving [the applicant] during the night, but since she had refused to pay they had driven her to the nearest police station.” The police report further stated that she was “obviously drunk and agitated” and that she was “very agitated, foul-mouthed and disruptive.” The applicant was then transferred to Reykjavík Police Headquarters where she was, on the decision of Assistant Police Inspector H.Ó., detained in custody until the next morning. A further police report of 31 January 1988 (signed by R.B.) relating to a police interrogation the next morning at 8.55 a.m. stated that the reasons for her “being summoned [had] been explained to her”, namely a “case ... concerning taxi fraud, intoxication, etc.” She had replied inter alia that she had intended to pay her fare to the driver in an amount of ISK 1.325 when returning home, but had refused to pay an invoice of ISK 500, which she would only pay after consultation with her lawyer. She expressed surprise over the fact that not only had she been subjected to a string of accusations by the police but also she had been held in detention without being given any reasons. She was released at 9.25 a.m. (ii) On Friday 18 May 1990 at 0.05 a.m., the applicant arrived at the Reykjavík police headquarters at Hverfisgata. A police report (signed by Assistant Police Inspector H.Ó.) entitled “Intoxication and detention”, described the applicant's condition as “Very obviously drunk” and gave “Drunken behaviour” as the reason for her arrest. The report included the following passage: “As far as she could make herself understood she had arrived by taxi and there was some dispute between her and the driver. The driver and the taxi were nowhere to be seen. [After the police inspector had] talked with Hilda for a while it became clear that the cause of the dispute no longer existed. She suddenly began to stride about in the corridors and the personnel lounge of the police station, confronting the police personnel present and exhibiting drunken behaviour. She would not calm down despite repeated requests and finally it became necessary to restrain her by placing her in police custody.” According to the Government, the police had repeatedly requested the applicant to desist and to leave the police station but, as these requests were ignored, she was placed in police custody as a last resort. Since the relevant hand-written card file was no longer available, the time of her release could not be confirmed. (iii) On Saturday 8 December 1990 at 10.15 p.m., the applicant went again to the Reykjavík police headquarters. A police report (signed by Police Officer M.M. and addressed to the Police Commissioner) entitled “Intoxication, arrest and detention in police custody” was drawn up on her arrival: “Hilda arrived at the police guardroom in a state of heavy intoxication. It was not clear what she wanted; to a large extent she was incoherent. She was abusive and threatened to assault the police officers present at the station. Police Officers nos. 41 and 89 brought her to the detention facility... where Inspector R.A. interviewed her. Hilda was given the opportunity to leave freely, which she flatly refused. When her overcoat was being removed from the cell, she lashed out at her surroundings with a leather belt without, however, hurting anybody...” The report described the applicant's condition as “very obviously drunk” and indicated “intoxication and aggressive behaviour” as the reasons for her arrest, which decision was taken by Inspector R.A. According to an entry in a more recent computerised police custody record, her detention lasted from 10.37 p.m. until 8.24 a.m. the next day. The reason for her detention was recorded as: “Alcoholic Beverages Act, drunkenness in a public place (section 21 [see paragraph 26 below])”. (iv) On Saturday 19 January 1991 at 0.15 a.m., the applicant went to the same police station. The relevant police report (signed by Police Officer M.M.), entitled “Intoxication, improper behaviour, and detention in police custody”, stated that her visit did not seem have any purpose and that she was very obviously drunk. Before she could be stopped, she had burst into the office of the inspector in charge and addressed him in derogatory terms as a “son of a bitch” and a “eunuch”. She was then arrested and held in police custody. The reason for her arrest according to the police report was that she had directed a stream of verbal abuse at the inspector. The decision had been taken by Inspector B.S. The relevant custody record indicated that the applicant had been held in detention from 0.18 a.m. until 10.38 a.m. the following morning. The reason for her detention was registered as: “policemen; violent behaviour towards policemen (106-107)”. The reference in brackets appears to be Articles 106 and 107 of the General Penal Code (see paragraphs 27 below). A police note dated 20 January 1991 suggests that the applicant was offered, but refused, a judicial settlement of the matter. (v) On Monday 24 June 1991 at 9.10 p.m. the applicant once again went to the police headquarters in Reykjavík. The police report concerning the incident (signed by Police Officer H.D.), stated that she was very obviously intoxicated and agitated and that she made a habit of visiting the police station when under the influence of alcohol. Moreover, she had made a lot of noise, including calling out the names of various police officers. Her noises and screams increased to the point of disturbing the peace required for the work of the station. The applicant grabbed a waste bin standing at the entrance to the police station and prepared herself to throw the bin at Police Inspector R.A. who was helping a man to wash blood off his face. The applicant slammed the bin onto the floor with a loud bang when the policeman raised his hand in order to protect himself. The applicant had been ordered many times to leave the station, but to no avail. Instead, without permission, she had entered a corridor at the station and reached the personnel lounge, while carrying a glass containing a liquor mixture. According to R.A., she had threatened Assistant Inspector K.G. and had become very agitated when kindly requested to stop screaming and to leave the station. When she refused to leave she was arrested and brought to the detention facility. The decision was taken by Inspector R.A. The police report stated the reason for her arrest as “state of intoxication etc.” According to the relevant custody record she was detained from approximately 9.20 p.m. until 7.34 a.m. the following morning. The reason for her detention was recorded as “Alcoholic Beverages Act, drunkenness in a public place (section 21).” (vi) On Saturday 11 January 1992 at 2.39 a.m., the police was called to the Hotel Saga in Reykjavík. According to the relevant police report (signed by Police Officer H.R.), when the police arrived the applicant had been restrained by the hotel staff. She was very obviously intoxicated and agitated. The applicant was arrested and taken into custody for “intoxication”. The decision was taken by Assistant Inspector K.G. According to the relevant custody record (dated 14 February 2001) the applicant was detained from 3.14 a.m. until 9.17 a.m. the following morning. The reason for her detention was registered as “Alcoholic Beverages Act, drunkenness in a public place (section 21).” 12. The Government further submitted various pieces of evidence described below. It included two police reports of 25 May 1991 and 12 June 1992 respectively, concerning refusals by the applicant to pay taxi fares. Another report, dated 5 November 1991, stated that she had been ordered to leave a police station while in an intoxicated state but had left the station after having damaged a toilet and insulted a police officer with offensive language. Later that night she had for no apparent reason disturbed the police by repeatedly telephoning the police assistance and emergency number. 13. On 13 October 1991 Chief Inspector J.J.H. complained to the Prosecutor General that the applicant had sent him gifts and harassed him repeatedly with phone calls both at work and at home. Once she had gone to his home and harassed his pregnant daughter. On 5 February 1992 the Prosecutor General replied that following an investigation by the State Criminal Investigation Police, further measures by the prosecution service were not deemed justified. 14. On 9 September 1993 the State Criminal Investigation Police informed the applicant and the Reykjavík Police Commissioner that no further measures would be taken with respect to the above complaint of 13 October 1991. 15. On 13 December 1991 counsel for the applicant, Mr Hilmar Ingimundarson, requested the Prosecutor General to order the State Criminal Investigation Police to investigate the applicant's complaints against various police officers, notably in relation to events on 8 December 1990 and 24 June 1991. Such an investigation had previously been refused by the State Criminal Investigation Police on 3 December 1991. On 5 February 1992 the Prosecutor General replied that the authority saw no reason to order an investigation. On 2 July 1992 a similar reply was given in relation to another complaint by the applicant concerning events on 18 May 1990. 16. On 15 July 1992 the applicant petitioned the Parliamentary Ombudsman asking for a statement of the reasons for the refusal of her requests for an investigation. On 4 August 1992 the Ombudsman concluded: "It is clear from the case file that you and the police differ considerably as to the manner in which the police officers dealt with you on the said dates and the events preceding these incidents. I do not find that a resolution of a dispute of this kind is within the purview of the Parliamentary Ombudsman and, consequently, conclude that there are no grounds for me to consider the matter raised in your petition any further." 17. By a letter to the applicant dated 14 September 1992, the Reykjavík police informed her that no further action would be taken regarding the matter, referring to six reports related to the incidents mentioned in paragraph 11 above. 18. On 11 March 1993 the applicant instituted civil proceedings against the State of Iceland claiming compensation for the damage which she had suffered as a result of having been unlawfully arrested and detained by the police as well as for harassment. 19. After a first set of proceedings the Supreme Court ordered the District Court in Reykjavík to re-examine the case with an oral hearing. 20. By a judgment of 11 April 1995 the District Court found that the applicant's claim was time-barred pursuant to the six-month time limit laid down in Article 157 of the Code of Criminal Procedure. 21. On an appeal by the applicant the Supreme Court overturned the District Court's finding by judgment of 10 October 1996. After an examination of the merits it nevertheless found for the State, giving the following reasons: “...The judgment under appeal refers to six events which occurred during the period from 31 January 1988 to [11 January 1992]. According to the police reports, on each occasion the [applicant] was arrested and detained on remand because she was intoxicated and agitated and could not be calmed down. The police reports relate how she acted disruptively at the police station, being verbally abusive or behaving in a drunken manner, and that she was placed in a detention cell in order to restrain her. From these descriptions, which have not been refuted, it is clear that the police had good cause and sufficient reason to commit the applicant to a detention cell for a short period of time, cf. the main rule in Article 34 of the Code on Criminal Procedure, no. 74/1974 then in force, and Articles 2 and 3 of the Reykjavík Police Ordinance, no. 625/1987; and the respondent's view that no other remedy was available in the circumstances must be upheld. Consequently, the [applicant's] claim for compensation lacks legal basis and, for that reason alone, the respondent must be released from her claim. ...” 22. The applicant submitted a medical certificate dated 13 December 1996, which included the following: “...For two years I, the undersigned, have acted as the [applicant's] general practitioner. During this period, nothing has occurred which would indicate that she has had alcohol related problems. Nor do the reports from her previous doctors give any reason to believe that she has had such problems. ...” 23. Article 34 of the Code of Criminal Procedure, as in force at the material time (1974:74), read: “Police officers shall be vigilant in their work and be clearly aware of the responsibility it entails. Their role is to uphold the law and order, to assist the public, as appropriate, to take measures against unlawful conduct and to work towards detecting criminal offences that are committed and to provide every assistance to official investigators. ....” 24. Articles 2 and 3 of the Reykjavík Police Ordinance (no. 625/1987) provided: Article 2 “'Public place' in this Ordinance means streets and places intended for use by the public. The provisions on public places apply also, if appropriate, to other places open to the public - stores, restaurants, parking places, bus shelters, museums, etc.” Article 3 “Breaches of the peace, fights, disorderly conduct or other behaviour that disturb the peace in public places shall be prohibited, and the public shall not assemble in groups in public places if doing so interferes with traffic or causes inconvenience to passers-by. In public places, no one may harass others or indulge in unseemly behaviour.” The above provisions had a statutory basis in Act No. 1 of 3 January 1890, section 2 of which stipulated: “A police ordinance shall contain provisions on such matters as may be required in the circumstances obtaining in each place: (a) On order and good behaviour on the streets, roads and places to which the public has access, on all measures that are necessary in order to facilitate or prevent obstruction to traffic, on all matters that may cause danger, on the preservation and protection of public property, on public order in restaurants and places of entertainment accessible to the general public or public gatherings such as tournaments. ...” Section 5 provided that a breach of police ordinances adopted under the Act was punishable by a fine. 25. Article 61 of the Code of Criminal Procedure contains the following provisions regarding arrest: “The police shall make an arrest if ordered by a judge. The police may also make arrests without a judicial warrant: 1. if they observe a person committing a punishable act, provided the act is subject to public indictment; 2. if a person is suspected of having committed an offence and does not provide police with information as to his name and address, or if he is a vagrant; 3. if the arrest of a suspected person is deemed necessary for the protection of others; 4. if an arrest is deemed necessary for preventing a suspected person from destroying evidence, leaving the police district or otherwise obstructing an investigation and it is not thought advisable to wait for a judicial warrant; 5. if a person has escaped from custody or evaded lawfully ordered supervision; 6. if a person has, unless he was prevented from so doing, failed to act upon a police summons to provide a statement in a criminal case, or 7. if a person loses control in a public place or causes public outrage, or does not have permission to remain in Iceland. In each case a police officer shall assess the need for immediate arrest, for example on account of the danger of concealment of evidence, escape of an offender, continuation of criminal conduct, etc.” 26. At the relevant time, the Alcoholic Beverages Act 1969 (later replaced by Act 15/1998) included in its Sections 21 and 33 provisions to the effect that any person causing disorder, danger or disgrace in a public place in breach of the Act or a regulation issued under it was punishable by payment of “fines, punitive custody or imprisonment for up to 6 years”. 27. Assault and threatening behaviour committed against a public servant in the performance of his or her official duties constituted a criminal offence under Articles 106 and 107 of the 1940 General Penal Code. 28. The Government submitted extracts from three instructions applicable to the case: (1) Announcement by the Reykjavík Police Commissioner No. 1/1975 on Rules for Police Officers and Wardens Concerning Treatment of Arrested Persons, Accommodation of Detainees, etc (hereinafter referred to as “the 1975 Rules”); (2) General Rules of the Reykjavík Police Commissioner of 1 July 1988 on Detention and the Treatment of Arrested Persons (hereinafter referred to as the “1988 Rules”) , and (3) General instructions of the Reykjavík Police Commissioner on Arrest, an excerpt from an information booklet for police personnel, issued on 1 April 1991. 29. The 1975 Rules provided that in carrying out an arrest no more force should be applied than necessary (Article 1). An arrested person who was in a state of unconsciousness or similar condition should be taken to hospital (Article 2). A police officer who had carried out an arrest had to draw up a detailed report which should indicate the state of intoxication and the reasons for arrest (Article 3). The 1975 Rules further contained provisions on notification of relatives under the age of 20 and, if appropriate, the households of persons arrested for being intoxicated (Article 4). An arrested person under the age of 16 should in principle not be detained in a closed cell but should be kept in an open room under the care of the police until brought home or fetched by a relative (Article 5). Article 6 provided: “The inspector shall decide whether an intoxicated person who has been arrested shall be detained or whether any other measures shall be taken.” Article 11 read: “The inspector shall decide when a person shall be released from detention. If a person has been detained for some reason other than intoxication, he shall not be released except with the approval of a judge or the investigating officer in charge of his case.” The 1975 Rules further contained provisions (Articles 8 to 10 and 12 to 14) relating to such matters as hygiene and safety, limitations on the number of persons per cell, the frequency of cell patrols (at intervals not exceeding 20 minutes). 30. Provisions largely similar to those described above were included in the 1988 Rules, which replaced the 1975 Rules on 1 July 1988. For instance, under Chapter B, section 1, decisions on detention should be taken by or under the supervision of a police inspector, and the inspector was to decide when a person detained on account of intoxication was to be released. Unlike the 1975 Rules, however, the 1988 Rules stated in Chapter A the criteria on which the police should base its decision to place a person in detention: A.1. That the condition of the person in question is such as to be a danger to himself or to others, or that another dangerous situation may arise if he is allowed to remain free, or if the person may cause damage to property. Also if a person, as a result of the use of alcohol or other intoxicating substances, causes public outrage or disorder or significant disturbance or inconvenience, provided the situation is highly likely to persist if he remains free. The 1988 Rules also specified in what circumstances detention would not be justified: A.4. In cases involving intoxication only, when measures other than detention can be taken, for example taking a person home. According to the Government, when a person was committed to a detention cell on the basis of Section A.1, the police would decide on the time of release by assessing when the condition warranting detention had ceased. Generally in police practice that meant that detention would last for the relatively short period it took for the inebriating effects of alcohol to wear off, or for a person in a highly agitated state of mind to calm down, thereby reducing the likelihood of a continuation of the conduct that gave rise to the measure. The Government added that the police were chiefly involved with intoxicated persons late in the evening and at weekends, for example due to drinking lasting the entire day. It was common in such cases for the intoxicated person, after having fallen asleep in the cell, to be released in the morning when the immediate effects of his or her drinking had worn off. 31. The General Instructions on Arrest of 1 April 1991 set out, inter alia, the duty of discretion and diligence to be observed by the police as well as the obligation to use no more force than necessary in making an arrest. 32. Compensation from the State for unlawful detention was available under Article 151 of the 1974 Code of Civil Procedure, subject to the time-limits set out in Article 157: Article 151 “By way of judgment, an award of compensation may be made with respect to arrest, personal search, a medical examination or any other measure involving interference with liberty, other than detention on remand and imprisonment under Articles 152 and 153, as well as with respect to house search and seizure: 1. if the conditions provided for by law for the taking of such measures were not fulfilled; 2. if the circumstances did not provide a sufficient reason for taking the measures in question, or if they were taken in an unnecessarily dangerous, harmful or offensive manner.” Article 157 “The right to compensation shall lapse on the expiry of six months after the date on which the person concerned became aware of a decision to discontinue the investigation or not to prosecute, was acquitted, or was released from punitive custody or imprisonment. If a criminal case has been subject to appeal to the Supreme Court, the period shall be counted from the date of the Supreme Court's judgment.” According to the Government, there were no instances of any compensation proceedings having been brought by a person on account of his or her having been detained on grounds of being drunk and disorderly in a public place. 33. With effect from 1 July 1992 a new Code of Criminal Procedure (Act No. 19/1991) replaced the 1974 Code. By virtue of Article 98, subparagraph (e), the police could arrest a person who lost control in a public place, or caused public outrage or a danger of public disturbance. Subsequently, the provisions on arrests in the interests of public peace and order (i.e. arrests that did not directly relate to a criminal investigation) were removed from the Code of Criminal Procedure and incorporated in the new Police Act (No. 90/1997), which entered into force on 1 July 1997. The new provisions reproduced former Article 34 of the 1974 Code of Criminal Procedure and codified some of the rules previously found in customary police powers and police instructions, notably the limited powers conferred on the police (by a so-called general mandate) to take such measures as are necessary to maintain law and order and the rule of proportionality applying to the use of force. Sections 14 to 16 contain the following provisions: Section 14 - Use of force Persons who exercise police powers may use force in the course of their duties. At no time, however, may they use force to any greater extent than necessary on each given occasion. Section 15 Measures taken in the interests of public peace and quiet, public order, etc. 1. The police may intervene in the conduct of citizens in order to maintain public peace and quiet and public order or to prevent an imminent disturbance in order to protect the safety of individuals or the public or to avert or put a stop to criminal offences. 2. For this purpose, the police may, among other things, take over the control of traffic, prohibit persons from remaining in particular places (e.g. by cordoning the areas off or restricting movement through them), seize dangerous items, order people to move away, or remove them, order an end or a change to actions or an activity, enter privately-owned areas and order the removal of persons from such places. 3. If a person disobeys police instructions under paragraph 2, the police may take the necessary measures at the person's expense to prevent his disobedience causing damage or injury or constituting a hazard to the public. 4. The police may require any person to give his name, ID number and address, and to present an identification document to substantiate the information given. 5. The police may concern themselves with matters which by law come under other authorities if it is considered necessary to stop or prevent a serious disturbance of public peace and quiet and public order and it is not possible to contact the relevant authority or it is impossible for it to take measures, or if such measures are ineffective or it is foreseeable that they would be taken too late. The appropriate authority shall be informed of the police's actions as soon as possible. Section 16 - Power to make arrests 1. A person exercising police powers may arrest a person and take him to a police station or other place where the police have facilities: a. for the purpose of maintaining law and order, for example if the person loses control or causes public outrage in a public place or a danger of public disturbance, b. if he does not hold a permit to remain in the country. 2. The police shall explain to the person the reason why he is being taken to the police facility. No person may be held for longer than is necessary.