CASE OF STASZEWSKA v. POLAND
No violations of Art. 3
Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
5. The applicant was born in 1969 and lives in Szczecin. 6. In the early hours on 2 June 2001 the applicant and her friend J.D. were coming back from a party in Cracow. At a certain point they stopped because the applicant wanted to collect some leaves from an oak tree; she is a painter and she needed them to produce dye for her work. As they approached the tree, a police car stopped near them. Two uniformed policemen got out of the car and asked the applicant and her friend what they were doing there. The applicant asked what she was suspected of and what the policemen wanted from her. She asked them to show their badges. The policemen refused. 7. Then the applicant and her friend were asked to show their identity cards. J.D. did not have his identity card on him; however, he gave the policemen his personal details. The applicant refused, saying that she did not have her card on her and that she did not trust the Polish police. Then she said that she would not speak to them any longer and tried to walk away. Subsequently, she was informed that the process of establishing her personal details had not been finished and was warned that coercive measures would be used and that she would be taken to a police station if she persisted in her refusal. Then the policemen took her by both arms and brought her to the police car, parked nearby. The applicant resisted arrest by trying to get away, kicking and shouting. After she was brought to the car, she refused to get in. The two policemen called another police car and two other policemen arrived. Then the applicant was pushed into the car, laid on the floor and held down by the weight of the policemen's bodies. While she was being pushed into the car, kicking and shouting, one of the policemen was accidently hurt by a walking-length umbrella that the applicant was holding. 8. Subsequently, the applicant was handcuffed behind her back and taken to the police station. She refused to give a sample of her breath, saying that she suffered from asthma and bronchitis. She was taken to an accident and emergency service, where she refused to undress for a medical examination. Then she was taken to a sobering-up centre where she underwent a breath test, which showed a blood-alcohol level of 0.04 ‰. The doctor refused to keep the applicant in the sobering-up centre. She was taken back to the police station, where she apparently underwent another breath test. Subsequently she was taken to the police detention centre (izba zatrzymań). As emerges from the record of arrest (protokół zatrzymania osoby) the applicant did not appeal against the decision on her arrest and did not ask for a lawyer. She refused to sign the record of arrest. 9. In the police detention centre a policewoman told the applicant that she had to undress to undergo a body search in order to check whether she had any dangerous objects on her. The applicant refused, but as the policewoman allegedly warned her that she would be undressed by force, she eventually agreed. The applicant was then placed in a cell without a mattress. She had to spend the night on a concrete floor without her jacket, which had been taken away from her because it had a cord which might serve as a dangerous object. Only after some time was she given a blanket. She was refused permission to go to the toilet. 10. On 2 June 2001, at an unspecified time during the day, the applicant was released. 11. On the same day, at 21.55, the applicant went to an accident and emergency service in Cracow, where she was examined by a doctor. 12. According to a medical certificate from that examination the applicant had bruises on her chest and both arms, a haematoma on the left arm, bruises on the left hip and a haematoma on her left foot. 13. There are no discrepancies in the facts until the moment the applicant was asked to show her identity card. She refused, saying that she did not have her card on her, and tried to walk away. Subsequently, she was warned that coercive measures would be used and that she would be taken to a police station if she persisted in her refusal. Then the policemen took her by both arms and brought her to the police car, parked nearby. The applicant resisted arrest by trying to get away, kicking and shouting. After she was brought to the car, she refused to get in. The two policemen called another police car and two other policemen arrived. They “helped carry out the intervention”. When the applicant was in the car, she suddenly hit one of the policemen in his mouth with the ferrule of her umbrella. 14. Alternatively, according to the criminal court which conducted proceedings against the applicant (see below), the applicant had calmed down before being “put in the car”. After that she hit one of the policemen with her umbrella. 15. There are no discrepancies as regards facts which occurred in the accident and emergency service and the sobering-up centre. 16. Subsequently, in the police detention centre, two policewomen told the applicant that she had to remove her clothing to undergo a body search. The policewomen, who were questioned later in the course of investigation, said that the strip search had been carried out in accordance with the relevant procedures and denied that it could be humiliating for the applicant. 17. On an unspecified date the applicant's lawyer applied to the Cracow District Prosecutor for the prosecution (wniosek o ściganie) of the police officers who had arrested the applicant. 18. On 30 May 2003 the Cracow District Prosecutor discontinued the investigation, finding that the policemen's acts did not constitute the offence of abuse of authority. The prosecutor relied on statements given by a number of witnesses, including the applicant's friend J.D. 's version”. J.D. however did not see what happened after the applicant had been placed in the police car. He said that only at the police station had he noticed that one of the police officers was hurt on his face and that he had found the wound “superficial”. The Prosecutor relied also on an expert opinion produced in the course of the investigation, according to which, as a result of the police intervention on the night in question, the applicant had bruises on both her arms and a haematoma on her left arm, bruises and a haematoma on her left foot, bruises on her left hip and a sprained right wrist. The above symptoms and physical state caused her health to be impaired for a period shorter than seven days within the meaning of Article 157 § 2 of the Criminal Code. As regards the body search of the applicant, the prosecutor invoked the provisions of the 1990 Police Act and Order no. 7/94 of the Chief Police Commandant (Komendant Główny Policji) of 10 November 1994, which provided for the detailed examination of the clothes, shoes and underwear of arrested persons for any objects which could be dangerous to their own or another's health or life. 19. On 16 June 2003 the applicant's lawyer appealed, asking that the evidence in the file of the criminal proceedings against the applicant, which were pending at that time (see: “Criminal proceedings against the applicant”, below), be examined. In the applicant's lawyer's view, it was relevant for the present proceedings that the case against the applicant had been remitted by the second-instance court for reexamination. He also wanted the court to compare the evidence given by the police officers in both sets of proceedings. In his appeal the applicant's lawyer did not refer to the fact that at the police detention centre the applicant had allegedly been refused permission to go to the toilet and that she had had to spend the night on a concrete floor without any cover. 20. On 14 October 2003 the Cracow District Court (Sąd Rejonowy) held a hearing and rejected the applicant's lawyer's application. The court found that it was not bound by a judgment given in the criminal proceedings against the applicant and that the question whether or not the applicant had committed the offence of forcibly resisting arrest was irrelevant for the assessment of whether the police officers had abused their authority. 21. On the same day the Cracow District Court upheld the prosecutor's decision. 22. On an unspecified date the applicant was charged with resisting lawful arrest. 23. On 25 June 2002 the Cracow District Court convicted the applicant as charged and ordered her to pay a fine. 24. On an unspecified date the applicant's lawyer appealed. 25. On 1 July 2003 the Cracow Regional Court (Sąd Okręgowy) quashed the first-instance judgment and remitted the case for further examination. The court found that the applicant's injuries could not have been caused by her being placed in the police car in the way described by the police officers. 26. On 24 March 2004 the Cracow District Court, having re-examined the case, again convicted the applicant and ordered her to pay a fine. The District Court did not directly refer to the shortcomings of the proceedings found on appeal by the Regional CourtThe applicant was found guilty of resisting lawful arrest by, inter alia, hitting one of the policemen with an umbrella and hurting his lip and kicking the police officers. 27. On an unspecified date the applicant's lawyer appealed again. 28. On 12 April 2005 the Cracow Regional Court upheld the firstinstance judgment. 29. The regulations on permissible use of direct coercive measures by the police are laid down in section 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 in so far as they correspond to the requirements of a particular situation and in so far as they are necessary to obtain compliance with that order. 30. Article 5 § 1 of the Ordinance of 17 September 1990 on the use of coercive measures by the police provides 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 whom the action is being carried out, except in self-defence or to counter an attack against another person's life, health or property. 31. Order no. 7/94 of the Chief Police Commandant of 10 November 1994 is neither an act nor a regulation which is published in the Journal of Laws (Dziennik Ustaw). Thus it is an internal police document and not accessible to the public. 32. Article 157 of the Criminal Code sets the threshold between minor and more serious bodily injury or impairment to health. According to that provision, if the bodily injury or impairment to health lasts less than seven days, the perpetrator is subject to a fine, the penalty of restriction of liberty or deprivation of liberty for up to two years. In such case the prosecution occurs upon a private charge. If the bodily injury or impairment to health lasts longer than seven days, the perpetrator is liable to a heavier penalty.