CASE OF SAMBOR v. POLAND
No violation of Art. 3
Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano
7. The applicant was born in 1974 and lives with his father and grandmother in a semi-detached house in Wrocław. He suffers from paranoid schizophrenia. 8. On 16 August 2003, after an argument with his father, the applicant barricaded himself in his room and threatened his father with a knife and an axe. At about 8 p.m. the father called the police. He informed the police that his son had thrown him out of the house and had locked himself inside with a number of different sorts of weapons including an air rifle, axe and knives. When the police arrived the applicant had an axe in his hand. He told the police officers to leave the property while threatening them with an air rifle. The police officers decided not to continue the intervention. When the applicant's father informed them that the applicant was under psychiatric care and recently refused to take the prescribed medications, they called a psychologist, negotiators and a doctor. Following two-hour negotiations, which failed – the applicant fired several shots at the negotiators who were approaching the house with shields - the police called the antiterrorist brigade. Considering that the situation posed a threat to the applicant's family members and those who arrived on the spot, at about midnight a brigade of eight policemen commenced their intervention, which consisted in forcing the entrance door to the apartment, deafening the applicant with a grenade and immobilising him. The applicant was aggressive; he was armed with an axe, knives and an air rifle and he fired at the policemen. According to the applicant, the policemen were also aggressive: they shouted, swore and kicked him and one of them shot him in the left leg. The applicant, even when hurt on his leg, still threw the earlier prepared bayonets at the police officers. According to the police, the shot at the applicant's leg was preceded by one warning shot. However, the applicant submitted that over twenty bullets still remain lodged in the walls of the house. 9. Subsequently, the applicant was immobilised and handcuffed. There was an ambulance in front of the house during the whole intervention, so the applicant's wound was dressed immediately and the applicant was taken to a hospital. On the way he was resuscitated three times. 10. The doctor who admitted the applicant to the hospital found that he had been in a state of post-traumatic haemorrhagic shock (pourazowy wstrząs krwotoczny) which constituted a real danger to his life. On 16 August 2003 the applicant underwent an operation on his leg. The wound from the bullet resulted in necrosis and on 29 August 2003 the applicant's left leg had to be amputated. On 9 September 2003 the applicant left the hospital. 11. On 12 December 2003 the applicant's grandmother applied to the Wrocław District Prosecutor requesting the prosecution (wniosek o ściganie) of the police officers who had participated in the intervention and wounded the applicant. 12. On 15 April 2004 the Wrocław District Prosecutor discontinued the investigation, finding that the policemen's actions had not constituted an offence of abuse of power. In the course of the proceedings before the Prosecutor, twenty two witnesses were heard and documentation containing a hundred and eighty five pages gathered. The Prosecutor obtained an expert report of a doctor of forensic medicine, who had examined the injuries sustained by the applicant. She further heard the applicant's grandmother, who said she knew from her grandson that he had been kicked by the policemen when he was lying hurt on the floor. All the members of the antiterrorist brigade denied having kicked the applicant. The prosecutor also heard the applicant and his father as well as outside witnesses. She further examined the medical report issued by the doctor who had admitted the applicant to the hospital and referred to the medical expert report according to which: “...the applicant had been admitted to the hospital on 16 August 2003. He had been shot in the left leg with the bullet's entry probably above the kneecap and exit in the calf. His artery and under-knee vein were damaged, with an open comminuted fracture of his left thigh bone. As a result of the above wounds the complication developed into necrosis and the applicant's left leg had to be amputated.” 13. As regards the course of the events, the Prosecutor established that: “After the unsuccessful intervention of the two policemen who had initially arrived at the scene, negotiators and a psychologist were sent to the applicant in order to urge him to leave the house. The negotiations lasted about two hours but they did not lead to the expected result. The applicant did not react and his only reaction was to fire an air rifle in the direction of the negotiators, who had to protect themselves with shields while approaching the applicant's windows”. When the negotiations failed, the anti-terrorist brigade was called. Before their intervention “another attempt to establish contact with the applicant was made, and when this failed the brigade began their intervention”. 14. In conclusion, the Prosecutor found that the anti-terrorist brigade had used means proportionate to the danger posed by the applicant not only to the policemen and the applicant's family, but also to third persons. It was also established in the course of the investigation that the policeman who fired at the applicant had first appealed to the applicant to calm down and to put the axe down, and had then fired a warning shot. 15. On 24 May 2004 the applicant's grandmother and father lodged an appeal against the decision of 15 April 2004. They complained that the prosecutor had not thoroughly examined the circumstances of the case and that the policemen had abused their powers. In particular, they alleged that the applicant had been shot in such a way that the gun was first pointed at the applicant's leg and a shot was then fired. They submitted further that not just one warning shot had been fired and that eighteen bullets of live ammunition, seventeen plastic bullets and six deafening grenades remained lodged in the walls of their house. They also demanded that an expert be appointed to examine the way the wounds had been inflicted; in particular the gunshot wound, but also a broken tooth, wounds to the applicant's head and a partly torn-off ear. 16. On 26 May 2004 the Wrocław District Prosecutor refused to examine the appeal, finding that it had been lodged by persons who were not parties to the proceedings. This decision was challenged by the applicant himself as well as by his father and grandmother. 17. On 6 July 2004 the Wrocław Regional Prosecutor granted the applicant's appeal and quashed the challenged decision of 26 May 2004, so allowing the applicant's appeal against the decision to discontinue the investigation to be examined by a court. 18. On 30 September 2004 the applicant requested the Wrocław District Court (Sąd Rejonowy) to appoint an expert witness to examine the clothes he had been wearing at the time of the intervention in order to find possible traces of gunpowder. 19. On 28 October 2004 the Wrocław District Court dismissed the appeal against the prosecutor's decision of 15 April 2004. The court found that in the course of the investigation which had been carried out properly, all relevant factors had been established and all necessary evidence had been taken in order to give a decision on the merits. It further found, essentially summarising the reasoning of the Wrocław District Prosecutor's decision of 15 April 2004, that the police's reaction had been proportionate. As regards the allegations concerning the shot fired at the applicant's leg, the court found that “the applicant, when heard, did not confirm those circumstances”. The court did not refer to the applicant's further reservations regarding the alleged shortcomings of the investigation, especially as regards the number of bullets allegedly remaining in the walls of the applicant's house. Neither did it refer to the applicant's request to appoint an expert who would examine his clothes. 20. On an unspecified date the applicant's father complained to the Ombudsman. 21. The Ombudsman requested the Supervisory Division of the Wrocław Prosecutor of Appeal (Wydział Nadzoru) for information on the respective proceedings. Having obtained the information requested, on 17 May 2005, the Ombudsman did not find grounds for intervention. He had examined the case-file, reconstructed again the course of events which was consistent with the version as established by the prosecutor and court. The Ombudsman confirmed, inter alia, that when the anti-terrorist brigade forced the door, the applicant behaved aggressively, fired with an air rifle towards the policemen, threw an axe in their direction and, subsequently began to throw knives towards them. Then one of the police officers, B.N. fired “warning shots” and, seeing no reaction on the part of the applicant, fired a shot towards his leg from a distance of 1.5 metres. The Ombudsman also found that the applicant had already thrown his father out of their house about two months earlier, and that then he had threatened him with a bayonet. Finally, the Ombudsman pointed to the fact that the request for institution of investigation into the alleged abuse of power by the police officers had been lodged about six months after the events in question. 22. On 18 August 2003 the Wroclaw District Prosecutor opened an investigation against the applicant, who had been charged with an active assault on the police officers (czynna napaść na policję) and with causing a bodily injury or an impairment of health for a period exceeding seven days. In the course of the inquiry the Prosecutor ordered expert reports from a psychologist and two psychiatrists, obtained evidence including photographic material and heard fourteen witnesses including the applicant and members of his family, as well as all policemen who had participated in the intervention. 23. On 30 June 2004 the Wroclaw District Prosecutor gave a decision and found that during the intervention two policemen had been hurt; one had a wound on his cheek and the other had been shot in the right arm. It was also found however that, at the time of the intervention, because of his mental illness the applicant had been incapable of understanding the significance of his behaviour. For that reason the Prosecutor discontinued the investigation. 24. The Government produced a detailed report of the intervention prepared by the police following the internal explanatory proceedings. The report confirms the applicant's aggressive behaviour and explains the circumstances in which the shot was given at the applicant. The report, in its relevant part, reads as follows: “the police officers breached the entrance door. The officer B.N. entered the corridor through the hole in the door and saw a man with an axe in his hand. The man swung his arm towards B.N. who jumped back and shouted: “Police! Drop it!” The man swung his arm again and B.N. fired a warning shot at the ground and then, at the next attack with the axe very close to B.N., B.N., facing a direct threat to his life, directed a shot at the applicant's leg. The man dropped the axe, cowered, and, limping, went further back into the house” 25. 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 the order of a police officer 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. 26. 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 or 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.