CASE OF ILJINA AND SARULIENE v. LITHUANIA
Violation of Art. 3;Remainder inadmissible;Non-pecuniary damage - award
András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Ireneu Cabral Barreto
5. The first applicant was born in 1958. The second applicant was born in 1978. Both of them live in Vilnius. The first applicant is the second applicant's mother. 6. According to the second applicant, at about 5 p.m. on 3 August 2004 a police officer, in plain clothes, arrived at the applicants' apartment block to conduct a search for stolen goods in a flat which was situated next door to that of the applicants. The police officer was accompanied by a technical expert who worked for the company which owned the goods in question. The applicants' neighbour refused to let the police officer in, alleging that he was not the owner of the flat and that the officer was not wearing a uniform. At the same time, the second applicant, her uncle, O.B., and her brother, V.I., came out on to the staircase for a smoke. According to the second applicant, she and her brother told the police officer that he had no right to enter the flat by force. The policeman went for reinforcements, but before leaving said “get ready to go [with the police]”. 7. The further circumstances of the conflict on the staircase are in dispute between the parties. 8. According to the second applicant, two more uniformed policemen arrived later at the scene of the incident. One of them suddenly grabbed V.I., loaded his gun and pointed it at V.I. The second applicant screamed for help and the policeman pointed the gun at her. The other policemen told the first officer to put away the gun and both policemen started hitting V.I. The officers called for more reinforcements, and more policemen arrived; they hit V.I. and O.B. with rubber truncheons and punched and kicked them. At that time the second applicant's father, A.I., returned from work and asked the police to explain what was happening. Instead of replying, the police started hitting him on the head, shoulders and hands with a rubber truncheon. The second applicant's daughter, who was one year and seven months old, attempted to come out of the flat to see what was happening in the corridor; a policeman tried to push and close the flat's reinforced door. The second applicant placed her foot between the door and the wall to prevent her daughter from being hurt; consequently, the second applicant's foot was injured. O.B., V.I. and A.I. were arrested. The second applicant telephoned the first applicant. 9. According to the first applicant, she received a telephone call from her daughter and went straight to the scene of the incident. In the courtyard of the apartment block she saw three police cars and several policemen. O.B., V.I. and A.I. were in the police cars and there were a lot of people milling around. She asked the police officers what was going on. However, no explanation was given, and the officers started pushing people further away from the police cars. The first applicant tried to stop the police officers and lay down on the bonnet of a police car. The policemen started driving the car and the applicant felt pain in her whole body. An officer forcibly dragged her away from the car, tore off her blouse, kicked her bottom and threw her, wearing no blouse but only a bra, onto the grass. She came round as the police were leaving. 10. In their submissions of 3 December 2008 the Government stated that as reinforcement, two more police officers arrived at the staircase. V.I. again came out of his flat and used offensive language towards the officers. The second applicant and her friend S.Š. came out on to the staircase. The police officers demanded that V.I. stop acting inappropriately and warned him of the impending consequences. V.I. did not comply and the police officers attempted to arrest him. He resisted the arrest, hitting the officers. Then O.B. ran out of the flat and started hitting the officers. More reinforcements were called for and four more officers arrived at the scene. The policemen attempted to arrest V.I. and O.B. At this point A.I. turned up and joined in the fight, trying to prevent the policemen from restraining his relatives. The second applicant and S.Š. were also obstructing the officers from carrying out their duty by jostling and pulling their clothes. The Government pointed out that as regards the second applicant's leg injury, the latter's friend S.Š., when questioned by police, stated that “the police officer slammed the door so loudly that the second applicant's daughter started crying”. Eventually V.I., O.B. and A.I. were handcuffed and put into police cars in the courtyard of the apartment block. None of the policemen used or showed a gun, nor did they threaten to use one. The first applicant tried to prevent the police cars from leaving the courtyard and lay down on the bonnet of the first car. At the time the engine was turned off and the car was not moving. One of the officers, with some help from two other officers, forcibly moved the second applicant away from the car, holding her by both hands. 11. The documents before the Court indicate that on 4 and 5 August 2004 a medical expert of the Lithuanian Law University Court Forensic Medicine Institute examined the applicants and three of their family members who had taken part in the incident. It was established that all five of them had sustained light health impairment. In particular, the first applicant had a scratch on her forehead and five bruises on her upper arms, ranging in size from 1.5 cm to 7 cm, which were the result of at least three impacts. A doctor's certificate attested that she was unfit for work from 4 to 13 August. 12. The second applicant had an injury to her right foot, caused by a single impact with a hard blunt object. The second applicant's brother, V.I., had sustained bruises and scratches on his elbows, forearms and left knee, caused by having had at least five traumatic impacts with small hard blunt objects. He received leave of absence from work until 13 August. 13. The second applicant's father, A.I., told the doctor that the police officer had hit him several times on the head and left shoulder with a rubber truncheon. The doctor found a 3-centimetre-diameter bruise on A.I.'s left temple and scratches on his right hand. Those injuries had been caused by at least three traumatic impacts. 14. The first applicant's brother, O.B., told the medical expert that during the altercation with the police the officers had beaten him, twisted his arms behind his back and kicked him in the chest. The medical expert established that there was a swollen 0.5 x 3-centimetre scratch on O.B.'s right forearm and a 2-centimetre-diameter swollen bruise on his right shoulder, which were the consequence of at least two traumatic impacts from hard blunt objects, possibly in the way and at the time described by O.B. He received leave of absence from work until 13 August. 15. The medical expert also concluded that the injuries mentioned above could have been received during the altercation with the police officers. 16. During the evening of 3 August 2004 the two applicants submitted written complaints about the police actions to the Vilnius City Police Headquarters and to the prosecutors. The applicants asked for an assessment of the actions of the policemen, and that the officers who had taken part in the events be identified. O.B., V.I. and A.I. were kept in police custody overnight. The following morning O.B., V.I. and A.I. were questioned and the same morning released from custody. 17. The police investigator charged A.I., V.I. and O.B. under Article 286 of the Penal Code (insulting a public servant or a person discharging public functions) and Article 290 of the Penal Code (resistance to a public servant or a person discharging public functions). However, on 15 December 2004 the prosecutor dropped the charges against A.I., V.I. and O.B. for lack of evidence of guilt (Article 212 § 1 (2) of the Code of Criminal Procedure). 18. On 4 August 2004 A.I., V.I. and O.B. submitted a written complaint to the Vilnius Region chief prosecutor. They stated that they had been beaten up by the policemen without any reason and even experienced a threat that a firearm would be used against them. Whilst arguing that the police officers had brought charges against them of obstruction of justice only to defend the uniform, A.I., V.I. and O.B. invoked Articles 169 and 170 § 1 of the Code of Criminal Procedure and asked the prosecutor that the actions of the policemen be scrutinised by a prosecutor, without delegating the inquiry to police investigators. 19. At the applicants' request, on 12 August 2004 the Internal Affairs Department of Vilnius City Police Headquarters began a pre-trial investigation into alleged ill-treatment by the police officers, under Article 228 § 1 of the Penal Code, which establishes criminal liability for abuse of power. 20. When testifying to the investigators of the Internal Affairs Department, the police officers stated that V.I. had tried to obstruct them in the performance of their duties and had insulted them. They had attempted to arrest him for this behaviour, but he had resisted, using violence against them; then O.B. had arrived and tried to stop the policemen from restraining V.I. Lastly, A.I. had appeared on the scene and also become involved in the fight. Moreover, there were two women on the staircase who grabbed the officers by the arms. Consequently, O.B., V.I. and A.I. had been arrested and taken to the police station. During the incident none of the policemen had used or shown a gun, nor had they threatened to use one. 21. Between 13 August and 3 November 2004 the Internal Affairs Department investigator at the Vilnius City Police Headquarters questioned the policemen, the applicants and their male family members as well as the applicants' neighbours who had witnessed the incident. The questioning took place on police premises. Neither the applicants nor A.I., V.I. or O.B. had lawyers present when they were being questioned. The policemen and the applicants maintained their respective versions of events. 22. On 1 December 2004 a prosecutor of the Vilnius City District Prosecutor's Office discontinued the pre-trial investigation, stating that there was not enough objective evidence to conclude that the police officers had abused their powers or used unnecessary force. 23. On 12 and 14 January 2005 the applicants appealed against that decision to the Vilnius Regional Prosecutor's Office, claiming that “they could not have expected a different outcome of the inquiry, given that the [police] investigator was misleading the witnesses with the aim of obtaining testimony favourable to the [police] officers”. The applicants argued that the police officers had used excessive force against them and threatened to use a firearm. They also alleged that the testimony police officers had given during the pre-trial investigation was not comprehensive, given that the officers had not specified which special fighting actions (kovinių imtynių veiksmus) they had used. Moreover, the localisation of the wounds on the applicants' bodies allowed the assumption that the police had had recourse not only to restraining measures, but to clear physical violence. 24. On 7 February 2005 the deputy chief prosecutor of the Vilnius Regional Prosecutor's Office dismissed the applicants' appeal as unfounded. He noted the prosecutor's decision of 15 December 2004 to drop the charges against A.I., V.I. and O.B. as unfounded, for lack of evidence. However, having, as it appears from his decision, analysed the statements of the parties to the incident, as written down by the police internal affairs investigator, the prosecutor found that there were no objective data to substantiate the applicants' allegations that the policemen had acted unlawfully. For the prosecutor, the applicants' request that the policemen be questioned one more time was not to be entertained, because “the testimony of the police officers about the actions of V.I., A.I. and the others who obstructed the police, as well as about the force used when arresting them, was sufficiently detailed and comprehensive”. 25. On 18 February 2005 the applicants appealed to the Vilnius City First District Court asking that the pre-trial investigation be reopened and the witnesses be comprehensively questioned one more time. They maintained that the police investigator had refused to record statements by certain witnesses, thereby destroying the evidence of the crime committed by the policemen. The investigation into the police actions had been superficial. The applicants asked the court to establish which particular actions should be attributed to each of the policemen. They also noted that on 15 December 2004 the prosecutor had decided to drop the criminal charges against A.I., V.I. and O.B. 26. On 3 March 2005 the Vilnius City First District Court in a one-page ruling held that the pre-trial investigation had been thorough and that the prosecutors had taken reasoned decisions. According to the court, the medical experts' conclusions that the applicants and their family members had sustained light physical harm was not evidence of an abuse of powers by the police – the applicants had resisted the policemen and had been injured as a result. The court also noted that the applicants had not submitted new evidence. For those reasons the complaint was dismissed. That decision was final. 27. Article 228 of the Penal Code sets out that there is criminal liability for abuse of authority when such abuse by a civil servant or a person of equivalent status causes serious damage to a legal or natural person. Under Article 286 of the Code a person can be held criminally liable for having opposed a policeman's orders and threatened the latter with physical violence. Article 290 of the Code sets out that there is criminal liability for insulting a public officer or a civil servant. 28. Under Article 21 of the Law on Police Activities, a police officer must respect and protect human dignity, ensure and safeguard human rights and freedoms. The police officers have a right to use coercion when it is necessary to prevent violations of the law and to apprehend those who have committed such violations, as well as in other cases when lawful interests of an individual or the State are at stake. Physical coercion can be used when apprehending a person who has committed a violation of the law and who evades arrest by active actions (Articles 23 and 24). 29. The Law on the Prosecutor's Office stipulates that in discharging his functions the prosecutor is independent (Article 11). It is for a prosecutor to conduct, organise and direct the pre-trial investigation and to supervise the procedural activities of pre-trial investigation officers. A prosecutor's decision can be appealed against to a superior prosecutor (Articles 15 and 16). 30. The Code of Criminal Procedure provides that parties to criminal proceedings can lodge complaints with the prosecutor against the procedural actions and decisions of the pre-trial investigating officer. The prosecutor's decision can be complained against to a superior prosecutor and subsequently to an investigating judge (Articles 62 and 63). When examining the complaint, the prosecutor and the investigating judge have a right to examine the pre-trial investigation materials and request statements from the pre-trial investigation officer or the prosecutor, provided that they had not been submitted before. The prosecutor, counsel, the accused and the complainant may be present during the examination of the complaint by the investigating judge. Furthermore, an investigating judge has a right to question witnesses, suspects and victims. Up to 31 August 2007 the decision of the investigating judge was final (Articles 64 and 173). Since that date, a decision of an investigating judge can be appealed against to a superior court (Article 214 § 3). 31. The pre-trial investigation can be conducted by the police, but it has to be organised and led by a prosecutor, who has an obligation to oversee the course of the investigation and who can decide to conduct all or part of the investigation himself (Articles 164, 165, 169 and 170 § 1 of the Code of Criminal Procedure). Under Articles 212 § 1 (2) and 214 § 1 of the Code, a prosecutor is to terminate the pre-trial investigation where insufficient evidence of the suspect's culpability in respect of a crime has been gathered. 32. The Regulations of the Internal Affairs Department of Vilnius City Police Headquarters, approved on 13 May 2000, stipulate that the Department is an autonomous structural unit subordinate and accountable to the Chief of Police at Vilnius City Police Headquarters or his deputy. It is the Department's function to conduct pre-trial investigations of criminal acts committed by police officers. When conducting an investigation, the Department's officials have the right to question police officers and other persons. 33. In their observations on the admissibility and merits of the case, the Government provided the Court with examples of recent domestic courts' practice in cases of abuse by the police. In particular, the Government referred to the judgment of 21 July 2008 when the Vilnius City First District Court convicted two police officers of abuse of authority. The policemen were charged with using excessive force when apprehending two suspects and later beating them while they were in custody. The Government noted that after hearing and seeing various witnesses and evaluating their credibility, the court had accepted the victims' version as more credible. The Government also referred to the judgment of the same court of 21 July 2003, subsequently upheld by the Supreme Court, when two police officers were convicted of abuse of authority and beating up a suspect during questioning. The conviction was based on the version of events presented by the victim, supported by corroborating medical examination. The fact that fellow police officers had testified in favour of the accused policemen did not cast doubt for the court on the credibility of the victim's claims.