BERNATOWICZ v. POLAND
Inadmissible
David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
The applicant, Mr J. Bernatowicz, is a Polish national who was born in 1947 and lives in Płock. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was arrested by the police in the late evening of 5 April 2000. According to the arrest report, he was detained in connection with insults proffered over the telephone against police officers at the local police station in calls made earlier that evening from the headquarters of the Mazowiecka Milk Co-operative in Płock. A police officer who was on duty that day had written a memo according to which, at around 8.05 p.m., a man had called the police station, talked to that officer in a vulgar and abusive way and uttered inarticulate threats. The officer knew the telephone number and thought that he recognised the voice of the man calling to be that of the co-operative’s president, A.L., who was later arrested together with the applicant. The officer noted that this telephone call was not the first one that evening. Another police officer, who had worked a previous shift, had received similar calls. According to another memo written by another police officer, the police went to the co-operative’s headquarters twice. The first time was at around 7.30 p.m., when two officers had found no one in the building. The second time, they found two men who had locked themselves in one of the offices and refused to open the door. Officer K.K. entered through the balcony door. The men were asked to identify themselves but refused to do so or to show their ID cards. One of them behaved in an aggressive manner. Both men were then taken to the police station, where their identity was established on the basis of their identity cards. The man who had acted aggressively at the time of the arrest turned out to be A.L. and the other man was the applicant. The applicant submitted that, before they had been taken to the police station, they had been driven around the city in a police car for a long period of time. At the police station, half an hour after the police’s arrival at the cooperative’s building, between 9 and 10 p.m., the applicant was informed that he had been arrested in connection with insults proffered against police officers over the telephone in a call from the co-operative’s headquarters shortly before the arrests were made. At the police station a breathalyser test was taken. It showed 1.21‰ alcohol in the applicant’s blood. The applicant was released on 6 April 2000. On that day the applicant learned that news about his arrest had been broadcast by a local radio station. The same information reached some of the members of the cooperative and was later reported in one of the local newspapers. On 17 April 2000 the applicant complained to the Płock Regional Public Prosecutor about his arrest and about alleged ill-treatment by the police. He also raised a complaint regarding an alleged violation of his personal rights, claiming that information about the arrest had been wrongfully disclosed by the police to the public. In a decision of 19 May 2000 the prosecutor replied to his complaint, explaining that he had not found any breach of the applicable laws and that the applicant’s detention had been fully justified. The delay in taking the applicant and A.L. to the police station after he had been arrested had resulted solely from the need to drive one of the police officers home at the end of his shift and did not amount to any attempt at kidnapping, as the applicant had argued. The prosecutor concluded that, if the applicant considered that his personal rights had been breached, he could file an action for compensation with a civil court. On 13 April 2000 the applicant lodged a further complaint with the Płock District Court, alleging that his detention had been unlawful. On 18 May 2000 the Płock District Court held that the applicant’s arrest and detention had been executed in compliance with the applicable laws. The court found that the applicant and A. L. had been the only persons at the co-operative’s headquarters at the time of the arrest and, consequently, the only persons who could have had access to the telephone from which the insulting calls to the police station had been made. The court noted that one of the police officers had recognised the voice of A.L., whom he knew, and had been convinced that it was he who had made the insults over the telephone. The court also found that the applicant had failed to cooperate with the police by locking the door and, together with the other suspect, refusing to disclose their names to the officers. The breathalyser test had subsequently shown an alcohol level of 1.21‰ in the applicant’s blood. The court concluded that the circumstances of the arrest were such that it could be reasonably concluded that the applicant had committed an offence and had to be arrested to prevent his absconding. There was no indication of any ill-treatment which the applicant had allegedly suffered. It further noted that the suspects had been released as soon as the necessary evidence concerning the incident had been gathered. The applicant appealed against the District Court’s decision, but on 18 July 2000 he was informed that no further appeal was available in law. On 31 January 2001 the Płock District Prosecutor discontinued an investigation into the applicant’s allegations that the police officers had committed a criminal offence, namely, the abuse of an official position. The prosecutor found no indication that a criminal offence had been committed in connection with the events of 5 and 6 April 2000. The applicant appealed. On 10 May 2001 the Płock District Court allowed his appeal in so far as he complained about the alleged leak of information about his arrest to the local press. Subsequently, this part of the applicant’s complaint was investigated again. On 21 June 2001 the Płock District Prosecutor discontinued the investigation. All police officers involved in the events of 5 and 6 April 2000 were questioned. They denied any involvement in informing any journalists about the applicant’s arrest. The applicant did not appeal. Chapter 58 of the Code of Criminal Procedure, entitled “Compensation for unjustified conviction, detention on remand or arrest”, stipulates that the State is liable for wrongful convictions or for unjustifiably depriving an individual of his liberty. Article 552 of the Code provides, in so far as relevant: “1. An accused who, as a result of the reopening of the criminal proceedings against him or of lodging a cassation appeal, has been acquitted or resentenced under a more lenient substantive provision, shall be entitled to compensation from the State Treasury for the pecuniary and non-pecuniary damage which he has suffered in consequence of having served the whole or a part of the sentence imposed on him. ... 4. Entitlement to compensation for pecuniary and non-pecuniary damage shall also arise in the event of manifestly unjustified arrest or detention on remand.”