CASE OF BARTA v. HUNGARY
No substantive violation of Art. 3;Violation of Art. 3 under its procedural aspect;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
6. The applicant was born in 1965 and lives in London. 7. At the material time, the applicant and her mother, Ms E. Rhodes, lived in Hungary. They ran a shelter for dogs and cats (Csizmás Kandúr Állatotthon és Alapítvány) in the village of Bőny. 8. Apparently in the context of an alleged nuisance caused by the animals, in October 2002 the Győr Police Department initiated an investigation for disorderly conduct (garázdaság) against unknown perpetrators. The Police Department was of the view that there was a well-grounded suspicion against the applicant and her mother. 9. Not knowing their exact names or address and thus unable to summon them, on 15 October 2002 the Police Department commissioned the locally competent police officer (bőnyi körzeti megbízott), P.Z.H., to establish data about the applicant and her mother and to escort them to the Győr Police Department. Because of the office he held in the village, P.Z.H. had previously been introduced to the applicant and her mother. 10. At 7.30 a.m. on 16 October 2002, P.Z.H., who hardly spoke any English, appeared at the gate of the shelter. He rang the bell, and the applicant’s mother received him. Over the closed gate, P.Z.H. told her in Hungarian, without producing a written summons, that the police were conducting a criminal investigation against her and that she was supposed to go with him. 11. The applicant’s mother – who is of a British origin but, unlike the applicant, speaks Hungarian – refused to comply with P.Z.H.’s instruction. Following a brief dispute, she turned around and headed for the house across the yard and called her dogs to the gate of the shelter. Observing her reluctant behaviour, P.Z.H. pushed the gate open and entered the garden. 12. Since P.Z.H. had heard the applicant’s mother order the dogs, he drew his truncheon in order to keep them at bay. 13. The applicant’s mother stepped towards P.Z.H., grabbed his right arm and the truncheon, started to shake him and tried to push him out of the garden through the open gate. Since her attempts failed, the applicant’s mother told P.Z.H. that she would get dressed, collect her documents and go with him. However, having entered the house, she locked the entrance door and refused to open it despite the request of the police officer. 14. The applicant was in the house. She heard the argument and saw part of the struggle from the window of the upper floor. She grabbed a camera and took pictures, using a flash, of P.Z.H. from the window. She then hurried down to the ground floor. 15. From this point onwards, the Government’s and the applicant’s versions of events differ. 16. The Government stated that the applicant stepped out of the house through a side door and continued to take pictures; meanwhile her mother was abusing the police officer verbally. P.Z.H. requested the applicant to show him her passport. The applicant, instead of complying with the order, hit his shoulder and arm three times with the camera. Subsequently, she stepped back towards the house and P.Z.H. followed her. They both entered the house. Once inside, P.Z.H. tried to take the camera out of the applicant’s hand but he failed. Meanwhile, the applicant locked the door from the inside and sat on the key. The police officer attempted to get the key by immobilising the applicant’s arm when her mother appeared, to whom the applicant gave the key. 17. The applicant stated that P.Z.H. was banging on the front door, demanding to be let in. The applicant slightly opened the door and took a picture of P.Z.H. Perceiving the flash, the police officer started yelling at her and, with his truncheon in his hand, shoved the door with his shoulder. The applicant, standing right behind the door, fell against the wall. The door handle hit her stomach and the door-frame hit her shoulder. While she doubled up with pain, P.Z.H. repeatedly hit her with the truncheon on the neck, back and shoulders. The applicant dropped the camera. The police officer only stopped beating her when – hearing the applicant’s scream – her mother ran into the room. 18. P.Z.H. asked for reinforcements from police headquarters. With the help of two other officers, P.Z.H. took the applicant and her mother to the Petz Aladár Hospital in Győr where all the three parties were examined. The Hospital prepared a medical report on their injuries, which stated that the applicant had a contusion on the back of her right hand, a distension of the right shoulder and abrasions on her back. 19. P.Z.H’s left shoulder and collar bone were sensitive, and part of the middle finger nail of his left hand was torn off (0.5-centimetre). He also had a 4-centimetre abrasion on the right hand. 20. The applicant and her mother were then taken to the Police Department where both of them were heard, as was P.Z.H. as a witness against them. On 17 October 2002 they were both charged with violence against an official (hivatalos személy elleni erőszak). 21. On 15 January 2003 the prosecutor in charge of the case made an official note, stating that the applicant’s mother had informed him of a third individual, a Romanian national, who had been inside the applicant’s house at the time of the incident and had seen the events from the roof window. She provided this person’s Romanian telephone number and the name of the company employing him in Hungary. The Prosecutor’s Office made no attempt to find this person, supposing that he was an illegal worker who had by that time left Hungary. 22. In the ensuing proceedings, the Prosecutor’s Office heard the applicant as a defendant and P.Z.H. as a witness. It obtained the opinion of a forensic medical expert. Although the applicant requested the examination of the injuries of all the parties and their possible causes, this opinion, prepared by Dr Zs.T. on 10 June 2003, only concerned the injuries of the police officer. According to its conclusions, P.Z.H.’s injuries had probably been caused as described by him, i.e. the applicant had hit him on the shoulder with the camera and then they had struggled for the door key. The expert stated that the applicant’s version concerning the origin of the officer’s injuries was less plausible though not impossible. 23. On 16 May 2003 the original criminal proceedings conducted against the applicant and her mother on charges of disorderly conduct were terminated in the absence of any evidence of a criminal offence. 24. On 25 July 2003 the Prosecutor’s Office submitted a bill of indictment to the Győr District Court, charging them with violence against an official. After four hearings, the District Court acquitted them on 13 June 2005, giving the following reasoning: “In view of the consistent testimonies of the defendants, the inconclusive character of the medical expert opinions, and the testimony given by Officer P.Z.H. which contained several contradictions, the court did not find it proven with the requisite certainty that the defendants had caused light bodily injury to Officer P.Z.H.” 25. On the prosecutor’s appeal, the Győr-Moson-Sopron County Regional Court quashed the first-instance judgment and remitted the case to the District Court. Hearings took place on 19 July and 8 September 2006. On the latter date, P.Z.H.’s commander was heard as a witness and was asked why he had not investigated how the applicant had suffered an injury to her back. He gave the following answer: “What can I examine on the basis of a medical report? That has been written by a doctor. A medical report was prepared; the lady said that she had been injured. I cannot conduct any examination with regard to this.” The case is still pending at the first-instance. 26. On 14 November 2002 the applicant and her mother expressed their intention to bring charges against P.Z.H. Their criminal complaint was forwarded to the Győr-Moson-Sopron County Public Prosecutor’s Office under the same reference number as the one which concerned the charges against them. 27. On 19 June 2003 the Prosecutor’s Office closed the investigation concerning the applicant’s complaint against P.Z.H., in the absence of any evidence of a criminal offence. The Prosecutor’s Office relied solely on the evidence which had been produced in the parallel criminal proceedings conducted against the applicant and her mother. These documents (the minutes of interrogations, the medical files and the findings of the enquiry conducted by P.Z.H.’s superior) were submitted to the court dealing with the criminal case conducted against the applicant and her mother. 28. The decision of the Prosecutor’s Office contained the following conclusions: “In the course of the investigation, it has been established that when Officer P.Z.H., acting on orders and wearing uniform, appeared at the house of Eva Rhodes and her daughter, he proceeded in accordance with Act no. 34 of 1994 on the Police, and Decree no. 3 of 1995 of the Ministry of the Interior on the Rules of Service of the Police. It was Eva Rhodes and her daughter [the applicant] who refused to obey the police measure; they did not comply with the officer’s demand, obstructed him in performing his duties and caused him bodily injuries. ... Since, according to the findings of fact of the investigation [against the applicant and her mother] and to the enquiry carried out by the officer’s superior, the actions of the officer as well as the use of coercive measures were lawful, no ‘mistreatment in official proceedings’ can be established within the meaning of section 226 of the Criminal Code; therefore, we closed the investigation in the absence of any crime.” 29. On 13 August 2003 the applicant lodged a complaint with the Chief Prosecutor’s Office against that decision. She complained that there had been no independent investigation in the case, particularly as the investigation authorities had not appointed a forensic medical expert in order to establish how her injuries had been caused. Moreover, the applicant stressed that the police officer’s conduct had been unlawful in the absence of a written summons and that the decision of the Prosecutor’s Office was illogical. 30. On 11 September 2003 the Chief Prosecutor’s Office dismissed the applicant’s complaint. After summarising the factual basis of the case, it gave the following reasoning: “During the review of the documents of the investigation, ... [it] established that the police action did not give rise to the well-founded suspicion [of a crime]; namely, that the injuries of [the applicant] or those of Eva Rhodes had been caused by intentional ill-treatment exerted by the proceeding officer. Apart from the victims’ allegations, there was no evidence proving that the police officer, in the course of his lawful action, exceeded the indispensable measure of force which was necessary to defy the threat and aggression directed against him and to overcome the resistance to a lawful police measure. In view of the fact that the complaint lodged against the decision closing the investigation does not contain any data to strengthen a well-founded suspicion of a crime committed by a police officer, I saw no reason to quash the impugned decision or to continue the proceedings.” 31. Meanwhile, the applicant, independently of the ongoing criminal proceedings, requested another forensic medical expert to prepare an opinion concerning the possible causes of her injuries and those of the police officer. 32. The opinion of Dr J.H., dated 15 October 2003, concluded that the applicant’s version of the events was a plausible explanation for her injuries. The expert stated in particular that the injuries on the applicant’s shoulder and back might have originated either from punches by a hard object (like a truncheon) or, with equal likelihood, from being repeatedly banged against a wall. Moreover, he was of the view that the police officer’s version did not explain the injuries. Concerning the injuries of P.Z.H, the expert established that they could have been caused as he described. The expert added that the injury to the officer’s shoulder could also be explained by the applicant’s version. 33. On 20 October 2003 the applicant, acting as substitute private prosecutor (pótmagánvádló), lodged a bill of indictment with the Győr-Moson-Sopron County Regional Court against P.Z.H. for mistreatment in official proceedings and other offences. In the bill of indictment, she complained that, despite her repeated request, P.Z.H. had never been heard as a suspect, the investigation authorities had never obtained an opinion of a forensic medical expert concerning the possible causes of her injuries and, therefore, had not produced a plausible explanation for them. The applicant attached the opinion of Dr J.H. to the bill of indictment. 34. On 3 December 2003 the Regional Court dismissed the indictment. Without giving any detailed arguments and relying exclusively on the case file, it held that there was no reason to depart from the decisions of the prosecution authorities. “(1) Liability for damage caused by the State administration shall only be established if damage could not be prevented by means of ordinary legal remedies or if the person concerned has resorted to ordinary legal remedies appropriate for preventing damage. ... (3) These rules shall also apply to liability for damage caused by the courts or the prosecution authorities, unless otherwise provided by law.” “(1) Any person in respect of whom there is an order to be brought in, must be presented before the authority, if necessary by the use of a coercive measure.” “(1) The authority – unless the law prescribes otherwise – shall summon any person whose presence at a procedural act is mandatory and shall notify those whose presence is not mandatory but allowed by the law. (2) A summons or a notification is normally done in writing. ... (3) If necessary, a summons or a notification may be done in a short way (for example, by telephone).” “(1) If a defendant, legal counsel, a witness or an expert does not [comply with] a summons issued under section 112 ..., the authority may a) order the defendant to be brought in, ...” “(1) Any person who is concerned by a decision of the prosecutor or the investigation authority may lodge a complaint against the decision within eight days from its delivery. ... (5) ... Subject to the exceptions provided in paragraph 6, no further remedy lies against a decision determining a complaint.” “ ... (2) After the dismissal of his [or her] complaint, a victim may act as a substitute private prosecutor (pótmagánvádló) if ... b) the investigation was terminated under section 190 § (1) (a)-(d) or (f) [the absence of a serious suspicion of a crime, etc.].” “(1) If the superior public prosecutor dismissed a victim’s complaint lodged against the dismissal of a criminal report or against the discontinuation of an investigation and it is possible to lodge a substitute private bill of indictment under section 199, ... the victim may act as a substitute public prosecutor within thirty days from the date of the delivery of the decision.” “(1) The court shall accept a private bill of indictment, if there is no reason to declare it inadmissible. (2) The court dismisses the private bill of indictment if ... (d) its factual or legal background is evidently missing.” “(1) No appeal lies against a decision dismissing a private bill of indictment.” “(1) A police measure may not cause such disadvantage as is obviously disproportionate to the legitimate aim pursued by the measure. ...” “... (2) For the sake of public safety, the police may put before the authority or the competent body any person who ... (b) may be suspected of having committed a crime. ... (4) An arrested person must be informed orally or in writing about the reasons for his [or her] arrest ... . “(1) The police may not enter private houses without permission or a warrant unless it is necessary for... (b) the capture and arrest of a perpetrator or a suspect of a crime, ... (f) the implementation of an order to bring someone in, ...”