CASE OF YUSIV v. LITHUANIA
Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
6. The applicant was born in 1995 and lives in Kaunas. He is a Ukrainian national and has lived in Lithuania since 2006. 7. On the evening of 22 October 2011 the Panemunė Police Department of the Kaunas District received a call that a man had been robbed in the street by several young men in the neighbourhood close to the railway station. Several police cars were sent to the area in search of the suspected robbers. 8. That same evening, shortly before midnight, the applicant was walking to see his girlfriend who lived in the same neighbourhood. At that time he was sixteen years old. He was approached by a police car in which there were three officers A.R., Ž.S. and R.A. They asked the applicant to stop and take his hands out of his pockets. As the officers were getting out of the car, the applicant started running away from them. The officers informed other police patrols in the neighbourhood that they were chasing a young man who fitted the description of one of the suspected robbers. 9. The applicant was apprehended by the police near a bus stop close to the railway station. Three police cars were present during his arrest: (a) the first police patrol, which comprised officers O.K., R.V. and V.F.; (b) the second police patrol, which comprised officers A.R., Ž.S. and R.A.; (c) officers of the operational division – driver T.S. and investigator L.L. 10. The applicant was apprehended by T.S., who subsequently handed him over to A.R., Ž.S. and R.A. He was handcuffed, put into a police car, and taken to the Panemunė police station, where a record of an administrative violation was drawn up, charging him with disobeying lawful orders of the police (see paragraph 16 below). 11. The officers telephoned the applicant’s mother R., and agreed that she would pick up the applicant from the railway station. Officers A.R., Ž.S. and R.A. drove the applicant to the station and handed him over to his mother around 1 a.m. that same night. 12. Subsequently the applicant and his mother, on the one hand, and the police officers, on the other, presented different accounts surrounding the applicant’s arrest. 13. Immediately after the arrest, A.R., Ž.S. and R.A. all submitted identically worded reports to their superior: “On 22 October ... around 11.45 p.m. ... we noticed a suspicious young man who corresponded to the description of a youth who had recently fled from the police. After we addressed [him], he stopped; when we were getting out of the car to talk to him, he suddenly started to run. He did not respond to our order to stop ... Soon he was noticed ... close to the railway station ... and he was apprehended. Then he began kicking out, fell to the ground, and resisted being apprehended, so we warned him that physical coercion would be used. The young man ignored this and continued actively resisting and kicking out, so when detaining him we were forced to use physical coercion and restraining measures, namely a truncheon and handcuffs. The young man was arrested and taken to the Panemunė police station ...” 14. On 24 and 26 October 2011 the applicant’s mother R. complained to the Kaunas District Police Department and the Kaunas City Prosecutor that her minor son had been beaten by police officers while being apprehended. She claimed that one of the officers had hit the applicant with a truncheon in the police car numerous times, and that afterwards his body had been covered in bruises and he had had difficulties walking. 15. On 24 October 2011 the applicant was examined by a court medical expert. The report on the results of that examination, issued in November 2011, found several contusions on the applicant’s body – both shoulders and upper arms, his chest, both thighs and calves and the left knee. It determined that the contusions had been caused by a hard blunt object of cylindrical shape, from eighteen or more blows (aštuoniolika ar daugiau trauminių poveikių). The report also found a tear injury (plėštinė žaizda) on the applicant’s left thumb caused by a hard blunt object, and bruised skin on his left wrist which could have resulted from handcuffing. It concluded that the injuries corresponded to negligible health impairment (nežymus sveikatos sutrikdymas) and that they could have occurred at the time and in the circumstances described by the applicant (see paragraph 14 above and paragraph 25 below). 16. On 23 October 2011 the Panemunė Police Department drew up a record of an administrative violation against the applicant. He was accused of insulting police officers by using swear words and of disobeying their lawful orders, contrary to Article 187 § 2 of the Code of Administrative Violations. 17. On 27 April 2012 the Kaunas District Court held an oral hearing. Police officers A.R., Ž.S. and R.A. all testified that the applicant had run away from them and had not complied with their order to stop. They also stated that while being apprehended near the railway station the applicant had violently resisted, had been kicking out and shouting, and had thrown himself on the ground, as a result of which the police had had to use a truncheon and handcuffs against him. 18. In the hearing the applicant admitted having run away from the officers because he had been afraid that they would beat him. However, he denied that he had resisted being apprehended near the railway station. The applicant’s lawyer also pointed out that a medical examination had detected at least eighteen blows from a hard blunt object on the applicant’s body (see paragraph 15 above) and argued that the police officers were lying in order to cover up the fact that they had beaten him. 19. On 4 May 2012 the Kaunas District Court found the applicant guilty and fined him 150 Lithuanian litai (LTL, approximately 43 euros (EUR)). The court found no reason to doubt the credibility and impartiality of the police officers, and considered that their consistent testimonies proved that the applicant had violently resisted the police. 20. On 11 July 2012 the Kaunas Regional Court upheld the judgment of the lower court. 21. On 24 October 2011 the Head of the Panemunė Police Department instructed the officers of that department to conduct a preliminary inquiry into the applicant’s allegations that he had been ill-treated by the police while being apprehended. 22. The inquiry was conducted by an investigator of the Division of Crimes against the Civil Service and Public Interest of the Criminal Investigation Unit of the Kaunas District Police Department. As submitted by the Government, that division had been established for the specific purpose of investigating crimes allegedly committed by police officers. 23. On 5 November 2011 A.R. was questioned as a witness. The written record of the interview repeated almost identically the wording of his initial report (see paragraph 13 above), and added: “We found out that [the applicant] was a minor only at the police station ... Had we known that earlier, we would not have used physical coercion and restraining measures against him ... At the time of the arrest, there was blood on [the applicant’s] hand. I don’t know how he hurt it. He didn’t complain about anything, so we didn’t take him to a doctor ... We delivered [the applicant] to his mother ... She began scolding her son and even thanked us for bringing him to her. She complained to us that she had problems with her son because he wasn’t obeying her and was skipping school.” On the same day the officer Ž.S. was also questioned as a witness and the written record of his interview was almost identical to that of A.R. 24. On 8 November 2011 the investigator examined the jacket the applicant had been wearing during his arrest and found stains on the lower back of the jacket which were “possibly similar to old bloodstains” (galimai panašios į seno kraujo žymes). 25. On 15 November 2011 the applicant was questioned as a witness and stated: “On 22 October 2011, around midnight I was walking ... I saw a police car ... it stopped, then one of the officers told me, “take your hands out of your pockets”. I took my hands out of my pockets, then the officer got out of the car and walked towards me, then I started running away and the police car started chasing me ... I ended up near a bus stop close to the railway station and there I was arrested by the police. Two uniformed police officers got out of a car, one of them (the driver) asked me why I was out of breath. I said that I was trying to catch the trolleybus. [That officer] said through the portable radio, “we’ve got one”. Then two other officers in uniform arrived on foot; one of them had a shaved head. Soon another police car arrived in which there were two uniformed officers. I knew one of the officers, A.R., because he was my classmate’s father. The officers who had come on foot approached me and the one with the shaved head told me that I would “pay for running away from them” (dabar aš gausiu, kad bėgau nuo jų), and with A.R. they swore at me ... Then A.R. handcuffed me behind my back and put me into a police car, in the back, and told me to sit there. Soon the officer with the shaved head got into the car and sat down in front of me. He took out a truncheon and began to hit me on various parts of the body. He hit me about fifteen times on the legs, about seventeen times on the arms, once on the back, once kicked me in the stomach, and once punched me in the face. I was made to lie down on the floor of the car and the officer with the shaved head told me to pray. I was praying and they were laughing at me. I also remember that on the way to the police station one of the officers told me that I would take the blame for somebody else’s robbery. I said nothing. There were three officers in the car, one of them was A.R., the other was the one with the shaved head who was sitting next to me, and the third was about 172 cm tall; this one had a large build and short dark hair ... In the police station A.R. took me to another room where he told me that if I didn’t defend his daughter, next time it would be worse. I told him that I would defend his daughter so that nobody beat her. I gave them my mother’s telephone number, and the officers called her and took me to her ... The officer with the shaved head handed me over to my mother and said “I don’t know how you will react but the officers have given him a little lesson to not run away from them the next time.” 26. On 22 November 2011 the investigator examined twenty-two photographs of the applicant which had been taken by his mother on 23, 25 and 29 October 2011. The investigator noted that injuries were visible on the applicant’s forehead, arms and legs, upper chest and the left side of his back. Several of the photographs showed a shoe with stains similar to bloodstains. 27. On 23 November 2011 A.R. was questioned again. The written record of the interview was almost identical to his previous statements (see paragraphs 13 and 23 above), and added: “... I arrived at the place where [the applicant] had been apprehended ... He was actively resisting: he was kicking out and had fallen on the ground. After being asked to calm down and get into a police car, he continued disobeying those lawful orders and resisted being apprehended, he started biting, so he was warned that physical coercion would be used against him. The young man ignored this and continued actively resisting and kicking, so we were forced to use physical coercion in order to arrest him, namely combat wrestling methods (kovinių imtynių veiksmai) and restraining measures, namely a truncheon and handcuffing him behind the back. While Ž.S. and R.A. were arresting [the applicant], I took out handcuffs and got ready to put them on him. As I remember, the truncheon was used by Ž.S. in order to arrest [the applicant] ... [The applicant] was acting aggressively and unpredictably. He was put in the back of the police car ... Ž.S. was driving the car, I was sitting next to the driver, and R.A. was in the back with [the applicant]. We asked him why he had fled from the police. He said that he had been afraid. We asked why he had been afraid if he hadn’t done anything, but he didn’t respond. In the car [the applicant] was calm; no physical coercion or restraining measures were used against him there. We noticed that his finger was injured (bleeding) but he refused to be examined by doctors. He said that he had hurt his finger on the fence or in the bushes while running away from the police. His clothes were dirty and the jacket was torn. [The applicant] had dirtied his clothes and torn his jacket when running away from the police ... In the police station, when [the applicant’s] identity was established I realised that he was my daughter’s classmate ... Then I said to him, “God forbid something happens to my daughter”. I also said, “I will defend my daughter”. I can’t remember my exact words, but I let it be known that he must not hurt my daughter. As far as I am aware, this young man is prone to doing such things. In the police station neither I nor other officers hit [the applicant] ... I did not use any swear words and did not humiliate him. I didn’t see the other officers acting inappropriately in respect of [the applicant] either.” 28. The following day R.A. was questioned as a witness and the written record of his interview was almost identical to that of A.R. (see paragraph 27 above). However, he stated that A.R. had not discussed any personal matters with the applicant and that it did not seem as though A.R. and the applicant knew one another. 29. On 24 November 2011 officer O.K. was questioned as a witness. He confirmed that on the night of 22 October 2011 he had been on duty together with officers R.V. and V.F. He further stated: “... After we arrived near the railway station, I saw an arrested young man who was actively resisting arrest, purposely falling on the ground and kicking out at officers, so the officers warned him that if he didn’t calm down physical coercion and restraining measures would be used against him. The young man continued behaving in an aggressive manner and actively resisting arrest, so officers used physical coercion, after which the young man was handcuffed and put into a police car ...” 30. On 28 November 2011 the investigator submitted a report to the Head of the Criminal Investigation Unit of the Kaunas District Police Department, suggesting that no pre-trial investigation should be opened. The investigator concluded that the use of physical force by the police officers had been a necessary and proportionate response to the applicant’s violent resistance and aggressive behaviour. On the same day the Head of the Criminal Investigation Unit approved the investigator’s conclusion and decided not to open a pre-trial investigation. 31. The applicant’s mother appealed against that decision, asking for a pre-trial investigation to be opened and for it to be entrusted to an authority other than the police. On 19 December 2011 the Kaunas City Prosecutor partly upheld the appeal. The prosecutor opened a pre-trial investigation, noting that the medical examination of the applicant had shown numerous injuries, so it was necessary to assess whether the use of force by the police officers had been within the limits provided in the law (see “Relevant domestic law” below). However, the prosecutor refused to entrust the pretrial investigation to another authority, finding no reason to doubt the impartiality of the police investigator. 32. On 2 February 2012 officer T.S. was questioned as a witness. He confirmed that on the night of 22 October 2011 he had been on duty with officer L.L., and that following information that a young man had fled from the officers towards the railway station, they had driven there in the police car. T.S. further stated: “I drove the police car towards the said young man and asked him to come closer, which he did. He was breathing hard, and, I saw that one of his hands was bleeding ... Soon afterwards three officers arrived on foot and one or two cars arrived ... In order to prevent the young man from fleeing, I held him by one sleeve. When he saw the approaching officers, he began to squirm and tried to get away ... After he was handed over to the officers, I saw that he was actively resisting arrest with his legs and arms, he was squirming and he fell on the ground with full force, making it more difficult to arrest him. The officers, using force, took him to the police car ... I didn’t see the officers hit the young man or use any restraining measures such as handcuffs or a truncheon. As I remember, he was taken to the car by possibly two officers, I don’t remember exactly because around six officers were present at the scene. Soon afterwards L.L. and I left and I didn’t see anything else.” L.L. was questioned on 25 September 2012, and gave essentially the same statement as T.S. 33. On 10 July 2012 the applicant’s mother submitted a request to the Kaunas City Prosecutor for the investigation to be transferred to the prosecutor’s office on the grounds that the Kaunas police officers could not be considered impartial. She also asked for several investigative actions, such as interviews with her and with the applicant, and for the officers who had allegedly ill-treated the applicant to be identified. The following day the Kaunas City Prosecutor dismissed the request for the investigation to be transferred to the prosecutor’s office, finding no grounds to doubt the impartiality of the police investigator. However, the prosecutor instructed the investigator to carry out the actions requested by the applicant’s mother. It appears that the applicant’s mother did not appeal against that decision. 34. On 30 July 2012 officer R.V. was questioned as a witness. He confirmed that on the night of 22 October 2011 he had been on duty together with officers O.K. and V.F. He stated that when they had arrived at the railway station the applicant had already been put into the police car. R.V. stated that he did not see how the applicant was put into the car, nor did he see the officers using any coercive or restraining measures against him. On 31 July 2012 officer V.F. was questioned as a witness; the written record of his interview was almost identical to that of R.V. 35. On 3 August 2012 the applicant’s mother R. was questioned as a witness. She stated that around 1 a.m. on 23 October 2011 police officers had delivered the applicant to her near the railway station. She stated: “When [the applicant] got out of the police car, he was limping on one leg ... The officers explained to me that they had caught him ... and that he fitted the description of a robber. When my son approached me, I began scolding him, but the officer Ž.S. told me, “don’t scold him, we already gave him a good lesson about running away from the police” ... A.R. asked me, “is there a father or are you raising him alone?”, and then said, “that’s why they grow up like this”. My son and I then left. Around 3 a.m. that night, when we were eating in the trolleybus, my son undressed and I saw that his body was covered in bruises ... My son told me that one of the officers (the one with the shaven head) had beaten him up. As I know now, that was Ž.S.”. 36. That same day the applicant was granted victim status and further questioned. He stated that he had initially run away from the police officers because it was dark and he had been afraid that they would beat him up. However, when he reached the railway station he was no longer afraid because the area was well lit and there were other people nearby. The applicant added: “One of the officers who had come on foot – the one with the shaved head, as I know now it was Ž.S. – swore at me in Russian, from which I understood that I would be beaten up for running away. Officer A.R., who is my classmate’s father, handcuffed me behind my back, put me in the back of a police car and closed the door. Ž.S. came from the other side of the car, opened the door and sat down next to me; he took out a truncheon and started hitting me on various parts of my body, except for the head. He hit me around fifty times. No other officers were in the car at that time. Then Ž.S. got out of the car, talked to the officers and got back in the car, in the driver’s seat. A.R. sat next to the driver and the third officer sat next to me ... At the police station ... A.R. approached me and said, “now I will show you”. I asked, “why, I don’t bother your daughter, I don’t even talk to her”. A.R. led me behind a wall, put an electroshock device on the left side of my stomach and threatened to use it if I didn’t defend his daughter from my friends; he also said that if he caught me one more time, he would beat me even more. I agreed to defend his daughter ... I want to add that I injured my left thumb while running away from the officers and it was bleeding; that’s why there were bloodstains on my jacket at the spot where my hands were handcuffed. The officers did not provide me with the first aid. All the blows were struck by one officer, Ž.S. I was beaten only in the police car; nobody beat me at the police station ... I suffered physical injuries due to the beating.” The applicant denied having resisted the police officers or having sworn at them. He also said that he had fallen down while running towards the railway station but not while being apprehended. 37. In September 2012 a court medical expert carried out an additional examination of the applicant’s medical file. The report on the results of that examination confirmed the findings of the previous medical report (see paragraph 15 above). It also specified that the applicant’s injuries were not likely to have been caused by falling down (sužalojimų visuma griuvimui nebūdinga), nor by punching or kicking, but that they had most likely been caused by a hard blunt object of a cylindrical shape. 38. On 5 October 2012 confrontations were arranged between the applicant and each of the officers A.R., Ž.S. and R.A. separately. All the officers repeated their earlier statements (see paragraphs 13, 23, 27 and 28 above) and the applicant denied them. A.R. confirmed that he had handcuffed the applicant. The officers stated that none of them had used any swear words or threats to the applicant. Meanwhile the applicant insisted that he had not resisted the officers and that he had not been warned about the possible use of restraining measures. He also denied falling to the ground while being apprehended near the railway station. 39. That same day a confrontation was arranged between the applicant and O.K. The officer stated that when he had arrived at the railway station the applicant was already in handcuffs and he was squirming but not actively resisting. He could not remember which officers had put the applicant into the police car. During a subsequent interview on 8 October 2012 O.K. retracted the statement he had made in his first interview, in which he had said that he had seen the applicant actively resisting the officers (see paragraph 29 above). O.K. stated that he had been mistaken and that his statements made during the confrontation were the correct ones. 40. On 12 December 2012 the Kaunas City Prosecutor discontinued the pre-trial investigation. The prosecutor held that physical force had been used against the applicant only to the extent that was strictly necessary to arrest him, and that the applicant’s allegations that he had been beaten up in the police car with a truncheon had not been proven. The Kaunas City Prosecutor also considered that the officers A.R., Ž.S. and R.A. could not have known at the time of the arrest that the applicant was a minor. The prosecutor concluded that the mere fact that the applicant had sustained injuries was insufficient to find that the police officers had acted unlawfully. 41. On 18 March 2013 the Kaunas District Court upheld the prosecutor’s decision. The court concluded that there was no “objective and indisputable evidence” that the police officers had exceeded their legal powers. It also referred to the earlier court judgments which had found the applicant guilty of an administrative violation (see paragraphs 19-20 above), concluding that the officers had had the right to use physical coercion in response to the applicant’s resistance. The court also considered that the pre-trial investigation had been thorough and comprehensive. On 11 April 2013 the Kaunas Regional Court upheld that judgment. 42. Subsequently the applicant’s mother requested the reopening of the investigation, but her request was dismissed on the grounds that there were no relevant new circumstances.