PELECKAS v. LITHUANIA
Inadmissible
The applicant, Mr Algis Peleckas, is a Lithuanian national who was born in 1960 and lives in the Alytus region. The Lithuanian Government (“the Government”) were represented by their Agent, Ms E. Baltutytė. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is a veterinary doctor. On 10 February 2000, while driving to his work place in the countryside, the applicant was stopped by two policemen, MN and ST. The policemen asked for the applicant’s papers. Having established that the applicant had no driving licence, MN took the wheel of the applicant’s car. ST followed him in the police car, with the applicant sitting in the back seat. They drove several kilometres and stopped on a side road in the countryside. The applicant presented the following account of the subsequent events: The policemen asked the applicant to take an alcohol test. The applicant requested that they replace the tip of the alcotest (breath-analyser), as it might have been used by another person. This request allegedly infuriated the policemen. It appears that the applicant nonetheless took the test, and he was found not to be under the influence of alcohol. MN made a written record of an administrative offence, warning the applicant that he would be fined in the amount of LTL 1,000 (about EUR 290) for driving without a licence. The applicant having commented on the allegedly disproportionate amount of the fine, ST hit him on the neck. The applicant jumped out of the police car, attempting to escape. The policemen pursued him and apprehended him by using tear-gas. The applicant was then brought to the ground by a strong blow to the face by ST. The policemen then continued to beat the applicant by kicking him on his thighs, elbows, chest, back, abdomen and crotch. The policemen having subsequently handcuffed the applicant while he was lying face-down on the ground, ST sat on him and inflicted several blows to his head. At the same time, MN kicked his thigh. The applicant was then taken to the police station, where the policemen continued beating him. After the applicant’s release from the police station several hours later, he immediately went to the hospital where he was treated. Upon the applicant’s request, on 14 February 2000, he was examined by a medical expert. The expert found a scratch on the applicant’s vertex (2×1 mm) and forehead (5×8 mm), bruises on his right cheek (10×5 mm) and left forearm (170×8 mm), and a fracture of his left elbow. The expert noted that the injuries had been made by hard, blunt objects. The fracture resulted in a long-term impairment of the applicant’s health. On 15 February 2000 the applicant filed a complaint against the police, alleging ill-treatment. On the same date the prosecution took his statement and ordered an expert medical examination, which took from 21 February 2000 to 13 March 2000. The expert mentioned the same injuries as those in the examination of 14 February 2000, noting in addition that the applicant had a scratch on his upper lip. The expert opined that the injuries had been made by at least five impacts or blows. He could not unequivocally identify the mechanism whereby the injuries had been incurred. He noted that the fracture of the applicant’s elbow and the bruise on his left forearm could have resulted either from kicking or twisting the applicant’s arms behind his back, or by him falling on the ground and hitting his arm against a hard surface. The scratch on the applicant’s forehead could also have been the result of the applicant hitting the ground with his head. On 21 March 2000 criminal proceedings were instituted against ST, who was charged with abuse of office (Article 287 § 1 of the Criminal Code), by causing the applicant medium bodily harm. In particular, ST was suspected of having kicked the applicant while he was lying on the ground, and having hit the applicant on his head. The applicant took part in the proceedings as the victim. He did not claim pecuniary or non-pecuniary damages. The charges brought against MN were withdrawn, there being no indication of a crime having been committed by him. The applicant did not appeal against that decision, and MN then took part in the other proceedings as a witness, along with several other eyewitnesses to the events. From 23 May to 30 June 2000, the medical expert examination was repeated upon the initiative of the prosecution. The expert mentioned the same injuries as those determined at the last examination and reiterated that the injuries had been made by no less than five impacts or blows. He further explained that the scratches on the applicant’s forehead, vertex and lip, as well as the bruises on his right cheek, could have been caused either by the administration of blows or by the applicant hitting himself against hard objects. As to the fracture of his elbow, the expert opined that it was ‘unlikely’ that it could have been the outcome of hitting or falling, but had ‘most likely’ occurred when the arm of the applicant had been twisted behind his back in order to handcuff him. The bruise on his left forearm could have appeared after the tissue of the elbow had been injured by the fracture. On 8 August 2000 the prosecutor requested the applicant to undergo a psychiatric examination, referring to the possibility that, during the incident, he might have suffered epileptic seizures. The applicant was brought to the clinic, but the examination did not take place due to the absence of a qualified expert. Eventually, no examination was carried out, as the applicant refused to report to the clinic. The investigation into the incident included the questioning of more than 38 witnesses, several confrontations, the on-site verification of evidence, the examination of the police car allegedly damaged by the applicant’s resistance and other measures. On 5 March 2001 the Alytus District Court acquitted ST, holding that his actions had not gone beyond those necessary in the circumstances. It accepted the version of the events given by the policemen. In particular, it was established that the applicant had been the first to attack ST, hitting him on the nape of the neck while sitting in the back seat of the police car. ST’s version was corroborated by the medical evidence that he had sustained a bruise as a result. Thus, it was considered that the applicant had himself provoked the use of force by the policemen, who had then taken the applicant out of the car and had attempted to handcuff him, the applicant having actively resisted the lawful arrest. The applicant’s resistance warranted the use by the policemen of the “special measures” foreseen in Article 43 of the Police Act, in order to handcuff him. The court then referred to the experts’ conclusion that the fracture of the applicant’s elbow could have occurred as a result of his arms being pulled and twisted backwards for handcuffing. The bruises on his face and head could have been the result of the applicant actively resisting the police, whilst falling down and hitting himself against a hard surface. The court did not find it established that the applicant had been kicked or hit while lying on the ground or after being handcuffed. The court also took account of the video recording, taken by the CCTV camera in the police station, showing the applicant’s continued resistance. The court’s conclusions were essentially based on the submissions of the accused officer, ST, as well as those of MN. The applicant and the prosecutor appealed. On 1 May 2001 the Kaunas Regional Court rejected their appeal. The court noted that the applicant had been the first to have recourse to violence, the subsequent use of force by ST being the consequence of the applicant’s aggressive behaviour. The court also held that there was no evidence that ST had purposefully injured or tortured the applicant when trying to handcuff him. It further reiterated the lower court’s conclusions as to the origin of the applicant’s injuries. Finally, the court noted that the different version of the incident given by other witnesses might have been distorted by their emotional reaction to the events. The Office of the General Prosecutor and the applicant lodged cassation appeals. The prosecution argued in particular that the policemen’s version, according to which the applicant had assaulted ST, was not credible. The applicant had been sober, he had not disputed the fact of driving without a licence, and he had cooperated with the policemen while they wrote up the administrative offence. Moreover, the applicant had been alone. Therefore it was highly dubious that he could have assaulted two policemen. The courts had unreasonably dismissed the submissions of three independent witnesses, and based their conclusions on the allegations of ST and MN, ignoring the fact that they both had a clear interest in the outcome of the proceedings. On 23 October 2001 the Supreme Court quashed the appellate decision, remitting the case for a new examination by the appeal court. The Supreme Court noted inter alia: “[T]he trial court unconditionally believed only the version of the defendant and his colleague, and dismissed the submissions of other witnesses on the ground that they had been contradictory. However, no essential contradictions were specified ... The courts failed to assess fully whether the policeman had overstepped the legitimate limits of the use of force. Article 5 of the Police Act authorises the use of force against persons who refuse to submit to the lawful requirements of the police. Force can be used only insofar as it is necessary to execute a professional duty, and only after all other possible means have proved themselves to be ineffective. Article 41 of the same law authorises the use of “special measures” (specialiosios priemonės) only in order to stop an activity giving rise to a danger to society, or to an arrest, bringing the person engaged in such activities to the police station. “Special measures” may be used only having regard to the nature of the offence, the personality of the offender and the particular circumstances of the situation. There is also an obligation to make efforts to avoid severe consequences, as well as to warn the person before using such measures against him. The courts did not consider the actions of ST in the light of the requirements of the above law, or those of the Rules on Road Traffic Police [of 26 March 1999]; the courts failed to give reasons for their conclusions regarding the right to use force, its aims and limits. [The applicant and ST] gave different accounts of the events that led to the fight. If ST’s version - that the applicant had violently resisted police demands - were accepted as truth ... there is no doubt that criminal proceedings should have been instituted against him. However, that was not the case. Nor was [the applicant] held liable for an administrative violation ... The court of first instance acknowledged that force had been used against the applicant by ST, in the form of applying “special measures”. However, the courts had failed to specify which particular measures had been used. ST had submitted ... that he had only pushed the applicant to the ground once, had twisted his arms behind his back, and had put the handcuffs on with the assistance of MN. This ... use of force clearly contradicts the evidence given by the medical experts, who had established that the injuries to the applicant had been caused by way of no less than five blows. The fracture of the elbow might have been caused ... by twisting the arm behind the applicant’s back and putting on the handcuffs. The applicant had also sustained other injuries. However, the courts failed to give a reasonable explanation as to the way in which the other injuries may have been caused. Assuming [the truth of] ST’s version that he had only brought the applicant down once, it remains unclear how a wide scratch on the applicant’s vertex and the injuries [elsewhere on his body] were caused, as they must have originated from separate actions. [The applicant’s version of the cause of those injuries] does not contradict the submissions of witnesses. Still, the court refused to believe them, and dismissed their submissions without giving a reasonable explanation, notwithstanding the fact that none of those witnesses had had any interest in giving false evidence.” On 3 June 2002 the Kaunas Regional Court examined the case at the appeal level, upholding ST’s acquittal. On 10 December 2002 the Supreme Court dismissed the applicant’s cassation appeal. The courts concluded that the applicant had assaulted ST by hitting him on the nape of the neck, and that the policemen had properly exercised their right to use force. Moreover, it was deemed highly improbable that ST could have hit the applicant while he was in the back of the police car. The courts recognised that ST had not used excessive force, and that the applicant had not been beaten after being forced to the ground and handcuffed. They concluded that the evidence had been insufficient to establish ST’s guilt. The submissions of the applicant were considered incoherent and unreliable. While the applicant had stated during his early questioning that he had been hit and kicked on various parts of his body, subsequently he had adjusted his version in accordance with the results of the expert examinations. The evidence given by other independent witnesses was also dismissed as being too incoherent to be relied on. The following version of the events of 10 February 2000 and their legal assessment were established by the courts. The applicant used violence against ST in the police car, while the latter was performing his official duty. He refused to obey the order to get out of the car. When the policemen were trying to take him out by force, the applicant was kicking with his legs, breaking a door-handle. Nor did he yield after being taken out of the car. Instead, he grabbed the policemen’s clothes and attempting to hit MN in the face. He was thus brought down close to the police car, his hands being twisted behind his back, and he was handcuffed. As a result, the applicant sustained bodily injuries. ST did not cause any injury deliberately, other than to effect the applicant’s submission. The use of combat action (kovinių veiksmų panaudojimas) in these circumstances was provoked by the unlawful actions of the applicant. There were no other measures which the officers could have employed in view of the applicant’s resistance. In these circumstances, ST did not exceed his authority as a police officer. The courts also explained the origin of the injuries sustained by the applicant in the following way: (a) The scratch on the applicant’s vertex (2×1 mm) must have resulted from the applicant hitting his head on the ground during the conflict; it may not have been the outcome of direct blows with a fist, as alleged by the applicant, because in that case he would have sustained larger bruises. (b) While the experts were not able to give a definite answer as to the origin of the fracture of the applicant’s elbow, they admitted that it may have been the result of ST and MN twisting his arms behind his back in order to handcuff him. The version of the applicant being kicked was thus dismissed. (c) The bruises on the applicant’s cheek (10×5 mm) and forehead (5×8 mm) could also have been the result of the applicant having been forced to the ground, in the course of his resistance to the policemen while they were trying to handcuff him. This version did not contradict the results of the medical examinations. Thus the applicant’s allegation that he had suffered direct blows to his face was refuted. (d) Insofar as the applicant had alleged that he had been hit and kicked on other parts of the body, no signs of other blows were detected in support of these submissions. It appears that no charges were brought against the applicant for his refusal to submit to the lawful requirements of the police, despite the fact that a report to this effect had been filed by officers ST and MN right after the incident. Article 5 of the Police Act as applicable at the material time provided: “... If the demands of a police officer are not complied with, the officer shall have the right to use force (panaudoti prievartą), but only to the extent necessary to perform his/her official duties and only after all measures of persuasion have proved to be ineffective. ...” Article 34 of that Act envisaged the right of the police officer to order the offenders to discontinue their unlawful activities, failing which and provided all measures of persuasion were exhausted, the use of force was permitted. Article 41 of the Police Act further stated: “...The police shall use special measures ..., in order to discontinue actions that endanger the public or to apprehend a perpetrator of such actions and bring him/her to the police station. ... When using special measures ... an officer shall take into account the nature of the offence, the personal features of the offender and other particular circumstances of the situation. ... [T]he police officers shall try to avoid detrimental consequences. Before using special measures ..., and if the circumstances allow, the person concerned shall be given a warning ...” Article 43 of the Police Act listed as “special measures”, inter alia, handcuffs, combat action (kovinių veiksmų panaudojimas) and gas. It specified that: “The police shall have the right to use handcuffs in order to apprehend the perpetrator of dangerous actions and to take him/her to the police station, when there are grounds to believe that he/she can resist or try to evade the arrest. Handcuffs can be used when ... the actions of a person cause danger to him/herself or other people. Combat actions can be used in order to detain a person who has committed dangerous actions or to take him/her to the police station, when such a person resists arrest or tries to evade it, as well as in cases where an offender intentionally refuses to obey the lawful requirements or resists the lawful actions of the police. ... Gas can be used [inter alia] during the arrest ...” Article 287 § 1 of the Criminal Code as then in force punished abuse of office.