CASE OF DJUNDIKS v. LATVIA
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-e - Alcoholics);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
George Nicolaou;Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
6. The applicant was born in 1939 and lives in Liepāja. 7. It appears that in 1983 the applicant was certified as being Category 3 disabled (the least severe level of disability). 8. On 28 April 2004 the applicant was certified as being Category 2 disabled (the medium level of disability) on the grounds of an unspecified illness. His disability was to be reassessed on a further occasion. 9. According to the applicant, on 29 April 2008 his Category 2 disability status was certified as permanent. 10. On 19 August 2003 the applicant was administratively detained by the municipal police. The circumstances are disputed between the parties. 11. According to the Government, at 8 p.m. on 19 August 2003 the fire and rescue services received a call about a man who was lying on the ground near an apartment building. A municipal police patrol was dispatched to the address given. Police officers I.L. and N.M. arrived there at 8.18 p.m. and found no one there. However, they were approached by an unidentified woman who indicated that somebody was lying on the stairs inside the building. They found the applicant lying face-down on the stairs between the ground and 1st floor. He appeared to be in a state of heavy alcohol intoxication, was unable to communicate or identify himself, and was unable to move. He had several bruises and grazes on his face – cheeks, eyebrows and forehead. The officers carried him by his arms and legs to a municipal police van and took him to the municipal police station. They arrived there approximately one hour later, on the way having picked up another person who had been lying on the ground unconscious somewhere else. 12. At the municipal police station, a medical orderly visually examined the applicant and treated and recorded his facial injuries. The officers then carried him to a “sobering-up room” and placed him on a wooden plank bed. Several hours later the applicant was able to reveal his identity. According to the Government, reports (protokoli) in respect of administrative detention (administratīvā aizturēšana) and the administrative offence of “indecent public behaviour while being in a state of alcohol intoxication” were being drawn up. The Government could not provide the Court with copies of these procedural documents since they were destroyed in 2008 upon the expiry of their archival period. 13. Later, at some point during the night of 19 to 20 August 2003, the applicant complained of pain in his left leg. The medical orderly called an ambulance and the applicant was taken to a hospital in Liepāja. 14. The applicant did not agree with the Government’s version of the events. According to the applicant, on 19 August 2003, between 6 p.m. and 7 p.m., he was sitting on a bench by the apartment building he lived in with a bottle of beer in his hand, when the municipal police arrived and two officers approached him with a view to taking him to the municipal police station. They did not inform him of the reasons for his detention; he got into the police van by himself and was taken to the municipal police station, where at 8.55 p.m. an administrative detention report was drawn up. 15. At the station, he was briefly examined to determine his state of health and level of intoxication. Following an examination, an officer instructed him to stand up immediately. The applicant replied that he was capable of doing so by himself, but slowly. Then another officer, who was standing behind him, ordered him to do as requested and then took him by the shoulders and pushed him against a wall. His left eye was hurt to the extent that he later required several stiches. The officer then grabbed the applicant by his clothes and dragged him on to the floor and down the stairs to the sobering-up room. The applicant tried to turn onto his left side as he had had an operation on his right leg and he was trying to spare it. While he was being dragged down the stairs, he felt a sharp pain in his left leg and started to scream. The officer did not stop; he dragged him into a cell and left him there. The applicant was unable to move. After some time, three persons entered the cell, took off his trousers, causing him more pain, and injected him with some substances. Then an unidentified officer approached him with a view to getting him to sign another report. He refused, protesting that he had already signed one. At about 5 a.m. an ambulance arrived and took him to a hospital in Liepāja. 16. The contents of the applicant’s administrative detention report were partly reproduced in expert report no. 352 of 13 November 2003 and read as follows: “This report has been drawn up by ... N.H. on 19 August 2003, at 8.55 p.m., in Liepāja in respect of the applicant [date of birth and address][, who] was administratively detained and taken to the sobering-up room of the municipal police station on 19 August 2003, at 8.55 p.m. Reason for detention: to sober up. In the presence of witnesses [the applicant’s] keys were confiscated. Detainee’s clothes: blue blazer, dark shirt, blue trousers and dark shoes. In a check-up [the following] injuries were discovered: a bruise on the face, a bruise on the left eyebrow. The applicant was released on 20 August 2003, at 5.25 a.m. Reason for release: sobered up. Upon release: received keys. No complaints.” 17. According to the ambulance log, a call was recorded at 5 a.m. on 20 August 2003. At 5.13 a.m. an ambulance arrived at the municipal police station. In the field “diagnoses” it was noted that the applicant’s left hip and head were injured, there were bruises on his face, and he was in a state of alcohol intoxication. In the field “additional findings” it was noted that the applicant had bruises on his face and the lower part of his body. He was taken to hospital, where at 5.45 a.m. his blood alcohol level was measured (0.25 ‰). 18. From 20 August to 2 September 2003 the applicant remained in hospital. Following an X-ray examination he was diagnosed with a fracture to his left hip (kreisā augšstilba kakla kauliņa lūzums). On 22 August 2003 an operation (endo-prosthesis) was performed and over the next few days the applicant received post-operative treatment. 19. On 2 September 2003 the applicant was issued with an extract from his medical file at the hospital. The extract did not contain any mention of the applicant’s own description of the circumstances relating to his hip fracture. 20. On 8 September 2003 the applicant made a complaint to the prosecutor’s office which was for the most part similar to his allegations before the Court. The municipal police were requested to prepare an internal report; on 23 September 2003 they issued report no. 9, the contents of which were later for the most part reproduced in the first decision (see paragraph 23 below). 21. On 16 September 2003 the applicant’s complaint was forwarded for examination to the Liepāja police, a branch of the State Police. 22. On 1 October 2003 an expert examined the applicant’s medical records and drew up report no. 407. Reference was made to a statement the applicant had made in the hospital that “he had fallen down somewhere on the street”. The expert concluded that the applicant had sustained a bodily injury – a fracture of the left hip – which was classified as moderately severe (vidēja smaguma miesas bojājumi). This injury could have been sustained as a result of being hit by blunt objects or bumping into such objects. 23. On 13 October 2003 the Liepāja police decided not to institute criminal proceedings with regard to the injuries suffered by the applicant (“the first decision”). Reference was made to the internal report of 23 September 2003. According to the report, the events developed as follows. At 8.18 p.m. on 19 August 2003, the municipal police received a call from the fire and rescue services informing them that a man was lying near an apartment building. Upon their arrival the officers found the applicant lying inside the apartment building on the stairs between the ground and 1st floor. He was too intoxicated to give any explanation; the police officers carried him out of the apartment building, placed him in the van and took him to the police station. He was placed in the sobering-up area, which was located in the basement. The officers carried the applicant into a cell as he was unable to move. After about three hours the applicant was able to reveal his identity. He then complained about pain in his leg and a medical orderly called an ambulance to the police station. No injections were given to the applicant. He was detained on the basis of paragraph one of section 171 of the Code of Administrative Violations. On the basis of the case-file materials in their entirety, it was concluded that the applicant “could have sustained” injuries by falling on the stairs in the apartment building. There were no grounds to believe that the applicant’s injuries had been wilfully inflicted in the sobering-up room or that excessive physical force had been used on him. There were no indications that the officers had exceeded their authority. 24. On 27 October 2003 the applicant lodged a complaint, noting that two witnesses had seen him getting into the police van by himself when being taken to the police station. 25. On 7 November 2003 the supervising prosecutor quashed the first decision and the case was remitted to the Liepāja police for additional investigation. The quashing order was issued on the ground that the applicant had not been questioned on the facts, nor had his neighbours been questioned; the person who had called the fire and rescue services had not been identified or questioned; the witnesses identified by the applicant had not been questioned; and lastly, the ambulance personnel had not been questioned. 26. During additional investigation the Liepāja police received information from the fire and rescue services and questioned the applicant’s neighbours, including V.S., who had been identified by the applicant as a witness, and a doctor from the hospital. Another medico-legal examination was also ordered. 27. On 13 November 2003 an expert examined the applicant and his administrative detention report and drew up report no. 352 in addition to report no. 407. The background to the report was described as follows: “On 19 August 2003 police officers [allegedly] inflicted bodily injuries on the applicant at the police station. On 1 October 2003 an expert examined the applicant’s medical records (report no. 407). The applicant ... alleged that he had suffered additional injuries to different parts of his body (eyebrow, lower body), [which were] not documented in the medical records”. The expert concluded that the applicant had the following injuries: “a scar on his left eyebrow that could be due to a cicatrised wound that had been stitched” and “scars on the back of the applicant’s torso and on the buttock area that could have appeared after bruises had healed”. They were both classified as minor bodily injuries (viegli miesas bojājumi). 28. On 25 November 2003 the Liepāja police again refused to institute criminal proceedings (“the second decision”). In addition to the grounds of the first decision, the second decision was based on the grounds that the fire and rescue services did not hold information about incoming calls concerning alcohol intoxication. Such calls were transferred to the municipal police. According to the second decision, an acquaintance of the applicant, V.S., stated that he had seen him sitting on a bench and consuming beer at about 6.30 or 7 p.m., and then the municipal police had arrived. Other statements were taken from neighbours, but they only indicated that the applicant often sat on the bench by the apartment building consuming alcohol. One neighbour, B.K., stated that the applicant had a “difficult” personality and that “he often started fights”. Further, it was noted that “it was not possible to identify direct witnesses who could provide objective information about [the applicant’s] arrest”. The ambulance record indicated that the applicant had been taken from the municipal police station to the hospital with injuries to his left hip and head, bruises on his face and in a state of alcohol intoxication. Finally, the doctor’s statement indicated that he had examined the applicant at 10 a.m., when he had sobered up; the doctor had inquired about the circumstances of the injury and the applicant had replied that he had fallen down somewhere on the street. A note was made that the conclusions drawn following the internal inquiry were confirmed by other case-file materials and that the statements made by the applicant and V.S. should be evaluated with caution. On the basis of the case-file materials in their entirety, it was concluded that the applicant “could have sustained” the injuries by falling on the stairs in the apartment building. There were no grounds for finding that the applicant’s injuries had been wilfully inflicted in the sobering-up room, or that excessive physical force had been used on him. There were no indications that the officers had exceeded their authority. 29. On 26 January 2004 the supervising prosecutor examined the case-file materials and dismissed a complaint by the applicant about the second decision. She noted that the Liepāja police, even after her instructions, could not find any witness to his detention. It appears that she herself questioned V.S. for a second time. He clarified that he had only seen the applicant sitting on the bench; when the municipal police had arrived, he could not see the bench any more, as the van blocked the scene from his view. He testified that the police had been there for three to four minutes. In response to the applicant’s allegations as to the location, nature and probable cause of his injuries in the circumstances, the prosecutor stated that the expert’s observation that they could have been sustained as a result of being hit with blunt objects or bumping into such objects was only a probability and not an assertion. Moreover, she considered that there were no grounds to disregard the hospital doctor’s remark that the circumstances of the applicant’s injuries had been taken down in his own words. The prosecutor noted that his injuries, as detected upon his admission to the police station (bruises on the face and left eyebrow), were confirmed by the statement of N.M; his alcohol intoxication was confirmed by the ambulance and hospital medical records and the statements of the police officers, the watch officer (N.H.), and the medical orderly (A.B.). She concluded that her previous instructions (issued on 7 November 2003) had been complied with and that on the basis of the case-file materials in their entirety “it [could] not be precluded” that the applicant sustained the injuries before his detention as he had been admitted to the station in an intoxicated state with visible injuries on his face. 30. On 17 March 2004 and 21 May 2004 two higher-ranking prosecutors dismissed the applicant’s complaints against the second decision. The first prosecutor considered that the review of the applicant’s complaints had been comprehensive and objective; no evidence had been found that the officers had exceeded their authority. Referring to the medico-legal examination report, the prosecutor considered that the applicant “could have sustained” injuries by falling from his own height, as he had indicated to the hospital doctor, whose testimony was to be given more weight as he was not an interested party. The second prosecutor also found the second decision justified. He referred to the administrative detention “documentation” and the officers’ statements to demonstrate that the applicant had been lying on the stairs in the apartment building and not sitting on the bench next to it; V.S.’s statements did not corroborate these facts. The officers had taken the applicant to the sobering-up room because he had been unable to move by himself because of either his intoxicated state or his injuries. He concluded: “It follows from the foregoing that [the applicant] must have sustained the injuries before the arrival of the municipal police officers. [The applicant’s] blood alcohol level after more than eleven hours of detention only further demonstrates that prior to detention [the applicant] was intoxicated with alcohol. This does not exclude the possibility that [the applicant] sustained injuries by falling from [his own] height.” 31. On 20 July 2004 a prosecutor at the Office of the Prosecutor General dismissed the applicant’s complaint. She examined the case-file materials and found that there were no grounds to quash the second decision. Among other things, she noted that section 171 of the Code of Administrative Violations provided for administrative liability for the use of alcoholic beverages or other intoxicating substances in public places or for appearing in public places in an intoxicated state, which was an affront to human dignity. For that reason, notwithstanding the discrepancy between the submissions of the officers, who had stated that the applicant had been lying inside the apartment building, and the applicant, who had stated that he had been sitting on a bench outside the building, the officers had had grounds to take him to the municipal police station to sober up and to draw up an administrative offence report. 32. On 4 August 2004 the applicant, in a complaint to a higher-ranking prosecutor, specified that his complaints did not relate to unjustified placement (nepamatota nogādāšana) in the sobering-up room or to being taken there by force. Rather, they related to the failure to institute criminal proceedings in connection with bodily injuries inflicted on him while there. 33. On 19 August 2004 the higher-ranking prosecutor at the Office of the Prosecutor General dismissed the applicant’s complaint. It appears that he obtained additional statements from officers I.L. and N.M., and the watch officer N.H. The prosecutor found that the applicant’s allegation that the injury on his left eyebrow had been inflicted by officers pushing him against the wall in the police station were not corroborated by the officers’ statements and the medical orderly’s indication that the applicant had been admitted with the injury. Nor was the applicant’s allegation that his left hip had been broken by the officers dragging him down the stairs at the police station confirmed. The officers had explained that they had carried him into the station as he had not been able to walk by himself. The prosecutor concluded that the applicant had sustained the injuries before his administrative detention. 34. A final decision, negative in respect of the applicant, was adopted by the Prosecutor General on 13 October 2004. He found that the applicant’s allegations concerning contradictions and discrepancies in the case-file materials were unfounded. He noted, among other things, that the applicant’s detention record and the medical record drawn up upon his admission to the police station confirmed that he already had injuries on his face and left eyebrow, thus his allegations about sustaining the injuries in the station were not confirmed. The applicant had been carried into the station because he had not been able to walk by himself and he had complained about pain in his hip only after sobering up, after which the medical orderly had called an ambulance. 35. The applicant received the decision on 15 October 2004.