CASE OF WIKTORKO v. POLAND
Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Remainder inadmissible;Non-pecuniary damage - award
David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
5. The applicant was born in 1957 and lives in Olsztyn. 6. On the evening of 27 December 1999 the applicant met with her friend. 7. Subsequently the applicant took a taxi to go home and refused to pay the allegedly exorbitant fare without obtaining a proper bill. As a result, the driver did not let the applicant out of the taxi in front of her house but took her to a soberingup centre in Olsztyn. The applicant called the police from the taxi as she felt threatened by the driver’s behaviour. So did the driver as regards the applicant’s behaviour. 8. Subsequently, the applicant was detained in the soberingup centre. She refused to undergo a breathalyser test. The applicant submitted that she had had two beers. The Government maintained that she had been in a state of “average intoxication”. 9. The applicant submitted that the staff of the centre had insulted her and that she had been brutally manhandled and beaten. She had also been forcibly stripped naked by two men and a woman. Afterwards, she had been forcibly put into a disposable gown. 10. The Government submitted that it was the applicant who had been aggressive towards the staff and had verbally insulted them. They had therefore had no choice but to undress her by force as she had refused to undress herself and had subsequently resisted their legitimate efforts to dress her in a disposable gown. 11. They further argued that she had had to be placed in restraining belts because after being put to bed she had been kicking the doors of the room and screaming abuse, waking other patients. 12. The parties’ submissions are concordant as to the fact that the applicant was subsequently restrained by belts, tied to a bed and locked in a cell until the morning of 28 December 1999, when she was released. The applicant submitted that she had remained in the cell, restrained by the belts, for approximately ten hours. The Government did not challenge this submission. 13. On 29 December 1999 the applicant obtained a medical certificate concerning her condition. The relevant part of the certificate read: A bloody bruise on the left hip, at the front, of approximately 3 cm in diameter, abrasion at the wrist at the elbow side; mobility and rotation of the shoulder limited (unclear whether passive or active movements concerned); the [applicant] complained of pain in her jaw at the left side; the jaw at that side swollen. 14. Shortly afterwards the applicant filed a complaint against the staff of the centre with the head of the district police in Olsztyn. She submitted that she had not been intoxicated, that nothing in her conduct had justified the decision to deprive her of her liberty and that she had been brutally manhandled and undressed by the staff of the centre. 15. On 21 January 2000 the head of the district police refused to institute an investigation in her case. The grounds of the decision read: On 29.12.1999 Ms A. Wiktorko complained to the Town Police Station that on 27/28 December a taxi driver and the staff of the sobering-up centre had used physical force against her and insulted her. In her formal complaint that a criminal offence had been committed, which she submitted on 4 January 2000, she [explained] that on 27 December 1999 at 11 p.m. approximately a driver of a taxi No. [...] had first insulted her verbally and afterwards had taken her to the sobering-up centre where she had been detained against her will and physical force, resulting in bruises and scratches, had been used against her by the staff. A number of persons were requested to provide information, but no one confirmed the applicant’s allegations. The taxi driver stated that Ms Wiktorko had been taken to the sobering-up centre because she had not wanted to pay the fare or to leave the taxi and that she had herself agreed to be taken there; while she could have left the taxi at any time; she was detained at the centre by the police, not by the taxi driver himself as she says; furthermore she did not want to have a breathalyser test but when she was already in the centre she did not want to undress herself and when she was put in the room for the patients she was hitting the door with her hands and other parts of her body inflicting injuries on herself so that restraining belts had to be used for fear that her life and health might be endangered.” On 31 January 2000 the Olsztyn district prosecutor upheld this decision. 16. On 8 February 2000 the applicant appealed. In particular, she reiterated that her detention had been completely unjustified as she had not been intoxicated. She had had two beers on the evening of 27 December 1999 which by no standards could be described as intoxication, still less as intoxication justifying deprivation of liberty in a soberingup centre. She had been illtreated by the staff of the centre after her arrest, but the decision of 21 January 2000 had obviously failed to elucidate the facts of the case. She submitted that during her detention she had been stripped naked. She stressed that the police had failed to grant her access to the file concerning her detention and that the investigation had been superficial. 17. On 21 February 2000 the head of the district police in Olsztyn decided to investigate the applicant’s allegations. 18. On 17 March 2000 an expert prepared an opinion as to the applicant’s health upon her release on the basis of the file of the investigation. The opinion reiterated the findings of the certificate of 29 December 1999 and stated that the injuries could have been sustained both as a result of the use of force against the applicant or of her behaviour after she had been undressed and put into the cell. 19. The investigation was subsequently discontinued by the police and on 19 April 2000 the district prosecutor confirmed this decision. The written grounds of the decision read: “During the investigation factual findings were made, witnesses were questioned, the [applicant’s] medical records were examined and a medical expert was appointed with a view to establishing the injuries and circumstances in which they might have been sustained. It was established on the basis of this material that on 27 December 1999 Anna Wiktorko, having drunk alcohol and having refused to pay for the taxi, had been taken by the taxi-driver to [the sobering-up centre]. Afterwards she was taken, in the presence of a police patrol, to the building of the centre. Once she was inside, a decision was taken to detain her in the centre, regard being had to her behaviour which was vulgar and offensive towards those who were present there. As she did not want to comply with the regulations in force by taking a breathalyser test and by voluntarily undressing and changing into a gown, the staff used force against her in order to make her change her clothes and put her in a room for detainees. As she continued to be aggressive and to destroy property and could have harmed herself, she was put in restraining belts so that she could calm down. The applicant’s complaints were not confirmed by the witnesses. Her behaviour was reprehensible and it was necessary to put her in the sobering-up centre. It has not been established that physical force was used against her over and above what was necessary to calm her down. Hence, as there was no indication that a criminal offence had been committed the investigation has to be discontinued.” 20. The applicant, represented by a lawyer, appealed to the regional prosecutor. She submitted that she had not been intoxicated and that the actions of the employees of the centre had infringed her personal rights, her dignity and her bodily integrity. She also submitted that her procedural rights had been breached in that the police had failed to inform her representative about any of the investigative measures that had been taken during the proceedings. It was also submitted that during the investigation the applicant should have had an opportunity to confront the employees of the centre. 21. On 7 June 2000 the Olsztyn regional prosecutor, having regard to the applicant’s procedural arguments, quashed the contested decision of 19 April 2000. He noted that there had been significant discrepancies between the applicant’s testimony and that given by other persons, which had to be elucidated. 22. On 2 August 2000 the Olsztyn-North district prosecutor discontinued the proceedings, finding that no criminal offence had been committed. The written grounds of the decision read: “In the evening of 27 December 1999 [the applicant] called a taxi [...] After the trip a disagreement as to the amount of the fare to be paid arose between her and the driver. As the parties disagreed, [the driver] decided to solve the problem with the assistance of the police. After he had called the dispatch centre [of the taxi company], he drove to the vicinity of the sobering-up centre and waited for the police to come. They then waited for the patrol to come; at that time the driver entered the building of the centre, while the applicant stood by the taxi and also called the police from her mobile phone. It is noted that the driver did not commit the offence of unlawful deprivation of property against the applicant, given that at that time both parties wanted to solve the problem with the assistance of the police; it is also noted that at that time the applicant could simply have walked away or used her phone. After police officers A.R. and W.K. arrived at the scene, they tried to obtain a friendly resolution of the situation, but to no avail. Having regard to the vulgar and aggressive behaviour of the applicant, who smelled of alcohol, the officers decided that she should be detained in the sobering-up centre, where she refused to take a breathalyser test. Hence, the doctor on duty decided, on the basis of a general examination, that the applicant was in a state of intoxication justifying her detention for up to twelve hours. Staff member M.P [a woman] subsequently tried to make the applicant change into a disposable garment. As the applicant offered stubborn resistance, M.P. requested other members of staff, L. Z. and T.P. [men] to help her; the applicant was dressed in a gown with their assistance and put into the room for intoxicated persons. The applicant continued to be aggressive; therefore physical force against her was used and she was put in restraining belts. It transpires from the provisions governing the organisation of the sobering-up centres and job descriptions of the members of staff, the staff acted in compliance with law on the basis of the applicable legal provisions and there is therefore no basis for a well-founded suspicion that a criminal offence of unlawful deprivation of liberty or coercion had been committed. On the basis of section 41 of the Law on Education ... in Sobriety and the Fight against Alcoholism and sections 19 and 20 of the ... ordinance a bill for PLN 250 was drawn for the applicant to pay for the costs of her detention. It should be unequivocally stated that the conduct of the staff toward the applicant was lawful. During the investigations all persons involved in the applicant’s arrest and detention were questioned. The ample evidence gathered in the case did not give rise to a suspicion that a criminal offence had been committed. Subsequently, the decision reiterated the findings of the medical report (see paragraph 3 above). The decision further read: In her submissions the applicant complained that the staff of the centre had breached her dignity and ... Having in mind that the injuries which the applicant suffered and the insults can be examined in proceedings instituted by a private bill of indictment, it is open to the applicant to bring such a bill within 14 days from the service of the present decision. 23. The applicant appealed, reiterating the arguments she had submitted in her previous appeal. She also submitted that she had been humiliated by the staff of the centre as she had been forcibly undressed and tied to a bed with restraining belts until the morning of 28 December 1999. This had made it impossible for her to go to the toilet. 24. On 25 October 2000 the Olsztyn Regional Court upheld the decision to discontinue the proceedings. In its decision, which consisted of twenty lines, the court observed that the evidence gathered in the case had led it to the logical conclusion that the applicant had been intoxicated and that therefore her detention in the sobering-up centre and the use of force against her had been justified. 25. The Law on Education in Sobriety and the Fight against Alcoholism (Ustawa o wychowaniu w trzeźwosci i przeciwdziałaniu alkoholizmowi) provides for measures which may be applied in respect of intoxicated persons. Sections 39-40 set out measures which may be applied to such persons. 26. Pursuant to section 39 of the Law, soberingup centres are to be set up and managed by the authorities of municipalities with more than 50,000 inhabitants. Section 40 of the Law, as applicable at the relevant time, provided, in so far as relevant: “1. Intoxicated persons who behave offensively in a public place or a place of employment, are in a condition endangering their life or health, or are themselves endangering other persons’ life or health, may be taken to a soberingup centre or a public health care facility, or to their place of residence. 2. In the absence of a sobering-up centre, such persons may be taken to a [police station]. 3. [Intoxicated] persons who have been taken to a sobering-up centre or a [police station] shall remain there until they are sober but for no longer than twenty-four hours. ...” 27. The Ordinance of the Minister of Health and Social Welfare of 23 October 1996 on the procedure for dealing with intoxicated persons, the organisation of soberingup centres and the scope of health care and rules on assessing the fees connected with admittance to and stays in soberingup centres (Rozporządzenie Ministra Zdrowia i Opieki Społecznej w sprawie trybu doprowadzania osób w stanie nietrzeźwości organizacji izb wytrzeźwień i zakresu opiekli zdrowotnej oraz zasad ustalania opłat związanych z doprowadzeniem i pobytem w izbie wytrzeźwień) set out detailed rules relating to detention in a sobering-up centre. 28. Section 9 of the Ordinance provided, in so far as relevant: “1. A person taken to a sobering-up centre shall promptly be given a medical examination. 2. Following the medical examination, a doctor shall ascertain whether such person should be placed in a sobering-up centre ..., or should be placed in a hospital or other medical establishment ..., or whether there are no signs of intoxication justifying placement in a sobering-up centre.” Its paragraph 13 (1) provided: “A replacement garment shall be issued to all detained persons.” 29. Section 16 of the Ordinance states that direct coercion may be applied in accordance with the rules laid down in section 18 of the 1994 Protection of Mental Health Act, which provides in particular that direct coercion can consist of immobilisation, among other methods. Section 16 of that Act further refers to the Ordinance of the Minister for Health and Social Welfare of 23 August 1995 on the form of application of direct coercion (w sprawie sposobu stosowania przymusu bezpośredniego), which determines the manner in which direct coercion may be applied. The latter ordinance provides, in so far as relevant: “9 (2). A doctor shall recommend application of direct coercion in the form of immobilisation or isolation for a period of no longer than four hours. If necessary, the doctor, after personal examination of the patient, may extend the use of immobilisation for subsequent periods of six hours. 13. A nurse on duty shall check the state of the immobilised or isolated person no less frequently then every 15 minutes, including when the person is asleep. The state of the person shall be recorded on the [patient’s] card without delay.”