CASE OF Y v. LATVIA
No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva
5. The applicant was born in 1959 and lives in Liepāja. 6. On 1 November 2007, when the applicant was in the courtyard of her apartment building, two officers from the municipal police force (J.M. and J.L.) pulled up in a car. After having a conversation with the applicant they twisted her arms behind her back and forced her to approach their car. She was eventually let go, but later she started feeling ill and had to call an ambulance. The applicant submits that she still felt ill effects on her health more than a year after the events of 1 November 2007. 7. On 2 November 2007 the applicant wrote to the Liepāja City Public Prosecutor’s Office and requested that criminal proceedings be instituted against the officers responsible. The applicant stated that she had told the officers that they could go and talk in her apartment, after which one of them had grabbed her right upper arm and twisted her arm behind her back, she avoided the grip owing to pain, while the police officer shouted that he would teach her a lesson about resisting the police. At that moment the second policeman had grabbed and twisted the applicant’s left arm. The policemen had then tried to push the applicant into the back of their car. They eventually let her go after her neighbours intervened. Immediately after the policemen had left, the applicant had started experiencing health problems, namely, sharp pain in her chest, high blood pressure, pain in her back, neck and head, and a loss of feeling in her hands. She had called an ambulance and had been given an injection. The following day a general practitioner had issued the applicant with a sick leave certificate until 12 November 2007 and had prescribed painkillers and sedatives. The applicant asked the prosecutor to order an appointment with a forensic medical expert, pointing out that there were haematomas on her upper arms. 8. It appears that the prosecutor instituted criminal proceedings the same day. The case was forwarded to the State police for investigation. 9. On 4 November 2007 the applicant submitted a complaint to the head of the Liepāja City Municipal Police. In substance she repeated her account of the events of 1 November. In the concluding part of her complaint, the applicant requested that the actions of the two officers of the municipal police be investigated. She also pointed out that as a result of their actions she had suffered mental anguish and material and psychological harm. 10. On 21 January 2008 an inspector from the Liepāja City and District Police Department adopted a decision to terminate the criminal proceedings which had been initiated by the prosecutor. The decision was adopted on the basis of statements made by the applicant (see paragraph 11 below), by J.M. and J.L. (see paragraph 12 below) and by three other witnesses (see paragraph 14 below) as well as the forensic medical expert’s report (see paragraph 13 below) and a decision of the Liepāja City Municipal Police to take disciplinary measures in respect of J.M. and J.L. for having failed to properly document the administrative infraction committed by the applicant (see paragraph 15 below). 11. The applicant had testified that she had been washing her car in the courtyard of her neighbour’s house and that, after she had parked the car near her house, two policemen had pulled up. They had asked the applicant to approach their car, which she had not done because she had needed to return to her apartment urgently. The policemen had then warned her that she was disobeying police orders and had subsequently twisted her arms behind her back; she had tried to free herself from the grip. 12. The policemen J.M. and J.L. stated that they had been called out about an administrative violation – a car being washed in a public courtyard. Upon arrival at the scene they had noticed the applicant standing next to a car holding a bucket. J.L. had then invited the applicant to approach the police car so that a record of an administrative violation could be drawn up, which the applicant had refused to do and had started to walk away. The policemen had then taken her by the arms and started directing her towards the police car. Since the applicant had not demonstrated resistance, J.L. and J.M. had released their hold and subsequently taken statements from the applicant’s neighbours for the purpose of initiating administrative proceedings against her. 13. The forensic medical expert who had examined the applicant noted that each of her upper arms bore two haematomas. It was concluded that the haematomas could have appeared in the circumstances described by the applicant. The haematomas were described as minor injuries which would not have adverse medical effects for more than six days (“kas neizraisa īslaicīgus veselības traucējumus uz laiku virs 6 dienām”). The fact that the applicant had actually sought medical treatment for longer than six days was considered irrelevant, since the expert considered that the nature of her injuries did not warrant such extended treatment. 14. The three eyewitnesses to the events of 1 November all agreed that the applicant had ignored the requests of the police and that the policemen had therefore tried to detain her. The applicant had resisted and the officers had twisted her arms behind her back. After the applicant had stopped resisting, she had been released. 15. The findings of the internal investigation of the Liepāja City Municipal Police of 16 November 2007 disclosed that the policemen J.L. and J.M. had been penalised for their lack of diligence in drawing up a record of the administrative violation allegedly committed by the applicant (failure to obey the lawful order of a police officer). No mention appears to have been made of the alleged use of force against the applicant. 16. Taking into account the information set out above, the inspector concluded that the applicant had intentionally disobeyed the lawful order of a police officer (thus committing an administrative offence under Latvian legislation). As a result, J.L. and J.M. had used special restraint techniques (“pielietoja speciālos cīņas paņēmienus”), namely holding the applicant’s arms behind her back in order to detain her. The applicant had shown resistance while she was being directed towards the police car. Once she had stopped resisting, she had been released and J.L. had informed his supervisor of the events. In consultation with J.L.’s supervisor it had been decided not to bring the applicant to the police station but instead to initiate administrative proceedings against her. Administrative proceedings were initiated on 13 November 2007 and discontinued on 18 February 2008 because procedural time-limits had not been observed by the police. 17. The decision stated that, since the applicant had refused to cooperate with the police and had started to walk away, the policemen had had legitimate grounds for detaining her, as long as they observed the requirements set out in the Law on Police (see paragraphs 24 and 25 below). Nevertheless, J.L. and J.M. had failed to fulfil the requirements of section 13 in fine of the Law, which prohibits the use of special restraint techniques against women, other than in exceptional circumstances. As a result, the applicant had sustained minor injuries. Infliction of minor injuries is an offence proscribed by section 130 of the Criminal Law. Under section 7(3) of the Criminal Law, infliction of minor injuries is one of the crimes that are prosecuted privately by the victim. 18. The inspector further noted that J.L. and J.M. had not exceeded their official authority in contravention of section 317 of the Criminal Law. It was established that even though the policemen had violated the requirements of section 13 in fine of the Law on Police, it had to be taken into account that the applicant herself had disobeyed and resisted the police. Thus, taking into account the “nature, circumstances and consequences of the officers’ actions”, the inspector concluded that, pursuant to the explanations contained in section 23(1) of the Law on the Coming into Force and Application of the Criminal Law, there had been no substantial harm done to state authority, administrative order or the rights and interests of any person. Accordingly the inspector held that the municipal police had to decide whether J.L. and J.M. should be held disciplinarily liable for the violation of section 13 in fine of the Law on Police. In conclusion, it was decided to terminate the criminal proceedings for absence of corpus delicti. 19. The decision was conveyed to the applicant in a letter of 24 January 2008. The letter stated: “... You may appeal against the adopted decision to the Liepāja City Public Prosecutor’s Office within 10 days of receiving the decision. Please also note that section 7(3) of the Criminal Procedure Law provides that the offence mentioned in section 130 of the Criminal Law (intentional infliction of a minor injury) is prosecuted privately. In the course of private prosecution criminal proceedings, the prosecutorial functions are carried out by the victim, who must lodge an application with a court. ...” 20. The applicant did not appeal against the decision of 21 January 2008. She did, however, submit a complaint to the Liepāja Court stating her intention to initiate a private prosecution under sections 130 and 156 of the Criminal Law. The complaint was dated 29 April 2008 and was marked as having been received at the court on 30 April. The applicant indicated that J.M. and J.L. had used special restraint techniques against her in contravention of the Law on Police, as a result of which she had been injured, which had been confirmed by a forensic medical expert. She further pointed out that she had incurred pecuniary and non-pecuniary losses. Accordingly, she claimed damages. 21. On 7 May 2008 a single judge of the Liepāja Court issued a decision concerning the applicant’s complaint. The judge held that the limitation period of six months had expired and criminal proceedings could therefore not be instituted. He noted that he had received the applicant’s complaint on 6 May 2008, that is to say after the expiry of the statutory time-limit. Furthermore, the decision noted that the applicant had failed to specify which paragraph of section 130 formed the legal basis of her complaint, and had not substantiated in any way her claim under section 156. 22. The applicant appealed. On 2 June 2008 a single judge of the Kurzeme Regional Court dismissed her appeal. The decision noted that the last day on which J.L. and J.M. could have been charged by the way of private prosecution had been 1 May 2008. Since the applicant had lodged her complaint on 30 April 2008, it would have been physically impossible to initiate proceedings on 1 May 2008 because of the large number of procedural steps that would have had to be taken (for example, a copy of the complaint would have had to be sent to the accused, the accused would have had to be informed about their rights, the applicant would have had to be informed about the time and the place of the hearing, and the accused and other persons would have had to be called to the hearing). The judge further noted that the police’s decision not to initiate criminal proceedings was made on 21 January 2008, yet the applicant had waited for almost three months before lodging a request to initiate private prosecution proceedings. The decision had also explained that a refusal to initiate criminal proceedings did not preclude the applicant from lodging a civil claim in order to obtain compensation for the harm allegedly done. Finally it was remarked that the judge of the first-instance court had correctly held that the applicant had failed to specify which of the three paragraphs of section 130 of the Criminal Law formed the legal basis of her complaint. Under the Criminal Procedure Law, the judge of the first-instance court had a duty to establish whether the legal categorisation of the alleged crime was correct, since the accused had a right to know the exact content of the accusations against them. The decision of the Kurzeme Regional Court was final and not subject to further appeal.