CASE OF KMETTY v. HUNGARY
Violation of Art. 3;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
8. The applicant was born in 1946 and lives in Budapest. 9. The applicant is a merchant with business premises at the Budapest Market Hall. On 22 December 1998 the police arrived at the Market Hall in response to a bomb alert and required everyone to evacuate the building so that it could be searched. The applicant and several other persons refused to comply with this instruction. Following an argument lasting from 4 p.m. until 5.45 p.m. between certain merchants, including the applicant, and the police, the officer in charge decided to detain the applicant, believing him to be responsible for the general disobedience to the order to evacuate. 10. The Government stated that when two police officers grabbed him by his arms and started to hustle him out, the applicant threw himself on the ground. 11. The applicant stated that he had not resisted the police officers and that he had been grabbed without warning and his legs kicked from under him. 12. Having immobilised the applicant, two police officers dragged him through the Market Hall to the exit. Outside the building he was handcuffed and forced into a police car and then driven to the Budapest IX District Police Department. 13. The applicant stated that, while in the car, he was hit repeatedly by a police officer. 14. On their arrival at the Police Department, police officers lifted the applicant out of the car, hauling him up by the handcuffs attached to his wrists. 15. As the applicant had suffered some bruises to his wrists and face, a doctor was called. The applicant did not indicate to the doctor that he had been ill-treated by the police. 16. The applicant maintained that at the police station he was taken to the basement where at least four police officers repeatedly beat and kicked him. One of them stepped on his belly with such violence that it caused bowel movements. Subsequently, he was placed in a cell for about three hours. During that time a police lieutenant entered the cell, shouted at him, abused him verbally and spat in his face. 17. Eventually two police officers fetched the applicant and escorted him to the exit at about 9 p.m. 18. On 22 and 23 December 1998 the applicant was examined at the National Institute of Traumatology and the Central Institute of Stomatology. 19. On 23 December 1998 the applicant laid charges of ill-treatment and unlawful detention against the police. In the ensuing criminal proceedings, the Budapest Investigation Office heard the applicant, his wife and son and five other witnesses who had been present in the Market Hall at the time of the incident. These witnesses, all from the applicant's side, confirmed that he had been dragged through the Market Hall but they remained inconclusive as to whether the applicant had been kicked off his feet or had thrown himself on the ground in resistance. The Investigation Office also heard Mr F., who was the commander of the bomb disposal squad in charge of the operation at the Market Hall, as well as the managers of the Market Hall. 20. The applicant alleged that in the course of his interrogation he identified two of the police officers who had assaulted him and that he selected their photographs from several shown to him. However, the photograph of a third officer involved was not among those shown to him. 21. The prosecutor in charge obtained and watched a video recording shot by a television cameraman outside the Market Hall at the time of the incident, but found nothing of relevance. 22. The opinion of Dr M., a forensic medical expert, dated 24 March 1999, which was prepared at the request of the Investigation Office, contained the following conclusions: “[...] According to the documents on the medical examination of [the applicant] carried out on 22 December 1998 at 9.58 p.m. at the National Institute of Traumatology, his right-side upper incisor no. 1 was loosened, he had concentrical bruises on the soft parts of both wrists and hyperaemia could be observed on a palm-sized surface on the left side of the belly wall. He complained of pain in the right side of his chest and the right ankle joint but no exterior signs of any injury could be observed. The X-ray examination did not display any traumatic deviation either. The diagnoses contained in the outpatient medical file, the medical report and the medical opinion read as follows: 'Dislocation of the right-side upper tooth. Bruises on both wrists. Bruises on the right side of the chest and on the left side of the belly wall. Bruises on the right hand.' [The applicant's] stomatological examination carried out at the Central Institute of Stomatology on 23 December 1998 at 10 p.m. established the traumatic loosening of the upper incisor no. 1 on the right side and that of both incisors on the left side. It also established that the bridgework between the upper teeth nos. 3 and 7 on the left side became loose in a non-traumatic way. As treatment, his pain was alleviated and 'rehabilitative dental treatment' was proposed for him on account of the loosening of the bridgework and of the incisors indicated above. The stomatological report contains the diagnosis of 'loosening of the upper incisors'. On the basis of the available medical files, it can be established from a forensic medical point of view that [the applicant] actually suffered loosening of the upper incisor no. 1 on the right side and of both incisors on the left side and, in addition, bruises on the soft parts of both wrists and circumscript hyperaemia on the left side of the belly wall. The bruises on the right side of the chest and on the right hand diagnosed in the traumatological medical files cannot be substantiated from a forensic medical point of view, given that those diagnoses were based exclusively on pain alleged by [the applicant] but no exterior signs of any injury could be observed. [...] 1. [The applicant's] injuries as described in the medical files jointly and severally healed within 8 days. No disability or serious deterioration of health may be expected as a consequence of the injuries suffered. 2. On the basis of the available medical findings, it can be substantiated that the body sustained three non-incisive knocks of maximally medium impact (közepesnél nem nagyobb erejű tompa erőhatás). One knock may have affected the area of the upper incisors, necessarily at a moment when the lips did not cover the teeth. The mouth was probably open since three incisors became loose whereas the upper lip was not injured. One knock may have affected the area of both wrists, almost certainly as a result of handcuffing. One knock may have affected the belly wall, most probably in the form of a blow effected with an open hand. It cannot be excluded that the injuries diagnosed in the medical files were occasioned at the time specified by [the applicant] in the course of the police action. It can be stated most definitely that the truth of [the applicant's] allegation as to the degree and severity of the ill-treatment he allegedly suffered can be excluded from a forensic medical point of view. This conclusion is supported by the consideration that if [the applicant] had really been seriously ill-treated by several persons for a longer period of time in the form of numerous blows and kicks to his body, he would also have suffered, all over his body, injuries such as bruises of the covered soft parts. In addition, as a result of the alleged fact that he had been dragged on the ground, he would also have had bruises on the epithelium of the lower limbs. On the basis of the medical files, however, only the fact of handcuffing can be established. In addition to the latter, the mouth and the belly wall areas may each have sustained a non-incisive knock of medium impact. A blow (ütés) or a bang (ütődés) could equally have caused these latter injuries, which means that they could easily be caused without ill-treatment, and simply result from an impact sustained in the course of the police action during which physical force was applied in order to effect the handcuffing. 3. The medical reports do not verify the alleged nose bleeding [of the applicant].” 23. On 27 July 1999 the Investigation Office discontinued the proceedings concerning the applicant's complaints against the police. Relying on the above medical report, the Investigation Office concluded that the applicant's allegations of ill-treatment were impossible to prove, whereas his police custody had been justified on account of his resistance to lawful police measures. 24. On 8 August 1999 the applicant complained to the Budapest Public Prosecutor's Office against the order to discontinue the investigations. 25. On 24 September 1999 the Public Prosecutor's Office dismissed the applicant's complaint. It noted that according to the medical documents in the case – and contrary to his statement of complaint – the applicant's injuries had healed within eight days. Furthermore, since his allegations were impossible to reconcile with some of the witness testimony, the Public Prosecutor's Office saw no reason to depart from the conclusions of the Investigation Office.