CASE OF MROZOWSKI v. POLAND
Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Non-pecuniary damage - award
Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
5. The applicant was born in 1973 and lives in Piastów, Poland. 6. On 28 April 2002 the applicant and a friend were travelling by train from work to his home in Piastów. Supporters of the Legia football team, who were celebrating their victory in the Polish league, were travelling on the same train. Among the football fans there were some hooligans, who started smashing windows and vandalising the carriages. The train attendants called the police. 7. Around midnight the train stopped at Warsaw-Włochy station and the police entered the carriage. The applicant was hit in the face with a truncheon by police officer K. and dragged out of the train onto the platform. He was bleeding heavily but was ordered to lie on the ground. The police officer insulted him. Subsequently, the police officers called an ambulance and the applicant was taken to Wolski Hospital in Warsaw. One of the supporters, an acquaintance of the applicant, who had protested against the use of force against the applicant, was immobilised by the police officers on the platform and handcuffed. 8. The certificate from the ambulance team stated that the applicant received assistance on 29 April 2002 at 00.40 a.m. at Warsaw-Włochy station. It contained the following description of the applicant’s injuries: wound to the right side of jaw 2 cm long, teeth knocked out (no. 5 upper and nos. 5,6,7,8 lower). 9. On 29 April 2002 the medical certificate from Wolski Hospital stated as follows: “Condition after being beaten, wound to the jaw. Head injury. Condition after being beaten yesterday. He states that he was hit several times with a rubber truncheon on the head. He did not lose consciousness. Yesterday vertigo and nausea. Today no complaints. X-ray of the head and face with no changes. Difficulties in opening mouth, individual teeth knocked out. A consultation with a face surgeon is recommended. Further care in the district [hospital]. The wound stitched, examination by a surgeon in two days. Under observation for eight hours.” 10. A certificate by a dentist, Dr. E. K., dated 29 April 2002, stated: “The patient came in the day after he had been beaten. Left cheek swollen. Fractured teeth nos. 4, 6 and 5. Tooth pulp exposed. Teeth loose, second degree.” 11. A certificate by a doctor, E. T., a court expert, dated 2 May 2005, provides as follows: “[The applicant] was examined on 30 April 2002 and 2 May 2002. Established: 1) Swollen and painful left cheek. 2) Wound to the chin on the right side, about 2 cm long, stitched. 3) Tooth cavities as described in the dentist’s certificate of 29 April 2002. [Medical certificates of 29 April 2002 listed and quoted.] On the basis of the examination and the above-mentioned medical certificates it is established that the [period of] incapacity exceeds seven days.” 12. On 7 May 2002 the applicant requested the Warsaw District Prosecutor (Prokurator Rejonowy) to initiate criminal proceedings against the police and in particular police officer K. The applicant asserted that on 28 April 2002 he had been beaten by the police and had sustained serious injuries. 13. On 10 March 2003 a doctor, L. S., submitted a forensic report in which he answered questions put by the prosecutor. The report states as follows: 1. What injuries did the applicant sustain on 28 April 2002? I establish on the basis of the medical certificates previously referred to that on 28 April 2002 the applicant sustained fractures of teeth 4 and 6 on the upper left side and tooth 5 on the lower left side, a chin wound and a swollen left cheek. 2. Could those injuries have been sustained in the circumstances described by the witnesses? Yes, the injuries described above could have been sustained in the conditions and circumstances described by the witnesses, that is, as a consequence of a blow by a blunt and solid object that could have been a truncheon of the “tonfa” type. 3. Could they have been sustained during the arrest by police officers K. and C.? Yes, those injuries could have been sustained during the arrest by those police officers. 4. Did those injuries cause incapacity for a period exceeding seven days? The above injuries amounted to bodily harm resulting in incapacity for a period exceeding seven days within the meaning of Article 157§1 of the Criminal Code.” 14. On 12 April 2003 the Warsaw District Prosecutor discontinued the investigation into the actions of the police. The prosecutor had questioned several witnesses, including other passengers and police officers C. and K. Police officer K. stated that the applicant had not obeyed an order to show his identification card and had started to struggle with officer C. He had then warned the applicant that he would use a truncheon and had hit him once on the arm. The prosecutor established beyond any doubt that police officer K. had used the truncheon against the applicant. It could not be established where exactly on the train the events had taken place. The applicant maintained that he had been hit next to the door of the train, but other witnesses submitted that he had been inside the carriage or outside on the platform. The prosecutor concluded as follows: “It appears from the statements of police officers C. and K. that the passengers on the train, the majority of them football supporters, did not comply with their orders. This gave them a ground to apply coercive measures and to use truncheons or handcuffs. Given the aggressive behaviour of the passengers those coercive measures corresponded to the exigencies of the situation and were necessary to ensure that their orders were obeyed. [It should be concluded] that there is not sufficient evidence that the police officers overstepped their powers in breach of the interest of [the applicant]. Since [the applicant] sustained the injuries as a consequence of the police actions he could seek damages in civil proceedings, as the limitation period has not yet elapsed.” 15. On 26 May 2003 the applicant lodged an appeal against the decision. He submitted that the prosecutor had failed to analyse the facts of the case and to clarify the circumstances in which he had sustained the injuries. In particular it was not explained how the applicant could have sustained head and facial injuries, since the police officer had admitted only to having hit him once on one arm. Moreover, he argued that the police officer had overstepped his powers and that there was no justification for use of the truncheon against him, as he had not provoked it. The applicant also complained that the authorities had failed to take into consideration the fact that he was not a football supporter and had nothing to do with the hooligans who were travelling on the same train. 16 “While it appears from the opinion of the forensic expert that the applicant’s injuries could have been sustained as a consequence of the intervention of the police officers on 28 April 2002, nevertheless, in the light of the evidence collected, it cannot be established that police officers C. and K. overstepped their powers. They acted within their competence and the use of the coercive measures of truncheons and handcuffs corresponded to the exigencies of the situation; that is, to the aggressive behaviour of the passengers. The court considers that, contrary to the allegations made in the appeals, all the necessary steps were taken during the investigation in order to establish the objective truth. The finding of whether or not [the applicant] had anything to do with the hooligans’ actions, that is, the vandalism of the train, cannot have any bearing on the decision on the merits, in a situation where the police officers were intervening in connection with those events. They were carrying out their duties given the aggressive behaviour of the passengers on the train. In the light of the above the court found that the impugned decision was correct and decided as in the operative part.” 17. On 30 January 2003 the applicant was indicted before the Warsaw District Court. He was charged with damaging the train carriage and using violence against the police officers. 18. On 14 May 2007 the Warsaw District Court acquitted the applicant of both charges. The court established that the applicant had been calm and “in contrast to other defendants had been sober and had been coming back from work and not from the football match”. As regards the course of the events the court established that during the intervention of the police, police officer K had ordered the applicant, who was standing by the door, to return to the carriage. The court then stated: “In reply [the applicant] had asked the police officer: “would you hit me, sir?” As [the applicant] had not complied with the order, police officer [K] used a coercive measure, i.e. the “tonfa” truncheon. A blow to the stomach caused [the applicant] to bend forward, and the blows which followed struck his face. Afterwards the applicant was laid out on the platform.” On the basis of the testimonies of the applicant and other witnesses, which had been considered consistent and truthful, the court established that during the police intervention the applicant had displayed passive resistance and had not used force against the police officers. The court also dismissed the testimonies of the police officers regarding the circumstances in which they had used the truncheon against the applicant as lacking credibility and unconfirmed by other evidence. It appears that no appeal was lodged against the judgment and that it is final. 19. Section 5 of the Ordinance of the Council of Ministers of 17 September 1990 on the Use of Coercive Measures by the Police (“the 1990 Ordinance”) provides: “1. Physical force shall be used in order to restrain a person, to counter an attack or to make [a person] obey an order. 2. When using physical force, no one shall hit a person, unless he has to do so in self-defence or in order to counter an unlawful attack against life, health or property of others.” 20. Section 13 of the Ordinance, in so far as relevant, provided at the material time: “2. It is forbidden to use police truncheons against persons displaying passive resistance unless the use of force turns out to be ineffective. 3 (1) It is forbidden to hit or push with a truncheon against a [person’s] head, neck, stomach and non-muscled and particularly delicate parts of the body...”