[New search]
[Contents list]
[Printable RTF version]
[Help]
SECOND
SECTION
CASE OF GUBACSI v. HUNGARY
(Application
no. 44686/07)
JUDGMENT
STRASBOURG
28 June
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Gubacsi v. Hungary,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
Danutė
Jočienė,
David
Thór Björgvinsson,
Giorgio
Malinverni,
András
Sajó,
Işıl
Karakaş,
Paulo
Pinto de Albuquerque,
judges,
and Françoise Elens-Passos,
Deputy
Section Registrar,
Having
deliberated in private on 17 May and 7 June 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 44686/07) against the Republic
of Hungary lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Hungarian national, Mr Gábor Gubacsi
(“the applicant”), on 3 October 2007.
- The
applicant was represented by Mr A. Kádár, a lawyer
practising in Budapest. The Hungarian Government (“the
Government”) were represented by Mr L. Höltzl, Agent,
Ministry of Public Administration and Justice.
- The
applicant alleged that the ill-treatment he had suffered at the hands
of the police and the ensuing absence of an adequate investigation
amounted to a violation of Article 3 of the Convention.
- On
8 February 2010 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1974 and lives in Budapest.
- In
the evening of 19 August 2006 the applicant was involved in a minor
car accident at a parking lot in the town of Siófok. He
claimed that he had found his car damaged when he had returned to the
parking lot from a nearby restaurant in order to fetch some cash,
whereas the police asserted – based on the testimony of an eye
witness, an off-duty policeman who had been passing by – that
it had been the applicant who had crashed into a parked car with his
own vehicle while driving out of the parking lot. In response to an
alert from the off-duty police officer, at around 10.40 p.m. the
Siófok Police Station sent two patrolling officers, I.K. and
K.P.P., to the scene of the accident.
- The
two officers checked the applicant’s identity and breathalysed
him. The test clearly showed that he was heavily under the influence
of alcohol. He was accordingly taken to the Siófok Medical
Centre for a blood and urine test. The test was performed by Dr
I.E.V. at 11.40 p.m. She recorded on the blood alcohol test form that
the applicant’s legs were injured. The applicant was then taken
to another department of the Medical Centre, where Dr Gy.K. examined
him at 12.15 a.m. on 20 August and recorded superficial abrasions on
his left knee and ankle.
- After
the examination, the applicant was driven back to the parking lot
because the officers had received instructions to take photographs of
the scene. When the applicant was informed that, after the pictures
had been taken, he would be taken to the police station to fill in
certain papers, he attempted to escape. While running past the
officers, he knocked over Officer K.P.P, who suffered superficial
abrasions. Officer I.K. chased the applicant and finally managed to
bring him to the ground and to handcuff him with the help of K.P.P.
According to the police, during the chase the applicant crossed a
number of roads, and while doing so he bumped into and fell over some
moving cars.
- Subsequently,
the officers requested help by radio. Two other police cars arrived,
and at 12.30 a.m. the applicant was driven to the Siófok
Police Station by Officers G.V. and Z.S.
- Before
the applicant – by then suspected of the offence of violence
against an official – was taken into custody, he was sent from
the police station back to the Medical Centre for another medical
examination. He was driven to the Medical Centre by Officers Sz.R.
and Z.S.
- At
12.43 a.m., Dr Gy.K. again examined the applicant and recorded that,
in addition to the abrasions on his leg, already recorded, he had a
small swelling on his cheek.
- Following
the medical examination, the applicant was taken back to the Siófok
Police Station and placed in a cell in the station’s custodial
unit. He was guarded by Officers Z.T. and P.L.
- Due
to his allegedly strange behaviour, around 3.00 a.m. the applicant
was again driven in a police van to the Medical Centre for a drug
test, escorted by Officers Gy.C., M.N., Sz.R. and Z.M. At 3.15 a.m.
Dr I.E.V. carried out the drug test, after which the applicant
was taken back to the police station.
- The
applicant submits that during one of the transfers described above,
he was ill-treated in the police car or van by the police officers
escorting him, who allegedly hit him in the face, sides and stomach.
He also submits that, during his custody after the drug test, he was
severely ill-treated by four police officers in the corridor of the
custodial unit. He was allegedly made to stand with his face against
the wall, and was kicked and/or hit by several police officers all
over his body. He fell to the ground, where the ill-treatment
continued. He received kicks and blows in his back, side, kidney
area, pelvis, back of the neck, temple, jaw, upper back and thighs.
Afterwards, he was again made to stand up against the wall and
ordered to spread his legs, following which a police officer he could
not see kicked him in the testicles. He then collapsed and the
beating ended.
- Although
the applicant states that owing to his drunkenness and the beating he
is not fully able to reconstruct the events of the night, or to
recognise all the police officers who ill-treated him, he was adamant
throughout the entire ensuing procedure that he could recognise two
of the four officers who were present during his beating in the
custodial unit. In the course of the investigation, the applicant
identified those two officers as G.V. and Z.T.
- The
applicant’s custody ended on 20 August at 7.00 a.m. From 7.54
to 8.09 a.m. he was questioned by Officer M.T. under suspicion of
drug abuse, since the drug test had revealed traces of marijuana in
his blood.
- After
his release, the applicant was driven by a friend to the nearby town
of Balatonkenese, where he and his wife were spending their holiday.
The applicant told them that he had been ill-treated and showed them
his injuries. The applicant spent the whole day resting at his
friend’s place. He was given pain killers by his wife. Both his
wife and his friend confirmed that he had visible injuries.
- In
the evening of 20 August, the applicant travelled back to Budapest,
and the next day he visited general practitioner Dr Cs.K., who
recorded the following injuries: swelling on the left cheek,
sensitive to pressing; walnut-sized localised swelling filled with
blood on the left side of the top of the head; superficial crusted
bruises around the left wrist and the lower arm; cherry-sized
contusions on the left and right upper arm; a walnut-sized contusion
on the upper front part of the left hip; egg-sized crusted bruises on
both sides of the waist; as well as abrasions above both knees (two
cherry-sized abrasions above the right, and one walnut-sized and one
egg-sized abrasion above the left knee).
- After
recording the injuries, the general practitioner sent the applicant
to the Department of Urology of Szent János Hospital in
Budapest, because his left testicle was severely swollen. In addition
to the injuries detected by the general practitioner, at the
Department of Urology it was recorded that the applicant’s left
testicle was swollen to the size of a goose egg. A contusion of the
testicle and a haematocele (swelling caused by blood collecting in a
body cavity) were established. Since treatment did not help, the
urologist suggested surgery, which the applicant refused.
- On
26 August 2006 the applicant’s legal representative filed a
complaint with the Siófok Police Station and requested that
the part of the complaint relating to the applicant’s
ill-treatment be forwarded to the competent prosecutorial
investigation office.
- Based
on the forwarded complaint, the Kaposvár Prosecutorial
Investigation Office launched an investigation. The Office
subsequently heard the applicant and numerous police officers, held
an identification parade and a series of confrontations, and obtained
an expert opinion. In spite of the fact that the applicant claimed to
have recognised two of the four police officers who were present
during his ill-treatment in the custodial unit, the Office terminated
the investigation on 20 February 2007. It stated that although the
injury to the applicant’s testicle was caused by ill-treatment
that might have been inflicted during his detention at the Siófok
Police Station, it was not possible to establish the identity of the
perpetrator. According to the decision to terminate the proceedings,
the police officers who might have inflicted the ill-treatment all
denied responsibility and corroborated each other’s statements;
the doctors whom the applicant had met on the night of the events
claimed not to have detected injuries that might have been indicative
of ill-treatment, and the applicant had made contradictory statements
during the procedure, which might well have been because he was
heavily under the influence of alcohol and drugs, but which weakened
his credibility all the same.
- On
14 March 2007 the applicant’s counsel submitted a complaint
against the decision to terminate the investigation to the Somogy
County Chief Prosecutor’s Office, submitting that the
Prosecutorial Investigation Office had not taken all the possible
measures to establish the responsibility of the perpetrators, and
that in any event the evidence was sufficient to press charges
against the two officers whom the applicant had recognised.
- On
30 March 2007 the Chief Prosecutor’s Office rejected the
complaint. That decision, including a warning that no further remedy
lay against the rejection, was served on the applicant’s lawyer
on 17 April 2007.
II. RELEVANT DOMESTIC LAW
- Act
no. XIX of 1998 on the Code of Criminal Procedure provides:
Chapter IX
Title
III – Conduct of the investigation
Discontinuation of the investigation
“Section 190 (1) The public prosecutor shall,
by decision, discontinue the investigation:
a) if the action does not constitute a criminal offence,
b) if, on the basis of the results of the investigation,
the commission of a criminal offence cannot be established and no
result can be expected from the continuation of the procedure,
c) if the criminal offence was committed not by the
suspect, or on the basis of the results of the investigation it
cannot be established whether or not the criminal offence was
committed by the suspect,
d) if a ground excluding punishability occurs, unless it
appears necessary to order involuntary treatment in a mental
institution,
e) due to the death of the suspect, lapse of time or
pardon,
f) due to other statutory grounds eliminating
punishability,
g) if there has been no private motion, request or
complaint, and none can be submitted subsequently,
h) if the action has already been adjudicated by a final
decision, including the case regulated in section 6 of the Criminal
Code,
i) if the identity of the perpetrator could not be
established in the investigations,
j) [the prosecutor shall discontinue the investigation
and issue a reprimand] if the action committed by the suspect no
longer poses a threat – or poses such an insignificant level of
threat – to society that even the imposition of the most
lenient punishment allowed under the law or the application of any
other measure is unnecessary.”
“Section 191 (1) Unless an exception is made
in this Act, discontinuation of the investigation shall not prevent
the subsequent resumption of the proceedings in the same case.
(2) Resumption of the proceedings shall be ordered by
the public prosecutor or, if the investigation was terminated by a
public prosecutor, by a senior prosecutor. If the suspect was
reprimanded (section 71 of the Criminal Code), the public prosecutor
or the senior prosecutor, respectively, shall quash the decision
discontinuing the investigation. Against the decision ordering
resumption of the investigation, no objection shall lie.
(3) If no objection was filed against the
discontinuation of the investigation or the senior prosecutor did not
order the resumption of the investigation, subsequently only a court
can order the resumption of the investigation against a person in
respect of whom the investigation had previously been discontinued.
(4) If the court rejected the motion for the resumption
of the investigation, a repeated motion for resumption on the same
ground shall not be allowed.”
“Section 207 (1) Prior to the preferment of the
bill of indictment, the responsibilities of the court shall be
performed at first instance by the judge designated by the president
of the county court (‘investigating judge’).
(2) The investigating judge shall...
c) decide on the resumption of an investigation after
its discontinuation (section 191(3)).”
Title
IV – Remedy during the investigation
“Section 195 (6) A motion for review may be
filed with the public prosecutor’s office against [certain]
decisions ..., and against a decision rejecting a complaint against a
prosecutorial decision ... within eight days of delivery. The
prosecutor’s office shall forward the motion for review and the
case file to the court [i.e. the investigating judge] within three
days.”
“Section 198 (1) If the criminal report was
filed by the aggrieved party, he may submit a complaint against the
rejection of the report within eight days of its delivery in order to
have the investigation ordered.
(2) If the prosecutor terminated the investigation, the
aggrieved party may file a complaint with a view to the continuation
of the procedure within eight days of the delivery of the decision on
discontinuation.”
“Section 199 (1) On the basis of the
complaint, the prosecutor or the senior prosecutor may:
a) quash the decision rejecting the report or
terminating the investigation, and deliver a decision on ordering or
continuing the investigation or on pressing charges;
b) reject the complaint if he finds it unfounded.
(2) After the rejection of his complaint, the aggrieved
party may act as a supplementary private prosecutor if:
a) the report was rejected under section 174(1) a) or
c), or
b) the investigation was terminated under section 190(1)
a) to d) or f).”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained under Article 3 of the Convention about
ill-treatment by the police and the absence of an adequate
investigation.
Article
3 reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government contested that argument.
A. Admissibility
1. Arguments of the parties
a. The Government
- The
Government asserted that the applicant should have submitted an
objection to the investigating judge against the discontinuation of
the investigation, requesting its resumption under section 191(3) of
the Code of Criminal Procedure (see paragraph 24 above). Moreover,
since the applicant was aware of the identities of the impugned
police officers, he should have filed individual criminal complaints
against each of those officers. Had he done so, he could have taken
the case before a court by making use of substitute private
accusation. By not availing himself of these procedural avenues, he
did not exhaust domestic remedies.
b. The applicant
- The
applicant submitted that the Government’s interpretation of
section 191(3) was a misconception of the law. The investigating
judge’s power to decide on the continuation of an investigation
was not by its nature a remedy for an aggrieved party against the
termination of an investigation in pursuit of his complaint. Instead,
it was a procedural safeguard in favour of suspects against arbitrary
prosecutorial decisions, aimed at guaranteeing that only on the basis
of a judicial decision could an investigation be reopened against
suspects already cleared of charges. This was demonstrated by the
ministerial reasoning in the bill underlying the Code of Criminal
Procedure, supported by scholarly views expressed in various
commentaries attached to this provision of the Code, and proven by
the fact that section 191 was located in Chapter IX, Title III of the
Code (entitled Conducting the investigation), rather than Title IV
(entitled Remedy during the investigation). In any case, under
section 191, the investigating judge might order the continuation of
the investigation only in cases where it was conducted against a
particular suspect, which had not been the applicant’s case.
- Moreover,
the applicant submitted that if he had filed a criminal report
against the particular police officers, the public prosecutor might
have either rejected it – but under section 199(2) such a
rejection would not have given rise to supplementary private
prosecution – or ordered another investigation, which would
inevitably have led to the same conclusion as had already been
reached by the Kaposvár Prosecutorial Investigation Office.
2. The Court’s assessment
- The
Court recalls that the obligation to exhaust domestic remedies
requires that an applicant make normal use of remedies which are
effective, sufficient and accessible in respect of his Convention
grievances. To be effective, a remedy must be capable of remedying
directly the impugned state of affairs (see Balogh v. Hungary,
no. 47940/99, § 30, 20 July 2004). The existence of the remedies
in question must be sufficiently certain not only in theory but in
practice, failing which they will lack the requisite accessibility
and effectiveness (see Akdivar and Others v. Turkey,
16 September 1996, § 66, Reports of Judgments and
Decisions 1996 IV).
- In
the present circumstances, the Court however considers that it is not
necessary to embark on a closer scrutiny of the parties arguments’
about the effectiveness of a motion to be submitted to the
investigating judge, since in any case, the Government have not
produced any evidence to show that such a request has proved
effective in similar cases and would consequently constitute a remedy
to be exhausted in the circumstances.
- Moreover,
the Court notes that the applicant filed a criminal report concerning
the alleged ill-treatment and considers that therefore he cannot
reasonably be expected to have filed a second, virtually identical
but nominative one directed against the particular officers.
- It
follows that the application cannot be rejected for non-exhaustion of
domestic remedies. Moreover, the Court considers that it is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It further notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
1. Arguments of the parties
a. The Government
- The
Government submitted that, according to the findings of the
investigation conducted by the domestic authorities, the applicant’s
allegations of ill-treatment were not supported beyond any doubt by
the witness testimonies, nor were they confirmed by the medical
opinion, except for the injury to his testicles. His allegations had
been adequately investigated by the authorities but the evidence so
obtained had not been sufficient to establish the criminal
responsibility of the impugned police officers. Indeed, the
ill-treatment which the applicant had sustained had been proven in
the investigation but the identity of the perpetrators could not be
established, essentially due to contradictions and uncertainties in
the applicant’s testimony.
b. The applicant
- The
applicant submitted that before he had been taken into police
custody, he had only had minor injuries, namely some superficial
abrasions on his left knee and ankle and a small swelling on his
cheek. By the time he had been released from police custody, he had
had several severe injuries as recorded by doctors. The Government
did not provide any plausible explanation for these injuries, which
had been caused by ill-treatment by police officers. Moreover, he
argued that the investigation into his allegations had not been
adequate, in particular in regard to the alleged omission of the
requisite confrontations between key witnesses and the conduct of
recognition sessions.
2. The Court’s assessment
- Article
3 of the Convention, as the Court has observed on many occasions,
enshrines one of the fundamental values of democratic society. Even
in the most difficult of circumstances, such as the fight against
terrorism or crime, the Convention prohibits in absolute terms
torture or inhuman or degrading treatment or punishment. Unlike most
of the substantive clauses of the Convention and of its Protocols,
Article 3 makes no provision for exceptions and no derogation
from it is permissible under Article 15 even in the event of a public
emergency threatening the life of the nation.
- The
Court recalls that ill-treatment must attain a minimum level of
severity if it is to fall within the scope of Article 3. The
assessment of this minimum is relative: it depends on all the
circumstances of the case, such as the duration of the treatment, its
physical and/or mental effects and, in some cases, the sex, age and
state of health of the victim. In respect of a person deprived of his
liberty, recourse to physical force which has not been made strictly
necessary by his own conduct diminishes human dignity and is in
principle an infringement of the right set forth in Article 3 (see
Tekin v. Turkey, 9 June 1998, §§ 52 and 53, Reports
1998 IV).
- The
Court notes that on his committal to police custody, the applicant
was recorded to have abrasions on his leg as well as a small swelling
on his cheek (see paragraph 11 above). On the day after his release,
however, he was diagnosed with several injuries, including a swelling
on the left cheek, another one filled with blood on the head,
superficial crusted bruises around the left wrist and the lower arm,
contusions on the left and right upper arm, a contusion on the upper
front part of the left hip, crusted bruises on both sides of the
waist, abrasions above both knees, as well as the contusion of a
testicle and a haematocele (see paragraphs 18 and 19 above).
- The
Court considers that the injuries suffered by the applicant were
sufficiently serious to amount to inhuman and degrading treatment
within the scope of Article 3 (see, for example, A. v. the United
Kingdom, 23 September 1998, § 21, Reports 1998 VI;
Ribitsch v. Austria, 4 December 1995, §§ 13 and 39,
Series A no. 336).
It
remains to be considered whether the State should be held responsible
under Article 3 for these injuries.
- The
Court reiterates that where an individual is taken into police
custody in good health but is found to be injured at the time of
release, it is incumbent on the State to provide a plausible
explanation of how those injuries were caused (see Selmouni v.
France [GC], no. 25803/94, § 87, ECHR 1999 V).
- On
the basis of all the material before it, the Court finds that the
Government have not established that the applicant’s injuries
were caused otherwise than by the treatment meted out to him in
police custody. Indeed, in the decision to terminate the proceedings
it was recognised that ill-treatment might have been inflicted on the
applicant while he had been in detention. Moreover, the Government
have acknowledged in their observations that the ill-treatment was
proven in the investigation (see paragraph 34 above).
- Having
regard to this consideration, the Court concludes that the applicant
has been subjected to inhuman and degrading treatment. There has,
accordingly, been a breach of Article 3 of the Convention.
- As
regards the applicant’s complaint about the adequacy of the
investigation, the Court observes that, against the background of the
injuries the applicant had sustained, as recorded by a general
practitioner and an urologist, a formal investigation was launched,
in the course of which the applicant and numerous police officers
were heard, an identification parade and a series of confrontations
took place, and an expert opinion was obtained. The procedure was
terminated essentially on account of the irreconcilable testimonies
given by the protagonists and the fact that the applicant, heavily
under the influence of drugs and alcohol at the time of the incident,
had given contradictory statements. Because of this, no individual
criminal responsibility of any particular police officer could be
established (see paragraph 21 above). In these circumstances, the
Court is satisfied that there has been an adequate investigation into
the applicant’s allegations.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed, as pecuniary damage, 500 euros (EUR). He submitted
that due to the injuries sustained he had been out of work for
two months, and this amount corresponded to lost income and
moreover the costs of medicines he had had to purchase. As to
non-pecuniary damage, he claimed EUR 10,000.
- The
Government contested these claims.
- The
Court awards the applicant the entirety of these claims, i.e.
EUR 10,500.
B. Costs and expenses
- The
applicant also claimed EUR 3,750 for the legal costs incurred before
the Court. This amount, supported by documents, corresponded to his
lawyer’s fee – EUR 3,640, that is, 28 hours charged at
EUR 130 per hour, payable on successful completion of the case –
and to the clerical costs incurred, i.e. EUR 110.
- The
Government contested this claim.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the full sum claimed, i.e. EUR
3,750.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
3 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Hungarian forints at the rate
applicable at the date of settlement:
(i) EUR
10,500 (ten thousand five hundred euros), plus any tax that may be
chargeable, in respect of pecuniary and non-pecuniary damage;
(ii) EUR
3,750 (three thousand seven hundred and fifty euros), plus any tax
that may be chargeable to the applicant, in respect of costs and
expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
Done in English, and notified in writing on 28 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
