Police officers broke the applicant’s hand during their invasion of her house! Conviction for inhuman and degrading treatment
JUDGMENT
R.B. v. Hungary 19.01.2023 (app. no. 48444/18)
SUMMARY
The applicant suffers from a psychiatric disease. In an incident on 20 July 2017, ambulance was called to her home. Because the medical staff could not enter the flat, police were called in, and they forced the door. In an effort to overcome the ensuing resistance of the applicant, found in the bath, the two officers manhandled and handcuffed her, twisting and breaking an arm. Her ensuing criminal complaint was dismissed by various prosecution instances on 3 April and 4 June 2018, which held that the use of force had been lawful and proportionate in the situation. The officers were never questioned.
The applicant complained under Article 3 of the Convention that she had been subjected to police brutality which had not been adequately investigated.
In the present case, the police officers, while trying to contain her, twisted the handcuffed applicant’s arm and broke it. There can be therefore no doubt that the injury sustained by the applicant attained the minimum level of severity required for Article 3 to come into play. Also, the Court observed that the Government had not furnished any convincing or credible arguments which would provide a basis to explain or justify the degree of force used.
The Court observed in particular that the implicated officers were never actually questioned in the investigation in pursuit of the applicant’s complaint. It couldn’t accept that the officers in question could not be questioned either as witnesses, because of the risk of self-incrimination, or as suspects, in the absence of a well-founded suspicion of a crime.
PROVISION
Article 3
PRINCIPAL FACTS
The applicant suffers from a psychiatric disease. In an incident on 20 July 2017, ambulance was called to her home. Because the medical staff could not enter the flat, police were called in, and they forced the door. In an effort to overcome the ensuing resistance of the applicant, found in the bath, the two officers manhandled and handcuffed her, twisting and breaking an arm. The officers forced the applicant, naked, to lie down on the floor so as to contain her. Eventually, she was transferred to the traumatology department and then admitted to psychiatry.
Her ensuing criminal complaint was dismissed by various prosecution instances on 3 April and 4 June 2018, which held that the use of force had been lawful and proportionate in the situation. The officers were never questioned.
The applicant complained under Article 3 of the Convention that she had been subjected to police brutality which had not been adequately investigated.
The Government argued that the applicant had not exhausted the available domestic remedies in that she had not pursued a substitute private prosecution. The applicant disagreed.
THE DECISION OF THE COURT…
The Government submitted that the police intervention had been lawful, professional and proportionate; and adequately investigated. The fact that the police officers involved were not interrogated in the investigation could be explained by the consideration that they could neither be questioned as suspects in the absence of a crime nor be heard as witnesses because that might have countered the prohibition of self-incrimination. The applicant disagreed.
The general principles concerning ill-treatment by State agents have been summarised in Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-90, ECHR 2015). In the present case, the police officers, while trying to contain her, twisted the handcuffed applicant’s arm and broke it. There can be therefore no doubt that the injury sustained by the applicant attained the minimum level of severity required for Article 3 to come into play.
The Court observes that the applicant was subjected to the impugned treatment in an intervention meant to assist the ambulance staff in checking on her health status. It notes the Government’s assertion that the coercion applied by the police was necessitated by the applicant’s alleged resistance to a lawful measure. However, it takes the view that the Government have not furnished any convincing or credible arguments which would provide a basis to explain or justify the degree of force used. In particular, it has not been clarified what particular conduct on the applicant’s side warranted a reaction with bone-breaking violence.
Especially in the face of the fact that the applicant – a 43-year-old woman, teacher by profession – was known to be suffering from a psychiatric condition, the Court finds that the Government’s explanation for the incident sits uncomfortably with the circumstance that two male officers were involved in the scene, who should have been able to master the situation without causing such an injury. For the Court, this is so even if the applicant was unwilling to cooperate with those officers.
Since the Government have not shown the contrary, the Court cannot but conclude that, even assuming that the situation objectively required the use of force, the extent to which it was applied was excessive (see Réti and Fizli v. Hungary, no. 31373/11, § 34, 25 September 2012). Such use of force resulted in a serious injury for the applicant, aggravated by the humiliation of being forced down on the floor naked by male officers. This amounted to degrading treatment.
There has accordingly been a substantive violation of Article 3 of the Convention.
The Court moreover reiterates that where an individual raises an arguable claim that he or she has been seriously ill-treated by the police or other such agents of the State unlawfully and in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be an effective official investigation. This investigation should be capable of leading to the identification and punishment of those responsible. If this were not the case, the general legal prohibition on torture and inhuman and degrading treatment and punishment, despite its fundamental importance, would be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity.
The Court observes in particular that the implicated officers were never actually questioned in the investigation in pursuit of the applicant’s complaint. The authorities were reasoning to the effect that the officers in question could not be questioned either as witnesses, because of the risk of self-incrimination, or as suspects, in the absence of a well-founded suspicion of a crime. The Court finds little, if any, force in this argument, circular in nature, which effectively deprived the applicant of any opportunity to challenge the perpetrators’ version of the events. An identical argument was already discarded by the Court in Nagy v. Hungary ([Committee], no. 57967/00, § 36, 26 May 2020).
The Court held that there has been a procedural violation of Article 3 of the Convention.
Just satisfaction (Article 41)
The Court held that Hungary was to pay the applicant EUR 25,000 in respect of non-pecuniary damage and EUR 4,500 in respect of costs and expenses.
