The use of excessive force by the counter-terrorist service is inhuman and degrading treatment.
JUDGMENT
Kanciał v. Poland 23.05.2019 (no. 37023/13)
SUMMARY
Police violence using an electric weapon during a raid by the Anti-Terrorism Service. Exessive use of police force against the applicant, who had already been immobilized at that time. Incomplete investigation of his allegations of ill treatment. Violation of the substantive and procedural aspect of the right to life.
PROVISION
Article 3
PRINCIPLA FACTS
The applicant, Maciej Kanciał, is a Polish national who was born in 1985 and lives in Gdańsk (Poland).
The applicant was arrested in June 2011 during an investigation into a kidnapping after the police
identified him as a possible suspect among the friends of the victim’s family and employees of the
family company. He was released after two days and later cleared of any involvement.
He subsequently complained to the authorities that he had been mistreated while in custody and
during the arrest, in which a group of armed and masked officers from the anti-terrorist squad had
stormed into the flat where he was at the time. In particular, he had been hit on the head, back and
neck and given shocks from an electrical discharge weapon on his back, buttocks and genitals.
A prosecutor took up his allegations in July 2011 over charges of abuse of power by the police, but
discontinued the investigation the following year. The prosecutor took evidence from the applicant,
other people who had been in the apartment, the police officers, and a forensic expert, and
examined medical evidence on the applicant’s injuries.
The prosecutor found that although the applicant’s version of events could not be ruled out and that
he had been injured in the raid, there was insufficient evidence of an offence by the police officers.
In particular, the electrical discharge weapon had been used in accordance with procedures in
circumstances where the applicant had not complied with police instructions.
An appeal by the applicant against that decision was dismissed by a court in March 2013.
THE DECISION OF THE COURT
Substantive aspect of Article 3
The Court found that it was beyond dispute that the applicant had been injured during his arrest and
it observed at the same time that the police were only allowed to use force during an arrest that was
indispensable and not excessive.
It distinguished two phases to the applicant’s arrest: up until he had been handcuffed and put under
the control of the police, and after he had been immobilised.
However, it could not determine if excessive force had been used in the first phase because of
conflicting evidence: the authorities stated that an electrical discharge weapon had been used on
the applicant because he had refused to comply with police orders to allow himself to be
handcuffed, whereas the applicant said he had followed orders but had been hit and kicked anyway.
In the second phase of his arrest, the applicant had suffered bruising and swelling, which had also
been noted in a forensic report. The prosecutor had not explained how the injuries had occurred,
suggesting that they had in some way been caused by the speed of the police operation.
While the Court itself could not determine how the applicant had come about his bruises, it was not
convinced by the prosecutor’s comments. In fact, neither the prosecutor nor the Government had
shown that the police had needed to use the kind of force which could have caused such injuries,
meaning the Government had not demonstrated that the use of force in that stage of the operation
had been strictly necessary.
Nor had the investigation provided any clarity on the police’s use of the electrical discharge weapon.
The applicant had testified that he had been stunned several times on various parts of his body,
which the forensic report appeared to corroborate. The marks on his body corresponded to the
weapon having been used in “contact” mode (drive-stun), which the Committee for the Prevention
of Torture had reported caused severe local pain and possible burns. Furthermore, domestic
regulations on the use of force by the police stated, among other things, that electrical discharge
weapons were only to be used if other coercive means were ineffective or not available.
The Court found that the police had not needed to use force on the applicant after he had been
immobilised and so it had been excessive. It also appeared that such acts had not been in line with
the law, which required that force should only be used to ensure compliance with police orders.
Given the nature of the applicant’s injuries and the associated physical and mental suffering, the
Court found that he had been subjected to inhuman and degrading treatment, in violation of the
substantive aspect of Article 3.
Procedural aspect of Article 3
The Court examined the investigation into the applicant’s allegations of ill-treatment by the police,
under the procedural head of Article 3, and noted major flaws in the proceedings. In particular, the
authorities had failed to answer important questions, such as in what way the police officers had
used force and how the applicant had been injured.
The investigation had also failed to deal with key questions on the use of the electrical discharge
weapon, such as the applicant’s allegation that it had been used on a repeated basis after he had
already been immobilised and was being held on the floor.
Neither the prosecutor nor the courts had carried out a proper analysis of the lawfulness aspect –
for the Court, in contrast, a rigorous investigation into the necessity of the use of such weapons was
necessary, particularly because they were known to cause intense pain and temporary
incapacitation when applied in the way the police had done in the applicant’s case.
Furthermore, the authorities had accepted the police version of the events and had given much less
weight to the applicant’s testimony, although he had been backed up by medical certificates. The
prosecutor had failed to take account of the fact that before she had made her decision on the case
the applicant and his alleged accomplices had been cleared of any kidnap charges.
The investigation had therefore failed to meet the standards required by the Convention and there
had been a violation of Article 3 under its procedural head.
Just satisfaction (Article 41)
The Court held that Poland was to pay the applicant 25,000 euros (EUR) in respect of non-pecuniary
damage.
Separate opinions
Judge Eicke expressed a separate opinion which is annexed to the judgment(echrcaselaw.com editing).
