Investigation into the beating of an immigrant by police officers based on the statements of the police officers! Violation of procedural and substantive part of Article 3 of the ECHR
JUDGMENT
Shahzad v. Hungary 05.10.2023 (app. no. 37967/18)
SUMMARY
The applicant illegally entered Hungarian territory from Serbia. He was forcibly driven by police officers to the border, to exit the country. He claimed that during this operation, he was beaten with a glove which caused bruises and a hematoma on his head.
The Court considered the cause and time of the applicant’s injury. He observed that the prosecution examined a total of 15 police officers, who caused the incident, however, neither the applicant nor his companions were examined in person during the interrogation despite being of known residence.
The ECtHR concluded that the domestic investigation was limited to the statements of the police officers and they failed to order an expert opinion but also to take all appropriate measures for the investigation, therefore it held that there was a violation of the procedural part of Article 3.
It then found that the applicant had suffered ill-treatment which was not justified by the defendant state, without this violence being necessary.
The ECtHR found a violation of the substantive part of Article 3 and awarded the applicant 20,000 euros for moral damage and 5,000 euros for costs.
PROVISION
Article
PRINCIPAL FACTS
The applicant, a pedestrian from Serbia, entered Hungarian territory illegally on 11 August 2016. He was arrested the following day and returned to Serbia. His complaints regarding removal to Serbia are the subject of another case pending before the ECtHR (appeal no. 12625/17).
Specifically, on 12 August 2016, the applicant and other arrested migrants were forcibly taken to the Serbian side of the border by approximately 8-10 Hungarian officers. During this operation, they were allegedly physically assaulted by the police, who kicked and hit them, some using police batons. The applicant suffered various injuries, in particular bruises and a bleeding head wound.
The investigation conducted, which was considered by the applicant to be superficial and insufficient, was finally closed by the Prosecutor on February 9, 2018.
The applicant brought an action for inhuman and degrading treatment, i.e. for a violation of both the procedural and substantive parts of Article 3 of the ECHR.
THE DECISION OF THE COURT…
Procedural aspect of Article 3 of the Convention
The Court reiterated that where an individual makes a credible allegation that he has suffered treatment contrary to Article 3 of the Convention at the hands of the police or other similar authorities, this provision, in conjunction with the State’s general duty under Article 1 of the Convention , implicitly requires that there must be an effective official investigation.
The Court noted that the applicant had been summarily removed from Hungary to Serbia, which led to a finding of a violation of Article 4 of Protocol No. 4 in another appeal. It further observed that after his removal to Serbia, the applicant filed a complaint with the prosecution in which he stated that during his forced removal he had been punched, kicked and beaten with a globe and a metal rod by two police officers on 12 August 2016. filing of the lawsuit, an investigation was ordered against unknown perpetrators.
The Court observed that the key element in the present case was when and how the applicant had been injured and, in particular, whether or not those injuries were inflicted by Hungarian police officers after the applicant’s return through the border gate.
With regard to the collection of evidence, the Court was satisfied that the prosecution secured copies of the police reports drawn up on the escort measure and arranged for the translation of the applicant’s statement to the Serbian police and the medical reports of his examination at the Subotica hospital.
Regarding the taking of witness statements, the Court noted that the prosecution examined a total of 15 police officers, including two Slovaks, who were involved in various parts of the police operation. However, neither the applicant nor his companions were examined in person during the proceedings. There was no indication that the domestic authorities had attempted to locate the applicant or to identify any of the potential witnesses who had been removed from Hungary with him. The Court noted that the applicant remained in Serbia for some months after his removal. Given his special status as an illegal immigrant (who, once outside the territory, would find it difficult to remain available for any further medical examination or testimony), the investigating authority would be expected to contact him through his legal representative as soon as possible to locate him.
The Court also noted with concern that the investigating authority had an inconsistent approach to the necessity of the applicant’s own testimony: although, after the suit, the investigating authority decided to continue the investigation with a view to hearing the applicant, such testimony was not ultimately carried out during the re-initiated proceedings. The investigating authority justified this omission by arguing that no evidence could be expected from the applicant’s testimony capable of leading to the indication of reasonable suspicion of a crime committed by a particular person. For the Court, in the absence of any new development, it remains unclear what caused this change in the authorities’ approach. Although the Government argued in its submissions that, in the absence of an international agreement, it was doubtful whether Pakistan would have complied with a request for international judicial assistance, there is nothing in the record to suggest that the prosecution considered the applicant’s Pakistani residence to be an obstacle to seeking such assistance. In conclusion, while the Court is aware of the difficulties encountered by the investigating authorities due to the removal of the migrants from Hungary, the fact remains that neither the applicant nor his companions were examined during the criminal proceedings.
Therefore, it can be concluded that the investigation was mainly limited to the statements of the police officers involved in the arrest and escort operation and the examination of the police files compiled by the Hungarian and Serbian police officers. As a result, in establishing the facts, the authorities relied mainly on the statements of the alleged perpetrators and other police officers who were not present during the alleged incident. In light of the above, the Court found that the failure of the investigating authorities to examine the applicant, order a forensic medical assessment of his injuries and take all necessary investigative measures to resolve the factual contradictions and uncertainties they faced rendered ineffective the investigation into the applicant’s alleged ill-treatment.
In these circumstances, taking into account the lack of sufficiently effective investigation into the allegations of the applicant, the Court considered that there had been a violation of Article 3 of the Convention in its procedural aspect.
Essential aspect of Article 3 of the Convention
For ill-treatment to fall within the scope of Article 3, it must meet a minimum level of severity, which usually involves actual physical harm or severe physical or mental suffering. Allegations of ill-treatment in breach of Article 3 must be supported by appropriate evidence. In evaluating this evidence, the Court adopts the standard of proof “beyond a reasonable doubt” but adds that such proof may follow from the coexistence of sufficiently strong, clear and converging inferences or similar unshakable factual presumptions.
In the present case, the applicant showed signs of physical injuries after his contact with the Hungarian police officers.
The Court further took into account the findings of the aforementioned materials of the United Nations and Council of Europe bodies, citing a series of cases of physical violence that allegedly took place during “repulsion” operations near the border with Serbia.
The Court also noted the fact that the video recording, which was supposed to serve as evidence against all unfounded allegations of ill-treatment, had stopped before the applicant and his companions were released while under the command of the Hungarian police. In the light of the above evidence evidence, the reports of international human rights organizations and the special circumstances of the case, the Court considered that there was a sufficiently strong presumption that the applicant’s injuries had indeed been caused by the actions of the Hungarian police officers while escorting the applicant, having bearing in mind that no one else was present at the place of the alleged incident at the relevant time.
The above considerations were sufficient to lead the Court to conclude that the authorities had not provided any reasonable explanation as to the cause of the applicant’s injuries. Thus, the Government failed to prove that the applicant’s injuries were caused by anything other than the ill-treatment alleged by the applicant.
As to whether the use of force against the applicant was made absolutely necessary by his conduct, the Court observed that nothing in the circumstances of the case or in the case file proved that the use of force was necessary.
Consequently, the Court found that the applicant had been subjected to ill-treatment prohibited by Article 3 of the Convention and that there had been a violation of this substantive provision.
Just satisfaction (Article 41): The ECtHR awarded 20,000 euros for moral damage, and 5,000 euros for costs and expenses (edited by echrcaselaw.com).
