Violent arrest by police. Videotape damage for the event. Insufficient investigation and violation of the procedural part of Article 3 of the ECHR
Posa v. Hungary 07.07.2020 (app. no. 40885/16)
Corporal violence by police officers. Destruction of video recording of the incident and disappearance of a forensic report. Insufficient research. Violation of procedural part of Article 3 of the ECHR.
During his arrest, the applicant, accused of robbery, was dragged to the ground by special forces police, who kicked and beat him. The Prosecutor ordered an investigation, however the case was filed because the video of the recording of the incident was destroyed and the forensic investigation disappeared from the case file.
The Court pointed out that when a person is deprived of his liberty or, more generally, comes into contact with police officers, any use of physical violence that has not become absolutely necessary by the individual’s behavior offends human dignity.
In the present case, the ECtHR held that, since the evidence had been destroyed, it could not be established whether the applicant’s injuries had been caused by the police and accepted that there had been no violation of Article 3 as regards the substance.
On the other hand, as regards the investigation, the ECtHR considered that it was not sufficiently thorough and effective to meet the requirements of Article 3 because the evidence had been destroyed. The above shortcomings prevented the national courts from judging the incident adequately and the prosecuting attorney requested a copy of the original video of the applicant’s arrest, long after his legal custody period.
The ECtHR found a violation of the prohibition of degrading treatment (Article 3) in the case of insufficient investigation into the matter (procedural part) and awarded the applicant EUR 7,000 for non-pecuniary damage.
The applicant, István Pósa, is a Hungarian national born in 1975 who lives in Sátoraljaújhely.
The case concerned alleged police ill-treatment when the applicant was arrested.
In October 2011 a unit of the Anti-Terrorism Task Force (“TEK”) arrived at the applicant’s home in
order to arrest him as part of an investigation into robbery.
The applicant submitted that he had been dragged along the ground, kicked and beaten during his
arrest. Subsequent medical examinations showed he had bruises on his arms and back and abrasions
on his back and left knee. Based on those findings, the National Investigation Office began an
investigation into possible ill-treatment but in September 2012 the prosecutor closed the case.
The prosecutor found that although the applicant had suffered injuries during his arrest, it could not
be established that they had resulted from a deliberate offence rather than from a police operation
carried out lawfully. He also noted that a full video-recording of the arrest, made by the police at the
time, was no longer available as it had been destroyed following the statutory 30 day period.
A complaint by the applicant about the decision to discontinue the investigation was dismissed with
final effect in November 2012 by the Pest County Chief Public Prosecutor’s Office.
The applicant brought substitute private prosecution proceedings against the two TEK officers
involved and in February 2015 the Budapest Surroundings High Court acquitted the defendants.
The court noted that the police medical report sheet that was normally filled in when suspects were
apprehended was missing from the file and that the full version of the video-recording was no longer
available. It found that the applicant had not been ill-treated and that the minor injuries he had
sustained had been caused accidentally. That judgment was upheld on appeal in February 2016.
Relying on Article 3 (prohibition of torture), the applicant complained of police brutality and that the
investigation into his allegations had been ineffective.
THE DECISION OF THE COURT…
In addition, where an individual is deprived of his or her liberty or, more generally, is confronted with law-enforcement officers, any recourse to physical force which has not been made strictly necessary by the person’s conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention. The Court emphasises that the words “in principle” cannot be taken to mean that there might be situations in which such a finding of a violation is not called for, because the above-mentioned severity threshold has not been attained. Any interference with human dignity strikes at the very essence of the Convention.
In the present case, the applicant suffered several bruises in the course of the incident in question. It remains to be considered whether the State should be held responsible under Article 3 for the injuries.
The Court observes that, in addition to the discontinued prosecutorial investigation into the case, courts at two instances dealt with the applicant’s allegations. On the basis of the available evidence, they concluded that there were no elements to prove that the injuries suffered by the applicant had been caused otherwise than accidentally in a lawful, necessary and proportional police measure. The Court of Appeal, moreover, disregarded the testimony of the applicant’s wife, ruling that she could not possibly have seen the incident.
The Court notes that the domestic authorities were unable to identify any direct witnesses who had seen police officers ill-treating the applicant, and that they moreover found, on the basis of the forensic expert’s opinion, that the injuries recorded in the medical reports did not correlate with the applicant having been struck, kicked or dragged along the ground. For its part, the Court finds no convincing reason to depart from those conclusions and cannot establish beyond reasonable doubt, on the basis of the evidence before it, whether or not the applicant’s injuries were caused by the police exceeding the force necessary to properly perform a lawful measure.
Under these circumstances, the Court cannot but find that there has been no violation of Article 3 of the Convention under its substantive limb.
The Court does, however, consider that, taken together, the injuries suffered by the applicant and the circumstances of the arrest give rise to a reasonable suspicion that he may have been subjected to ill-treatment by the police.
The Court reiterates that where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the State unlawfully and in breach of Article 3, that provision, taken 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 that 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 investigation must be effective in the sense that it is capable of leading to a determination of whether the force used was or was not justified in the circumstances and, as pointed out above, of identifying and – if appropriate – punishing those responsible. The authorities must take whatever reasonable steps they can to secure the evidence concerning the incident. Any deficiency in the investigation which undermines its ability to establish the person responsible will risk falling foul of this standard.
The Court is not, however, persuaded that that investigation was sufficiently thorough and effective to meet the above-mentioned requirements of Article 3.
The Court notes that the full, uncut version of the video recording of the applicant’s arrest was not available during the ensuing proceedings, having been destroyed after the relevant, remarkably tight, thirty-day statutory deadline . Had this not been the case, the authorities may have had strong evidence at their disposal to prove or disprove the applicant’s allegations. Although the short, edited version of the recording was available, it did not contain footage of the applicant being handcuffed. Moreover, a further element underlying the inadequacy of the investigation was the absence of the police medical report sheet, which is normally filled in when suspects are apprehended. That document, if it had been available, may have shed more light on the circumstances of the incident complained of.
With those important pieces of evidence missing, the authorities were, in the Court’s view, hardly in a position to perform a thorough and effective investigation into the applicant’s arguable claim that he was ill-treated by police officers. The above omissions necessarily prevented the national courts from making as full findings of fact as they might have otherwise done. An adequate investigation would have required diligence and promptness. The Court notes that in the present case the prosecutor in charge of the case requested a copy of the original video recording of the applicant’s arrest only on 29 February 2012, when the statutory thirty-day period, during which it could have been obtained for the purposes of an investigation, had long expired.
Consequently, the Court finds that there has been a violation of Article 3 of the Convention under its procedural limb.