I incorrectly predicted that there's no violation of human rights in NAGY v. HUNGARY.

Judgment

FOURTH SECTION
CASE OF NAGY v. HUNGARY
(Application no. 43441/15)

JUDGMENT
STRASBOURG
26 May 2020

This judgment is final but it may be subject to editorial revision. In the case of Nagy v. Hungary,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Branko Lubarda, President,Carlo Ranzoni,Péter Paczolay, judges,and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the application against 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 Antal Sándor Nagy (“the applicant”), on 25 August 2015;
the decision to give notice to the Hungarian Government (“the Government”) of the complaint concerning Article 3 of the Convention and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 5 May 2020,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
The case concerns allegations of police brutality and the adequacy of the ensuing investigation. THE FACTS
1. The applicant was born in 1942 and lives in Gyömrő. He was represented by Mr T. Fazekas, a lawyer practising in Budapest and acting on behalf of the Hungarian Helsinki Committee. 2. The Government were represented by their Agent, Mr Z. Tallódi, Ministry of Justice. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 2 May 2012 the applicant, who is of Roma origin, was taken to Gyömrő Police Station for questioning in connection with an act of theft committed by another person. 5. It appears that an altercation occurred between the applicant and two police officers present at the questioning, in the course of which the applicant sustained injuries. In the applicant’s submission, these were caused by blows and kicks, falling between chairs, and being dragged along the floor. 6. The applicant left the police station at about 5 p.m. At 8.43 p.m. he went to see a general practitioner, who noted a contusion on his chest. 7. At 8 a.m. on 3 May 2012 the applicant was examined at the local clinic, where he was found to have contusions on both wrists and arms, as well as on the left chest wall and in the left inguinal region. At 1.30 p.m. the same day he reported to another clinic, from where he was transported to Péterfy Sándor Hospital with a suspected ruptured spleen. This was, however, later ruled out. 8. On 6 May 2012 a prosecution was initiated on charges of ill-treatment by officers, upon a complaint made by the applicant’s daughter. 9. On 14 May 2012 the Gyömrő Police Station contacted the applicant to find out whether he was willing to participate in a hearing to be held by the local commander concerning the incident. The applicant replied in the negative, according to the report of the local commander. 10. On 16 May 2013 a medical expert gave an opinion on the applicant’s injuries. He found that the contusions he had sustained, which had healed within eight days, could have been caused by blows or, less plausibly, by falling on the ground and banging into furniture. According to a medical certificate issued on 30 May 2012, the applicant had contusions on the left chest wall and in the left inguinal region. 11. On 11 September 2013 the medical expert added to his opinion. On the basis of five photographs obtained in the meantime, he noted several contusions and bruises on the left lower arm and wrist, the left chest wall and one of the toes on the left foot. The opinion was inconclusive as to the origin of these injuries, all of which had healed within eight days. 12. On 29 October 2013 the Pest Surroundings Investigation Authority discontinued the case. Having questioned a number of indirect witnesses, it found that although it could not be ruled out that the applicant had been ill-treated – in particular given the medical evidence and the fact that he had not had any injuries before being taken to the police station – the evidence was insufficient to indict any particular officer. The Investigation Authority noted the applicant’s consistently reiterated account of the incident, according to which he had been yelled at and repeatedly hit by two officers, as a result of which he had fallen to the ground, banging into the furniture. 13. The applicant lodged a complaint, challenging in particular the medical expert opinion and seeking a face-to-face confrontation with the police officers who had taken him to the police station. 14. On 3 December 2013 the Pest County Chief Public Prosecutor dismissed the complaint, relying in particular on the inconclusive nature of the medical expert opinion as to the origin of the applicant’s injuries. 15. On appeal, on 21 August 2014 the Attorney General ordered the continuation of the investigation, considering that it had been insufficient. 16. On 26 March 2015 the Central Investigation Office again discontinued the case. It found that the applicant’s account of the events as to the origin of his injuries and the identities of the alleged perpetrators – who had been presented to him in a photo line-up – was contradictory and that the case could not therefore lead to the indictment of any particular officer. In the decision it was stated that Officer N., whom the applicant had repeatedly accused throughout the procedure, was sick and unavailable for questioning, for which reason a report prepared by him had been admitted to the case file. 17. On 14 May 2015 the Attorney General’s Office dismissed the applicant’s complaint. It upheld in essence the Central Investigation Office’s reasoning. The Attorney General’s Office noted that Officer N. had not been questioned in the case and held that his ailment should not have been an obstacle to his being questioned. However, it explained that the absence of such questioning had nevertheless been justified because Officer N. could not be interviewed either as a suspect (in the absence of a well-founded suspicion of an offence) or as a witness (because of the risk of self-incrimination). 18. The applicant submitted that Officer N. had been the only officer known to him by name from the outset, and that he had recognised him from the incident. Officer N. was at any rate easy to remember because his arm had been in plaster at the material time – a fact he had mentioned to the investigator during the questioning on 2 July 2013. The applicant had maintained from the beginning of the case that it had been Officer N. who had carried out the ill-treatment. THE LAW
19. The applicant complained that he had been ill-treated by the police and that his allegation had not been adequately investigated, in breach of Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
20. The Government argued that the applicant had not exhausted the available domestic remedies in that he had not pursued a substitute private prosecution. The applicant disagreed. 21. The Court has already held in a number of cases that applicants were not required, as a matter of exhaustion of domestic remedies, to pursue a substitute private prosecution, essentially because to do so would represent the pursuit of a legal avenue which would have the same objective as their criminal complaints (see R.S. v. Hungary, no. 65290/14, § 38, 2 July 2019; M.F. v. Hungary, no. 45855/12, § 34, 31 October 2017; R.B. v. Hungary, no. 64602/12, §§ 60-65, 12 April 2016; Borbála Kiss v. Hungary, no. 59214/11, §§ 25-27, 26 June 2012; see also Matko v. Slovenia, no. 43393/98, § 95, 2 November 2006). Consequently, a substitute public prosecution cannot be considered an effective remedy whose exhaustion is required by Article 35 § 1 of the Convention. The Government’s preliminary objection of non-exhaustion of domestic remedies must therefore be dismissed. 22. The Court further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible. 23. The Government submitted that it had not been proven beyond doubt that the applicant had been ill-treated; adding that the authorities had adequately investigated the case but no culprits could be positively identified, let alone indicted. Again, the applicant disagreed. 24. The Court’s relevant case-law has recently been summarised in, among many other authorities, the judgment in M.F. v. Hungary (cited above, §§ 42-45). 25. In the present case, the Court observes that it has not been disputed by the parties that the applicant had no injuries before the incident in question. 26. On his departure from the police station, he had bruises and contusions which were confirmed by doctors (see paragraphs 6-7 above), and which, for the Court, attain the minimum level of severity required to bring Article 3 of the Convention into play. 27. It remains to be considered whether the State should be held responsible under Article 3 for these injuries. 28. The Court observes that the applicant was taken to the police station in order to be questioned about an offence committed by someone else (see paragraph 4 above). It notes the applicant’s allegation that he was ill-treated by two officers while there. Shortly after his release from the police station, a doctor recorded that the applicant had a chest contusion, and more contusions were found at the local clinic the next day (see paragraphs 7 and 10-11 above). Whether these injuries were caused by blows and kicks, or rather by the applicant having fallen on the ground and banging into furniture, the fact remains that the applicant was taken to the police station uninjured but left with injuries. 29. The Court has explained on many occasions that where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. The burden of proof is then on the Government to provide a satisfactory and convincing explanation by producing evidence establishing facts which cast doubt on the account of events given by the victim. In the absence of such an explanation, the Court can draw inferences which may be unfavourable to the Government. That is justified by the fact that persons in custody are in a vulnerable position and the authorities are under a duty to protect them (see, among other authorities, Bouyid v. Belgium [GC], no. 23380/09, § 83, ECHR 2015). 30. While being questioned, the applicant was entirely under the control of police officers. The Government were accordingly under an obligation to provide a plausible explanation of how the applicant’s injuries had been caused. But the Government did no more than refer in essence to the outcome of the domestic criminal proceedings, where the standard of proof necessary to indict was not found to have been satisfied. The Government also did not argue that the applicant’s own conduct had necessitated the use of force in any manner. 31. The Court therefore concludes that the Government have not satisfactorily established that the applicant’s injuries were caused otherwise than – entirely, mainly, or partly – by the treatment he underwent while in police custody (see Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336). 32. Taking into account the applicant’s particular vulnerability while he was in the authorities’ hands, the Court emphasises that, in respect of a person deprived of his liberty, any 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 of the Convention (ibid., §§ 36 and 38, and Bouyid, cited above, § 88). 33. In the instant case the injuries suffered by the applicant show that he underwent ill-treatment which amounted to both inhuman and degrading treatment. Accordingly, there has been a substantive breach of Article 3. 34. The Court moreover 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, 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 (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998‐VIII; regarding the requirements of an effective investigation, see Bouyid, cited above, §§ 118-123). 35. The Court observes that, following the complaint by the applicant’s daughter, the authorities carried out a detailed investigation into the applicant’s allegations, involving several different bodies (see paragraphs 8‐17 above). It is not, however, persuaded that this investigation was sufficiently thorough and effective to meet the above requirements of Article 3. 36. While it is true that the authorities obtained the testimonies of several indirect witnesses as well as ample medical evidence, the Court observes that Officer N., whom the applicant had positively identified, was never actually questioned or confronted face to face with the applicant (see paragraph 17 above). This omission is difficult to reconcile with the authorities’ obligation to adequately investigate such complaints even in the face of an applicant’s uncertainty when shown pictures of officers in a photo line-up. In that context, the Court notes that the Attorney General’s Office did not accept that Officer N. had been unavailable for questioning on account of his ailment. Nevertheless, the Attorney General’s Office went on reasoning to the effect that the officer in question could not be questioned either as a witness, because of the risk of self-incrimination, or as a suspect, in the absence of a well-founded suspicion of a crime (see paragraph 17 above). The Court finds little force in this argument, rather circular in nature, which effectively barred the applicant from access to the only alleged perpetrator of whose identity he felt sure and thus deprived him of any opportunity to challenge the alleged perpetrator’s version of the events (see, mutatis mutandis, Kmetty v. Hungary, no. 57967/00, § 42, 16 December 2003). 37. Against this background, in view of the lack of a thorough and effective investigation into the applicant’s arguable claim, supported by medical evidence, that he had been ill-treated by police officers, the Court finds that there has been a procedural violation of Article 3 of the Convention. 38. 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.”
39. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage. 40. The Government contested that claim. 41. The Court considers that the applicant must have suffered considerable distress on account of the violation found and awards him the full amount claimed. 42. The applicant also claimed EUR 3,150 plus VAT for the costs and expenses incurred before the Court. This amount corresponds to twenty-one hours of legal work billable by his lawyer at an hourly rate of EUR 150, plus VAT. 43. The Government contested that claim. 44. 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 are 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 amount claimed. 45. The Court considers it appropriate that the default interest rate 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,
(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(i) EUR 3,150 (three thousand one 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 26 May 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Ilse Freiwirth Branko LubardaDeputy RegistrarPresident