According to the Court's established case-law, when an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of agents of the State, it is the duty of the national authorities to carry out “an effective official investigation” capable of establishing the facts and identifying and punishing those responsible (see Slimani v. France , no. 57671/00, §§ 30 and 31, ECHR 2004-IX (extracts), and Assenov and Others v. Bulgaria , judgment of 28 October 1998, Reports , § 102). What is more, the procedural requirements of Article 3 go beyond the preliminary investigation stage; the proceedings as a whole, including the trial stage, must meet the requirements of the prohibition enshrined in Article 3. While there is no absolute obligation for all prosecutions to result in conviction or in a particular sentence, the national courts should not under any circumstances be prepared to allow grave attacks on physical and moral integrity to go unpunished (see Öneryıldız v. Turkey [GC], no. 48939/99, § 95 – 96, ECHR 2004-XII), Salman v. Turkey [GC], no. 21986/93, § 104-109, ECHR 2000-VII; and Okkalı v. Turkey , no. 52067/99, § 65, ECHR 2006-... (extracts)). This is essential for maintaining the public's confidence in, and support for, the rule of law and for preventing any appearance of the authorities' tolerance of or collusion in unlawful acts (see, mutatis mutandis, Öneryıldız, cited above, § 96) .
. The Court first notes that the investigation of the applicant's complaint lasted seven months, from January to August 2000. The prosecutor on two occasions quashed decisions to discontinue the investigation, considering that the conduct of the investigation had been flawed by significant procedural shortcomings. In her appeals the applicant complained about certain procedural shortcomings, such as the lack of access to the case file and the lack of an opportunity of confronting the witnesses, namely the staff of the centre. It is true that these were remedied after the decisions of 1 January 2000 and 19 April 2000 had been quashed and the investigation resumed.
Nonetheless, the fact remains that the decision to discontinue the proceedings was ultimately upheld by the court which found, as a matter of domestic law, that there were no grounds on which to hold that a criminal offence had been committed. In this connection, the Court cannot but note that the focus of the investigation was on the justification for depriving the applicant of her liberty and the use of force against her in the centre. Although the applicant challenged the assertion that she had been intoxicated and maintained that nothing in her conduct had justified the decision to deprive her of her liberty, she also complained that she had been brutally manhandled and stripped naked by the staff of the centre in a manner which had humiliated her and infringed her right to respect for her human dignity. For the Court, the procedural obligation under Article 3 must be capable of assessing whether the facts of which complaint is made cross the threshold of treatment prohibited by Article 3. In the Court's view, the authorities investigated her allegations in too narrow a framework, and thus deprived themselves of the possibility of assessing the proportionality of the force applied to the applicant from the standpoint of Article 3 standards, namely the justification for the forced removal of her clothing by two male employees and the use of restraining belts to immobilise her until the morning of 28 December 1999.
The Court therefore considers that the manner in which the case was examined cannot be said to be compatible with the procedural obligations of the State under Article 3 of the Convention.
Accordingly, there has been a violation of that provision under its procedural limb.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
The applicant complained, relying on Article 5 of the Convention, that her detention in the sobering-up centre had been unlawful. At the time of her arrest she had not been intoxicated and had not caused any disturbance of the public order, which under the applicable law had been an essential prerequisite for such detention.
The Court notes that the applicant was deprived of her liberty “in accordance with a procedure prescribed by law”, namely section 40 of the Law on Education in Sobriety and the Fight against Alcoholism (see paragraphs 25-26 above). The domestic authorities clearly confirmed that there was a basis in national law for the applicant's detention, and the reasons given cannot be considered in any way arbitrary.
The Court accordingly finds that the complaint does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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.”
A. Damage
The applicant claimed 50,000 Polish zlotys (PLN) in respect of the non pecuniary damage which she had suffered as a result of the humiliation and shock caused by the brutal treatment to which she had been subjected during her detention.
The Government submitted that the applicant's claim was exorbitant given that she had not been a victim of any violation of her rights guaranteed by the Convention. In any event, they argued that in the circumstances of the case a finding of a violation of the Convention would in itself provide sufficient just satisfaction to the applicant.
The Court is of the view that as a result of the circumstances of the case the applicant must have experienced considerable anguish and distress which cannot be made good by a mere finding of a violation of the Convention. Having regard to the circumstances of the case seen as a whole and deciding on an equitable basis, the Court awards the applicant EUR 7,000 for non pecuniary damage.
B. Costs and expenses
The applicant did not submit any claim for costs incurred in connection with the case.
C. Default interest
The Court considers it appropriate that the default interest 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
Declares unanimously the applicant's complaint regarding the alleged ill treatment and the failure to investigate her allegation admissible, and the remainder of the application inadmissible;
Holds unanimously that there has been a violation of Article 3 of the Convention under its substantive limb;
Holds by five votes to two that there has been a violation of Article 3 of the Convention under its procedural limb;
Holds by six votes to one
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 7,000 (seven thousand euros), plus any tax that may be chargeable, in respect of non pecuniary damage, to be converted into Polish zlotys at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Dismisses unanimously the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 31 March 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint dissenting opinion of Judges Garlicki and David Thór Björgvinsson is annexed to this judgment.
N.B. T.L.E.
JOINT DISSENTING OPINION OF JUDGES GARLICKI AND DAVID THÓR BJÖRGVINSSON
To our regret we cannot share the position of the Chamber as to the inadequacy of the investigation.
As it transpires from paragraph 60 of the Chamber judgment, the finding of a procedural violation was linked to the fact that “the authorities investigated [the applicant's] allegations in too narrow a framework, and they deprived themselves of the possibility of assessing the proportionality of the force applied to the applicant from the standpoint of Article 3standards”.
Thus, there is no reason to blame the authorities for not establishing the basic facts of the case. In consequence, it would be difficult to apply the usual finding that “the investigation was superficial, lacked objectivity and ended in decisions which contained conclusions unsupported by a careful analysis of the facts” (see, for example, Lewandowski and Lewandowska v. Poland, no. 15562/02, § 74, 13 January 2009; see also Dzwonkowski v. Poland, no. 46702/99, § 66, 12 April 2007). It seems that, in the opinion of the Chamber, the violation resulted firstly from the fact that the “human dignity” aspect of the applicant's claim had not been separately assessed and addressed by the authorities and, secondly, from the fact that the investigation did not lead to any criminal charges against the personnel of the sobering-up centre.
We are not convinced that the investigation did not take into account the applicant's claims concerning infringements of her dignity. This aspect of the case was addressed initially in the decision of the regional prosecutor (7 June 2000) quashing the original decision to discontinue the investigation. The prosecutor observed that “any final decision in the case must formally address all the acts reported by the applicant, [hence also] the infringement of her dignity (inter alia, by stripping her naked)”. The district prosecutor, in the decision of 2 August 2000, followed that instruction but concluded, with reference to the applicant's complaint that the officers of the sobering-up centre had behaved in a manner violating her honour and dignity, that account should be taken of the fact that the applicant herself had the right to lodge a private bill of indictment in respect of that claim. Thus, the “human dignity” aspect did not escape the attention of the authorities, even if their conclusion was that all the measures taken in the sobering-up centre had been lawful and that, therefore, there was no ground to proceed with criminal charges.
It is true that the Court's assessment of the facts was different and that we found that the measures applied to the applicant had been disproportionately harsh. But this difference relates to the substantive aspect of the case and led to our finding of a substantive violation of Article 3. It cannot be carried over into the procedural assessment of the case. The domestic authorities could hardly be blamed for applying domestic standards of lawfulness and for concluding that a lawful action cannot lead to a criminal charge. It should not be forgotten that the nature of States' responsibilities under international law differs from that of the criminal liability of individuals. Thus, a violation of the Convention must not necessarily translate in each and every case into criminal proceedings against the person responsible.