EHRM, 28-09-2015, nr. 23380/09

The applicants submitted that on 8 December 2003 at around 4 p.m. the first applicant had been standing with a friend in the street outside the door of the building where he lived with his family, and, since he had forgotten his keys, had been ringing the bell so that his parents would let him in, when a plain-clothes policeman, A.Z., had asked him to present his identity card. The first applicant had refused to comply, asking the officer to show his credentials. The officer had then grabbed him by his jacket — tearing it — and taken him to the police station. The first applicant had been placed in a room and, while he was alone with A.Z., the officer had slapped him in the face as he was protesting about his arrest.

The applicants provided a certificate issued at 7.20 p.m. on the same day by a general practitioner, attesting that the first applicant had been ‘in a state of shock’ and had presented the following injuries: ‘erythema on the left cheek (disappearing)’ and ‘erythema on the left-side external auditory canal’.

The Government submitted that, on account of the first applicant's refusal to show his identity card, officer A.Z. had had no choice but to take him to the police station for identification. The first applicant had then caused a scene, claiming to have suffered an injustice and been subjected to an unlawful identity check, and had insulted an officer who was telling him to calm down. He had been allowed to leave the police station once his identity had been verified and after being informed by A.Z. that a police report would be filed against him for forceful resistance to a public officer, abusive behaviour and verbal threats. He had returned to the police station a few minutes later with his parents, accusing A.Z. of having struck him, but the officer had always denied this.

At 6 p.m. A.Z. had lodged a criminal complaint against the first applicant, alleging forceful resistance to a public officer, abusive behaviour and verbal threats. The record drawn up on that occasion showed that A.Z. had notified his superiors of the events at 5.30 p.m., and also one ‘Superintendent K.’.

The applicants indicated that on 23 February 2004, between 9.44 a.m. and 10.20 a.m. (as shown by the record of the second applicant's questioning), while the second applicant was at the Saint-Josse-ten-Noode police station and officer P.P. was interviewing him about an altercation involving him and his mother together with a third party (and about which the latter had filed a complaint), P.P. had slapped him in the face after asking him not to lean on his desk. He had then forced him to sign his statement by threatening to put him in a cell.

The applicants provided a medical certificate issued on the same day by a general practitioner, who observed ‘bruising [on the] left cheek’ of the second applicant. The certificate did not specify the time at which it had been drawn up, although it must have been before 11.20 a.m., the time at which it was presented to Committee P (see paragraph 25 below).

The Government explained that the second applicant had been very arrogant during his interview: slouching in his chair, leaning casually on P.P.'s desk, laughing without any reason and giving pithy answers to questions. He had also had his statement changed several times, saying that the police were paid to do that, and had threatened the officers on leaving by shouting that they would be hearing from him again. The Government emphasised that, in spite of the attitude shown by the second applicant, who had clearly been intent on conflict, P.P. had remained calm and patient.

As regards the substantive aspect of Article 3, the applicants complained that the Chamber had departed from the principles established by the Grand Chamber. They submitted that the Chamber had omitted to apply the presumptions of causality and severity involved in cases of violence against persons who had been deprived of their liberty or were under the control of the police. In such cases there was a presumption of a causal link between the marks left by blows and their imputability to the police, which could be rebutted by reasonable explanations from the alleged perpetrators. If that was not the case, the second presumption came into play where the victim was deprived of his or her liberty: since the use of physical force inherently infringed human dignity, any such act was presumed to be serious and incompatible with Article 3, although the alleged perpetrator could rebut that presumption by arguing that the use of force had been strictly necessary in the light of the victim's behaviour. The applicants submitted that the Court could only examine the severity of the act ‘on a subsidiary basis’ in determining whether it should be classified as ‘torture’ or ‘inhuman or degrading treatment’.

The applicants stressed that medical certificates drawn up shortly after the material time showed that they had displayed traces of blows on leaving the police station. They inferred from this that the presumption of causality applied and noted that the Government, like the police services at the domestic level, had provided no explanations capable of rebutting that presumption, confining themselves to denying that there had ever been any slaps. Furthermore, the use of force against them had been neither necessary nor proportionate. The applicants pointed out that no traces of blows had been found on the police officers who had slapped them, that they themselves had not put up any active physical resistance, that the police and the Belgian State — having always denied slapping the applicants — were unable to establish that the slaps had been necessary, and that consideration should be given to the context of police violence in Belgium. Moreover, the atmosphere of nervousness and disrespect and the conflict between the neighbourhood police and the Bouyid family were insufficient to establish the need for using force. The first applicant added that the identity check for which he had been stopped by the police had been unjustified, that the reasons for the check were obscure, that his jacket had been ripped during the incident, that he had been much more slightly built than the police officer who had slapped him, that he had been a minor at the material time, that the slap had left him in a state of shock, that his feelings of fear and stress had been increased by the fact that he had already had an eardrum perforated four years previously as a result of a blow inflicted by a police officer, and that he had been faced with the silence and corporatist spirit of the police. The second applicant added that he had been seated, posing no direct threat, when he had been slapped.

The applicants submitted that police violence was a topical issue in Belgium: the press had reported many such cases, and in its 2012 annual report the Standing Committee for Oversight of Police Services (‘Committee P’) had noted an increase in the number of complaints of police violence (468 in 2010 and 576 in 2012). Furthermore, in its report on its visit to Belgium from 18 to 27 April 2005, the CPT had pointed out that ‘the risk of a person being ill-treated by law-enforcement officers while in detention cannot be dismissed’ (20 April 2006, CPT/Inf(2006)15, § 11). Moreover, in its final comments on the third periodic report of Belgium, the United Nations Committee against Torture and Inhuman and Degrading Treatment had noted with concern the persistent allegations of unlawful use of violence by law-enforcement officials and recommended ‘thorough, independent and impartial’ investigations (28 October — 22 November 2013, CAT/C/BEL/CO/3, § 13). The applicants also submitted that four complaints of police violence were posted every week on the website of the observatory on police violence set up by the French-language section of the Belgian Human Rights League (OBSPOL). They also had the impression that police officers systematically filed a complaint as soon as a complaint was filed against them, and that even where cases did come before a court, judgment was deferred more frequently than for the average member of the public. This caused the general public to feel that there was a climate of impunity, and many victims were reluctant to file complaints.

As regards the procedural aspect of Article 3, the applicants submitted that the investigation conducted into their case did not meet the requirements of the Court's case-law.

Firstly, they submitted that the investigation had been principally based on screening of the family's behaviour, drawing on records prepared by the police station at which the officers of whom the applicants had complained were based. The fact that the summary report set out in detail the complaints lodged by members of their family against police officers from this station and stated that no action had been taken on them, yet did not provide any information on the reports drawn up by police officers in respect of members of their family — in most of which cases no file existed or the proceedings had been discontinued — showed that the investigation had been conducted with a view to exonerating the police officers. The applicants further observed that the investigation had shed no light on the circumstances surrounding the police intervention.

Secondly, they argued that there had been serious shortcomings in the investigation: contrary to the investigating judge's instructions, the applicants had at no stage been interviewed by the investigators; the file on the incident involving scratches to the car belonging to an officer from the police station in 1999 had not been included in its entirety in the case file; and the investigating judge had not been informed of the action taken on the various cases opened against members of the Bouyid family (some of the cases mentioned in the summary report did not actually exist or were in fact cases in which they had claimed to be the victims). The applicants pointed out that when they had noted these shortcomings they had applied to the investigating judge for twenty additional investigative measures, of which only two had been accepted: the inclusion of an e-mail in the case file and the interview of a police officer whom the first applicant was alleged to have insulted on 8 December 2003 (moreover, the applicants had not been given access to these pieces of evidence).

Thirdly, the legal provisions on interviewing under-age victims of a criminal offence had not been complied with (they referred to Articles 91 bis and 92 of the Code of Criminal Procedure, which entitled such persons to be accompanied by an adult at their interview with the judicial authority and permitted the interview to be recorded).

Fourthly, the investigating judge could have requested of his own motion that the following further investigative measures be implemented: interviewing the first applicant's friend who had been with him when he had been stopped and questioned; including in the case file the images from the cameras at the entry to and exit from the police station; ordering a second medical opinion; and organising a face-to-face confrontation.

The applicants therefore submitted that it was on the basis of an ineffective investigation conducted with an eye to exonerating the police officers in question that the investigating authorities had decided that the offences had not been made out and that there were no grounds for prosecuting them.

The Government stated that they agreed with the applicants' analysis to the effect that if a person was in police custody at the material time, there was a presumption of a causal link between the traces of injuries and the imputability of the injuries to the police, which presumption could be rebutted by a reasonable explanation. They also accepted that the act in question was presumed to be serious where the person concerned was in custody, in which case the Court accepted de facto that the person's dignity was undermined, although that presumption could be rebutted by proving that the use of force had been strictly necessary in the light of the victim's conduct. The Government stressed that they had never intended to disregard those presumptions, but that they considered it legitimate not to call the police officers' assertions into question if the thorough, exhaustive investigation carried out in the present case disclosed nothing that could reasonably allow those assertions to be contradicted.

The Government took the view that the judicial authorities had to reconcile the presumption of causality with the equally fundamental principle of the presumption of innocence of the State agents implicated: the judicial authorities could not depart from the principle that they should convict an accused person only when certain beyond all reasonable doubt that he had committed acts constituting degrading treatment against the complainant.

The Government emphasised that in the present case, although the applicants had submitted medical certificates attesting to injuries that might be compatible with the events of which they complained, it was only the applicants' statements that suggested that those injuries were the consequence of a slap and that the slaps in question had been inflicted on both applicants by police officers. Furthermore, the officers in question had always vehemently denied having committed such acts, and none of the evidence gathered during the investigation had refuted their statements. The Government also observed that members of the Bouyid family had lodged several other complaints against officers from their local police station, each time against the background of a confrontation with the police after they had been stopped and questioned. They concluded that in view of the behaviour of the Bouyid family, it was conceivable that the applicants' complaints had been intended to cast discredit on the police officers concerned even though no blow had been inflicted. At the hearing the Government mentioned the hypothesis that the applicants had slapped themselves in order to make a case against their municipal police force, with whom they had been having difficulties for many years. In the Government's view the tensions had been so great that such an outcome had not been unimaginable.

There was therefore in the present case ‘more than a reasonable doubt as to the establishment of the alleged facts’.

The Government submitted that the latter statement did not contradict the principle that when an individual was deprived of liberty or dealing with law-enforcement officials, any recourse to physical force that was not made necessary by the person's own conduct diminished human dignity and would in principle constitute a violation of Article 3.

The Government also submitted that the applicants had had access to an effective official investigation which had analysed all the available data in terms of reports, records and testimony. They added, however, that the investigation had not established that the facts alleged by the applicants had actually occurred and had accordingly been unable to identify one or more possible perpetrators.

Lastly, the Government stated that they could not accept that the present case should serve as a standard in the fight against police violence, since the facts were not reasonably established.

This third party noted that in concluding that the severity threshold of Article 3 had not been reached, the Chamber had taken account of the applicants' allegedly disrespectful or provocative conduct, the tense climate which had prevailed between the members of the applicants' family and their local police officers, and the facts that the slaps had not been intended to extract confessions and that they had been isolated acts without any serious or long-term effects. It considered that in the light of the Court's case-law, the first three of these four factors were irrelevant. Although it deemed the fourth factor valid, it submitted that there was one criterion to which cardinal importance must be attached in determining whether the severity threshold had been reached in relation to an act committed against a person deprived of his liberty by the police, namely the fact of the police officers abusing their power vis-à-vis persons who were completely under their control. In such cases the severity threshold should be lowered. With reference to Salman v. Turkey ([GC], no. 21986/93, ECHR 2000-VII), Denis Vasilyev v. Russia (no. 32704/04, 17 December 2009), and Valiulienė v. Lithuania (no. 33234/07, 26 March 2013), the third party pointed out that the Court considered that persons in police custody were in a vulnerable position and that Article 3 imposed a duty on States to protect the physical well-being of persons who were in such a position, and that it took account of the victim's feeling of fear and helplessness in assessing whether the Article 3 threshold had been reached. The third party took the view that the same applied even more so to minors deprived of their liberty, given their particular vulnerability. In this context, a mere slap could have serious psychological repercussions which were incompatible with the requirements of Article 3, especially as such a slap could be taken as a threat of more severe violence in the event of refusal to cooperate, or even as a punishment.

The third party invited the Court to take account of the fact that in its 2006 and 2010 reports on Belgium the CPT had recommended that the Belgian authorities remind ‘police officers … that when making an arrest, the use of force must be kept to what is strictly necessary [, and that] there can never be any justification for striking apprehended persons once they have been brought under control’ (CPT/Inf(2010)24 and CPT/Inf(2006)15).

The third party then pointed out that in Davydov and Others v. Ukraine (nos. 17674/02 and 39081/02, § 268, 1 July 2010), the Court had held that Article 3 required States to train law-enforcement officials in such a way as to give them a high level of competence in their professional conduct, such that no one could be subjected to treatment contrary to that provision.

Lastly, the third party highlighted the fact that the use of violence by the police was not unusual in Belgium. Like the applicants, it referred to the statistics published by Committee P and OBSPOL. It added that the Belgian police force had been involved in several cases of police violence in recent years, and that in some police stations in the Brussels region, flat-hand slapping (in order to leave as few marks as possible) had been found to constitute virtually a routine occurrence.

This third party stressed that international human rights law only allowed the use of physical force by law enforcement officials to the extent that it was necessary and proportionate to a legitimate aim. It referred to Article 10 of the International Covenant on Civil and Political Rights, General Comment no. 20 of the UN Human Rights Committee, the UN Code of Conduct for Law Enforcement Officials, the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, the European Code of Police Ethics (Committee of Ministers, Rec(2001)10) and the European Prison Rules (to which the Court and the CPT referred in their work), as well as the Organization for Security and Co-operation in Europe's Guidebook on Democratic Policing. It derived the following principles from those texts: everyone had the right not to be subjected to torture, cruel, inhuman or degrading treatment or punishment, as the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment specified that these terms should be interpreted so as to extend the widest possible protection against abuses; non-violent means should be attempted first; force should be used only when strictly necessary, and solely for lawful law-enforcement purposes; in their relations with persons in detention, law-enforcement officials should not use force, except when strictly necessary for the maintenance of security and order within the institution, or when personal safety was threatened; no exceptions or excuses should be allowed for unlawful use of force; the use of force was to be always proportionate to lawful objectives; restraint should be exercised in the use of force; damage and injury should be minimised; a range of means for differentiated use of force should be made available; all law-enforcement officials should be trained in the use of the various means for differentiated use of force; and all officers should be trained in the use of non-violent means.

The third party stated that the principle established by the Court to the effect that any recourse to force by a State agent against a person deprived of his liberty which had not been made strictly necessary by that person's conduct diminished human dignity and was in principle an infringement of the right set forth in Article 3 was also enshrined in the case-law of the Inter-American Court of Human Rights (it referred to the Loayza Tamayo v. Peru judgment of 17 September 1997, § 57). Furthermore, the Court had specified that where the absence of such strict necessity had been established, there was no need to assess the severity of the suffering caused in order to find a violation of Article 3 (it referred to Keenan v. the United Kingdom, no. 27229/95, § 113, ECHR 2001-III); where such necessity had been established, all the decisive factors were taken into account, including the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim, as well as his or her particular vulnerability; and detained persons were vulnerable because they were under the absolute control of the police or prison staff. The third party added that in a judgment of 2 June 2010 (no. 543/2010) the Spanish Supreme Court, taking into account this vulnerability, had ruled that a slap administered by a police officer to a detainee had been humiliating and degrading despite the lack of any visible injury. This approach had also been adopted by the previous Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, the CPT and the UN Human Rights Committee.

The third party stressed that child detainees were doubly vulnerable, as pointed out by the UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. With reference to the UN Rules for the Protection of Juveniles Deprived of their Liberty and the work of the UN Committee on the Rights of the Child, the third party added that it was well established that the use of force against children was prohibited save for a very limited number of purposes. That applied to all forms of violence, including non-physical or unintentional violence, whatever their frequency or severity, and even where they were not motivated by intent to harm. Like the CPT in its ninth general report, it condemned in particular the ‘pedagogical use of force’ (especially ‘pedagogical slaps’), which consisted in using force in response to a refusal to cooperate or bad behaviour, while the CPT also noted that police stations were the places where young people ran the greatest risk of deliberate ill-treatment.

Lastly, the third party pointed out that national legal systems reflected international and regional standards. The prohibition of the use of force except where it was strictly necessary was also enshrined in the United Kingdom, Sweden, Australia, Canada and the United States.