State bears onus to explain injuries in custody

Gubacsi v Hungary [2011] ECHR 1044 (28 June 2011)

Summary

In this case, the European Court of Human Rights (the Court) confirmed that ill-treatment of persons in custody by police, if sufficiently serious, may amount to inhuman and degrading treatment in breach of article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention). In circumstances where a person enters police custody in good health, and is injured when released, the State bears the onus to provide a plausible explanation of how the injuries were caused.

Facts

Gabor Gubacsi (the applicant), a Hungarian national, was taken into police custody following a car accident in which the applicant was found to be heavily under the influence of alcohol. In order to conduct blood and urine testing, and following an altercation with police, a number of medical examinations were performed and minor injuries were recorded.

Police officers then escorted the applicant to the local custodial unit. Due to his allegedly strange behaviour, the applicant was transferred to a medical centre for drug testing. The applicant stated that during this transfer and while at the custodial unit, he was severely beaten by at least four police officers. While the applicant was not fully able to reconstruct the event due to the influence of alcohol, he was able to identity two of the police officers he said were present during his beating.

Medical evidence conducted within 24 hours of his release recorded that the applicant suffered from a number of contusions and abrasions on his body and a severe injury to his left testicle.

The applicant made a complaint to the relevant Prosecutorial Investigation Office (the Office), who launched an investigation. The Office interviewed the applicant and the police officers involved, held an identification parade and confrontations, and obtained an expert opinion. The Office terminated the investigation, finding that while the injuries sustained by the applicant was caused by ill-treatment, it was not possible to identify the perpetrator. The applicant submitted a complaint against the decision of the Office with the relevant Chief Prosecutor's Office, who rejected the complaint.

The applicant then appealed to the Court, with Hungary as the State respondent.

Decision

After dismissing Hungary's objection to the validity of the application on the basis that domestic remedies had not been exhausted, the Court examined whether:

• the injuries sustained by the applicant at the hands of police; and / or
• the investigation conducted by the Office;
• were in breach of the freedom against torture or inhuman or degrading treatment or punishment contained in Article 3 of the Convention.

Did the ill-treatment of the applicant amount to cruel and inhuman treatment?

The Court found that Hungary had breached article 3 in regards to the injuries sustained by the applicant.

The Court reaffirmed that article 3 enshrines one of the fundamental values of a democratic society and, unlike many other rights and freedoms, no exception or derogation is permissible.  In order to fall within the scope of article 3, the Court stated that:

ill-treatment must attain a minimum level of severity … The assessment of this minimum is relative: it depends on all the circumstances of the case, such as 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.  In respect of a person deprived of his liberty, 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.

The Court noted that the minor injuries sustained by the applicant prior to being transferred to the custodial unit differed greatly from the injuries recorded on the day after his release. These injuries were sufficiently serious to fall within the scope of article 3.

The Court observed that where an individual is taken into police custody in good health but is found to be injured at the time of release, the State bears the onus of providing a plausible explanation of those injuries were caused. On the evidence, Hungary had not proven that the injuries were caused other than by the treatment of the applicant while in police custody. In fact, the Office itself concluded, and Hungary admitted, that ill-treatment might have been inflicted on the applicant by police officers.

On this basis, the Court found that the applicant had been subjected to inhuman and degrading treatment in breach of article 3.

Did the investigation breach Hungary's obligation under Article 3?

The Court found that the investigation by the Office was adequate and did not breach article 3. The Court acknowledged that the major reason the investigation was terminated was because of the "irreconcilable testimonies" given by police, and the inconsistencies in the applicant's account owing to the influence of alcohol and drugs.

The Court awarded the applicant EUR 10,500 plus costs.

Relevance to the Victorian Charter

Section 10 of the Charter provides protection from torture and cruel, inhuman or degrading treatment in much the same terms as the Convention. Bell J in Kracke v Mental Health Review Board & Ors (General) [2009] VCAT 646 stated many of the principles confirmed by the Court in this case.

The case affirms the importance of the protection against torture and cruel, inhuman or degrading treatment in relation to police custody. As a public authority under the Charter, Victoria Police are bound to ensure that treatment of persons in their custody is in accordance with human rights standards.

This is especially important considering the recent focus on police use of force following the various inquiries into the death in custody of Cameron Doomadgee in Queensland, the Victorian Office of Police Integrity's reports into use of force in 2005 and 2009, and the recent coronial inquiry into the fatal shooting by Victoria Police of 15-year-old Tyler Cassidy in 2008.

The decision can be found at: http://www.bailii.org/eu/cases/ECHR/2011/1044.html

Tim Goodwin is a Lawyer with Allens Arthur Robinson