Commissioner for Human Rights

The National Mechanism for the Prevention of Torture (NMPT) expresses its deep concern about the manner in which the police apprehended and treated the man suspected of committing the murder of a 10-year-old girl from the village of Mrowiny (Dolnośląskie province).

Facts

According to the recording published by the police from the Dolnośląskie province and to press reports, on 16 June 2019 in the afternoon officers of the police action team apprehended a 22-year-old man suspected of committing a murder. During his apprehension, the man did not show resistance but he was laid on the floor on his stomach and was cuffed using hand and leg cuffs joined with a chain, with his hands on his back. He was then walked out of the building wearing his boxer shorts and a T-shirt, barefoot, with cuffed hands and legs. The police officers who walked him held him using an incapacitating grip which made the detainee walk in a bent position. The detainee, when walked, was all the time accompanied by masked police officers.

The detainee was interrogated by the police. During the interrogation he was sitting on a chair and was still wearing the said hand and leg cuffs joined with a chain, with his hands on his back. He was barefoot, and was wearing his boxer shorts and a T-shirt. A photograph taken during the interrogation was found on one of the social network portals. The man’s face was not covered and the photo was signed “Let everyone see him”. Among the comments placed under the photograph, there were the detainee’s full data and a link to his social network account. The photograph was shared among the portal users many times. There were some comments wishing him death or inciting to lynching him. With regard to those cases, the police started an investigation procedure.

A few hours after his apprehension, the man was escorted to the District Prosecutor’s Office in Świdnica where the charges were stated against him and where he was interrogated as a suspect. The interrogation lasted five hours late at night (from 20.00 p.m. to 1.00 a.m.). The man pleaded guilty.

On 18 June 2019 the District Court in Świdnica ordered the application of a preventive measure in the form of the man’s temporary detention for a period of three months.

The detainee was not provided with legal aid. Throughout the period in which he remained under the supervision of law enforcement agencies, was interrogated and subject to other procedural measures, as well as the court’s session held to decide on his temporary detention, the suspect did not have a defending lawyer, an ex-officio or a hired one.

Assessment of the case by the National Mechanism for the Prevention of Torture

In the opinion of the National Mechanism for the Prevention of Torture, the manner in which the detainee was treated by the law enforcement agencies constituted degrading treatment which is strictly prohibited both by the Constitution (Article 40 thereof) and the applicable international agreements (Article 16 of the UN Convention against Torture and other Cruel, inhuman or degrading treatment or punishment; Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950; and Article 7 of the International Covenant on Civil and Political Rights).

The measures used during the detainee ‘s apprehension and escorting to the place where relevant procedures were conducted were not proportionate to the situation and therefore not justified by any related need. There are doubts even with regard to the very need to use the police action group to apprehend the 22-year-old man who did not act as member of an organized criminal group or armed group. The measures used by the police seem to be disproportionate and intended to make a demonstration, to manifest the state’s power that can be used in relation to an individual. This should not be done in a democratic state ruled by law.

There seem to be no grounds either for using the hand and leg cuffs joined with a chain, and the incapacitating grip. The use of such measures was an additional unjustified difficulty imposed by the police officers. The apprehended man did not show resistance and was not aggressive but he was walked by a large group of officers who were able to properly react in any event of aggression or attempted escape. In the opinion of the NMPT, the detainee could have been escorted without the cuffs. The use of ordinary handcuffs seems a sufficient measure that could have been used for preventing escape, aggression or aggression against himself.

Pursuant to the Act on coercive measures and firearms, the applied measures should be sufficient for achieving the intended purpose and be proportionate to the level of risk, but measures that are the least difficult to bear for the apprehended person should be used (Article 6 (1)).

In this context, the use of hand and leg cuffs joined with a chain during the detainee’s interrogation by the police also raises concern. The detainee was interrogated in a police building and several officers were present. The officers therefore had the opportunity to ensure security and proper conduct of the procedure, without the need to apply such a severe measure as hand and leg cuffs.

The fact that the arrested man was walked out of the building barefoot and not fully dressed, and then was left in the same clothes throughout the duration of the procedures is not acceptable. The situation violated the detainee's dignity and as well as his human rights.

The NMPT is also concerned about the fact that the suspect had no adequate legal aid. The available information does not indicate whether the suspect had a defending lawyer (an ex-officio or a hired one). This may raise doubts as to the proper observance of his right to a defending lawyer. The manner in which the crime was committed (the number of times the victim was punched with a knife) and the prosecutor office’s statement that the suspect may be referred for an examination by psychiatrists may suggest that he may have not been aware of his legal situation and the significance of the statements made by him, and thus should have had an ex-officio defending lawyer assigned to him.

Pursuant to Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings (OJ.L.2016.297.1), suspects and accused persons who lack sufficient resources to pay for the assistance of a lawyer are to have the right to legal aid when the interests of justice so require. Legal aid should be granted to such persons without undue delay and at the latest before questioning of the person concerned by the police, by another law enforcement authority or by a judicial authority, or before the specific investigative or evidence-gathering acts .

A detained person’s contact with his/her defending lawyer, since the time of detention, is also a basic and minimal guarantee of the prevention of torture and other forms of ill-treatment. The risk of the use of torture is the highest at times other than the time immediately following the detention. The judgments made by Polish courts reflect the fact that the use of torture in Poland is still a serious problem.

The NMPT is also concerned with the fact that the suspect’s interrogation at the Prosecutor’s Office was carried out at night. This is not an appropriate time to conduct proceedings and should thus be avoided if it is not justified by the specific circumstances of the case. There existed no procedural obstacles to conducting the interrogation on the following day, in the presence of the suspect’s defending lawyer and after the suspect’s consultation with him/her. The conducting of the interrogation at night when the suspect was physically and emotionally exhausted by the apprehension and the prior police interrogation cannot be considered humane treatment.

The NMPT is also concerned with the fact that the suspect’s photograph was posted on one of the social networking sites, and that comments containing his personal details and incitement to lynching him were posted there. The NMPT believes that those acts will be subject to just and detailed criminal and disciplinary proceedings that will result in the identification of the perpetrator and the imposition of an adequate penalty on him/her.

The NMPT also hopes that the above opinions will be a source of reflection for relevant authorities and will provide a basis for taking systematic measures to eliminate the indicated irregularities and change the attitudes of police officers so as to ensure full respect for human rights. Counteracting torture is a complex process that requires a holistic and systematic approach, educational activities and appropriate legislative framework.

The Optional Protocol to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 18 December 2002 indicates in the preamble that the effective prevention of torture and other cruel, inhuman or degrading treatment or punishment requires education and a combination of various legislative, administrative, judicial and other measures.

The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) underlines that effective prevention of torture and other forms of ill-treatment by police officers requires a change of police culture so as to target it at respecting human rights and reacting to any ill-treatment by other officers. The use of violence against persons apprehended and remaining under the supervision of the police should be perceived as a violation of human rights and an unacceptable lack of professionalism, which affects the image of the entire police service. A change of mindset starts with competitive and rigorous recruitment processes based on strict selection criteria, ensuring that the composition of the police force reflects the diversity of the population.5 In this connection, adequate remuneration of police officers is an important tool to attract the best candidates and retain highly competent staff [see: the 28th General Report of the CPT, CPT/Inf (2019) , articles 69-71; CPT report on the visit to Poland, CPT/Inf (2014) 21, article 24].

The NMPT hopes that a constructive dialogue will be carried out between competent authorities with regard to the prevention of torture and related effective systemic changes.