CASE OF BOUYID v. BELGIUM
(Application no. 23380/09)
21 November 2013
28/09/2015
This judgment may be subject to editorial revision.
In the case of Bouyid v. Belgium,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Mark Villiger, President,
Ann Power-Forde,
Ganna Yudkivska,
André Potocki,
Paul Lemmens,
Helena Jäderblom,
Aleš Pejchal, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 22 October 2013,
Delivers the following judgment, which was adopted on that date:
1The case originated in an application (no. 23380/09) against the Kingdom of Belgium lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Belgian nationals, Mr Saïd Bouyid (“the first applicant”) and Mr Mohamed Bouyid (“the second applicant”), on 28 April 2009.
2The applicants were represented by Mr Z. Chihaoui and Mr C. Marchand, lawyers practising in Brussels. The Belgian Government (“the Government”) were represented by their Agent, Mr M. Tysebaert, Senior Adviser, Federal Justice Department.
3The applicants were born in 1986 and 1979, respectively, and live in the municipality of Saint-Josse-ten-Noode, which is part of the district of Bruxelles-Capitale.
4The applicants are brothers and live with their parents, brother and two sisters next to the local police station of Saint-Josse-ten-Noode. They both complained that they had been slapped on the face by police officers – an allegation which is disputed by the Government –, one on 8 December 2003, the other on 23 February 2004, and pointed out that the events had taken place in the context of tense relations between their family and certain officers in the police station.
1The events of 8 December 2003
5The applicants indicated that on 8 December 2003, around 4 p.m., the first applicant was standing with a friend in the street outside the door of the building where he lived with his family, and, having forgotten his keys, he was 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 had 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 on the face as he was protesting about his arrest.
The applicants produced a certificate issued on the same day at 7.20 p.m. by a general practitioner, who observed that the first applicant was “in a state of shock” and presented the following injuries: “erythema on the left cheek (disappearing)” and “erythema on the left-side external auditory canal”.
6The Government observed 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 the purposes of identification. The first applicant had then caused a scene, claiming that he was the victim of an injustice and an unlawful identity check, and had insulted an officer who was telling him to calm down. He had been authorised 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.
2The events of 23 February 2004
7The applicants indicated that, on 23 February 2004 at around 10 a.m., while the second applicant was at the police station of Saint-Josse-ten-Noode 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 on the face after asking him not to lean on a desk. He had then forced him to sign the statement by threatening to put him in a cell.
The applicants produced a medical certificate issued on the same day by a general practitioner, who observed “bruising [on the] left cheek” of the second applicant.
8The 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 reason and giving pithy answers to questions. He had 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 of the second applicant, who was clearly intent on conflict, P.P. had remained calm and patient.
9In the applicants’ submission, their family had been harassed by the Saint-Josse-ten-Noode police force. They stated that the problems had begun in 1999, when one of the officers had suspected their brother N. of deliberately scratching his car. N. had subsequently been accused of threatening the same officer and of committing robberies, charges on which he had been acquitted by the Brussels Youth Court on 21 April 2000. According to the applicants, the case against him had been entirely fabricated by members of the Saint-Josse-ten-Noode police by way of reprisal.
10They added that, on 24 June 1999, the first applicant, then aged 13, had been “beaten” by another police officer in the police station, where he had been taken following a fight in the street. He had sustained a perforated eardrum. His mother and one of his sisters, who had been in the waiting room, had been shaken and molested by police officers.
11On 25 November 1999 one of their sisters had been verbally aggressed by a police officer of the Saint-Josse-ten-Noode force and, on 11 March 2000, their brother N. had been searched, jostled and verbally aggressed by police officers.
12They further stated that in 2000, a “case” “initiated by the Saint-Josse-ten-Noode police force had been opened against N. and entrusted to an investigating judge”, but the proceedings had been discontinued. In the same year the second applicant had been “wanted for questioning” and even though the Saint-Josse-ten-Noode police had announced on 23 July 2002 that he was being taken off the relevant list, he had still had to take many steps at the level of the Crown Prosecutor and wait until March 2005 for the process to be completed, thus causing him much inconvenience.
13On 6 April 2001 and 12 July 2001, respectively, their brother N. and the second applicant had been verbally aggressed by members of the Saint-Josse-ten-Noode police.
14The applicants explained that they had systematically reported to the judicial authorities or police any incidents of which they were victims, and had filed complaints.
C. Complaints concerning the events of 8 December 2003 and 23 February 2004, civil-party intervention, judicial investigation and decision to discontinue proceedings
15On 9 December 2003 the first applicant filed a complaint with the standing committee for the oversight of police services (or “Committee P”) and was interviewed by a member of the investigation department.
The second applicant followed suit on 23 February 2004. He indicated in particular that he considered that the “general attitude of the Saint-Josse police vis-à-vis [his] family [had become] absolutely intolerable and excessive to the point [where they had envisaged] moving house”. Testimony was also taken from the applicants’ mother by the investigation department of Committee P in relation to the second applicant’s complaints; she also filed a complaint, indicating, moreover, that she herself had been treated with scant respect by officer P.P.
16On 5 May 2004 officer P.P. was interviewed by the director of internal oversight of the local police force in relation to the complaints by the second applicant and his mother. P.P. stated in particular that the second applicant had been particularly disrespectful towards him during his interview and that, whilst he had grabbed the youth by the arm to make him leave the office, he had not slapped him on the face.
17On 17 June 2004 the applicants applied to intervene as civil parties in respect of charges of harassment, arbitrary interference with fundamental freedoms, abuse of authority, arbitrary arrest and wounding with intent. They gave an overview of all their difficulties with the Saint-Josse-ten-Noode police, and expressly stated that they wished to intervene as civil parties in relation to the events of 8 December 2003 and 23 February 2004.
18Officers A.Z. and P.P. were charged with using violence, in the course of their duties, against individuals and, in particular, with intentional wounding or assault, and for engaging in arbitrary acts in breach of the rights and freedoms guaranteed by the Constitution.
19On 26 June 2004 an investigating judge of the Brussels Court of First Instance gave directions to the investigation department of Committee P asking it to take note of the applicants’ civil-party intervention, to interview them in order to ascertain the details of their complaint, to draft a report on the conduct of the Bouyid family, to draw up a list of the cases brought against them and complaints filed by them and to explain what action was being taken in that connection.
20Having regard to the fact that it had already taken testimony from the applicants when they had filed their respective complaints (see paragraph 15), the investigation department of Committee P decided not to interview them again. It addressed a report on 26 July 2004 to the investigating judge, based on the documents from the internal oversight department of the police area covering Saint-Josse-ten-Noode, describing the development of the relations between the applicants’ family and the local police force. The report then listed the cases against the family, noting in this connection that the first applicant had been implicated in proceedings opened in December 2003 for abusive and threatening behaviour and for obstructing a police officer, and N. in seven sets of proceedings opened between October 1997 and June 1999. It then noted that, in addition to the applicants’ complaints at issue in the present case, three judicial complaints had been filed by members of their family (two with Committee P, in June 1999 and July 2001, and one with the “Youth Division” in 1999) and two complaints had been dealt with by the internal oversight department of the police area covering Saint-Josse-ten-Noode. Lastly, citing a report drawn up in the context of a case against the first applicant and the findings of administrative inquiries, it noted the problematic nature of the relations between the local police and the Bouyid family and commented on the “general behaviour” of the latter, observing as follows:
“In sum, and according to the police officers, the Bouyid family (especially the women and the mother in particular) apparently refuse to admit any implication of the children and family in the context of the abusive conduct in question. They are thus confronted in respect of their behaviour by this protective attitude. More generally, the family members allegedly behave aggressively and provocatively towards the police.
Following the incidents involving police officer [B.], a dialogue facilitator apparently failed in an attempt at reconciliation, owing to an intransigent attitude on the part of the women in the Bouyid family.
In 1999 and 2000 the situation required the appointment of a police cadet as a mediator for this family.”
21On 3 August 2004 the investigating judge decided to close the investigation and to send the file to the prosecution.
22On 16 November 2004 officer A.Z. was interviewed by a member of the investigation department of Committee P about the events of 8 December 2003. He stated in particular that he had not previously known the first applicant before he saw him at the door of a building in circumstances that appeared suspicious.
23In an application of 10 November 2005 the Crown Prosecutor called for the discontinuance of the case on the ground that “the judicial investigation [had] not established that the facts constituted a serious or petty offence and [had] not adduced any evidence that would justify the taking of further measures”.
24The applicants were informed that the case file would be finalised before the Committals Division of the Brussels Court of First Instance on 2 March 2006. On 1 March 2006 they sent an application to the investigating judge seeking twenty additional investigative measures. That request resulted in the adjournment sine die of the case before the Committals Division.
25On 7 March 2006 the investigating judge ordered two of the requested measures and rejected the remainder of the request on the ground that it concerned facts that pre-dated the events referred to him and that the measures sought were not necessary for the manifestation of the truth. Consequently, recapitulating all their complaints against the Saint-Josse-ten-Noode police force, the applicants and other members of their family sent the investigating judge a request for an “extension of civil-party status”, but it was rejected. The two additional measures were performed on 25 April, 15 May and 24 May 2006.
26In a decision of 27 November 2007 the Committals Division, endorsing the grounds submitted and maintained by the Crown Prosecutor, discontinued the proceedings.
27The applicants appealed against that decision.
28In an application of 3 December 2007 the prosecution requested that the discontinuance decision be upheld.
29On 5 February 2008 the applicants and other members of their family filed a complaint as civil parties in respect of all the facts that the investigating judge had considered not to have been referred to him (see paragraph 32 below).
30On 9 April 2008 the Indictments Division of the Brussels Court of Appeal, after refusing to join the case concerning the events of 8 November 2003 and 23 February 2004 to the new case that had been opened after the civil-party complaint of 5 February 2008, upheld the discontinuance decision in a judgment that read as follows:
“...
The facts of the case can be summarised as follows:
Both the police’s internal oversight department for the police area [concerned] and the investigation department of Committee P conducted an in-depth investigation into the facts complained of by the civil parties.
It transpires from all the findings of the judicial investigation, and in particular from the diverging statements of the parties implicated, that there is no evidence against the defendants such as to justify their committal on the charges listed in the submissions of the Principal Crown Prosecutor, in respect of the period in which the offences were said to have been committed.
The statements of the defendants, who deny the charges, are coherent; it is appropriate in this connection to refer to the detailed report concerning the general conduct of the civil parties’ family drafted by Committee P, which sheds light on the general context of the case.
The civil parties have not adduced before the court, sitting as the Indictments Division, any new, relevant and convincing indications not previously brought to the attention of the court below and capable of revealing the slightest evidence against the defendants that might justify their committal for trial.
Moreover, the judicial investigation did not bring to light sufficient evidence to show that a criminal offence had been committed by the defendants at the time of the incidents in which they were allegedly implicated.
In addition, it does not appear from the case file that the provisions of section 37 of the Law of 5 August 1992 on the duties of the police have not been complied with.
As emphasised by the submissions of both the Crown Prosecutor on 10 November 2005 and those of the Principal Crown Prosecutor, and by the decision of the Committals Division, the facts of the present case do not constitute a serious or petty criminal offence.
...”
31An appeal on points of law lodged by the applicants – in particular under Articles 3, 6 and 13 of the Convention – was dismissed on 29 October 2008 by the Court of Cassation.
The Court of Cassation found that, in taking the view that the complaint in the case that had been submitted to the Indictments Division concerned only the events of 8 December 2003 and 23 February 2004, that Division had not failed to interpret the civil-party complaint in a manner that was compatible with its terms. It further took the view that the legislature had left it to the conscience of the members of the courts reviewing the investigation to decide whether or not the evidence gathered by the investigating judge was sufficient. It followed that, where the civil parties’ pleadings challenged or alleged the existence in fact of sufficient evidence, the reviewing court would reply by the mere finding that such evidence did or did not exist.
32On 5 February 2008 six members of the Bouyid family, including the two applicants, had filed a civil-party complaint with an investigating judge of the Brussels Court of First Instance concerning all their accusations against the Saint-Josse-ten-Noode police officers, in particular relating to facts that pre-dated the events of 8 December 2003 and 23 February 2004 (see paragraphs 9 to 13 above).
That civil-party complaint led to the appearance of six officers before the Brussels Court of First Instance, hearing the case on the merits. In a judgment of 30 May 2012 the court declared that the prosecution of the relevant offences was time-barred. It does not appear from the file that an appeal was lodged against that judgment.
33The applicants alleged that police officers had slapped them on the face while they were in the Saint-Josse-ten-Noode police station. They argued that they were victims of degrading treatment. They further complained about the investigation into their complaints, describing it as ineffective, incomplete and biased, and criticised its duration. They relied on Article 3, Article 6 § 1 and Article 13 of the Convention.
The Court, being master of the characterisation to be given in law to the facts of the case, finds that these complaints cover the same ground and thus finds it appropriate to examine the applicants’ allegations solely under Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
1The Government
34The Government asked the Court to find this part of the application manifestly ill-founded. They first argued that it was not proven that the applicants had been slapped on the face by police officers. They conceded that, whilst it was clear from the Court’s case-law that an individual claiming to be a victim of treatment in breach of that provision was required in principle to prove the existence of such treatment beyond reasonable doubt, it was also clear that where a person was injured while in the hands of the police, such injury would give rise to strong presumptions of fact in respect thereof; it was then for the respondent Government to provide a plausible explanation as to how the injuries had been caused and to adduce evidence that cast doubt on the allegations in question. They took the view, however, that where the judicial authorities were confronted with such a situation they had to reconcile this principle with the presumption of innocence enjoyed by the accused officers. In the present case, there was nothing to prove that the injuries established by the medical certificates produced by the applicants had been caused by a slap on the face by police officers. The Government observed in particular that the police officers concerned had always denied behaving in such manner and that the findings of the investigation had not called their position into question. In their view, the applicants had filed a complaint with the aim of discrediting the officers; in support of this view they indicated that – as noted in the social inquiry report of Committee P’s investigation department – the members of the Bouyid family had filed a number of complaints against the Saint-Josse-ten-Noode police, and that those complaints had always been situated in a context of confrontation between them.
35The Government added that, even supposing that there had been slaps on the face, it was necessary to take account of the context of tension between the town’s police force and the members of the applicants’ family, resulting from the abusive and provocative behaviour of the latter. Moreover, observing that the medical certificates produced by the applicants had mentioned erythema for one and bruising for the other, and that the applicants had not needed psychological or medical treatment and had not been prescribed sick leave, they suggested that the alleged treatment had not reached the threshold of severity required for Article 3 to be engaged.
36Lastly, they were of the view that the investigation conducted in response to the applicants’ complaints had met the requirements of that provision.
2The applicants
37The applicants similarly referred to the Court’s case-law to the effect that, where an individual was deprived of liberty, any recourse to physical force which had not been made strictly necessary by the person’s own conduct diminished human dignity and constituted in principle a violation of Article 3, and that any injuries occurring in that context gave rise to strong presumptions of fact, such that it was for the respondent Government to provide a plausible explanation as to the cause of such injuries. They referred in particular to the judgments in Salman v. Turkey ([GC] no. 21986/93, ECHR 2000‑VII), Esen v. Turkey (no. 29484/95, 22 July 2003), Rivas v. France (no. 59584/00, 1 April 2004), Toteva v. Bulgaria (no. 42027/98, 19 May 2004) and Aydın and Yunus v. Turkey (nos. 32572/96 and 33366/96, 22 June 2004). Pointing out that those principles applied to their case, as they had produced medical certificates to show that they had been found to have injuries after being within the control of the police, they argued that the Government had not adduced any evidence capable of rebutting the presumption. In their view, such evidence should have emanated in particular from an “effective investigation”. However, the investigation conducted in the present case could not be described as such, especially as the investigators had failed to organise a confrontation between the applicants and the accused police officers, as no fresh medical examination had been ordered, as their request for additional measures had been almost completely rejected even though the measures in question had been necessary to establish the truth, and as the judicial investigation had been closed before the investigating judge had received a statement which he had previously ordered for inclusion in the case file. They further pointed to the fact that, in its report on a visit to Belgium from 18 to 27 April 2005, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment had indicated that the risk of a person being ill-treated by the police while in custody could not be ruled out. Moreover, the social inquiry report drawn up by the investigation department of Committee P, which was based on the police reports emanating from the Saint-Josse-ten-Noode police force and was biased against the applicants, had not helped in any way to explain the cause of their injuries. As to the question of respect for the presumption of innocence enjoyed by the officers in question, it was devoid of pertinence in that connection. The applicants concluded that, as the Government had failed to rebut the presumption that they had been slapped on the face by police officers, it was proven that the slaps had indeed been inflicted on them.
38The applicants further observed that the events had taken place in a context of tension between the members of their family and the Saint-Josse-ten-Noode police, but that the investigation had not enabled that context to be established in a neutral manner.
39As regards the assessment of the slaps under Article 3, the applicants stated that this use of physical force against them did not meet any need. They added that the threshold of severity under Article 3 had been attained since it was shown by the medical certificates they had submitted that the slaps in question had been strong enough to cause bruising and, in addition, one of them had been a minor, and that they had felt humiliated by this physical duress. They emphasised that it was not acceptable for police officers to act violently towards individuals within their control, even in the event of insolent behaviour on the part of the latter.
40Lastly, for the reasons indicated above, they reiterated that they had not had the benefit of an effective investigation.
41Accordingly they maintained their conclusion that there had been a violation of Article 3 under both its substantive and its procedural head.
1Admissibility
42The Court finds that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
43The Court reiterates that allegations of ill-treatment in breach of Article 3 must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt” but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see, among other authorities, Ireland v. the United Kingdom, 18 January 1978, § 161 in fine, Series A no. 25; Labita v. Italy [GC], no. 26772/95, § 121, ECHR 2000‑IV; and Creanğa v. Romania [GC], no. 29226/03, § 88, 23 February 2012).
44On that last point the Court has held 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. It is then for the Government to provide a satisfactory and convincing explanation (see, for example, Salman, cited above, § 100), by producing evidence establishing facts which cast doubt on the account of events given by the victim (see Rivas, cited above, § 38, and, among other authorities, Turan Çakır v. Belgium, no. 44256/06, § 54, 10 March 2009, and Mete and Others v. Turkey, no. 294/08, § 112, 4 October 2012). The Court finds that the same principle holds true in the context of an identity check in a police station or, as in the present case, a mere interview on such premises.
45Treatment is considered to be “degrading” when it humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance (see, among other authorities, M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 220, ECHR 2011, with reference to Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000-XI, and Pretty v. the United Kingdom, no. 2346/02, § 52, ECHR 2002-III).
46In 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 (see, among other authorities, Ribitsch v. Austria, 4 December 1995, § 38, Series A no. 336; Mete and Others, cited above, § 106; and El Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 207, ECHR 2012).
47However, in order for ill-treatment to fall within the scope of Article 3 it must attain a minimum level of severity. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom, cited above, § 162, and Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006-IX). Further factors include the purpose for which the treatment was inflicted together with the intention or motivation behind it (see, for example, El-Masri, cited above, § 196).
48Accordingly, some forms of violence, although they may be condemned on moral grounds and also in most cases – but not always (see Campbell and Cosans v. the United Kingdom, 25 February 1982, § 30, Series A no. 48, and Costello-Roberts v. the United Kingdom, 25 March 1993, § 32, Series A no. 247-C) – under the domestic law of the Contracting States, will not fall within Article 3 of the Convention (see Ireland v. the United Kingdom, cited above, § 167; see also paragraph 181 of that judgment).
49In the present case, the applicants alleged that they had each been slapped on the face while they were in the Saint-Josse-ten-Noode police station. They produced medical certificates in support of their version of events. The Government, for their part, took the view that it could not be seen from the case file that their injuries had been the consequence of a slap inflicted on one or the other by a police officer. In particular, the medical certificates did not show that the injuries recorded had been caused by such slaps. The Government further argued that the police officers concerned had always vehemently denied acting in such a way. The Court, however, finds it pointless to rule on the veracity or otherwise of the applicants’ allegations. It takes the view that, even supposing that they were proven, the acts complained of by the applicants would not constitute, in the circumstances of the case, treatment in breach of Article 3 of the Convention.
50The Court would first point out that police officers who strike individuals while questioning them are at the very least committing a breach of ethics and acting in a manner that is deplorably unprofessional. It agrees with the recommendation of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment following its visit to Belgium in 2005: faced with the risk of ill-treatment of persons in custody, the competent authorities are required to be vigilant about this issue, particularly where minors are concerned (report to Belgian Government, CPT/Inf (2006) 15, § 11).
51In the present case, however, even supposing that the slapping took place, in both cases it was an isolated slap inflicted thoughtlessly by a police officer who was exasperated by the applicants’ disrespectful or provocative conduct, without seeking to make them confess. Moreover, there was apparently an atmosphere of tension between the members of the applicants’ family and police officers in their neighbourhood. In those circumstances, even though one of the applicants was only 17 at the time and whilst it is comprehensible that, if the events really took place as the applicants described, they must have felt deep resentment, the Court cannot ignore the fact that these were one-off occurrences in a situation of nervous tension and without any serious or long-term effect. It takes the view that acts of this type, though unacceptable, cannot be regarded as generating a sufficient degree of humiliation or debasement for a breach of Article 3 of the Convention to be established. In other words, in any event, the above-mentioned threshold of severity has not been reached in the present case, such that no question of a violation of that provision, under either its substantive or its procedural head, arises.
52The Court thus concludes that in the circumstances of the case there has been no violation of Article 3 of the Convention.
53The applicants complained that there had been a violation of their right to a fair hearing because the case had been discontinued before trial. They relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ...”
54The Court finds that this complaint amounts to an assertion that a victim of an offence has a right to have third parties prosecuted or sentenced. Article 6 § 1 does not, however, guarantee such a right (see Perez v. France [GC], no. 47287/99, § 70, ECHR 2004‑I).
55It follows that this part of the application is incompatible ratione materiae with the Convention and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1Declares the application admissible in respect of the complaint under Article 3 of the Convention and the remainder inadmissible;
2Holds that there has been no violation of Article 3 of the Convention.
Done in French, and notified in writing on 21 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Mark Villiger Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Power-Forde is annexed to the present judgment.
M.V.
J.S.P.
It was with some hesitation and doubt that I voted with the majority in this case. Ultimately, however, I can acknowledge that not every slap will reach the threshold required for a violation of Article 3 to be found. The context, the characters and the circumstances are all relevant to the assessment that must be made. This case, involving as it does, a slap administered by police officers to juveniles in their custody, comes, by virtue of the specific circumstances, very close to the boundary of conduct prohibited by Article 3.
The facts disclose a history of tension and poor relations between the police authorities and the applicants’ family dating back as far as 1999. That being so, it is odd that the first applicant was stopped when trying to enter his home and was taken to the police station in order to verify his identity. Given the ‘history’, one might have expected that his identity and exact place of residence was already known to the police. The incident might, understandably, have given rise to a degree of frustration and anger on the part of the first applicant.
The applicants claim that whilst in custody, on separate occasions, they were each slapped, once, by police officers. Medical reports, contemporaneous with the periods of their detention, have been produced. These confirm bruising and shock. They corroborate the applicants’ claims. The police have produced no plausible explanation for the injuries – albeit slight – which the applicants sustained whilst in custody.
If it is true that not every slap will meet the required threshold under Article 3, it is also true that the police officers, in this case, crossed a very serious line in striking the applicants, both of whom were juveniles at the relevant time. Whilst I can accept, with some hesitation, that the threshold required under Article 3 has not been met, my concurring vote should not be interpreted as signalling, in any way, that such conduct on the part of the police can ever be accepted or condoned. It cannot. Regardless of the insolence, arrogance or disrespectful ‘attitude’ that some young juveniles may display, they must not be assaulted in custody by police.
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