5.  The applicant was born in 1985 and lives in Gdańsk.
6.  On 9 June 2011 the Gdańsk Appellate Prosecutor’s Office opened an investigation (no. Ap V Ds 27/11) into the kidnapping of J.R. the previous day. The investigation was delegated to the Central Bureau of Investigation of the Police (“the CBI”), Gdańsk branch. The CBI is the unit of the police responsible for preventing and combatting organised crime.
7.  The kidnappers had demanded a ransom of 1,000,000 euros (EUR) from J.R.’s husband. Part of the ransom was paid on 15 June 2011. It appears that the victim was freed on 16 June 2011.
8.  The CBI and the prosecutor obtained evidence relating to the applicant’s phone calls and his connections to the mobile-phone network. On that basis, the police identified a number of possible suspects, including the applicant, among the friends of J.R.’s family and employees of the family company. On 16 June 2011 the prosecutor ordered that the applicant and other suspects be arrested on suspicion of kidnapping. The applicant was arrested on 16 June and released on 18 June 2011 (see paragraphs 11 and 17 below).
9.  In the ensuing investigation, the police arrested the actual kidnappers.
10.  On 20 April 2012 the prosecutor discontinued the investigation against the applicant and other suspects, finding that they had not committed the alleged offence. The prosecutor noted that the evidence available on 16 June 2011 had justified the decision to arrest the applicant and other suspects.
11.  On 16 June 2011 at 7.40 p.m. the applicant was arrested at his friends’ flat in Tczew on suspicion of kidnapping. The arrest was carried out by the anti-terrorist police squad assisted by the CBI officers. The applicant was taken to the CBI headquarters in Gdańsk.
12.  According to the police record dated 16 June 2011, the applicant had the following injuries on admission to the police detention facility in Gdynia: bruising of the left cheek and abrasions on his arms and back.
13.  The following day the prosecutor charged the applicant with kidnapping and questioned him. The applicant and other suspects denied that they had been involved in the kidnapping. DNA tests had not confirmed the applicant’s and the other suspects’ involvement.
14.  According to the record of arrest (protokół zatrzymania), the applicant did not ask for a medical examination. Nonetheless, the CBI arranged for him to have a medical examination at the hospital.
15.  According to a medical certificate issued by the Regional Specialist Hospital in Gdańsk on 17 June 2011, the applicant complained that he had sustained injuries to his head, face and right arm during his arrest. An X-ray examination did not reveal any fractures. The certificate stated that the applicant’s general condition was good and that he could take part in the investigation. The certificate further stated that the applicant was suffering from tenderness of his left temple (tkliwość okolicy skroniowej lewej), swelling of the left side of his face with bruising (obrzęk lewej części twarzy z podbiegnięciami krwawymi), and tenderness of his right arm and wrist. The final diagnosis established bruising on his face and right wrist (stłuczenie twarzy i nadgarstka).
16.  On 17 June 2011 the applicant was also examined in the health centre of the Ministry of Internal Affairs and Administration in Gdańsk. He complained of pain in the left side of his face and the right wrist. An examination established significant swelling in the area of his left eye socket (silny obrzęk w okolicy oczodołu lewego) and minor swelling of the right wrist.
17.  The applicant was released on 18 June 2011 at 10 a.m.
18.  On 27 June 2011 the applicant lodged a criminal complaint against the participating police officers in connection with his arrest. He alleged that he had been ill-treated during his arrest and subsequently in police custody. The applicant attached a copy of the medical examination report of 17 June 2011 and photographs documenting his injuries.
19.  The applicant’s criminal complaint was transferred to the Bydgoszcz Regional Prosecutor’s Office. On 27 July 2011 the Bydgoszcz Regional Prosecutor instituted an investigation into the allegation of abuse of power by the police officers under Article 231 of the Criminal Code.
20.  On the same day the applicant was heard by the prosecutor. He gave the following account: on 16 June 2011 he and his girlfriend had visited their friends, Ł.W. and D.W., in their flat. A sister of D.W.’s was present too. Between 6 and 7 p.m. the applicant had heard explosions. Shortly afterwards, a group of armed and masked police officers had stormed the flat. The applicant and others had followed the police orders to get down on the floor. The applicant had seen one of the police officers hit Ł.W. in the face with a rifle and seen Ł.W. bleeding. The other police officer had kicked the applicant in the face. The applicant had also been hit in the head, back and legs. Later, one of the officers had handcuffed him. The applicant alleged that subsequently an electrical discharge weapon, or Taser (paralizator elektryczny – hereinafter “EDW”) had been used on his back, buttocks, genitals and ears. One of the police officers had pressed the applicant’s face into a pool of Ł.W.’s blood on the floor. When being taken to a police car he was suffocated. In the police car, an EDW was continually used on the applicant’s back until he started suffocating. The applicant was taken to a police station, where he was made to kneel down in front of a wall for half an hour. The police wanted to know where the money was and who he had worked with to kidnap the woman. The applicant was forced to sign a document which he could not read. He was then taken to a police detention facility in Gdynia. After his release, the applicant went to a hospital in Gdańsk for a medical examination. He also saw a surgeon, a neurologist and a psychologist.
21.  The applicant alleged that as a result of his arrest he had sustained bruising to his head and back and sprained thumbs, as well as burns on his back from the EDW.
22.  The prosecutor noted that owing to a technical error it had not been possible to examine the CCTV footage dated 17 June 2011 from the Gdańsk Appellate Prosecutor’s Office, where the applicant had been questioned.
23.  The prosecutor established that on 9 June 2011 the Gdańsk Appellate Prosecutor’s Office had opened an investigation into the kidnapping of J.R., and a ransom demand. On 16 June 2011, having regard to the evidence in his possession, the appellate prosecutor ordered the arrest of a number of suspects, including the applicant and his girlfriend.
24.  The prosecutor heard evidence from other individuals arrested with the applicant. The applicant’s girlfriend stated that police officers in balaclavas and bulletproof vests had forced the door of the apartment. One of the officers had handcuffed her. The applicant’s girlfriend had heard the applicant screaming and had seen blood on the floor of the flat. She had been taken to a police station, where she had been threatened with the EDW. After her release, she had seen the applicant with a swollen face and a black eye; his back was covered with little scabs from the EDW.
25.  Ł.W. testified that, inter alia, the police had forced the door and thrown a stun grenade into the apartment. The police officers had ordered everyone to get down on the floor. Ł.W. stated that the applicant had been kicked and hit by three police officers, and that the EDW had been used on him.
26.  D.W. stated that one of the police officers had hit her husband, Ł.W., in the face with a rifle. Z.M. confirmed this. Ł.W., D.W. and Z.M. were arrested on suspicion of possession of drugs. They were not suspected of involvement in the kidnapping.
27.  The prosecutor ordered a forensic opinion to be prepared. She requested that the forensic expert establish, inter alia, what injuries the applicant had sustained in connection with his arrest. The forensic expert had access to the relevant parts of the prosecutor’s case file and medical documentation.
28.  The forensic opinion was prepared on 26 June 2012. On the basis of the medical documentation, including the police record dated 16 June 2011 and certificates dated 17 June 2011, the forensic opinion established that the applicant had sustained tenderness of his left temple, swelling of the left side of his face with bruising, swelling of the right wrist, and abrasions on his wrists and his back. It further established on the basis of photographs that the applicant had also had bruising on his left arm, the side of his torso and below his navel, and abrasions on his knees.
29.  The forensic expert stated that the bruising could have been caused by the impact of a blunt object or a fall onto such an object. In the applicant’s case, the bruising of the face and torso could have resulted from being kicked; however, being kicked with military‑type boots would be more likely to have caused abrasions or crush wounds. The bruising of the applicant’s left arm could have resulted from having arm locks applied to him while he was being moved. The abrasions on his wrists could have resulted from the use of handcuffs. The expert further stated that the angular abrasions on the applicant’s back could have resulted from the use of an EDW.
30.  The forensic opinion concluded that the applicant’s injuries had resulted in impairment to his health for a period not exceeding seven days.
31.  The prosecutor also heard evidence from the police officers. She established that the arrest had been carried out by a special anti-terrorist police squad composed of eight officers. They had been accompanied outside the flat by seven police officers from the Gdańsk branch of the CBI. The police had considered it necessary to use the special squad because the suspects had been involved in kidnapping, their methods had been brutal, and there was a risk that they possessed dangerous implements. Members of the anti-terrorist squad were equipped with rifles, helmets, and bullet-proof vests, and were wearing balaclavas. The squad had forced the door open and used a stun grenade.
32.  The applicant was arrested by officer R. According to his evidence and those of other officers involved, the applicant had been lying down on the floor with his hands under his body. Officer R. had been sitting on the applicant. The officer had ordered the applicant to lift his arms so he could be handcuffed. However, the applicant had refused to do so and had tried to dislodge the officer. Given the risk that the applicant might have had a firearm and seeing that the applicant had refused to be handcuffed, officer R. had decided to use the EDW on the applicant’s back as the other officer was attempting to handcuff him. Officer R. stated that he did not remember how many times he had discharged the weapon, but he had done so to overcome the applicant’s resistance. He had aimed the weapon at the applicant’s back. Officer R. stated that each discharge had released direct current for a few seconds. This may have been applied to different parts of the applicant’s back. The applicant was then arrested.
33.  Officers of the special squad stated that they did not use any other force.
34.  On 26 July 2012 the Regional Prosecutor discontinued the investigation into the alleged abuse of power by the police officers for lack of sufficient evidence that a criminal offence had been committed.
35.  The prosecutor found that officers of the special squad had explained in detail what had happened during the arrest and the manner in which coercive measures were used. The officers had stated that they had only used measures which had been justified by the situation. They had denied that they had hit, kicked or hit with a rifle any of the arrestees. With regard to the EDW, the prosecutor stated:
“The electroshock weapon was used in accordance with procedure, and only in respect of [the applicant], in the circumstances described by the police officer arresting him and owing to his non-compliance with the orders.”
36.  The prosecutor noted that the arrest of five people (two men and three women) had taken place in a flat, in fact in one room (with four people in it) in a very small space. At least eight people (four arrestees and at least four officers) had been in this room. In connection with the use of a stun grenade in the flat, it could not be ruled out that the arrestees had sustained some unintended injuries.
37.  The prosecutor noted that the applicant had not recorded any objections to the manner of his arrest in the record of arrest, despite the allegedly drastic actions of the police officers. Furthermore, on 11 October 2011 the Gdańsk‑Południe District Court had dismissed the applicant’s appeal against the prosecutor’s decision of 16 June 2011 ordering his arrest. The court had found that, in the light of the evidence available at the material time, the arrest had been justified and carried out lawfully.
38.  In conclusion, the prosecutor accepted that the applicant had sustained the injuries as described in the forensic opinion. Nonetheless, having analysed the totality of the evidence in the case, the prosecutor could not unequivocally establish that the injuries had resulted from the officers’ actions. The prosecutor noted that the arrests had been carried out rapidly, and that the officers’ actions had been aimed at apprehending the suspects swiftly and efficiently. The police officers had presented a consistent version of events. Despite the fact that the version of events presented by the applicant could not be entirely ruled out, the prosecutor, having regard to the principle of in dubio pro reo, decided to discontinue the investigation for lack of sufficient evidence for suspicion that the alleged offence had been committed.
39.  The applicant appealed against the prosecutor’s decision. He alleged that the prosecutor’s assessment of the evidence had been one-sided and aimed at exonerating the police officers.
40.  The applicant submitted that it was undisputed that he had sustained numerous injuries in the course of his arrest. This had been confirmed by the forensic opinion. His injuries could not have resulted from anything but ill-treatment on arrest, specifically from the use of the EDW, blows with a rifle, and kicks. The applicant also underlined that all the arrestees had consistently described brutal behaviour on the part of the police officers. All the arrestees had confirmed that none of them had offered any resistance and that they had all followed police orders.
41.  On 18 March 2013 the Gdańsk-Północ District Court upheld the prosecutor’s decision. It found that the prosecutor had correctly assessed the evidence in the case and had reached proper conclusions. It noted that there was no need to supplement the evidence. The court held that in the light of the collected evidence it was not possible to unequivocally determine that the alleged offence of abuse of power had been committed.
42.  The court noted that the cases and manner of use of coercive measures by the police was regulated in the Ordinance of the Council of Ministers of 17 September 1990 on the Use of Coercive Measures by the Police. Police officers could use these measures in accordance with the rules laid down in section 16(1) and (2) of the Police Act of 6 April 1990.
43.  The court attached importance to the fact that the Gdańsk-Południe District Court had dismissed the applicant’s appeal against his arrest. That court had found that the arrest had been carried out lawfully.
44.  The court noted that the arrestees’ behaviour and the fact that the arrest had concerned a case of kidnapping had determined the nature of the actions taken by the officers. The officers had acted out of surprise and the situation had developed rapidly. Their objective had been to proceed to a quick and effective arrest. Thus, the manner of the carrying out of the arrest had been undoubtedly conditioned by the necessity to execute it effectively.
45.  The court noted that there were two conflicting versions of events. In this context, it found that those conflicting versions did not permit a clear determination of the relevant facts. In addition, other evidence in the case, particularly medical evidence, did not allow such a determination.
46.  Accordingly, the actions of the police officers could not be considered to amount to a criminal offence. It did not appear unequivocally from the case file that the applicant (and other suspects) could have sustained the injuries as alleged by them in the course of their arrest. The medical evidence did not clarify the relevant uncertainties. The court also noted that the applicant and other suspects had not challenged the police officers’ actions in the record of arrest or during their questioning.
47.  Section 16 of the Police Act of 6 April 1990, in the version applicable at the material time, read, in so far as relevant:
“1. If a lawful order given by a police authority or police officer has not been complied with, a police officer may apply the following coercive measures:
1)  physical, technical and chemical means of restraining or escorting persons or of stopping vehicles;
2)  truncheons;
3)  water cannons;
4)  police dogs and horses;
5)  rubber bullets fired from firearms; 2.  Police officers may apply only such coercive measures as correspond to the exigencies of a given situation and are necessary to have their orders obeyed.”
48.  The Ordinance of the Council of Ministers of 17 September 1990 on the Use of Coercive Measures by the Police (Rozporządzenie Rady Ministrów w sprawie określenia przypadków oraz warunków i sposobów użycia przez policjantów środków przymusu bezpośredniego) was issued on the basis of section 16(4) of the Police Act. It was applicable at the material time.
49.  Section 1(1) of the Ordinance stipulated that the police may use coercive measures in accordance with the rules laid out in section 16(1) and (2) of the Police Act. Coercive measures could be used after a person had failed to comply with an order and after a warning had been given (section 1(2)). A police officer could act without giving an order or a warning if a delay would cause danger to life, health or property (section 1(3)). The Ordinance prescribes that a police officer should use coercive measures in a manner which causes as little harm as possible, and should discontinue their use if the person complies with orders (section 2(1)(2).
50.  Section 5 of the Ordinance provides that physical force can be used to overpower a person, to counter an attack, or to ensure compliance with an order. When such force is being used, it is forbidden to strike a person, except in self-defence or to counter an attack against life, health or property.
51.  Section 8 of the Ordinance regulates the use of electrical discharge weapons (paralizator elektryczny). Such a weapon may be used against persons who cause danger to life, health or property and if the use of other coercive measures is impossible or has been rendered ineffective. The EDW may be used specifically, inter alia, in the following situations: in order to overpower a person who is refusing to obey an order to immediately drop a dangerous implement; to counter an attack or to overcome active resistance; to arrest a person suspected of having committed an offence or to prevent the escape of a detainee (section 8(3)). Care should be exercised when using an EDW, having regard to the fact that such a weapon may cause danger to life and health.
52.  In a letter to the Commander in Chief of the Police (Komendant Główny Policji) dated 28 June 2017, the Ombudsman (Rzecznik Praw Obywatelskich) expressed his concerns about the use of EDWs by the police. He recommended that police officers should be obliged to file a detailed report after every use of that weapon. In his annual report for the year 2017, the Ombudsman also addressed the issue of the use of EDWs by the police.
53.  The 20th General Report on the Activities of the Committee for the Prevention of Torture (CPT), dated 26 October 2010, stated, inter alia:
“72.  Electrical discharge weapons [“EDWs”] are increasingly being used when effecting arrests, and there have been well-publicised examples of their misuse in this context (e.g. the repeated administration of electric shocks to persons lying on the ground). Clearly, the resort to EDW in such situations must be strictly circumscribed. The guidance found by the CPT in some countries, to the effect that these weapons may be used when law enforcement officials are facing violence – or a threat of violence – of such a level that they would need to use force to protect themselves or others, is so broad as to leave the door open to a disproportionate response. If EDW gradually become the weapon of choice whenever faced with a recalcitrant attitude at the time of arrest, this could have a profoundly negative effect on the public’s perception of law enforcement officials.
... 77.  EDW should be equipped with devices (generally a memory chip) that can be used for recording various items of information and conducting checks on the use of the weapon (such as the exact time of use; the number, duration and intensity of electrical discharges, etc). The information stored on these chips should be systematically read by the competent authorities at appropriate intervals (at least every three months). Further, the weapons should be provided with built-in laser aiming and video recording devices, making safe aiming possible and enabling the circumstances surrounding their use to be recorded.
... 78.  Electrical discharge weapons issued to law enforcement officials commonly offer different modes of use, in particular a ‘firing’ and a ‘contact’ (drive-stun) mode. In the former, the weapon fires projectiles which attach to the person targeted at a short distance from each other, and an electrical discharge is generated. In the great majority of cases, this discharge provokes generalised muscular contraction which induces temporary paralysis and causes the person concerned to fall to the ground. In contrast, when the ‘contact’ mode is used, electrodes on the end of the weapon produce an electrical arc and when they are brought into contact with the person targeted the electrodes cause very intense, localised pain, with the possibility of burns to the skin. The CPT has strong reservations concerning this latter mode of use. Indeed, properly trained law enforcement officials will have many other control techniques available to them when they are in touching distance of a person who has to be brought under control.
...
Post-incident procedure 82.  Following each use of an EDW, there should be a debriefing of the law enforcement official who had recourse to the weapon. Further, the incident should be the subject of a detailed report to a higher authority. This report should indicate the precise circumstances considered to justify resort to the weapon, the mode of use, as well as all other relevant information (presence of witnesses, whether other weapons were available, medical care given to the person targeted, etc). The technical information registered on the memory chip and the video recording of the use of the EDW should be included in the report. 83.  This internal procedure should be accompanied by an external monitoring element. This could consist of systematically informing, at regular intervals, an independent body responsible for supervising law enforcement agencies of all cases of resort to EDW. 84.  Whenever it transpires that the use of an EDW may not have been in accordance with the relevant laws or regulations, an appropriate investigation (disciplinary and/or criminal) should be set in motion.”
54.  The CPT’s report on the visit to Poland carried out from 11 to 22 May 2017 stated, inter alia:
“22. ... the Committee also recommends that particular attention be paid to reiterating to all police officers instructions regarding the proper conduct as concerns the use of electric discharge weapons (tasers) and to enforcing those rules. In this context, it should be made clear to all police staff that electric discharge weapons may only be used when there is a real and immediate threat to life or risk of serious injury. Recourse to such weapons for the sole purpose of securing compliance with an order is inadmissible.
The CPT considers that the use of electric discharge weapons should be subject to the principles of necessity, subsidiarity, proportionality, advance warning (where feasible) and precaution. Furthermore, recourse to such weapons should only be authorised when other less coercive methods (negotiation and persuasion, manual control techniques, etc.) have failed or are impracticable and where it is the only possible alternative to the use of a method presenting a greater risk of injury or death (e.g. firearms).”