Kancial v. Poland (Application No. 37023/13)

A selection of key paragraph(s) can be found below the document.

78. The applicant also complained of the repeated use of an EDW and beating following his immobilisation in the flat and during his transport to the police station (see paragraph 20 above). In this connection the Court notes that it remains unclear how many times the officers used the EDW, but it appears from the arresting officer R’s testimony that he did so more than once (see paragraph 32 above). The investigation did not elucidate this important fact, beyond the general finding that the weapon had been used in accordance with the procedure. The applicant claimed that the officers had used the EDW repeatedly on different parts of his body. That claim of repeated use appears to be corroborated by the forensic expert’s finding that the angular abrasions on the applicant’s back could have resulted from the use of this kind of weapon. The manner of the use of the EDW and the marks that it left on the applicant’s back would correspond to the use of EDW in “contact” (drive-stun) mode. The CPT noted that this mode of use causes very intense, localised pain, with the possibility of burns to the skin (see paragraph 53 above).

79. In that regard the Court further observes that section 16 of the Police Act, as applicable at the time, allowed only the use of the force necessary to ensure compliance with orders. Furthermore, the relevant Ordinance provided that the police could use force only after giving a warning, unless a delay would cause danger to life, health or property (section 1(2) and (3)). It also stipulated in section 8 that an EDW could be applied if the use of other coercive measures was impossible or had been rendered ineffective (see paragraphs 49-51 above).

80. Having regard to the above, the Court finds that the use of force by the police during the period following the applicant’s immobilisation was not shown to be indispensable by the applicant’s conduct and thus excessive. It further appeared incompatible with the Polish law, which required that its use was reserved for ensuring compliance with police orders.

81. Given the nature of the applicant’s injuries and the associated physical and mental suffering, the Court finds that the treatment in question during the period following the applicant’s immobilisation amounted to inhuman and degrading treatment.

82. Accordingly, there has been a violation of the substantive head of Article 3.