October 14, 2022
The case of P.H. v Slovakia (Application no 37574/19) is at least the eleventh case before the Strasbourg Court in which it is confronted with the mysterious fall of a person from a police station window. It is the seventh case where questions of discrimination arise in connection with the fall and the fourth case concerning the alleged discrimination based on the victim’s Roma origin. It is also one of six judgments against Slovakia in cases involving violence against Roma at the hands of the police. This post examines the judgment in P.H. focusing on questions of evidence, particularly the consequences of its assessment regarding the discrimination claims, since the Court seems to have a long history of reluctance to address these points substantively. (See more generally on this issue in this blog here and here.)
The facts and domestic history of the case
The applicant was 16 years old at the time of the incident, when she was caught red-handed committing petty theft in a shopping mall. Two police officers escorted her to a police station in a car, during which journey the applicant alleges she had been slapped in the face by the officers who also insulted her ethnicity. The applicant’s brother was, for unspecified reasons, also present at the police station, and saw his sister intensely crying upon her arrival. He also heard shouting and cursing from the room his sister was taken to. Later, he witnessed officers running down the stairs and calling out that his sister had jumped out of the window.
According to the police officers, the applicant was cooperative, and the supervising prosecutor had already ordered the applicant to be released when she asked to visit the bathroom. She was escorted there by a male officer, who turned his back towards the bathroom door while she used the toilet. According to the inspection report, there were two doors between the toilet and the corridor, where the officer was waiting and where the window was located, below which the applicant was later found on the ground. The window in question opened by tilting it, leaving an opening of 60×102 cm, 7,7 meters above street level. According to the officer’s first statement, he saw the applicant falling out of the window from the corner of his eye, which he later modified to having discovered her body lying on the ground below only after he entered the bathroom area to check a scraping sound he heard.
The applicant had survived the fall, but was in hospital in a medically induced coma for about a month. She has no recollection of the events at the police station.
Criminal investigations were opened against one or more unknown officers for the offence of frustrating the fulfillment of an official duty’ within the meaning of an internal decree on escorting persons, by failing to prevent an escape attempt. It was only a month and a half later in the investigation that the applicant was interviewed. Her only recollection of the incident was her ride in the police car, during which remembered being slapped and insulted. The police relied on a logbook to show that the applicant did not resist the arrest and therefore no measures had been applied against her during the transport. The prosecutor concluded that criminal prosecution of the officers was not necessary, and suggested treating the failure to prevent the applicant’s fall as a disciplinary offence. He also suggested opening a separate investigation into the ill-treatment of the applicant in the police car.
The applicant’s lawyer made a request to clarify whether the ill-treatment and the applicant’s fall from the window had been related, and she called for interviewing the applicant’s mother and brother. The investigator rejected these requests, because the applicant had witness status in the case, which did not entail the possibility to request additional investigative measures. The proceedings were then terminated based on the following reasons: First, the prosecutor declared the alleged ill-treatment ‘improbable’ among other reasons, because one of the officers in question had previously served as a specialist on Roma-related issues, and it would thus be implausible that he would slap the applicant in plain sight of passers-by (§36). Secondly, the prosecutor also found it unlikely that the applicant would have no recollection of the events of the day of her injuries, save for the ill-treatment in the police car.
The Constitutional Court declared the applicant’s complaints regarding her treatment and the ensuing investigations inadmissible. The Ombudsperson of Slovakia also concluded that no violation of the applicant’s rights could be established.
By relying on Articles 2, 3, 6, 13 and 14 of the Convention the applicant complained that she had been ill-treated by the police, that the state failed to protect her health and well-being while she was in custody, that it failed to conduct an effective investigation into the circumstances of her fall, that she had been denied an effective remedy by the Constitutional Court’s arbitrary rejection of her claims, and lastly, that all of these claims have a discrimination aspect on grounds of her ethnicity and mental disability.[i] At the outset the Court emphasised the necessity to take a holistic view towards the assessment of the applicant’s complaints as regards the potential inter-relatedness of the incident in the police car and the incident at the police station. It decided to examine the claims under Articles 2 and 3.
Under Article 3 the Court noted that the allegations of ill-treatment in the police car had not been supported by any evidence. Furthermore, the fact that the applicant had no recollection of any other details of the day meant that it was impossible to corroborate her claim that the ill-treatment she remembered occurring during her transport could have continued at the police station. The Court also highlighted that the written statements which the applicant’s brother submitted in the proceedings before the Strasbourg Court had not been asserted during the domestic proceedings, and therefore, it could not take them into account. For these reasons the Court rejected the claims relating to the applicant’s ill-treatment and found the allegations insufficiently credible to trigger the procedural (investigative) duties of the state under this provision.
Under Article 2 the Court also conducted a procedural and a substantive analysis. By enumerating the authorities’ procedural omissions, it highlighted the fact that there were two separate investigations regarding the fall from the window and the ill-treatment in the car, the possible connection of which the authorities seemingly deliberately ignored. Furthermore, the Court emphasised the lack of specific investigative efforts to reconstruct the events: the lack of clarification regarding the inconsistency between the officer’s first and second statements, and the lack of exploring any procedural avenues to give victim status to the applicant in the domestic proceedings. These omissions led the Court to the finding of a procedural violation of Article 2. Since the Respondent Government did not contest that the officer who had accompanied the applicant to the bathroom made an omission, and that this omission was contrary to the state’s duty to protect the safety and well-being of persons in custody, the Court found a substantive violation of Article 2 as well.
The brief three paragraphs which the Court dedicated to its rejection of the discrimination claims under Article 14 concluded that since no ill-treatment had been established, there could not have been a discriminatory motive behind it.
The problem with this judgment, as with the Court’s overall case law in anti-Roma police violence cases, is its insistence on the evidentiary standard of proof beyond reasonable doubt and its reluctance to shift the burden of proof from the applicant to the respondent. This context tends to benefit the Respondent Governments over the individual victims, a situation I would like to elaborate on by highlighting three elements from the present judgment.
First, the way in which the Court tends to scrutinize the submissions made by the victim of the human rights violation more strictly than it does with the Respondent, becomes visible in its Article 3 assessment. Particularly in paragraphs 67-69 of the judgment, the Court discusses the evidence it would have liked to see from the applicant to substantiate her claims about being ill-treated during her transport to the police station. It suggests that the applicant should have provided a medical report to support her statement about being slapped in the face. This in my view is quite a cynical suggestion, given the fact that the applicant was unconscious for the month ensuing the incident. The Court also condemns the applicant in her attempt to corroborate her statements by those made by her brother, as in the Court’s view ‘her submissions were blank with no indication as to any content that his deposition would have contained’ (§68). This statement is particularly odd as the summary of the facts of the case contains an extensive paragraph (§17) describing the details of these statements. Moreover, the description of the domestic proceedings repeats the applicant’s attempts to contest any decisions made based solely on the statements by the police officers and neglecting witnesses in support of the applicant’s claims.
Second, the way in which the Court appears to scrutinize the arguments of the Government less strictly than the claims of the applicant is visible in its tendency to agree with elements of the reasoning of the domestic findings regarding the officers’ duty to protect the applicant’s well-being while in police custody. Particularly under the substantive limb of Article 2, the Court went with the Government’s submission that the applicant’s fall from the window had been ‘inexplicable’ (§91), which in my view is particularly dangerous. To me, the finding of the Court in concert with the domestic authorities that an officer erred (to some extent), without any more thorough assessment, is contrary to the Court’s very own statement 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 facts will arise in respect of their injuries and death occurring during that detention’ (§111). What I mean by this is that for the Respondent Government the argument of ‘we take (some) responsibility because we also don’t know what happened’ seems particularly remunerative where the Court will not probe any further. Let me demonstrate by taking this logic even further. If the Court accepts in good faith that such inexplicable things happen, as a young woman, already ordered to be released, trying to escape(!) through a second floor window, the outcome of the case would probably be the same, had the officer personally shoved the applicant out the window. To be perfectly clear, I am not suggesting that the officers might have been actively involved in the fall of the applicant, nor am I suggesting that the Court is ignorant of all the circumstances. I do think, however, that there is a significant imbalance in this case between how the Court treats evidence and submissions from the state as opposed to those from the applicant. To give another example, the Court similarly easily accepts the Government’s argument that there was no way the authorities should have been aware of the applicant’s mental disability (which she should also have proved by way of a written diagnosis – at the time of her apprehension). These examples of evidentiary practices that benefit the Respondent Government over the victim of alleged human rights violations are concerning. This is all the more so, in light of the fact that the Court also shied away from examining the applicant’s complaints regarding the independence of the investigations in this judgment. This aspect was specifically highlighted as questionable by the European Roma Rights Centre , given the endemic institutionally embedded antigypsyism in Slovakia.
Finally, the Court dismissed the applicant’s discrimination claims altogether. This decision was based on its inability to establish a violation of Article 3, due to its own evidentiary requirements one might add. This approach also shows a certain insensitivity from the Court to the very impossibility of the situation which victims of violence and discrimination face when bringing their case to the Court. Given that there is virtually no way the applicant could have been able to provide any evidence of what had happened to her during the time she was alone in a police car with two officers, it is almost as if the Court consciously avoided reflecting on this catch-22 situation.
I will close with the Court’s own words, which come from the reasoning under the procedural limb of Article 2 and regard the Court’s opinion on the effectiveness of the disciplinary sanction of the police officer in the present case. However, I firmly believe that this opinion is verbatim applicable to the Court’s overall approach to the repeated cases concerning Roma persons being abused by state agents. This approach shows a firm reluctance of the Court to recognize a pattern of systemic discrimination and institutional antigypsyism. Instead, the cases are treated as one-off unfortunate incidents, sufficient to be dealt with under different provisions of the Convention than its anti-discrimination clause, if at all. ‘Responding to the incident[s] in this way creates the impression of seeking to give it administrative closure rather than genuinely attempting to establish the facts and draw consequences.’
* I realize that this title may be perceived as insensitive or offensive in view of the subject matter of the case. I apologize to anyone who might feel offended by it. I do believe, however, that calling out the painful parallel between the facts of the case and the idiomatic meaning of blatantly disregarding something contributes to making a sufficiently strong point.
[i] It is beyond the scope of this post to go into the details of this element of the case. Let me instead point the reader to Zsófia Bajnay’s recent post about the same case summarizing the third party intervention submitted by Validity.
NB that Bouyid v. Belgium was reversed by the Grand Chamber in 2015 – thus holding that a slap in police custody can reach the art.3 threshold.
Note from the editors: Thank you for your feedback, the relevant passage has been deleted.
Firstly, many thanks for writing this review.
Secondly, I have learnt one valuable lesson from my former mentor in Law: “Never apologise if you didn’t do anything wrong”. The title is strongly put and is as cynical as some of the Court’s views. It is a great title, it is the title you chose, stick to it and do not apologise for any possible (and very unlikely) harm this will cause.
Keep up the valuable work and I am looking forward to learning more about the current case-law of the Court.
What an excellent post on this highly disturbing judgment, which I have ended up ‘dissecting’ further here: https://dissect.ugent.be/the-escape-of-the-state-no-shift-in-the-burden-of-the-proof-and-no-anti-roma-discrimination-by-the-police-in-p-h-v-slovakia/
In my commentary highlight the absurdity of the attempted escape scenario presented by the state, the reasons why the Court should have shifted the burden of proof onto the state, and the illogical and vacuous character of its finding of violation of the substantive limb of Article 2 – no doubt linked to its continued resistance at acknowledging the discriminatory element which it is difficult not to believe sat at the core of the case.