Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 20972/92

Kaj Raninen

against

Finland

REPORT OF THE COMMISSION

(adopted on 24 October 1996)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5-11) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 12-16). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-43) . . . . . . . . . . . . . . . . . . . . .4

A. The particular circumstances of the case

(paras. 17-40). . . . . . . . . . . . . . . . . . .4

B. Relevant domestic law

(paras. 41-43). . . . . . . . . . . . . . . . . . .7

III. OPINION OF THE COMMISSION

(paras. 44-78) . . . . . . . . . . . . . . . . . . . . .8

A. Complaints declared admissible

(para. 44). . . . . . . . . . . . . . . . . . . . .8

B. Points at issue

(para. 45). . . . . . . . . . . . . . . . . . . . .8

C. As regards Articles 3 and 8 of the Convention

(paras. 46-62). . . . . . . . . . . . . . . . . . .8

(i) The allegedly degrading treatment

(paras. 57-59) . . . . . . . . . . . . . . . 10

CONCLUSION

(para. 60). . . . . . . . . . . . . . . . . . . . 11

(ii) The alleged interference with the applicant's

right to respect for his private life

(para. 61) . . . . . . . . . . . . . . . . . 11

CONCLUSION

(para. 62). . . . . . . . . . . . . . . . . . . . 11

TABLE OF CONTENTS

Page

D. As regards Article 5 of the Convention

(paras. 63-74). . . . . . . . . . . . . . . . . . 11

(i) Article 5 para. 1

(paras. 63-69) . . . . . . . . . . . . . . . 11

CONCLUSION

(para. 70). . . . . . . . . . . . . . . . . . . . 12

(ii) Article 5 para. 2

(paras. 71-73) . . . . . . . . . . . . . . . 13

CONCLUSION

(para. 74). . . . . . . . . . . . . . . . . . . . 13

E. Recapitulation

(paras. 75-78). . . . . . . . . . . . . . . . . . 13

PARTIALLY DISSENTING OPINION OF MRS. G.H. THUNE . . . . . . 14

PARTIALLY DISSENTING OPINION OF MM. G. JÖRUNDSSON

and I. CABRAL BARRETO . . . . . . . . . . . . . . . . . . . 16

PARTIALLY DISSENTING OPINION OF MR. N. BRATZA, JOINED BY

MRS. J. LIDDY and MM. H.G. SCHERMERS, J.-C. GEUS,

G. RESS, P. LORENZEN and K. HERNDL . . . . . . . . . . . . 17

APPENDIX I: PARTIAL DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION . . . . 19

APPENDIX II: FINAL DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION . . . . 33

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is a Finnish citizen, born in 1967 and resident

in Helsinki. He was represented before the Commission by

Ms. Marjaana Laine and Mr. Juha Keltti, lawyers of the Union of

Conscientious Objectors ("Aseistakieltäytyjäliitto").

3. The application is directed against Finland. The respondent

Government were represented by their Agent Mr. Holger Rotkirch,

Director-General for Legal Affairs, Ministry for Foreign Affairs, and

by Mr. Arto Kosonen, Co-Agent, of the same Ministry.

4. The case, insofar as declared admissible, concerns the

applicant's handcuffing and the lawfulness of the deprivation of his

liberty. He invokes Articles 3, 5 and 8 of the Convention.

B. The proceedings

5. The application was introduced on 11 November 1992 and registered

on 19 November 1992.

6. On 30 November 1994 the Commission (First Chamber) decided,

pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give

notice of the application to the respondent Government and to invite

the parties to submit written observations on the admissibility and

merits of part of the applicant's complaints under Articles 3, 5, 8,

9, 14 and 17 of the Convention as well as Article 4 of Protocol No. 7.

It declared the remainder of the application inadmissible.

7. The Government's observations were submitted on 14 March 1995

after an extension of the time-limit fixed for this purpose. The

applicant replied on 31 May 1995 after an extension of the time-limit.

On 11 April 1995 the Commission granted the applicant legal aid for the

representation of his case.

8. On 27 February 1996 the case was transferred from the First

Chamber to the Plenary Commission, by decision of the latter.

9. On 7 March 1996 the Commission declared admissible part of the

applicant's complaints under Articles 3, 5 and 8 of the Convention.

It declared inadmissible the remainder of the application.

10. The text of the Commission's decision on admissibility was sent

to the parties on 13 March 1996 and they were invited to submit such

further information or observations on the merits as they wished. The

Government submitted observations on 25 April 1996.

11. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

12. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

Mr. S. TRECHSEL, President

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

M. VILA AMIGÓ

13. The text of this Report was adopted on 24 October 1996 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

14. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

15. The Commission's decisions on the admissibility of the

application are annexed hereto as Appendices I and II.

16. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

17. In 1986 the applicant was called up for military service. On

account of his studies his duty to report for service was nevertheless

suspended until 20 March 1992. Prior to this date he objected in

writing to performing any kind of military or substitute civilian

service.

18. On 7 April 1992 the applicant presented himself at the Army

Headquarters (pääesikunta, huvudstaben), submitting a petition against

military service. This he repeated the next day, following which he was

arrested on suspicion of having evaded service. He was eventually

brought to the Pori Brigade (Porin Prikaati) at Säkylä. On his renewed

objection to carrying out any military duties his arrest was prolonged

on 9 April.

19. On 11 April 1992 the District Court (kihlakunnanoikeus,

häradsrätten) of Eura ordered the applicant's detention on remand in

the County Prison of Turku. On 24 April he was convicted of evasion

from military service from 20 March to 8 April and of an offence in

service (i.e. his refusal on 9 April). He was given a suspended

sentence.

20. Immediately upon his release from the County Prison on the same

day military staff brought him back to the Pori Brigade, where he again

objected to carrying out any military duties and was again arrested.

On 28 April 1992 the District Court again ordered his detention on

remand in the County Prison. On 12 May it convicted him of a further

offence in service and sentenced him to imprisonment. The sentence was

to be served later.

21. Immediately upon his release from the County Prison on the same

day the applicant was again accompanied by military staff back to the

Pori Brigade, where he again objected to carrying out any military

duties and was again arrested.

22. On 15 May 1992 the District Court again ordered the applicant's

detention on remand in the County Prison. On 29 May it convicted him

of a further offence in service and sentenced him to imprisonment. The

sentence was to be served later.

23. Immediately upon his release from the County Prison on the same

day the applicant was returned by military police to the Pori Brigade.

Having been questioned there, he again objected to carrying out any

military duties and was again arrested.

24. On 2 June 1992 the applicant was transported back to the County

Prison in order to serve his sentence. On 9 June he was released on

parole. Immediately upon his release from the prison, he was again

accompanied by military police back to the Pori Brigade, where he again

objected to carrying out any military duties and was again arrested.

25. On 11 June 1992 the District Court of Eura again ordered the

applicant's detention on remand in the County Prison. On 18 June it

convicted him of two offences in service and sentenced him to further

imprisonment. The sentence was to be served later. His release on

parole was also revoked.

26. After the court hearing the applicant was, as on previous

occasions, transported back to the County Prison in order to be

released. A military police squad headed by R, an enlisted corporal,

and consisting of conscripts waited for him in the prisoners' check-out

room inside the prison. In the prison courtyard he was handcuffed and

informed of his apprehension. Outside the prison gate, where his

support group was waiting, he entered the conscripts' police vehicle.

Members of his support group were photographing and videofilming the

incident. He was then transported back to the Pori Brigade at Säkylä.

27. Säkylä is situated some 100-150 kilometres from Turku and

normally transportation by car lasts some two hours. On his arrival at

the Brigade the applicant did not explicitly object to being

transported to the military hospital. He was released from his

handcuffs in the hospital's entry hall.

28. According to the applicant, the measures taken by the military

police were all carried out against his will. According to the

Government, he consented to being transported to the military hospital.

29. In the military hospital the applicant did not undergo any

medical examinations. Having again been questioned by military staff

on 19 June 1992, he renewed his objection to carrying out any military

duties. Thereupon he was formally arrested at 8.05 hrs.

30. On 22 June 1992 the District Court again ordered his detention

on remand in the County Prison, where, on 26 June, he started serving

his aggregated prison sentence. On 29 June he was convicted of a

further offence in service and sentenced to further imprisonment. In

its judgment the District Court considered that he had been deprived

of his liberty as from 19 June.

31. On 20 August 1992 the applicant was released from prison on

parole. He again objected to carrying out any military duties; his

detention on remand was twice ordered in August and September; he was

convicted of further offences in service and sentenced to further

imprisonment. On 5 October 1992 he was discharged from his military

service for one year.

32. On 16 February 1993 the applicant lodged a petition with the

Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens

justitieombudsman; "the Ombudsman"), in particular concerning the

deprivation of his liberty from 18 to 19 June 1992 and the related

handcuffing. He underlined that at no moment had he attempted to escape

from the military police squad or otherwise shown any tendency to do

so. He also stated having been handcuffed already on 11 April and

2 June 1992 while being transported to the County Prison after the

District Court's hearings.

33. In his petition the applicant also submitted that, on his arrival

at the Pori Brigade on 18 June 1992, R had asked him whether he would

agree to go to the hospital. The applicant had then voiced his

objection to performing any kind of service. The fact that he had been

handcuffed up to his arrival at the hospital showed that he had not

consented to going there. At any rate, he had not acted in a way which

could have led anyone to believe that he had wished to receive hospital

care.

34. Heard as a suspect at the Ombudsman's request, R stated that he

had been instructed by the Legal Officer of the Pori Brigade to bring

the applicant back to the compound. After the applicant had been

released in the prison courtyard R had ordered the military police to

apprehend him. According to the training provided to members of

military police squads, a person who was to be apprehended was to be

informed thereof and was also to be handcuffed. On the applicant's

return to the Brigade R had been instructed by the Duty Officer to ask

the applicant whether he would accept to take up his military service.

Having objected thereto, he had, with his own consent, been brought to

the military hospital. As far as R could remember, the applicant had

been released from his manacles in the hospital yard.

35. The Pori Brigade stated to the Ombudsman that the purpose of the

applicant's apprehension had been to ensure that he would remain in the

hands of the military authorities, given that he had been issued with

an order to take up his service at that compound. The military police

had not been given any instructions concerning his transportation in

handcuffs. Nor did the situation as a whole seem to have required such

a measure, considering that his arrest had not been ordered and he was

thus only to be returned to the Brigade, as on previous occasions. In

order to carry out the return R had nevertheless considered the

applicant's handcuffing necessary, given his repeated convictions of

military offences.

36. In its submissions to the Ombudsman the Army Headquarters

recalled that under section 16 of the 1983 Act on Military Disciplinary

Measures (sotilaskurinpitolaki, militär disciplinlag 331/83) a person

caught committing a military offence or on likely grounds suspected of

having committed such an offence could be apprehended and arrested

provided this was necessary in order to maintain or restore discipline,

order or safety. The applicant's apprehension had taken place

immediately on his release by the prison authorities. There was no

evidence that he had already at that moment objected anew to performing

military service or to returning to his military compound with the

military police. The measures ordered by R appeared to have been based

on the applicant's repeated previous objections to performing any kind

of service. He had therefore been likely to voice such an objection

again. Moreover, his support group had been disturbing R during the

incident.

37. The Army Headquarters nevertheless conceded that on the basis of

the evidence available there had been no acceptable grounds for

apprehending the applicant. This measure had resulted from R's

incorrect assessment of the situation in combination with the

surrounding circumstances. Also the applicant's handcuffing had been

groundless. According to the relevant permanent instructions, manacles

could be used temporarily in order to calm down a person behaving

violently who was to remain in the hands of the authorities or if there

was a specific reason for suspecting that he would escape. Although the

applicant had, on several occasions, committed punishable acts and

although his support group had attended his release from the County

Prison, he had not been likely to escape on that occasion.

38. In his decision of 20 May 1994 the Ombudsman noted that the

military authorities had had no reason to fear that the applicant would

attempt to evade them. Previously he had in fact presented himself

voluntarily to them. The Ombudsman considered that the applicant's

apprehension on 18 June 1992 had not been legally grounded, since prior

to that he had not been asked whether he would persist in his refusal

to perform his service. The Ombudsman furthermore found no

justification for the applicant's handcuffing. He noted, however, that

the orders given by professional military personnel to R had been

summary and that, being inexperienced, R had himself believed that he

was acting in compliance with the relevant orders and the military

education which he had received.

39. Summing up, the Ombudsman found that more experienced personnel

should have been ordered to fetch the applicant on his release from the

County Prison. He did not order criminal charges to be brought; instead

he urged the Army Headquarters and the Commander of the Pori Brigade

to see to it that situations arising, on the one hand, in war time and,

on the other, in peace time, be clearly distinguished from each other

both in the training of members of the military police force and in the

activities of this force.

40. On 1 June 1994 an amendment to section 39 of the 1950 Military

Service Act (asevelvollisuuslaki, värnpliktslag 452/50) entered into

force. On 20 February 1995 the District Court (käräjäoikeus,

tings-rätten) of Kokemäki convicted the applicant of refusal to carry

out military service in pursuance of section 39 of the amended 1950 Act

and sentenced him to 194 days' imprisonment. The Court observed that

he had previously been convicted of offences which corresponded to the

description in section 39. Since he had already served 212 days in

prison for those offences, the Court considered that he had fully

served his sentence.

B. Relevant domestic law

41. According to the 1983 Act on Military Disciplinary Measures, a

person caught committing a military offence or on likely grounds

suspected of having committed such an offence may be apprehended and

arrested provided this is necessary in order to maintain or restore

discipline, order or safety (section 16).

42. According to the 1889 Penal Code (rikoslaki, strafflag 39/1889),

a soldier carrying out police duties is, if he encounters resistance,

entitled to use the necessary force justified by the circumstances

(chapter 3, section 8a, as added by Act no. 321/83).

43. According to the 1990 Educational Guide intended for the members

of the military police force, a person who is to be transported shall

be handcuffed. Its preface states that it is principally intended for

use in war time or when there is a threat of war. It underlines that

in peacetime the military police shall not use more violence than the

situation calls for when, for instance, transporting an arrested

person.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

44. The Commission has declared admissible the complaints relating

to the applicant's handcuffing on 18 June 1992 as well as to the

lawfulness of his arrest from 18 to 19 June 1992.

B. Points at issue

45. The issues to be determined are:

- whether there has been any violation of Article 3 (Art. 3) of

the Convention;

- whether there has been any violation of Article 8 (Art. 8) of

the Convention; and

- whether there has been any violation of Article 5 (Art. 5) of

the Convention.

C. As regards Articles 3 and 8 (Art. 3, 8) of the Convention

46. Article 3 (Art. 3) of the Convention reads as follows:

"No one shall be subjected to torture or to inhuman or

degrading treatment or punishment."

Article 8 (Art. 8) reads, in so far as relevant, as follows:

"1. Everyone has the right to respect for his private ...

life, ...

2. There shall be no interference by a public authority

with the exercise of this right except such as is in

accordance with the law and is necessary in a democratic

society in the interests of national security, public

safety or the economic well-being of the country, for the

prevention of disorder or crime, for the protection of

health or morals, or for the protection of the rights and

freedoms of others."

47. The applicant complains that he was subjected to degrading

treatment and a disproportionate interference with his right to privacy

on account of being handcuffed during his transportation from the Turku

County Prison to the Pori Brigade's military hospital. Allegedly, the

only purpose of the handcuffing was to degrade and frighten him so as

to influence his personal convictions in respect of military and

substitute service. It was, at any rate, disproportionate for the

purposes of Article 8 para. 2 (Art. 8-2), since he in no way resisted

the deprivation of his liberty. Nor was there any reason to expect any

such resistance in view of his behaviour during the previous similar

incidents.

48. The Government submit that there has been no violation either of

Article 3 (Art. 3) or Article 8 (Art. 8). In the particular

circumstances at hand the applicant's handcuffing was part and parcel

of his apprehension which is to be examined exclusively under Article 5

(Art. 5). Subsidiarily, the Government submit that the threshold of

treatment proscribed by Article 3 (Art. 3) was not reached. When

applying general instructions, the commander of the conscripts' police

squad found the circumstances to require that the applicant be

handcuffed in connection with his apprehension. The handcuffing was

only intended as a security measure during his transportation which,

the Government assert, did not take place in public. They nevertheless

concede that the handcuffing was "probably unnecessary", since the

applicant had been "calm" and his own behaviour had thus not required

the use of manacles.

49. The Commission recalls that the assessment of the minimum level

of severity of treatment contrary to Article 3 (Art. 3) is relative and

must take account of all the circumstances of the case, such as the

duration of the treatment, its physical or mental effects and, in some

cases, the sex, age and state of health of the victim, etc. (see, e.g.,

Eur. Court HR, Ireland v. the United Kingdom judgment of

18 January 1978, Series A no. 25, p. 65, para. 162). A treatment is

degrading if it is such as to arouse in the person subjected thereto

feelings of fear, anguish and inferiority capable of humiliating and

debasing this person and possibly breaking his or her physical or moral

resistance (see, e.g., ibid., p. 66, para. 167; Hurtado v. Switzerland,

Comm. Report 8.7.93, para. 67, Eur. Court HR, Series A no. 280-A,

p. 14).

50. A treatment may also be said to be degrading if it grossly

humiliates a person in front of others or drives him to act against his

will or conscience (see the Greek case, Comm. Report 5.11.69, Yearbook

12 p. 186). A measure which does not involve physical ill-treatment but

lowers a person in rank, position, reputation or character may also

constitute degrading treatment, but again provided it attains a minimum

level of severity, thereby interfering with human dignity (see East

African Asians v. the United Kingdom, Comm. Report 14.12.73, D.R. 78-A

pp. 5 et seq., paras. 195 and 208 at pp. 57 and 62).

51. The Commission has held, on the one hand, that the handcuffing

in public of a prisoner is clearly not so serious a measure as to

amount to degrading treatment within the meaning of Article 3 (Art. 3)

(see, e.g., No. 12323/86, Dec. 6.3.87, not published). On the other

hand, although the publicity surrounding a particular treatment may be

of relevance for the assessment under Article 3 (Art. 3), the absence

of publicity does not necessarily prevent the treatment from attaining

the proscribed level of severity. It may suffice that the victim is

humiliated in his own eyes (cf., mutatis mutandis, Eur. Court HR, Tyrer

v. the United Kingdom judgment of 25 April 1978, Series A no. 26,

pp. 15-17, paras. 30-35).

52. In addition to the objective nature of the treatment and its

effects on the person subjected to it, also the purpose of the

authority which resorted to the measure may be of relevance in

determining whether it fulfils the essential elements of treatment

prohibited by Article 3 (Art. 3). It is essential whether or not the

treatment in question denotes contempt or lack of respect for the

personality of the person subjected to it and whether it was designed

to humiliate or debase him instead of, or in addition to, achieving

other aims (cf. Eur. Court HR, Albert and Le Compte v. Belgium,

judgment of 10 February 1983, Series A no. 58, p. 13, para. 22;

Abdulaziz, Cabales and Balkandali v. the United Kingdom judgment of

28 May 1985, Series A no. 94, p. 42, para. 91).

53. Most recently, the Court has emphasised that in 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 (Art. 3) (see, e.g., Eur. Court HR, Ribitsch

v. Austria judgment of 4 December 1995, Series A no. 336, p. 26,

para. 38).

54. The notion of "private life" within the meaning of Article 8

para. 1 (Art. 8-1) of the Convention is a broad one and not susceptible

to exhaustive definition (see, e.g., Eur. Court HR, Costello-Roberts

v. the United Kingdom judgment of 25 March 1993, Series A no. 247-C,

pp. 60-61, para. 36). It covers both the physical and moral integrity

of a person (see, e.g., Eur. Court HR, X and Y v. the Netherlands

judgment of 26 March 1985, Series A no. 91, p. 11, para. 22). The

protection afforded by Article 8 (Art. 8) to an individual's physical

integrity may be wider than that contemplated by Article 3 (Art. 3),

depending on the facts of the particular case (cf. the above-mentioned

Costello-Roberts judgment, loc. cit., and Comm. Report 8.10.91,

para. 49, Eur. Court HR, Series A no. 247-C, p. 71). However, not every

act or measure which may be said to affect adversely the physical or

moral integrity of a person necessarily gives rise to an interference

with the right to respect for private life (see, e.g., the above-

mentioned Costello-Roberts judgment, loc. cit.).

55. An interference with a right guaranteed by Article 8 para. 1

(Art. 8-1) must satisfy three conditions: it must be "in accordance

with the law", it must pursue one or more of the legitimate aims

enumerated in Article 8 para. 2 (Art. 8-2) and it must be "necessary

in a democratic society" for that or those legitimate aims. The reasons

adduced to justify the interference at issue must be "relevant and

sufficient". The notion of necessity implies, moreover, that the

interference corresponds to a pressing social need and, in particular,

requires that it be proportionate to the legitimate aim pursued. Regard

must nevertheless be had to the margin of appreciation left to the

Contracting States (see, e.g., Eur. Court HR, Olsson v. Sweden judgment

of 24 March 1988, Series A no. 130, pp. 31-32, paras. 67-68).

56. The Commission considers that the applicant's handcuffing on

18 June 1992 is clearly distinguishable from the issue arising under

Article 5 (Art. 5) in regard to the deprivation of his liberty on the

same day.

(i) The allegedly degrading treatment

57. It is undisputed that the applicant's handcuffing took place

following his release from the County Prison on 18 June 1992. The

handcuffs were removed later the same day on his arrival at the

military hospital of the Pori Brigade. Considering the distance between

the prison and the hospital, the handcuffing must have lasted some two

hours.

58. The Commission notes that the military offences of which the

applicant had been convicted prior to 18 June 1992 were all similar in

nature, namely his refusal as a pacifist to perform any kind of

military service despite his being considered a conscript. Previously

he had, on several occasions, been transported back and forth between

his military compound, the Eura District Court and the County Prison

in Turku. It has not been alleged that he at any time attempted to

escape from those transporting him or that violent behaviour on his

part could not be excluded. Nor is there any indication that his

handcuffing on 11 April and 2 June 1992 was warranted by any violent

or evasive behaviour on his part. Furthermore, there is no indication

that, on his release from the County Prison on 18 June 1992, he behaved

in a manner which the military police could reasonably consider to

warrant the use of manacles. Finally, the Commission finds no

indication that the activities of his support group would have

justified his handcuffing on that day.

59. In the particular circumstances of this case the Commission

cannot find that the recourse to physical force by placing the

applicant in handcuffs for some two hours in connection with the

deprivation of his liberty had been made strictly necessary by his own

conduct or any other legitimate consideration. It is furthermore

noteworthy that he appeared handcuffed in public, including in front

of his support group. In sum, the Commission considers that his

handcuffing diminished his human dignity and amounted to "degrading

treatment" within the meaning of Article 3 (Art. 3) of the Convention.

Accordingly, this provision has been violated.

CONCLUSION

60. The Commission concludes, by 20 votes to 10, that in the present

case there has been a violation of Article 3 (Art. 3) of the Convention

on account of the applicant's handcuffing on 18 June 1992.

(ii) The alleged interference with the applicant's right

to respect for his private life

61. Having regard to its above conclusion in respect of Article 3

(Art. 3), the Commission considers that no separate issue arises under

Article 8 (Art. 8).

CONCLUSION

62. The Commission concludes, by 23 votes to 7, that no separate

issue arises under Article 8 (Art. 8) of the Convention.

D. As regards Article 5 (Art. 5) of the Convention

(i) Article 5 para. 1 (Art. 5-1)

63. In so far as relevant, Article 5 para. 1 (Art. 5-1) reads as

follows:

"Everyone has the right to liberty and security of person.

No one shall be deprived of his liberty save in the

following cases and in accordance with a procedure

prescribed by law:

..."

64. The applicant complains that the deprivation of his liberty

following his release from the County Prison on 18 June 1992 until

the issuing of the arrest order on 19 June 1992 was in violation of

Article 5 para. 1 (Art. 5-1).

65. The Government submit that for the purpose of continuing his

military service the applicant was obliged to report at the Pori

Brigade as soon as he had been released from the County Prison on

18 June 1992. The military police was, however, not entitled under

domestic law to arrest him on his release but could only offer him

transportation to the compound. The Government consider that he

effectively consented to being transported to the military hospital.

The deprivation of his liberty was at any rate very brief and lenient

in character.

66. The Commission notes the dispute between the parties as to

whether or not the applicant consented to being transported to the

military hospital of the Pori Brigade. It is clear, however, from the

statements made by R and the military authorities in the course of the

Ombudsman's investigation that any such consent was given only on his

arrival at the compound. For the reasons below, the Commission need not

examine the alleged deprivation of his liberty after that moment.

67. Article 5 para. 1 (Art. 5-1) refers back essentially to national

law and lays down the obligation to conform to the substantive and

procedural rules thereof. It furthermore requires that any deprivation

of liberty should be consistent with the overall purpose of Article 5

(Art. 5), namely to protect individuals from arbitrariness (see, e.g.,

Eur. Court HR, van der Leer v. the Netherlands judgment of 21 February

1990, Series A no. 170-A, p. 12, para. 22). If detention is to be

"lawful", including the observance of a procedure prescribed by law,

it must essentially comply with national law and the substantive and

procedural rules thereof (cf., e.g., Eur. Court HR, Herczegfalvy

v. Austria judgment of 24 September 1992, Series A no. 244, p. 21,

para. 63).

68. The Commission finds it appropriate first to examine the

applicant's detention up to his arrival at the Pori Brigade. It finds

it established that, in the absence of any question to this end prior

to the deprivation of his liberty on his release from the County Prison

on 18 June 1992, he had not yet objected anew to performing military

service. It is undisputed that in those circumstances domestic law did

not entitle the military police to deprive him of his liberty.

69. It follows that at least in so far as the applicant was deprived

of his liberty during his transportation from the Turku County Prison

to the Pori Brigade his detention was not "lawful" within the meaning

of Article 5 para. 1 (Art. 5-1) which has therefore been violated in

this respect. Consequently, it is unnecessary to examine whether this

detention served any of the purposes set out in subparas. (a)-(f). It

is also unnecessary to examine whether the applicant's alleged

detention within the military compound until 19 June 1992 at 8.05 hrs

violated Article 5 (Art. 5).

CONCLUSION

70. The Commission concludes, unanimously, that in the present case

there has been a violation of Article 5 para. 1 (Art. 5-1) of the

Convention.

(ii) Article 5 para. 2 (Art. 5-2)

71. Article 5 para. 2 (Art. 5-2) of the Convention reads, in so far

as relevant, as follows:

"Everyone who is arrested shall be informed promptly, ...,

of the reasons for his arrest and of any charge against

him."

72. The applicant complains that he was not informed of the reasons

for the deprivation of his liberty on 18 June 1992. The Government

concede that he could not be informed of any reasons for his

apprehension nor of any charge against him, since he had not committed

any crime on account of which he could have been deprived of his

liberty immediately on his release from the County Prison on that day.

73. The Commission has just found a violation of Article 5 para. 1

(Art. 5-1) of the Convention in respect of the applicant's detention

on 18 June 1992. It is evident that in the prevailing circumstances he

could not be informed of any lawful reasons for his apprehension, nor

of any charge against him. His complaint under Article 5 para. 2

(Art. 5-2) therefore amounts to no more than one aspect of the

complaint considered under Article 5 para. 1 (Art. 5-1) (cf., mutatis

mutandis, Eur. Court HR, X. v. the United Kingdom of 5 November 1981,

Series A no. 46, p. 28, para. 66). This complaint therefore does not

require separate examination.

CONCLUSION

74. The Commission concludes, unanimously, that no separate issue

arises under Article 5 para. 2 (Art. 5-2) of the Convention.

E. Recapitulation

75. The Commission concludes, by 20 votes to 10, that in the present

case there has been a violation of Article 3 (Art. 3) of the Convention

on account of the applicant's handcuffing on 18 June 1992 (para. 60).

76. The Commission concludes, by 23 votes to 7, that no separate

issue arises under Article 8 (Art. 8) of the Convention (para. 62).

77. The Commission concludes, unanimously, that in the present case

there has been a violation of Article 5 para. 1 (Art. 5-1) of the

Convention (para. 70).

78. The Commission concludes, unanimously, that no separate issue

arises under Article 5 para. 2 (Art. 5-2) of the Convention (para. 74).

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

(Or. English)

PARTIALLY DISSENTING OPINION OF MRS. G.H. THUNE

I agree with the majority that there has been a breach of

Article 5 para. 1 of the Convention.

As regards Article 3 of the Convention I have voted against

finding a violation for the reasons expressed by Mr. Bratza in his

partially dissenting opinion which I share.

I also agree with Mr. Bratza that there has been no violation of

Article 8 of the Convention. My reasons, however, are slightly

different:

In the case of X and Y against the Netherlands the Court

expressed the view that the notion of "private life" is a broad one

covering the physical as well as the moral integrity of a person

(Series A no. 91, p. 11, para. 22). This notion cannot, however, be so

construed that any interference with physical integrity which does not

attain the level of severity required for a finding of a violation of

Article 3 more or less automatically is considered to be an

interference with a right guaranteed by Article 8 which would need to

be justified under para. 2 of that provision. This interpretation of

the Convention is supported by the Court's judgement in the Costello-

Roberts case, where Article 3 was found to be "the first point of

reference for examining a case concerning disiplinary measures in a

school" (Series A no. 247-C, pp. 60-61, para. 36). The punishment of

the small boy in question was not considered to have such adverse

effects on his physical or moral integrity as to bring it within the

scope of the protection afforded by Article 8.

Following this approach, it seems to me that the answer to the

question whether or not an allegation of interference with physical or

moral integrity comes within the ambit of Article 8 must depend on the

circumstances in casu.

In the present case the applicant's allegation under Article 8

refers to handcuffing during his transportation in a military police

vehicle. The Government have admitted that this measure was unnecessary

due to the applicant's peaceful behaviour and understandably he himself

considers that the handcuffing was an excessively severe measure. The

question still remains, however, whether this suffices for concluding

that the applicant's private life within the meaning of Article 8 para.

1 was affected. In my view this question must be answered in the

negative.

When the handcuffing took place, the applicant was already in the

hands of the military police. His unlawful arrest had in itself

repercussions on his private life and is also the basis for the

Commission's finding of a violation of Article 5 para. 1 of the

Convention.

I find it difficult to see that the particular circumstances of

the applicant's arrest could, in addition to being examined under

Article 5, be considered as an interference with his private life which

calls for justification under Article 8 para. 2. Accordingly, I

conclude that there has been no separate violation of Article 8.

(Or. English)

PARTIALLY DISSENTING OPINION OF MM. G. JÖRUNDSSON

and I. CABRAL BARRETO

We regret that we are unable to agree with the Commission's

majority that Article 3 of the Convention has been violated. In our

view it is Article 8 of the Convention that has been violated. Our

reasons are the following.

The recourse to physical force by keeping the applicant manacled

for the above-mentioned period may not have been made strictly

necessary by his own conduct on 18 June 1992 or previously.

Nevertheless, in the particular circumstances of this case we cannot

find that the treatment to which he was subjected for some two hours

substantially diminished his human dignity or in any other way reached

the threshold of "degrading treatment" within the meaning of Article

3 of the Convention. In particular, we cannot find sufficient evidence

that the handcuffing was aimed at breaking his resistance towards

performing any kind of military or substitute service. We therefore

conclude that there has been no violation of Article 3.

We consider, however, that the applicant's handcuffing on

18 June 1992 constituted an interference with his right to respect for

his private life within the meaning of Article 8 para. 1 of the

Convention. For the reasons set out below, we need not examine whether

this interference was "in accordance with the law" and pursued one or

more of the legitimate aims enumerated in Article 8 para. 2.

It is conceded by the Government that the applicant's handcuffing

was "probably unnecessary". Indeed we cannot find that the reasons

therefor, as adduced by R and the military authorities in the course

of the Ombudsman's investigation, were relevant and sufficient for

concluding that the measure corresponded to a pressing social need and

was "necessary in a democratic society". We therefore consider, in

spite of the margin of appreciation afforded to the Contracting State,

that the applicant's handcuffing was out of proportion and that,

therefore, Article 8 has been violated.

(Or. English)

PARTIALLY DISSENTING OPINION OF MR. N. BRATZA,

JOINED BY MRS. J. LIDDY and MM. H.G. SCHERMERS,

J.-C. GEUS, G. RESS, P. LORENZEN and K. HERNDL

While we agree with the majority of the Commission that there has

been a violation of Article 5 para. 1 of the Convention in the present

case, we cannot share the majority's view that the handcuffing of the

applicant amounted to degrading treatment in breach of Article 3 of the

Convention.

As is noted in the Report, ill-treatment must attain a minimum

level of severity if it is to fall within the scope of Article 3. The

assessment of this minimum is relative and depends on all the

circumstances of the case such as the duration of the treatment, its

physical or mental effects and, in some cases, the sex, age and state

of health of the subject of the treatment.

In the present case the applicant was handcuffed for the duration

of the journey in a police car from the Turku County Prison to the

barracks of the Pori Brigade at Säkylä. We accept that, in the light

of the applicant's history and of the fact that he had at no time

threatened to escape or offered violence to the military police who

effected his arrest, such handcuffing was most probably unnecessary.

We accept, too, that the use of handcuffs was in all the circumstances

a harsh measure. On the other hand, there is no evidence to suggest

that the use of handcuffs either resulted in physical or mental

suffering on the part of the applicant or that it led to his gross

humiliation in his own eyes or in the eyes of others, including those

who witnessed his arrest. In our view, accordingly, the handcuffing of

the applicant did not reach the threshold required by Article 3 of the

Convention.

The applicant further contends that his handcuffing amounted to

an unjustified interference with his right to respect for his private

life, in breach of Article 8 of the Convention.

It is true that the notion of "private life" within the meaning

of Article 8 para. 1 is a broad one and has been held to cover both the

physical and moral integrity of a person. On the other hand, it is also

established that not every act or measure which may be said to affect

adversely an individual's physical or moral integrity necessarily gives

rise to an interference with the right to respect for private life. In

its Costello-Roberts judgment of 25 March 1993 (Series A no. 247-C,

pp. 60-61, para. 36) the Court, in concluding that there had been no

violation of Article 8 of the Convention, noted that the disciplinary

measures taken against the applicant had not attained a level of

severity sufficient to bring it within the ambit of Article 3, "the

Convention Article which expressly deals with punishment and therefore

provides a first point of reference for examining a case concerning

disciplinary measures in a school". While the Court did not exclude the

possibility that there might be circumstances in which Article 8 could

be regarded as affording in relation to disciplinary measures a

protection which went beyond that given by Article 3, it concluded that

the treatment complained of had not entailed adverse effects for the

applicant's physical or moral integrity sufficient to bring it within

the scope of the prohibition contained in Article 8.

While the present case concerns the physical treatment, rather

than punishment, of the applicant, we consider that the Court's

reasoning is germane and that Article 3 provides a first - and in our

view, the primary - point of reference for examining a complaint

concerning the treatment of a person on arrest by the police. Having

found that the treatment did not in the present case attain the level

of severity to amount to a breach of Article 3, we are also of the view

that it did not entail such adverse effects for the applicant's

physical or moral integrity as to amount to an interference with his

right to respect for private life under Article 8 of the Convention.

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RANINEN v. FINLAND

RANINEN v. FINLAND

LEXI