Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 18896/91

Ronald Ribitsch

against

Austria

REPORT OF THE COMMISSION

(adopted on 4 July 1994)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1

A. The application

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

B. The proceedings

(paras. 5-10) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 11-15). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-84) . . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 16-78). . . . . . . . . . . . . . . . . . .3

B. The evidence before the Commission

(paras. 79-80). . . . . . . . . . . . . . . . . . 14

C. The relevant domestic law

(paras. 81-84). . . . . . . . . . . . . . . . . . 15

III. OPINION OF THE COMMISSION

(paras. 85-117). . . . . . . . . . . . . . . . . . . . 16

A. Complaint declared admissible

(para. 85). . . . . . . . . . . . . . . . . . . . 16

B. Point at issue

(para. 86). . . . . . . . . . . . . . . . . . . . 16

C. Article 3 of the Convention

(paras. 87-116) . . . . . . . . . . . . . . . . . 16

CONCLUSION

(para. 117) . . . . . . . . . . . . . . . . . . . 21

CONCURRING OPINION OF Mr. M. BRATZA . . . . . . . . . . . . 22

DISSENTING OPINION OF MM. C.A. NØRGAARD, A. WEITZEL,

F. ERMACORA, J.-C. GEUS, M.A. NOWICKI AND B. CONFORTI . . . 25

APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . 26

APPENDIX II : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION. . . . . . . 27

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 an Austrian citizen, born in 1958 and resident

in Vienna. He was represented before the Commission by

Mr. H. Pochieser, a lawyer practising in Vienna.

3. The application is directed against Austria. The respondent

Government were represented by their Agent, Mr. F. Cede, Ambassador,

Head of the International Law Department at the Federal Ministry of

Foreign Affairs.

4. The case concerns the applicant's complaint that, during his

police custody, he was subjected to inhuman and degrading treatment

contrary to Article 3 of the Convention.

B. The proceedings

5. The application was introduced on 5 August 1991 and registered

on 3 October 1991.

6. On 30 March 1992 the Commission 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 its admissibility and merits.

7. The Government's observations were submitted on 15 July 1992

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

applicant replied on 8 October 1992. On 10 December 1993, the

Commission granted the applicant legal aid for the representation of

his case.

8. On 4 May 1993 the Commission decided to hold a hearing of the

parties. The hearing was held on 20 October 1993. The Government were

represented by Mr. Okresek, Head of International Affairs Division, the

Constitutional Service, Federal Chancellery, Mr. Szymanski, Head of the

Legal Department, Federal Ministry for the Interior and Mr. Schmidt,

Human Rights Division, International Law Department, Federal Ministry

for Foreign Affairs. The applicant was represented by Mrs. Haase,

Rechtsanwälterin, representing Mr. Pochieser, Rechtsanwalt.

9. On 20 October 1993 the Commission declared admissible the

applicant's complaint under Article 3 of the Convention. It declared

inadmissible the remainder of the application.

10. 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

11. 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 :

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

B. CONFORTI

N. BRATZA

12. The text of this Report was adopted on 4 July 1994 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.

13. 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.

14. A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

15. 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

16. On 21 May 1988, in the context of criminal investigations

concerning the death of two persons due to opium poisoning, the

apartment of the applicant and his wife was searched by police officers

of the Vienna Federal Police Authority (Bundespolizeidirektion).

17. On 31 May 1988, at 12 h., police officers of the Vienna Federal

Police Authority arrested the applicant on suspicion of drug

trafficking. Subsequent to his arrest, and on 1 and 2 June 1988 the

spouse's apartment was again searched. The applicant was kept in

police detention until the morning of 2 June 1988.

18. He gives the following account of events in the course of his

detention: After his arrest, his personal particulars were recorded.

He was first questioned about the suspicion against him from 21.15 h.

until 22.10 h., again on the next day from 16 h. until 18.30 h. and on

2 June 1988 for twenty minutes as from 8.10 h. At the questioning,

four to five police officers were present, three of them cross-examined

the applicant. They allegedly suggested various versions of admissions

to him, and then grossly insulted him ("Kärntner Sau", "Drogenschwein",

"Schweinepriester", "Arschloch"). As these police activities did not

produce the intended results, he was punched in the head (Kopfnuß), and

was beaten with fists into the renal region and the right upper arm.

He was also kicked in his thighs and in the renal area. He was pulled

by his hair to the floor, and his head was beaten against the floor.

The police officers allegedly also threatened not to release his wife,

who was detained at the same time, if he would not admit his guilt.

After his release, he had haematomas in his right upper arm and in one

thigh, and he had a cervical syndrome, and suffered from vomiting,

diarrhoea and bad headache.

19. The applicant informed several persons, inter alia a journalist,

about his alleged treatment in the course of his police detention. He

was examined at the Meidling hospital on 2 June and by the medical

practitioner S. on 3 June 1988. According to the record of the

Meidling hospital, a bruise measuring 2 by 3 cm was ascertained in the

middle third of the outside of the applicant's right upper arm. The

findings of an annexed neurological report referred to bruising of the

outside and inside of the right upper arm. No other injuries to the

extremities were observed. An X-ray examination did not reveal any

bone injuries. The report of the medical practitioner S. dated

3 June 1988 contained a description of several bruises on the

applicant's right upper arm, the typical features of a cervical

syndrome, vomiting and intense headache and a temperature of 37.5 °C.

20. According to a report signed by Police Officer M. and dated

1 June 1988, the applicant was taken out of police detention in the

afternoon of the same day in order to be brought to an acoustics

research institute to have his voice compared with the voice of an

anonymous person who had called the Vienna emergency services. The

applicant was hand-cuffed with his hands in front of his body. When

Police Officer M. opened the left rear door of the police car in order

to enable the applicant to get out, the applicant slipped and lost his

balance. The applicant bumped against the frame of the open car door

with his right arm. M., who was standing right next to him, was able

to take the applicant by his left arm, but could not prevent him from

falling. Upon M.'s inquiry, the applicant stated that he was not

injured. When interrogated in the early morning of 2 June 1988, the

applicant indicated that he had nevertheless sustained a slight injury

due to his fall. A round bruise was found on his right upper arm.

21. Following reports in a public broadcast on 7 June 1988 about the

applicant's accusations of ill-treatment by the police, the Vienna

Federal Police Authority opened investigations against the police

officers concerned. The results of these investigations were submitted

to the Vienna Public Prosecutor's Office (Staatsanwaltschaft) on

25 October 1988. On 22 November 1988 the applicant, represented by

counsel, joined these criminal proceedings as a private party under

S. 47 of the Code of Criminal Procedure (Strafprozeßordnung) in respect

of his compensation claims.

22. On 26 June 1989 the Investigating Judge at the Vienna District

Court (Strafbezirksgericht) heard the applicant as a witness and the

Police Officers T., G., F. and M. as accused (Beschuldigte).

23. The applicant stated that on 31 May 1988 he had been arrested by

four police officers, inter alia M. and T. Following the taking of

photographs and fingerprints, the questioning had started in the

afternoon and evening. At the first questioning five police officers

had been present, who had interrogated him in turns. The applicant

also indicated that the police officers, with the exception of Police

Officer F., were drinking wine. In the course of the questioning,

their superior Mr. G. had started to pull his twisted moustache and to

go around the room with him, and then also slapped him in the face.

As he still had not confessed, Police Officer M. had begun to hit him.

He knew about this Officer's identity as he had seen him signing the

record. Police Officer F. had been sitting at the type writer. He had

been the only Officer behaving correctly. Police Officer M. had

continued to hit him in the course of the ensuing interrogations.

M. had been the one hitting him most of the time, though, while he had

been lying on the floor, others had also kicked him. On the second

day, even a legally qualified person had been present for a short time

and had seen that he had been beaten. Police Officer M. further had

attempted to provoke him to hit back. 90% of his injuries had been

caused by M. The haematoma on his right upper arm had been caused by

M.'s punches. M. had further kicked him and caused a haematoma on his

right or left lower leg, the print of the shoe had later been seen on

his trousers. Police Officer M. had also grasped his hair and had

thrown him to the floor. Upon questioning, the applicant stated that

there had been no accident when he was taken by car to have his voice

compared.

24. Police Officer T. stated that he had been working with inter alia

the Police Officers M. and F. He could not remember whether he had

been present upon the applicant's arrest. He had conducted the

questioning of the applicant's wife. The applicant had been questioned

in another room, he had sometimes been there to put questions to the

applicant. He had learnt about the injuries sustained by the applicant

in the media. He himself had not beaten or kicked the applicant, nor

seen that his colleagues had done so. The police officers had not

drunk alcohol in the course of the interrogations. Moreover, though

working hard, they had always taken a break at least between midnight

and 7 a.m.

25. Police Officer G. explained that he had been leading the

particular work unit since 1983, Police Officer M. had been in this

unit for two years, Police Officer F. for one year and Police

Officer T. for five years. He had been present at times at the

interrogations of both the applicant and his wife. He had not touched

the applicant or pulled his moustache, though he remembered that the

applicant had a peculiar moustache. At the relevant time, they had

worked overtime, but there had not been any particular pressure upon

them. He had been informed at that time that the applicant had

stumbled in the course of getting out of a police car, Police Officer

M. or F. had informed him of this. He had not known about any

injuries. He had instructed his colleagues to draft a report on the

incident. There had been no alcohol in the room where the

interrogations had taken place.

26. According to Police Officer F., who had joined the work unit in

April 1988, Police Officer M. had conducted the questioning of the

applicant in the presence of always two or three colleagues. Upon

questioning, he confirmed that a legally qualified person, namely a

superior, had been present for a short time at one of the

interrogations. No alcohol had been drunk in the course of the

questioning. They had worked overtime, but there had been no

particular pressure. F., stating that he had been present at most the

questioning, denied that the applicant had been bodily assaulted. F.

continued that on 1 June 1988 he had, together with Police Officer M.,

taken the applicant to have his voice compared. F. had driven and M.

had been at the rear with the applicant who had been hand-cuffed with

his hands in front of his body. The applicant had probably stepped out

of the rear left door. F. indicated that he had not seen the applicant

stumble, but heard something like it. When he had turned around, he

had seen M. already holding the applicant. The applicant had said that

he was not hurt. The next day the applicant had mentioned the bruise

on his upper arm. One of them had informed Police Officer G. about the

bruise, and G. had advised them to draft a report on the incident.

27. Police Officer M. stated that he had joined the work unit of

Police Officer G. in May 1988. He had at the time interrogated the

applicant, but he had certainly not been alone: in order to avoid

unfounded allegations, other colleagues had been present for at least

part of the time. M. denied having used violence against the

applicant, and supposed that the applicant and his wife, for unknown

reasons, wanted to take revenge on them. As to the course of the

interrogations, M. specified that at the beginning the applicant had

denied any involvement in the offences at issue; only in the further

course of questioning had he given the decisive hint as to the identity

of the actual culprit. As regards the injuries sustained by the

applicant, M. confirmed his statements in his report of 1 June 1988.

During the drive, he had been sitting next to the applicant, who had

been hand-cuffed with his hands in front of his body, in the rear of

the police car. M. continued that he had opened the door on the

applicant's side from the outside. The applicant had stumbled while

getting out and fallen, knocking his right arm against the doorframe.

M. had only been able to stop him falling. The applicant had said that

he was all right. Only the next day had he mentioned a bruise on his

right upper arm. M. could not remember any other injuries or a

footprint on the applicant's trousers. M. clarified that he had

written the report concerning the accident on 2 June, but had put the

date of the incident. M. further confirmed that a superior, possibly

presented as a legally qualified person, had shortly been present at

one of the interrogations. M. also indicated that he worked normally

60 to 70 hours overtime per month; at the relevant time he had possibly

done 80 to 90 hours overtime. Moreover, they had not consumed any kind

of alcohol during their work.

28. On 13 October 1989 the Vienna District Court conducted the trial

of Police Officers M., T. and G. on charges of bodily assault

(Körperverletzung).

29. The Vienna District Court heard the accused and several

witnesses, namely the applicant and his wife, Police Officer F., Police

Officer P., Chief of the three units at the Vienna Federal Police

Authority which were investigating drug offences, as well as six

further witnesses, two of them physicians who had seen the applicant's

injuries and whom he had told about the alleged ill-treatment.

30. Police Officer M. referred to his earlier statements. Upon

questioning, he explained that due to information given to him, the

investigations concerning the case in question had been transferred

from another work unit at the Vienna Federal Police Authority.

Following their arrest, the applicant and his wife had been brought to

the Police Authority. Questioned about the further development of

matters regarding the applicant, Police Officer M. stated that the

applicant's identity had been established and he had been questioned

about the offences concerned. M. confirmed that Police Officer F. had

been present in the course of the interrogation. However, he could not

remember whether Police Officers G. and T. had been also there. The

applicant had claimed to be innocent, and even claimed that he had

nothing to do with drugs and in particular opium. He had complained

that the police was again creating difficulties. Moreover, the

applicant had repeatedly indicated that he would cause troubles and

ridicule them. Police Officer M. then described the events when the

applicant had been taken out of the building of the Police Authority:

The applicant had been hand-cuffed with his hands in front of his body,

he had been sitting in the rear of the police car. Upon arrival, M.

had opened the door where the child lock had been in position as a

precautionary measure. When getting out of the car, the applicant had

lost his balance, had fallen and hit his right arm against the door

frame. He had shown his injury, a round bruise, but had not wanted to

see a doctor. Upon further questioning by the Public Prosecutor, M.

stated that, upon the arrest, a piece of hashish had been found upon

the applicant, nothing upon his wife. However, police informers had

told them that the applicant had been dealing with heroin and had been

selling washing powder to drug addicts. This information had not been

recorded as the informers were not prepared to make a statement for the

record. Upon further questioning, M. indicated that, having first

denied any relationship to one of the victims, the applicant and his

wife had later admitted a close relationship.

31. Police Officer T. first made some more general remarks about the

organisation and distribution of work between the three units dealing

with drug offences. He remembered that he had been present at the

arrest of the applicant and his wife and that he had interrogated the

applicant's wife. Though he had not assisted in the questioning of

the applicant in the adjoining office, he had occasionally come to

put questions to the applicant. They had mainly inquired about

discrepancies in the spouses' statements about their alibi. He had

learnt about the injury sustained by the applicant only after his

release.

32. Police Officer G., the head of the work unit concerned, also

explained that following information obtained by Police Officer M. on

the particular case, it had been transferred from another work unit

which had initially conducted the investigations. He had seen the

applicant for the first time during the interrogation in the afternoon.

Together with Police Officer T. he had questioned the applicant's wife,

but also the applicant in order to verify their alibi, as there had

been discrepancies in their statements. As regards the applicant's

injury, he remembered that either Police Officer M. or Police Officer

F. had informed him about the incident in the course of the escorted

visit. He had instructed them to draft a report. Being asked in

detail about the applicant's allegations of ill-treatment, G. stated

that it appeared practically impossible to pull the applicant around

by his moustache without leaving injuries to his face.

33. The applicant, heard as a witness, stated that, following his

arrest in the late morning, he had first been questioned in the late

afternoon by Police Officers M. and F., in particular about his alibi.

Violence had been used, G. had pulled him around the room by his

moustache, and he had been slightly hit on his head. In the afternoon

of the second day, he had again been interrogated, and because he had

refused to admit that he had given drugs to the two persons who had

subsequently died, he had been beaten every half hour. He had also

been kicked while lying on the floor, and had therefore not seen the

persons who had kicked him. Police Officer M. had hit him on the upper

arm and kicked him. On one occasion, a legally qualified person had

been present who had not stopped the beatings. Police Officers from

another group had also been present; there had been continual changes.

In between, he had been escorted to have his voice compared. Questioned

about the escorted visit, the applicant denied that he had stumbled

while getting out of the car. He also confirmed that Police Officer

F. had not hurt him.

34. The applicant continued that he had been released on 2 June 1988

at the same time as his wife; they had gone home where he had met his

brother and a psychologist Tr., with whom he was acquainted. He had

only later noticed that a footprint on his trousers was consistent with

an injury to his leg. After having taken a shower and changed clothes,

he had met the journalist B. Subsequently he had gone to the hospital.

Two fingers of his right hand had been numb. On the next day he had

got a stiff neck, he had vomited. The applicant stated that he had not

eaten for two days and that he had a nervous stomach. He further

stated that he had health problems due to the fact that M. had pulled

him by the hair off a chair and onto the floor.

35. The applicant's wife stated that she had been questioned by

Police Officer T. , subsequently cross-examined by four persons and

later by Police Officers M. and F. She had been released at the same

time as her husband who had told her immediately that he had been hit

and beaten and pulled by his moustache and hair. She had seen the

bruises mentioned by him, and also the shoe-print on his trousers. Her

husband had said that Police Officer M. had caused the injuries. Her

husband had complained about pain in the neck, headache, and later a

feeling of numbness in his right hand.

36. Police Officer F. was next heard as a witness. He stated that

following a tip-off about who had given the deceased the drugs the case

had been transferred to their work unit. Because of the rivalry

existing between the units, information of such kind would not be

passed on. Upon his arrest, the applicant had said that he would cause

difficulties. However, during his interrogation, the applicant had

been quite calm. F. denied having seen that the applicant had been

hit. As regards the escorted drive, F. indicated that he had parked

the police car rather close to another car. Police Officer M. had

opened the door for the applicant. According to F., there had been a

noise and, turning around, he had seen that M. was holding the

applicant. F. confirmed that Police Officer G. had advised them to

draft a report on the incident.

37. The applicant's doctor S. confirmed that he had examined the

applicant who had been undressed. The applicant had several

haematomas, inter alia the largest, on his right upper arm. S. had the

impression that the applicant had either bumped against something or

had been hit. S. excluded that a fall against a doorframe could have

caused these haematomas. The applicant had not indicated that he had

been hit by the police. S. had not ascertained injuries to the legs,

but there were other bruises and the applicant had complained about

vomiting and headache. The applicant had not had a concussion but, as

a consequence of a cervical syndrome, had been unable to turn his head.

Upon questioning, S. stated that such a cervical syndrome could have

several causes, inter alia, a cold or the fact that somebody had been

several times pulled by his hair. However, the cause could not be

objectively established.

38. The psychologist Tr., who had seen the applicant after his

release, confirmed that the applicant had told him about his arrest and

detention and about having been hit and maltreated by the police, in

particular one police officer. Tr. further said that he had not looked

for any injuries. He also stated that he had not for a moment had the

impression that the applicant had made up his story.

39. The Court next heard Mr. P., the Head of the Section - with three

work units - at the Vienna Federal Police Authority, which had been

responsible for the investigations in the opium poisoning cases. P.

first explained the organisation and distribution of work between the

units and, in this context, excluded rivalry between the units.

Moreover, P. stated that he had been present at the questioning of the

applicant by Police Officers M. and F. for about ten minutes. P.

remembered that he had advised the applicant that a confession could

result in the court passing a more lenient sentence. Being confronted

with the applicant's allegations, P. denied that the applicant had been

tortured or beaten; rather, the atmosphere had been friendly.

40. The applicant's sister-in-law H. described the state of the

applicant and his wife following the release from detention. H.

confirmed in particular that she had seen the bruise on his right upper

arm and that the applicant had told her that he had been pulled around

by his hair, thrown to the floor, punched and that two or three police

officers had been present most of the time, the most brutal one having

been the Police Officer M. She could not remember having seen a shoe-

print on the applicant's trousers.

41. The applicant's brother R. stated that when they had met at the

applicant's apartment the applicant had told him that he had been

subjected to physical violence while in detention, namely that he had

been beaten, kicked and pulled by the hair to the ground. R. had seen

several bruises on the applicant's body, and a shoe-print on the

applicant's trousers. The applicant had also told him that he had

problems with his stomach and had vomited.

42. The applicant's sister-in-law H. and his brother R. were

subsequently questioned about whether the applicant had mentioned an

accident in the course of an escorted visit. H. stated that the

applicant had mentioned that one of the police officers had told him

that this was the cause of his injuries. R. had not heard about this.

43. The reporter B. had been informed by the applicant's sister-in-

law H. about the applicant's allegations of ill-treatment in the course

of his police detention. B. had thereupon arranged by phone a meeting

with the applicant. B. had been shown several injuries, haematomas on

the applicant's right arm, the largest on the outside, one or two

smaller on the inside. B. had photographed them the next day for the

purposes of a story in a magazine. Upon questioning, B. indicated that

the applicant had told him that his voice had been compared, but not

that he had fallen out of the police car.

44. B. then turned to read from the notes which he had made in the

course of the conversation with the applicant at the time according to

which the applicant had given the following account: the head of the

group had pulled him by the beard and hit him on the head with the flat

of his hand; during the first interrogations he had been insulted, but

not yet been hit. Following the escorted visit to the Acoustics

Research Institute, the police officers had shaken him by the feet and

hands and beaten him for about twenty minutes. There had been bottles

of wine in the office and the police officers had been smelling of

alcohol. Police Officer F. had behaved correctly and not hit him,

Police Officer M. had hit him the most. They had also threatened to

place his children at a children's home. Only at the last

interrogation in the morning before his release, all police officers,

including M., had been friendly and polite.

45. B. also indicated that he had seen a footprint on the applicant's

trousers which appeared to have been dragged over the floor. B.

continued that he had verified that the shoe-print coincided with a

haematoma on the applicant's leg below his knee. Upon questioning, B.

stated that he did not have the impression that the applicant had been

acting.

46. The photographer L., a colleague of the journalist B., confirmed

that he had photographed the injuries suffered by the applicant, namely

a severe bruising on his right upper arm. He also remembered injuries

to the applicant's legs. He had not taken photographs of the smaller

injuries as they would not have been visible.

47. At the close of the trial, the District Court convicted Police

Officer M. of bodily assault and sentenced him to two months'

imprisonment on probation. He was ordered to pay the applicant AS

1,000. The two other Police Officers T. and G. were acquitted.

48. The Vienna District Court found M. guilty of having beaten and

kicked the applicant and having pulled his hair on 1 June 1988 and

thereby caused several haematomas at his right upper arm as well as at

his thigh and also a cervical syndrome.

49. In the reasons of its judgment, the District Court stated that

the three accused were members of one of three units of the Vienna

Federal Police Authority competent for drug offences; Police Officer

G. was the head of this unit. The District Court then described the

main course of the criminal investigations concerning two cases of

death due to opium poisoning, which were first conducted by another

unit at the Federal Police Authority, and later transferred to the unit

the accused were working in. Due to the publicity of the two cases of

death, their unit had been under a particular pressure to complete the

inquiries, and had therefore worked many hours of overtime.

50. The District Court stated that both the applicant and his wife

had been charged by third persons with having sold heroin to one of the

two persons who had died. Inquiries were started against the applicant

and his wife, their apartment was searched. On 31 May 1988 they were

arrested and questioned by Police Officer M. in the presence of the

witness F., the co-accused G. and other police officers. They were

insulted by the police officers, except by F. Police Officer G.

grasped the applicant's moustache and pulled him through the room, M.

also beat him. The applicant was again questioned by M. on

1 June 1988. In order to obtain a confession, M. had grasped and

shaken the applicant's hair, thrown his head forward and backward,

beaten him with his fist on his right upper arm, thrown him to the

ground and kicked him. Other officers, whom the applicant could not

recognise, had then also kicked him.

51. The District Court established the facts on the basis of the

applicant's allegations as confirmed in particular by one of the

witnesses, namely the journalist, whom he had already on 2 June 1988

told in detail about the events and who had taken notes. Furthermore,

on the occasion of a confrontation with various persons one year after

the events, the applicant had immediately recognised M. and other

participants in his questioning.

52. The District Court found that the applicant's statements were

credible and refuted the partly incoherent allegations of the accused

M. and other police officers who mainly tried to discredit the

applicant. The defence of the accused M. that the injuries had been

caused accidentally was not credible. His version according to which

the applicant, who had been brought for a test, had climbed out of the

police car in a crowded car park and fallen onto the door frame and

then to the ground, while M. had attempted to hold him, was unlikely

and did not correspond to the applicant's injuries.

53. Finally, the District Court found that it had not been proven

that the two other accused had caused any of the applicant's injuries.

54. Police Officer M. lodged an appeal (Berufung) with the Vienna

Regional Court (Landesgericht) against his conviction.

55. At the hearing on 2 March 1990 the Vienna Regional Court ordered

the further taking of evidence, namely the hearing of the accused

Police Officer M. and of the applicant, and the preparation of a

forensic expert opinion by the Institute for Forensic Medicine of the

Vienna University on the cause of the applicant's injuries.

56. Dr. M., a senior physician at the Vienna Institute for Forensic

Medicine delivered the expert opinion on 23 July 1990.

57. According to the opinion the applicant had stated at the

Institute on 7 June 1990 that in the course of the police questioning

he had been pulled by his twirled moustache, struck on the top of his

head, pulled by his hair, and had been punched by Police Officer M. on

the outside of his right upper arm; moreover, he had a bruising on his

right lower leg coinciding with the mark of a shoe-print on his

trousers; his ribs and upper body had also been aching. The applicant

had further stated that following his release he had vomited, he had

had a temperature for some days and a diarrhoea, further a stiff neck

and a strange feeling in some fingers. As to the bruises, the

applicant had specified that, apart from the large bruise on the

outside of his upper right arm, he had seen three or four bruises of

the size of a finger-tip on the inside of his upper right arm and on

the outside of his right lower leg.

58. The opinion continued with a description of the reconstruction

of the incident during the escorted visit as recounted by police

Officer M. It was noted that the applicant was 186 cm tall and

probably 95 kg in weight at the time of the incident. While the

applicant expressed doubts, Police Officer M. had been certain that the

police car brought along to the reconstruction had been the one used

on the visit concerned. The expert stated that, with regard to the

reconstruction carried out, there had been no considerable differences

between the two types of car. He found that the bruising to the

outside of the applicant's right upper arm and further injuries had to

be interpreted as non-specific injuries and only permitted the

conclusion that this area of the body had either suffered a dull blow

or struck against a blunt edge. There was no certainty from the

medical point of view as to the cause: neither the infliction of

maltreatment, blows to the upper arm and a kick in the knee area, nor

a bump against the car door could be excluded. The expert added that

the version advanced by Police Officer M. could only explain one of

several injuries that might have been sustained.

59. On 14 September 1990, at the hearing before the Vienna Regional

Court, the expert opinion was read out, together with a statement by

the prison to the Police Authority that the applicant had been seen by

a prison doctor only in the early morning of 1 June 1988.

60. Police Officer M. was again questioned on the accusations against

him, brought both by the applicant and his wife. M. expressed the view

that the applicant's wife had suffered from the fact of her detention

as such and had, together with her husband, concentrated upon M.

against whom to bring their accusations. M. remembered that upon his

arrest the applicant had threatened to cause difficulties. At a later

stage, when his superior P. had been present, there had, as usual, been

a rather calm atmosphere. At the questioning on 2 June 1988, the

applicant had shown him the bruising on his right upper arm, but had

not wanted to see a physician. M. also repeated his version of the

incident upon the applicant's escorted visit.

61. The applicant was questioned about his professional training and

his past occupations, his financial situation, furthermore about his

contacts with drugs. Questioned about the alleged escalation of the

interrogation, the applicant stated that the police officers had wished

to find a culprit by any means. As regards the first questioning on

31 May 1988, he stated that Police Officer G. had disliked one of his

answers and, therefore, pulled him by his moustache out of the chair

and later put him down again. As he had not resisted, his moustache

had not been torn off. Police Officer M. had already hit him at that

stage, however, not into his face; throughout the beating M. had

attempted to avoid marks as far as possible. The applicant further

stated that he had not suffered any accidental incident upon his

escorted visit, and he insisted that at the time he had been driven in

a two-door car, whereas the reconstruction had been done with a four-

door car. The applicant was subsequently questioned in detail about

the course of the maltreatment to which he had allegedly been

subjected. He repeated his earlier statements that M. had mainly

beaten and kicked him and pulled him by the hair, though, when lying

on the floor, he had the impression of being kicked by more than one

person. Questioned about the varying statements in the course of the

proceedings as to the shoe-print, the applicant insisted that the

haematoma had been on his lower leg underneath his knee, so had the

shoe-print been on his trousers. He could not say with certainty that

M. had kicked him, causing this particular haematoma. The applicant

also said that he had chosen counsel to represent him in this matter

only after having gathered information. The reporter of the public

broadcast had coincidentally been present in a pub where he had told

friends about the incidents.

62. Subsequently, the forensic expert further explained his written

expert opinion.

63. At the close of the hearing of 14 September 1990, the Vienna

Regional Court quashed the District Court's judgment of 13 October 1989

and acquitted M. As regards his compensation claims, the applicant was

referred to the civil courts, in accordance with S. 366 para. 1 of the

Code of Criminal Procedure.

64. With regard to the applicant's credibility, the Regional Court

noted that on 6 October 1988 the Vienna District Court had convicted

him of drug trafficking. For several years the applicant had been

unemployed, and he was living with two minor children on his wife's

earnings and social security benefits. As consumer of drugs and for

various private purposes, he had a considerable need of money.

65. As regards the relevant events, the Regional Court noted that,

according to the findings of the District Court which were solely based

on the applicant's account, Police Officer M. had already insulted and

beaten him, without, however, causing any injuries. On the next day,

the questioning had escalated, the applicant's wife had been insulted

and threatened, and he himself had also been insulted, hit on his head

and been kicked. In this respect, the Regional Court also referred to

the submissions of the applicant and his wife in proceedings which they

had meanwhile instituted before the Constitutional Court (Verfassungs-

gerichtshof). The District Court had assumed that the public pressure

to solve the case of murder in question had been the reason for such

escalation. The applicant, upon detailed questioning at the hearing

before the Regional Court, could not explain the escalation in

question, as he had acted perfectly correctly. According to the

applicant's further accusations, M. had repeatedly pulled him by his

hair to the floor, and had ill-treated and kicked him together with

other police officers. Had not Police Officer F. calmed M. down, he

could have been killed by M. He had also had the impression that the

police officers had taken drugs. The statements of the applicant's

wife were on the same lines.

66. This account of events was contradicted by the statements of

Police Officer M. and also of Police Officer F. whom the applicant

himself had called correct in his behaviour. According to the

statements of the Police Officers, the applicant had threatened that

he would create difficulties and ridicule them.

67. The Regional Court considered that neither the applicant's nor

his wife's statements could logically explain the escalation of the

questioning resulting in allegedly criminal behaviour. Furthermore,

the identity of the other police officers who had allegedly kicked him

remained unclear. In this respect, the Regional Court noted in

particular the applicant's allegations that only four police officers

had been present and also conducted the questioning of his wife, that

he himself had exonerated Police Officers T. and G. and never

reproached Police Officer F.

68. Moreover, the Regional Court considered that the applicant's

summary of events did not correspond to his injuries, which in any way

varied in the applicant's submissions and the statements of witnesses.

Had his head been hit repeatedly and had he been kicked, numerous

injuries, in particular in his face, were to be expected. His further

submission, according to which he had been beaten in such a manner as

to leave few signs, would suggest a careful planning on the part of the

accused, whereas the applicant recounted that they had lost any self-

control in their intention to obtain a confession.

69. As regards haematomas on the applicant's right upper arm, the

Regional Court, having regard to the opinion of the forensic expert,

found that the explanation given by the accused M., as confirmed by

Police Officer F., namely an accident on the occasion of the

applicant's transport in a police car, could not be excluded.

70. The Regional Court, having regard to the forensic expert opinion,

further considered that the symptoms, namely pain in the neck, numbness

of his fingers and, a week later, stiffness of his neck, moreover

diarrhoea, which the applicant's physician viewed as cervical syndrome

suggesting ill-treatment, could also have resulted from a general

infection. The Regional Court noted in this respect that the applicant

had previously had stomach problems and had only drunk water in the

course of his detention.

71. The Regional Court rejected the applicant's requests to take

further evidence, on the ground that these requests related to the

irrelevant question whether or not particular witnesses had considered

his statements credible.

72. The Regional Court finally noted that the applicant had not laid

information against the police officers concerned, but raised charges

in public in the context of a broadcast. There were altogether serious

reasons not to trust his allegations.

73. The Regional Court concluded that, on balance, the version of the

accused could not be refuted, nor had at least parts of the applicant's

allegations been proven with the certainty necessary for a criminal

conviction.

74. On 26 November 1990 the Constitutional Court, upon the

applicant's complaint under S. 144 of the Federal Constitution (Bundes-

verfassungsgesetz), held that his arrest by police officers of the

Vienna Federal Police Authority on 31 May 1988 at about 12h30, and his

subsequent detention until 2 June 1988 at 9h30 had violated his right

to liberty, and that the searches of his home had violated his right

to respect for his home. The Constitutional Court rejected the

remainder of the applicant's complaint that he had been insulted and

ill-treated by police officers in the course of his detention.

75. The Constitutional Court found that the applicant's arrest and

detention, which had not been ordered by a court, had been unlawful,

as the Federal Police Authority had failed to show any immediate danger

of collusion which could have justified a police action without a

warrant of arrest. Likewise, the three searches of the applicant's

home had been carried out without a search warrant, no immediate danger

exceptionally justifying such action.

76. As regards the insults allegedly committed by police officers in

the course of the applicant's detention, the Constitutional Court

referred to its constant case-law according to which mere insults as

such did not amount to an administrative act relating to the exercise

of direct administrative authority and coercion, even if such insulting

remarks were allegedly made in the course of an official act. Thus

there was no act which could be challenged before the Constitutional

Court, and this part of the complaint was inadmissible.

77. With regard to the applicant's allegations that he had been

assaulted by police officers, the Constitutional Court noted that the

accused Police Officers T. and G. had been acquitted by the Vienna

District Court on 13 October 1989, and the accused Police Officer M.

by the Vienna Regional Court on 14 September 1990. The Constitutional

Court considered that, in view of this outcome of the criminal

proceedings, where evidence had been taken on a broad basis, it could

not accept the applicant's allegations. Thus it could not accept the

alleged ill-treatment as proven beyond doubt. In these circumstances,

seen as a whole, a further examination of the relevant facts and thus

proof of a violation of Article 3 of the Convention was no longer

possible for the purposes of the complaint proceedings.

78. The decision was served on 22 February 1991.

B. The evidence before the Commission

79. The Commission had regard to the evidence obtained at the

domestic level. It considered in particular:

- the report of 1 (2) June 1988 drafted by Police Officer M. on the

applicant's escorted visit to the Acoustics Research Institute;

- the report of the Meidling Hospital of 2 June 1988;

- records of the questionings conducted by the Investigating Judge

on 26 June 1989 with the applicant, with his wife, with the

suspect Police Officers T., G., F. and M.;

- the statements of the accused and the witnesses according to the

record of the trial before the Vienna District Court on

13 October 1989;

- the forensic expert opinion of 23 July 1990;

- the statements of the accused Police Officer M. and of the

applicant according to the record of the hearing before the

Vienna Regional Court on 14 September 1990.

80. The Commission did not itself take further evidence.

C. The relevant domestic law

81. Under S. 83 para. 1 of the Austrian Penal Code (Strafgesetzbuch),

bodily assault is punishable by imprisonment not exceeding six months

or by a fine of an amount not exceeding 360 daily rates (Tagessätze).

According to S. 313 of the Penal Code the maximum punishment may be

increased by one half, if the offence was committed by a public

official taking advantage of his position.

82. S. 47 of the Austrian Code of Criminal Procedure (Strafprozeß-

ordnung) concerns the right of the victim of a criminal offence to be

a private party (Privatbeteiligter) claiming damages in the context of

the criminal proceedings. The private party is in particular entitled

to supply the public prosecutor and the investigating judge with

anything likely to show the guilt of the accused and, to establish the

compensation claim, to have access to the files, and to be summoned for

the trial. According to SS. 222 and 249 the private party may request

the hearing of witnesses or experts, and put questions to them.

83. SS. 365 to 379 of the Code of Criminal Procedure regulate the

competence of criminal courts in respect of civil rights. S. 365

provides that the criminal court must, ex officio, consider the damage

resulting from a criminal offence. Pursuant to S. 366, the private

party is referred to the civil courts regarding any compensation

claims, if the accused is not convicted.

84. The competence of the Constitutional Court to receive complaints

about the violation of constitutionally guaranteed rights is laid down

in Article 144 para. 1 of the Federal Constitution (Bundesverfassungs-

gesetz). It relates to complaints against formal decisions of

administrative authorities or complaints concerning the exercise of

direct administrative authority and coercion against a particular

individual (Ausübung unmittelbarer verwaltungsbehördlicher Befehls- und

Zwangsgewalt gegen eine bestimmte Person). According to S. 19 of the

Constitutional Court Act (Verfassungsgerichtsgesetz), the

Constitutional Court decides in general following an oral hearing held

in presence of the parties, unless, inter alia, a decision can be taken

on the basis of the parties' written submissions and an oral hearing

could not further clarify the issues raised in the proceedings. In the

proceedings upon complaints brought under Article 144 para. 1 of the

Federal Constitution, the Constitutional Court decides whether there

was a violation of the complainant's constitutionally guaranteed

rights, and, if so, quashes the administrative decision concerned

(S. 87 para. 1 of the Constitutional Court Act). In case of success

of a complaint, the administrative authorities are obliged to establish

a situation complying with the findings of the Constitutional Court

(S. 87 para. 2 of the Constitutional Court Act).

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

85. The Commission has declared admissible the applicant's complaint

that, during his police custody, he was subjected to inhuman and

degrading treatment.

B. Point at issue

86. Accordingly, the issue to be determined is whether there has been

a violation of Article 3 (Art. 3) of the Convention.

C. Article 3 (Art. 3) of the Convention

87. The applicant invokes Article 3 (Art. 3) of the Convention which

provides as follows:

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

treatment or punishment."

88. The applicant submits that the injuries which he suffered in the

course of his detention as a result of ill-treatment by police officers

were seen by several witnesses and recorded in a medical report. The

Regional Court only quashed Police Officer M.'s conviction and the

findings of the first instance court because of the gaps in his memory

at the time of the appeal proceedings, i.e. two years after the events

in question. He considers that the Regional Court's judgment is

inconsistent and arbitrary and intended to protect the police officers

and a deplorable administrative practice.

89. The Government contest the applicant's allegations of ill-

treatment. They refer to the findings of the criminal courts in the

proceedings against the three police officers involved in the

applicant's questioning. As regards the alleged insults, the

Government further submit that the minimum level of severity required

for these insults to fall within the scope of Article 3 (Art. 3) was

not attained.

90. The Commission recalls that ill-treatment must attain a certain

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

(Art. 3). The assessment of this minimum is, in the nature of things,

relative; it 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 victim etc. (Eur. Court

H.R., Ireland v. the United Kingdom judgment of 18 January 1978,

Series A no. 25, pp. 65-67, paras. 162, 167; Tyrer judgment of

25 April 1978, Series A no. 26, pp. 14-15, paras. 29-30; Soering

judgment of 7 July 1989, Series A no. 161, p. 39, para. 100).

91. Such treatment causing, if not actual bodily injury, at least

intense physical and mental suffering falls into the category of

inhuman treatment within the meaning of Article 3 (Art. 3). It is

degrading if it arouses 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 (Eur. Court

H.R., Ireland v. the United Kingdom judgment, loc. cit., p. 68,

para. 174; Guzzardi judgment of 6 November 1980, Series A no. 39,

p. 40, para. 107; Abdulaziz, Cabales and Balkandali judgment of

28 May 1985, Series A no. 94, p. 42, paras. 90-91; Soering judgment,

loc. cit.).

92. The Commission notes that the applicant was arrested on

31 May 1988 at midday and detained at the Vienna Federal Police

Authority until the early morning of 2 June 1988. Several

interrogations on the death of two persons due to opium poisoning took

place during this time. The interrogations of the applicant were

mainly conducted by Police Officer M., assisted by Police Officer F.;

other Police Officers were occasionally present.

93. It is not contested that, in the course of his detention, the

applicant suffered an injury to his right upper arm. A considerable

bruising on the outside of his right upper arm was recorded in the

medical reports, by several witnesses and in particular by the accused

Police Officer M. and by his colleague F. The medical reports also

mentioned further smaller bruises on the applicant's right upper arm.

The medical practitioner S. found a temperature of 37.5° C, and, on the

basis of the applicant's own account recorded vomiting and headaches.

He made the diagnosis of a cervical syndrome. In the course of the

criminal proceedings, the applicant's wife, his brother and the

journalist B., heard as witnesses, also referred to a haematoma on the

applicant's leg, which coincided with a shoe-print on his trousers.

Both criminal courts found that the applicant had been injured in the

course of his detention, i.e. suffered at least a haematoma on his

right upper arm. As to the other bruises, the Regional Court found the

descriptions of the witnesses at variance.

94. As regards the particular circumstances of the applicant's

detention and questioning, and in particular the cause of his injuries,

the Commission is confronted with differing versions.

95. The applicant claims that he sustained bodily injuries in

consequence of ill-treatment as well as mental suffering as a

consequence of insults by the Police Officers questioning him at the

Vienna Federal Police Authority. He submits that the Police Officers

attempted to obtain his admission of having been involved in the said

drug case, and accuses in particular Police Officer M. of having beaten

and kicked him and pulled him by his hair to the floor. Moreover, G.

allegedly pulled him by his moustache and hit him on his head in the

course of his first interrogation on 31 May 1988. The applicant

assumes that further Police Officers kicked him, but cannot name them.

According to him, other Police Officers watched this ill-treatment

without intervening on his behalf.

96. The Government, referring to the final findings of the domestic

courts and the statements made by the Police Officers concerned in the

course of the criminal investigations, submit that there is no proof

for the applicant's allegations of ill-treatment.

97. The Commission notes that, at the domestic level, there were two

sets of proceedings dealing with the applicant's allegations.

98. Following a public broadcast on 7 June 1988, the Vienna Federal

Police Authority opened criminal investigations against police Officers

M., G., T. and F. on charges of bodily assault. The applicant joined

these proceedings as a private party in November 1988. A trial was

conducted against Police Officers M., G. and T. before the Vienna

District Court, and, at its close, Police Officer M. was convicted of

bodily assault, whereas the other accused were acquitted. Police

Officer M. was finally acquitted following appeal proceedings before

the Vienna Regional Court.

99. The Vienna District Court, in its judgment of 13 October 1989,

found that the applicant's account of the events was credible and

refuted the defence of the accused M. It considered in particular that

several witnesses had seen the applicant's injuries shortly after the

incident and confirmed that, already at that stage, he had told them

in detail about his alleged ill-treatment. Moreover, the applicant had

recognised M. and other participants in the questioning on the occasion

of a confrontation one year later. According to the District Court,

the accidental cause of the applicant's injuries, as alleged by the

accused M., was unlikely and M.'s defence not credible.

100. The Vienna Regional Court, in its judgment of 14 September 1990,

found that the statements of the applicant and his wife were

contradicted by the statements of Police Officer M. and Police Officer

F. whose correct behaviour had not been called into question. In

particular, there was no logical explanation of the alleged escalation

of the questioning towards criminal behaviour. The applicant's

description of the injuries sustained varied in his submissions and in

the statements of witnesses and did not correspond to his account of

the events. The Regional Court, considering the applicant's

credibility, also noted that on 6 October 1988 the Vienna District

Court had convicted him of drug trafficking. Furthermore, the Regional

Court took expert evidence as to the defence of Police Officer M. that

the injuries, in particular the haematoma on the applicant's right

upper arm, had been caused accidentally. The Regional Court endorsed

the expert's opinion that this version of events could not be excluded.

Moreover, the Regional Court, proceeding from a forensic expert

opinion, considered that the further symptoms of illness, namely pain

in the neck, numbness of his fingers and one week later stiffness of

his neck, as well as diarrhoea, which the applicant's physician viewed

as a cervical syndrome suggesting ill-treatment, could also have

resulted from a general infection. The Regional Court noted in this

respect that the applicant had previously had stomach problems and had

only drunk water while in detention.

101. The Commission further notes that the applicant brought complaint

proceedings before the Austrian Constitutional Court under S. 144

para. 1 of the Federal Constitution, which related to his arrest and

detention, the searches of his home as well as to his allegations of

insult and ill-treatment by police officers in the course of his

detention. The Constitutional Court, in its judgment of

20 November 1990 held that the applicant's arrest and detention had

violated his right to liberty and that the searches of his home had

been likewise unconstitutional. However, the Constitutional Court did

not regard the alleged insults as challengeable administrative acts.

Moreover, having regard to the outcome of the criminal proceedings

against the Police Officers concerned, where evidence had been taken

on a broad basis, the Constitutional Court did not accept the

applicant's allegation as proven beyond doubt, a further examination

of the relevant facts thus not being necessary.

102. In accordance with Article 28 para. 1 (Art. 28-1) and Article 31

(Art. 31) of the Convention, the Commission has examined the question

whether the applicant suffered ill-treatment contrary to Article 3

(Art. 3) in light of all the material before it (cf. Eur. Court H.R.,

Ireland v. the United Kingdom judgment of 18 January 1978, Series A

no. 25, p. 64, para. 160; Artico judgment of 13 May 1980, Series A

no. 37, p. 14, para. 30). Though it is, as a general rule, for the

domestic courts to assess the evidence before it, the Commission has

to verify whether there are cogent elements which could call into

question the findings of the national courts and add weight to the

applicant's allegations (Eur. Court H.R., Klaas judgment of

22 September 1993, Series A no. 269, paras. 29-30).

103. The Commission has relied on the evidence obtained at the

domestic level (see above para. 79), taking due account of the parties'

submissions in the proceedings before it, and has not found it

necessary to conduct a further investigation with a view to

ascertaining the facts under Article 28 para. 1 (a) (Art. 28-1-a) of

the Convention.

104. The Commission recalls that the facts constituting a violation

of the Convention must be proved "beyond reasonable doubt". In this

connection, a reasonable doubt means not a doubt based on a merely

theoretical possibility, but a doubt for which reasons can be drawn

from the facts presented. The Commission wishes to stress that the

authorities exercise full control over a person held in police custody

and their way of treating a detainee must, therefore, be subjected to

strict scrutiny under the Convention. Thus where injuries occurred in

the course of police custody, it is not sufficient for the Government

to point at other possible causes of such injuries, but it is incumbent

on them to produce evidence showing facts which cast doubt on the

account given by the victim, in particular if supported by medical

evidence (cf. Eur. Court H.R., Tomasi judgment of 27 August 1992,

Series A no. 241-A, pp. 40-41, paras. 109, 110; Ireland v. the United

Kingdom, Comm. Report 25.1.76, Eur. Court H.R., Series B no. 23-I,

p. 413; see also, mutatis mutandis, Eur. Court H.R., Bozano judgment

of 18 December 1986, Series A no. 111, p. 26, para. 59).

105. In the present case, the Government rely on the outcome of the

domestic proceedings, in particular of the criminal proceedings against

several Police Officers who had participated in the interrogations of

the applicant, giving the Police Officer's version of an accidental

incident in the course of the escorted visit as an explanation for the

applicant's injury.

106. The Commission observes that the assessment of evidence in the

context of the criminal proceedings in question was governed by the

principle of the presumption of innocence, as guaranteed by

Article 6 para. 2 (Art. 6-2) of the Convention.

107. Accordingly, the Vienna District Court acquitted Police Officers

G. and T., because, taking into account the applicant's own statements

on their behaviour, it had not been proven beyond doubt that they had

caused the injuries. However, on the basis of the evidence obtained

by hearing several witnesses, including the applicant, the District

Court found Police Officer M. guilty of having inflicted bodily harm

upon the applicant. The Regional Court, further applying the principle

of "in dubio pro reo", also acquitted Police Officer M. upon his

appeal. The Regional Court, having heard the accused and the

applicant, departed from the findings of the District Court as to the

credibility of the applicant, though the authenticity of the

applicant's suffering following his release had been confirmed by

several witnesses, including the psychologist Tr. The Regional Court

put particular emphasis on the findings of a forensic expert, according

to which M.'s version of an accidental cause could not be excluded as

explanation for the bruising on the applicant's right upper arm.

Neither the District Court nor the Regional Court adverted to the

apparent discrepancy in M.'s statements concerning the time when the

applicant first showed him the bruise on his right arm (see above

paras. 27, 30, 60).

108. The Austrian Constitutional Court, in the proceedings under

Article 144 of the Federal Constitution, endorsed the assessment of

evidence by the District Court, as to the acquittal of Police Officers

G. and T., and by the Regional Court, as to the acquittal of Police

Officer M. The Constitutional Court, which however did not investigate

the matter fully, applied the same standard of proof as in criminal

cases.

109. In these circumstances, the Commission, considering both the

limited scope of the proceedings before the criminal courts, bound by

the principle of the presumption of innocence, and the refusal of the

Constitutional Court to further investigate the relevant facts, is not

satisfied that the Government's explanations, which exclusively refer

to the outcome of these domestic proceedings, suffice to cast a

reasonable doubt on the applicant's allegations of ill-treatment

causing bodily injuries and mental suffering in the course of his

detention at the Vienna Federal Police Authority.

individual persons belongs to the competence of the national judiciary.

The Commission is not to challenge the acquittal of the police officers

in the course of the criminal proceedings before the Vienna Courts.

However, criminal law responsibility under the national legal systems

should not be confused with the international law responsibility under

the Convention. The Commission is only concerned with the latter. The

test as well as the method and standard of proof in respect of the

responsibility under the Convention are different from those applicable

in the various national systems as regards responsibility of

individuals for criminal offences. Responsibility under the Convention

is based on its own provisions which are to be interpreted and applied

on the basis of the objectives of the Convention and in the light of

relevant principles of international law (cf. Eur. Court H.R., Golder

judgment of 21 February 1975, Series A no. 18, pp. 16-18, para. 34 et

seq.). The responsibility of a State under the Convention, arising for

acts of all its organs, agents and servants, does not necessarily

require any "guilt" on behalf of the State, either in a moral, legal

or political meaning (cf. Ireland v. the United Kingdom, Comm. Report

25.1.76, loc. cit., pp. 393-394).

111. The Commission further considers that, in contrast with criminal

proceedings, proceedings instituted under the European Convention on

Human Rights are not aimed at punishing the authors of violations, but

at protecting the victims and providing redress for damage caused by

the acts of the State responsible (see also Inter-American Court of

Human Rights, Velasquez Rodriguez case, judgment of 29 July 1988,

para. 134 et seq., annual report of the Inter-American Court of Human

Rights 1988, Washington 1988, pp. 35 and 61).

112. The Commission, when examining an alleged violation of the

Convention, is not bound by the findings of fact of the national

courts. It can draw its own conclusions on the basis of all the

material placed before it. In any event, in the present case the

national courts were not unanimous in establishing the facts.

113. The Commission takes into account the following facts:

(a) that several witnesses to whom the applicant had talked

immediately after his arrest, including the psychologist

Tr., were convinced of the correctness of the applicant's

account;

(b) Dr. S. had described the version of Police Officer M., i.e.

that the injury was inflicted by a fall against the door of

the police car, as being "rather implausible";

(c) according to the expert opinion of the Vienna Institute of

Forensic Medicine of 23 July 1990, the version of Police

Officer M. could only explain the haematoma on the

applicant's upper arm which was only one of the injuries

suffered by the applicant;

(d) the further medical evidence to the effect that the

applicant had also suffered a cervical syndrome;

(e) the statements of several witnesses, inter alia, the

reporter B., according to which the applicant's trousers

showed a footprint at the place where he was injured at his

leg.

114. As already stated, it is not sufficient to point at alternative

theoretical possibilities as to the cause of injuries without offering

evidence, as long as it is certain that these injuries were caused

while the applicant was in police custody. No such evidence or even

a convincing explanation has been presented to the Commission.

115. In these circumstances, the Commission, considering the

particular vulnerability of the applicant, who was, according to the

judgment of the Constitutional Court, unlawfully held in police custody

without a court order, is satisfied beyond reasonable doubt that the

applicant was subjected to physical violence which, in the

circumstances, amounted to inhuman and degrading treatment.

116. In the light of this conclusion, the Commission does not find it

necessary to inquire into the alleged insult by police officers, which

was not considered to be a challengeable act by the Constitutional

Court, and only examined in a cursory way by the Vienna Regional Court.

CONCLUSION

117. The Commission concludes, by 10 votes to 6, that there has been

a violation of Article 3 (Art. 3) of the Convention.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

(Or. English)

CONCURRING OPINION OF Mr. N. BRATZA

I share the view of the majority of the Commission that there has

been a breach of Article 3 in the present case. I also substantially

follow the reasoning of the Commission in paragraphs 102-116 of its

Report.

In its judgement in the Klaas case the Court (in para. 29)

recalled that it was not normally within the province of the Convention

organs to substitute their own assessment of the facts for that of the

domestic courts and that, as a general rule, it was for those courts

to assess the evidence before them. The Court went on to note that,

in reaching the conclusion that the applicant in that case could have

injured herself while resisting arrest and that the arresting officers

had not used excessive force, the Regional Court in particular

"...had the benefit of seeing the various witnesses give

their evidence and of evaluating their availability. No

material has been adduced in the course of the Strasbourg

proceedings which could call into question the findings of

the national courts and add weight to the applicant's

allegations either before the Commission or the Court".

(para. 30)

The circumstances of the present application differ in two

important respects from those with which the Court and Commission were

concerned in the Klaas case. In the first place, all the national

courts, both criminal and civil, rejected Mrs. Klaas' complaint that

she had been injured as a result of the use of disproportionate force.

In contrast, in the present case the Vienna District Court, which alone

heard the evidence of all the witnesses and was in the best position

to judge their credibility, found that the applicant had been assaulted

by Police Officer M. and that the assault had been proved to the

criminal standard - beyond reasonable doubt. Secondly, this is not a

case, as in Klaas, where the issue before the national courts was the

difficult issue of deciding whether the admitted use of force by the

police in effecting an arrest was in all the circumstances

disproportionate. The defendant in the criminal trial in the present

case claimed that no force had been used at all on the applicant and

that he had come by the injury to his arm as a result of an accidental

fall while he was getting out of a police car at the Institute of

Forensic Medicine. There was, thus, an acute conflict of evidence

between the applicant, on the one hand, and the police witnesses on the

other, and the police evidence as to the cause of the injury found on

the applicant's arm was expressly rejected by the District Court as a

fabrication.

In the Regional Court this decision was reversed, and Police

Officer M.'s conviction quashed, on the ground that the Court was not

satisfied that the evidence established the guilt of the accused to the

requisite criminal standard.

In these circumstances, the question arises as to the proper

approach to the applicant's complaint of a breach of Article 3. The

Government rely on the outcome of the domestic proceedings and on the

fact that, having heard evidence from both the applicant and Police

Officer M., as well as having received an additional expert opinion,

the Regional Court found that the prosecution had not made out the case

to the requisite standard.

However, as the majority of the Commission observes, this is in

no way determinative of the issue under Article 3, where the

Commission's task is not to determine the criminal liability of

individual police officers and where, in evaluating the complaint in

the light of all the evidence before it, the Commission is not

constrained by strict criminal standards of proof.

The crucial fact in evaluating the present case appears to me to

be that the applicant sustained the injury to his arm while he was in

police custody. This much is not in dispute. Once it has been

accepted or established that physical injury has been sustained by a

person while in the custody of the police, or while under police

control, it is in my view incumbent on the Government to show that such

injuries were not caused or brought about by the actions of the police

or at least to provide a convincing explanation of how the applicant

came by the injuries in question.

Following this approach, it seems to me that the starting point

for any assessment is the decision of the Vienna District Court, which

had the advantage of hearing all the witnesses, including all the

police officers concerned with the applicant and his wife during the

period of their detention. In summary, the District Court concluded

that

(i) the applicant was a credible witness and created an

excellent impression in the witness box;

(ii) the applicant's account of the assault was consistent

with the story he had told soon afterwards to other

witnesses and was supported by the medical evidence;

(iii) the injuries to the applicant's arm were inconsistent

with the account of the defendant that the applicant

had slipped and fallen as he got out of the police

car;

(iv) the evidence of the defendant was both unsatisfactory

and contradictory;

(v) the defendant's claim that the injuries had been

accidentally sustained was untrue.

It is clear that the Regional Court took a very different view

as to the credibility of the applicant's evidence. This view appears

to have been based principally on three matters: the fact that the

applicant could not convincingly account for his means, which may have

been derived from an involvement in drug dealing; the fact that the

applicant could not explain why there had been a sudden deterioration

in the atmosphere during his police interviews to the point where the

police carried out a sustained brutal assault on him; and the fact that

the applicant's account of the assault was not borne out by the

injuries which were found to have been sustained by him.

I do not find any of these points compelling. In particular,

while it cannot be discounted that the applicant may have exaggerated

the extent or severity of the assault, the unassailable fact remains

that a large bruise and several other smaller bruises were found on his

right arm, where he claimed he had been assaulted.

As to the possibility that the injury had been sustained as a

result of an accidental fall, the District Court found the defendant's

account as to how the applicant had sustained the injury to be

factually "impossible". Moreover, as the Regional Court accepted,

Dr. S. had described the defendant's version as to how the applicant

had sustained his injury as being "rather implausible".

It is true that the Regional Court had the benefit, not available

to the District Court, of a report from Dr. M. and of hearing his

evidence, including evidence relating to the reconstruction of the

events leading up to the applicant's alleged fall. However, Dr. M.'s

report and evidence were inconclusive, Dr. M. stating that no certain

conclusion could be drawn as to the cause of the injury to the arm and

that neither a bump against the car door nor blows to the upper arm

could be excluded as a cause. Moreover, as the Regional Court noted,

it was Dr. M.'s view that the more the alleged fall of the applicant

resembled a mere sliding to the ground, the less probable was the

defendant's version of the cause of the injury.

In summary, I find nothing which convincingly displaces the

conclusion of the District Court that the injury to his arm was caused

by an assault while in police custody. While in no way questioning the

decision of the Regional Court that sufficient doubt had been raised

as to the cause of the injury to give the benefit of that doubt to the

defendant, the Government have not in my view discharged the burden on

them of providing a sufficiently convincing alternative explanation as

to how the defendant came by his injuries.

(Or. English)

DISSENTING OPINION OF MM. C.A. NØRGAARD, A. WEITZEL, F. ERMACORA,

J.-C. GEUS, M.A. NOWICKI AND B. CONFORTI

We find ourselves unable to agree with the opinion of the

majority of the Commission that there has been a violation of Article 3

of the Convention.

The accusations raised by the applicant were investigated in the

course of criminal proceedings against three police officers. At first

instance, one of the police officers concerned was convicted of bodily

assault on the basis of the account of events given by the applicant,

whereas the defence of an accidental cause of the injuries was regarded

as unlikely. There was no proof of guilt as regards the two other

accused police officers. At second instance, Police Officer M. was

also acquitted. The Vienna Regional Court carefully evaluated the

evidence before it, examining in detail the submissions of the

applicant and the other witnesses. Moreover, we attach particular

importance to the fact that the Regional Court took recourse to a

forensic expert opinion with regard to the explanation offered by the

accused Police Officer M., namely the accidental cause of the injuries

concerned, as well as the further symptoms of illness recounted by the

applicant. The findings of the Regional Court that the allegations of

ill-treatment could not be proven appear reasonable in the

circumstances.

We therefore consider that there was a reasonable doubt as to the

applicant's allegations of ill-treatment causing bodily injuries in the

course of his detention at the Vienna Federal Police Department, and

find consequently no violation of Article 3 of the Convention.

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

_________________________________________________________________

5 August 1991 Introduction of application

3 October 1991 Registration of application

Examination of admissibility

30 March 1992 Commission's decision to communicate the

case to the respondent Government and to

invite the parties to submit observations

on admissibility and merits

15 July 1992 Government's observations

10 December 1993 Commission's grant of legal aid

8 October 1992 Applicant's observations in reply

4 May 1993 Commission's decision to hold a hearing

20 October 1993 Hearing on admissibility and merits

20 October 1993 Commission's decision to declare

application in part admissible and in part

inadmissible

Examination of the merits

5 March 1994 Commission's consideration of the state of

proceedings

27 June 1994 Commission's deliberations on the merits

and final vote

4 July 1994 Adoption of the Report

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RIBITSCH v. AUSTRIA

RIBITSCH v. AUSTRIA

LEXI