AS TO THE ADMISSIBILITY OF

                      Application No. 31176/96

                      by Robert NEUBER

                      against Austria

     The European Commission of Human Rights (First Chamber) sitting

in private on 23 October 1997, the following members being present:

           Mrs   J. LIDDY, President

           MM    M.P. PELLONPÄÄ

                 E. BUSUTTIL

                 A. WEITZEL

                 C.L. ROZAKIS

                 L. LOUCAIDES

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 M. VILA AMIGÓ

           Mrs   M. HION

           Mr    R. NICOLINI

           Mrs   M.F. BUQUICCHIO, Secretary to the Chamber

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 11 April 1996 by

Robert NEUBER against Austria and registered on 25 April 1996 under

file No. 31176/96;

     Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant, born in 1973, is an Austrian national, residing

in Vienna.  Before the Commission he is represented by Mr. Pochieser,

a lawyer practising in Vienna.

     The facts, as they have been submitted by the applicant, may be

summarised as follows.

     On 31 July 1993 the applicant was injured by the police upon

being arrested.

     On 10 September 1993 the applicant filed a complaint with the

Vienna Independent Administrative Panel (Unabhängiger Verwaltungs-

senat), in which he gave the following account of the above incident.

On 31 July 1993 he attended a party in a pub in Vienna, which he left

at about 11 p.m. together with a friend in order to buy cigarettes. He

had already drunk a certain amount of alcohol. On their way back he and

his friend climbed into an unlocked car. At that moment the police

arrived. The applicant got out of the car and ran away. One of the

police officers fired twice into the air.  When he, the applicant,

stopped, a third shot hit his hand causing severe injuries.  Due to

these injuries he had to stay in hospital from 31 July until

11 August 1993. From 11 August 1993 on he got treatment as an out-

patient. He still suffered from restricted movement in his hand.

Further, the applicant alleged that one of the police officers involved

had initially prevented the doctor on emergency call from assisting

him.

     The applicant claimed that the police had interfered with his

rights under Article 3 of the Convention since, when the police officer

fired the shots, it was in the knowledge that the applicant might be

severely wounded or even killed. Further, the use of a firearm was in

any case disproportionate, as it was not necessary to enforce his

arrest. Further, the obstruction of medical care, even for a short

period, constituted in itself inhuman treatment.

     The Vienna Federal Police Authority (Bundespolizeidirektion) in

its written comments gave a different version of the events: it stated

that the police had been called by a witness who had reported that two

men were damaging cars. When the police officers arrived, they saw the

applicant and his friend sitting in a car, fiddling about in the glove

compartment. Both men immediately took to their heels when they saw the

police. Police officers S. and K. requested them to stop. When they did

not respond to this request, police officer S. pursued the applicant.

After having again requested the applicant to stop, he fired two

warning shots. However, the applicant continued to run and police

officer S. continued his pursuit. A third shot went off

unintentionally, when police officer S. fell. This shot hit the

applicant's hand. Police officer S. immediately went to look after the

applicant and stopped a taxi.  The taxi-driver gave him the first-aid

box and - upon the police officer's request - called an ambulance.

Immediately after his arrival the doctor on emergency call took care

of the applicant who was then taken to hospital.

     According to the medical report of the Meidling Hospital, the

applicant sustained numerous injuries to the skin, muscles, bones and

nerves of his right hand.

     On 2 February 1994 the Independent Administrative Panel held a

public hearing. It heard the applicant and a number of witnesses.

     During the proceedings the applicant maintained the view that the

police officer had fired at him intentionally. He stated, however, that

he had neither seen that the police officer had aimed at him nor that

the police officer had fallen. He submitted, furthermore, that even

assuming that the shot went off unintentionally, the facts of the case

disclosed that he had been subjected to inhuman treatment.  He argued

in particular that the act of pursuing him with the pistol drawn

combined with the readiness to use this pistol while running was

unjustified and disproportionate.  Moreover, he contested that he and

his friend had damaged any car and stated that his running away had

simply been a panic reaction.

     Police officer S., on the other hand, declared that after having

fired two warning shots he was chasing the applicant when he fell and

a shot went off. He claimed that he kept his pistol in his hand while

pursuing the applicant because he was not certain whether the applicant

was himself carrying a weapon.

     By decision of 2 February 1994 the Independent Administrative

Panel dismissed (abweisen) the complaint relating to the two warning

shots and rejected (zurückweisen) as inadmissible the complaints

relating to the third shot which hit the applicant's hand and the

alleged obstruction of medical care.

     The Independent Administrative Panel found it established that

the police were called by a witness who had seen two men damaging

several cars. When the police officers arrived the applicant and his

friend were sitting in a car with a broken window. When they saw the

police they fled. Although the police officers loudly requested the

applicant and his friend to stop they continued their flight.  After

police officers S. and K. had each fired a warning shot, police officer

S. pursued the applicant. He fired a second warning shot, but the

applicant did not stop. Thereafter, police officer S. fell and a third

shot hitting the applicant's hand went off. Police officer S. then

stopped a taxi and requested the driver to call an ambulance. The

doctor on emergency call was able to take care of the applicant without

any hindrance.

     In reaching these conclusions, the Independent Administrative

Panel relied on the statements of the witnesses examined, namely the

police officers, the doctor on emergency call and the man who had

called the police. It found that police officer S. had made a

particularly good and credible impression. Moreover, his statement that

he had fallen was supported by other evidence such as traces on the

pavement, the police officer's injuries mentioned in the police report

drawn up on the following day, and the statement of the doctor on

emergency call, who remembered that a police officer had shown him his

injured arm. Also, police officer S.'s statement, according to which

the shot went off when he fell, was highly credible. It was in

accordance with the account he had given immediately after the incident

to police officer K. If the shot had been intentional, police officer

S. would have had no reason to lie about this, since even the firing

of a shot aimed at a fugitive was permitted under certain conditions

which would have been fulfilled in the present case. The applicant on

the other hand had admitted that he had not been able to see whether

the shot was aimed at him, since he was running away and so had his

back to the police officer. Finally, the statement of the doctor on

emergency call had not confirmed the applicant's allegation concerning

the obstruction of medical care.

     The Independent Administrative Panel refused to take an opinion

of a firearms expert finding that the question the applicant wanted to

clarify  was irrelevant.

     In its legal assessment the Independent Administrative Panel

considered that there were solid reasons to suspect the applicant of

aggravated criminal damage (Sachbeschädigung) and burglary

(Einbruchsdiebstahl).  The police officers had to prevent him from

absconding and to enforce his lawful arrest. According to

S. 2 para. 2 (3) of the Use of Weapons Act (Waffengebrauchsgesetz)

police officers were entitled to make use of their weapons in order to

enforce a lawful arrest. Police officer S. requested the applicant

twice to stop, took up his pursuit and fired two warning shots. He,

therefore, acted in conformity with S. 4 of the Use of Weapons Act

which provides that a police officer before using a weapon has to make

use of less dangerous means. It followed that the firing of two warning

shots was justified and proportionate. As to the third shot which hit

the applicant's hand the Independent Administrative Panel recalled its

finding that this shot had gone off unintentionally.  Since police

officer S. had no intention to fire, this third shot was an accident

and did not constitute an act of direct administrative compulsion

(Ausübung unmittelbarer verwaltungsbehördlicher Befehls- und

Zwangsgewalt). Therefore, the complaint had to be rejected as

inadmissible.

     The Independent Administrative Panel also rejected as

inadmissible the complaint relating to alleged obstruction of medical

care finding that no such facts had been established and that there was

therefore no subject of complaint (Beschwerdegegenstand).

     On 2 May 1994 the applicant filed a complaint with the

Constitutional Court (Verfassungsgerichtshof). He complained about the

Independent Administrative Panel's refusal to decide on the merits of

his complaints concerning the third shot and the obstruction of medical

care. He contested, in particular, the finding of the Independent

Administrative Panel that the third shot did not constitute an act of

direct administrative compulsion.

     On 26 September 1994 the Constitutional Court refused to

entertain the applicant's request for lack of prospects of success and

transferred the case to the Administrative Court (Verwaltungs-

gerichtshof).

     On 19 December 1994 the applicant supplemented his complaint to

the Administrative Court. Besides the complaints raised before the

Constitutional Court he submitted that the two warning shots were not

justified and disproportionate in the circumstances.  Moreover, he

complained that the Independent Administrative Panel wrongly assessed

the evidence in respect of the third shot and failed to take the

evidence proposed by him.

     On 28 June 1995 the Administrative Court rejected the applicant's

complaint relating to the two warning shots as being lodged out of

time, since the applicant had failed to raise this complaint before the

Constitutional Court and had therefore failed to comply with the time-

limit. It dismissed the remaining complaints.

     The Administrative Court confirmed the finding of the Independent

Administrative Panel that the third shot did not constitute an act of

direct administrative compulsion. As regards the assessment of

evidence, the Administrative Court observed that the applicant had not

contested that the police officer had fallen, but only that the shot

had gone off unintentionally.  The documentary evidence and the expert

opinion requested by the applicant in order to prove that it was

impossible that a shot of the pistol at issue was released by a fall

or a blow was irrelevant as the Independent Administrative Panel had

found it established that the police officer had instinctively and,

thus, unwillingly exercised some pressure on the trigger, when falling.

     In respect of the applicant's complaint about the alleged

prevention of medical care the Administrative Court observed that this

was not in accordance with the facts established by the Independent

Administrative Panel and that the applicant had not substantiated in

which respect the authority had wrongly assessed the evidence.  The

Administrative Court further found that the Independent Administrative

Panel had correctly rejected the complaint for formal reasons.

     The decision was served on the applicant's representative on

13 October 1995.

COMPLAINTS

1.   The applicant complains under Article 3 of the Convention that

he was subjected to inhuman and degrading treatment. He submits that

police officer S. used unnecessary force when he pursued and arrested

him and then obstructed the doctor in helping him after he had been hit

by a bullet. Invoking Article 2 of the Convention, the applicant

complains that the use of the firearm by the police officer endangered

his life and was disproportionate.

2.   The applicant complains under Article 13 of the Convention that

in so far as the Independent Administrative Panel rejected his

complaints as being inadmissible, it refused to decide on the merits

of his submissions and his requests to take evidence.

THE LAW

1.   The applicant complains under Article 3 (Art. 3) of the

Convention that he was subjected to inhuman and degrading treatment.

He submits that police officer S. used unnecessary force when he

pursued and arrested him and then obstructed the doctor in helping him

after he had been hit by a bullet. Invoking Article 2 (Art. 2) of the

Convention, the applicant complains that the use of the firearm by the

police officer endangered his life and was disproportionate.

     The Commission notes that the applicant's complaint about the use

of force, namely the use of a firearm for the purpose of arresting him,

appears to relate to the two warning shots as well as to the shot which

actually hit his hand. Further, he complains about the alleged

obstruction of medical assistance after he had been hit.

a.   However, under Article 26 (Art. 26) of the Convention the

Commission may only deal with a matter after all domestic remedies have

been exhausted according to generally recognised rules of international

law.

     The Commission notes that the Administrative Court rejected the

applicant's complaint relating to the two warning shots on the ground

that he had not raised them before the Constitutional Court and had,

therefore, not complied with the relevant time-limit. In this context

the Commission recalls that domestic remedies have not been exhausted,

where an appeal is not admitted because of a procedural mistake by the

applicant (No. 19117/91, Dec. 12.1.94, D.R. 76, p. 70).

     It follows that the applicant's complaint relating to the two

warning shots must be rejected under Article 27 para. 3 (Art. 27-3) of

the Convention for non-exhaustion of domestic remedies.

b.   Next, the Commission will examine whether the pursuit of the

applicant with a firearm which resulted in his being injured or the

alleged obstruction of medical care by the police constituted treatment

contrary to Article 3 (Art. 3) of the Convention, which reads as

follows:

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

     treatment or punishment."

     The Commission recalls that ill-treatment must attain a minimum

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 (Eur. Court HR,

Ireland v. the United Kingdom judgment of 18 January 1978, Series A no.

25, p. 65, para. 162).

     Further, the Commission recalls that it is not normally its task

to substitute its own assessment of the facts for that of the domestic

courts, and as a general rule, it is for the domestic courts to assess

the evidence before them (see Eur. Court HR, Klaas v. Germany judgment

of 22 September 1993, Series A no. 269, p. 17, para. 29).

     In examining these complaints the Commission will, therefore,

consider the decisions of the domestic authorities.

     The Independent Administrative Panel carefully and at length

evaluated the evidence before it and came to the conclusion that police

officer S., in order to prevent the applicant from absconding and to

enforce his lawful arrest used proportionate force, including the use

of a firearm, in that he first requested the applicant to stop, then

fired two warning shots and then continued to pursue him. It further

found that in the course of this further pursuit, police officer S.

fell and an unintentional shot went off which hit the applicant's hand.

     The Administrative Court confirmed the findings of the

Independent Administrative Panel. It also stated that the Independent

Administrative Panel's refusal to take the expert opinion did not

constitute a procedural defect as the question the applicant wanted to

clarify by this expert opinion was irrelevant to the proceedings.

     The Commission considers that the domestic courts dealt

adequately and carefully with the applicant's complaints, but found no

confirmation for the applicant's allegation that the police officer had

fired intentionally. In reaching its conclusions the Independent

Administrative Panel, in particular, had the benefit of seeing the

applicant and the various witnesses give their evidence and of

evaluating their credibility. The applicant has not adduced any

material before the Commission which would permit it to depart from the

findings of fact of the national courts (Klaas v. Germany judgment,

loc. cit., p. 17, para. 30).

     The Commission, therefore, finds that neither the proportionate

use of force against the applicant in order to effect his lawful

arrest, nor the injuries sustained by him as a result of an

unintentional shot which went off in the course of this pursuit can be

regarded as treatment contrary to Article 3 (Art. 3) of the Convention.

Further, the Commission considers that no issue arises under Article

2 (Art. 2) of the Convention.

     As to the complaint relating to the alleged obstruction of

medical treatment by the police, the Commission notes that neither the

domestic proceedings nor the proceedings before the Commission have

shown any evidence that would support the applicant's allegation.

     It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2.   The applicant complains under Article 13 (Art. 13) of the

Convention that in so far as the Independent Administrative Panel

rejected his complaints as being inadmissible, it refused to decide on

the merits of his submissions and his requests to take evidence.  For

this reason he had no effective remedy against the administrative acts

of the police officer.

     Article 13 (Art. 13) of the Convention provides as follows:

     "Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before a

national authority notwithstanding that the violation has been

committed by persons in official capacity."

     This provision guarantees the availability of a remedy at a

national level to enforce the substance of the Convention rights and

freedoms. In particular, the domestic authorities must be in a position

to examine the lawfulness and the substantive justification of the

matter complained of and to grant appropriate relief (No. 19066/91,

Dec. 5.4.93, D.R. 74, p. 179 at p. 189).

     The Commission observes that the applicant had the right to bring

his complaints before the Independent Administrative Panel and to have

this decision - also in respect of procedural defects - reviewed by the

Administrative Court.  Both bodies carefully examined whether the acts

complained of violated the applicant's rights under Article 3 (Art. 3)

of the Convention.

     Thus, the applicant had an effective remedy before a national

authority at his disposal within the meaning of Article 13 (Art. 13)

of the Convention.

     It follows that also this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

     For these reasons, the Commission, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE.

  M.F. BUQUICCHIO                                 J. LIDDY

     Secretary                                    President

to the First Chamber                         of the First Chamber