Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23632/94

by Adnan KANAN

against Switzerland

The European Commission of Human Rights (Second Chamber) sitting

in private on 16 October 1996, the following members being present:

Mrs. G.H. THUNE, President

MM. S. TRECHSEL

J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

L. LOUCAIDES

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

Ms. M.-T. SCHOEPFER, 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 3 December 1993

by Adnan KANAN against Switzerland and registered on 7 March 1994 under

file No. 23632/94;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government

on 1 March 1994 and the observations in reply submitted by the

applicant on 27 April 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Palestinian born in 1943. He currently

resides in Denmark.

The facts of the case, as they have been submitted by the

parties, may be summarised as follows:

On 14 August 1992 the applicant was arrested by the police in

Geneva and allegedly beaten by several policemen while being

handcuffed, and detained on remand. On 16 August 1992 he complained

of maltreatment at the time of arrest and underwent medical examination

at Champ-Dollon prison. As a result of this visit the police

immediately instituted an internal enquiry.

On 9 September 1992 a forensic medicine specialist of the Geneva

University issued a medical certificate, stating that on 16 August 1992

a post-traumatic perforation of the left eardrum and pain in the thorax

had been established. A radiological examination effected on that date

had not shown any internal injuries.

On 12 October 1992 two prison doctors issued a medical

certificate, identical with that of 9 September 1992.

On 13 October 1992 within the framework of the internal

investigation a note of the deputy chief officer of the cantonal police

to the chief officer was issued, stating that the applicant had been

arrested on 14 August 1992. Two policemen, G. and B., questioned and

searched the applicant. Subsequently, his car was searched and drugs

were found in several places. The applicant was then detained. The

report concluded that there was nothing to cast doubt on the

credibility of the statements of the policemen concerned and that, as

a result, the investigation had not shown that the applicant had been

subject to any ill-treatment.

On 19 October 1992, in the course of the internal police enquiry

one policeman who had arrested the applicant and five other policemen

who had questioned him either on the day of his arrest or later made

statements as to the facts concerned. They stated that the applicant

had been arrested on 16 August, that he had never been beaten and that

later, when questioned during the investigations against him, he had

never complained about the alleged ill-treatment.

On 11 November 1992 the applicant requested the institution of

criminal proceedings against several police officers, both plainclothes

and in uniform.

On 2 December 1992 the applicant was heard by the security

police. He stated that he had been hit by one person, in civil

clothes. He described this person as being 35 to 38 years old, tall,

with dark hair, dressed in jeans and a bluish leather jacket. He had

been hit before an interpreter came.

On 11 December 1992 the applicant was heard by the investigating

judge of the Canton of Geneva. He stated that he had been beaten by

one plainclothes officer. On the same day the judge heard a police

officer G. who had participated in the applicant's arrest. On

21 December 1992 the General Public Prosecutor of the Geneva Canton

refused to institute criminal proceedings as it had not been

established that a criminal offence had been committed ("vu l'absence

de toute prévention suffisante"). The Prosecutor referred to the

results of the internal police investigation as supporting this

conclusion.

On 24 December 1992 the applicant appealed against this decision,

indicating that the police interpreter Mr. H. had been a witness to the

beating.

On 22 January 1993 the Accusation Chamber (chambre d'accusation)

of the Canton of Geneva heard the applicant, who stated that an

interpreter, Mr. Z., had seen the incident at issue.

On 5 February 1993 the Accusation Chamber of the Canton of Geneva

dismissed the applicant's appeal as it considered that the applicant

had contradicted himself in his statements. Thus, in his request for

the institution of criminal proceedings he maintained that he had been

beaten by several policemen, while during the hearing by the

investigating judge he asserted that only one plainclothes officer had

beaten him. Moreover, the medical certificate, which referred to a

perforation of the left eardrum, did not mention any external injuries

which would naturally have appeared if the applicant had been beaten.

There was also no indication in the medical certificate that there was

a causal link between the alleged maltreatment and the post-traumatic

injury suffered by the applicant.

In a note of 11 February 1993 to the General Prosecutor of the

canton of Geneva the chief officer of the security police stated that

the applicant's statements of 11 November 1992 and 2 December 1992 were

contradictory in that in the former he had failed to specify whether

he had been hit by policemen in civil clothes or in uniform, whereas

in the latter he had affirmed that he had been hit by one plainclothes

officer. The note went on to state that no one of five agents who had

arrested the applicant corresponded with the description given by him.

On 17 February 1993 the applicant wrote a letter to the

Accusation Chamber of the Canton of Geneva and to the Federal Court

(Tribunal fédéral), complaining that he had been ill-treated upon his

arrest. The applicant complained about the decision of 5 February 1993

and requested its annulment as the Chamber had wrongly assessed

evidence before it.

On 4 October 1993 the Federal Court declared the applicant's

public law appeal of 17 February 1993 inadmissible as he had failed to

indicate which of his constitutional rights had been breached; thus he

had only complained in his appeal statement about the contested

decision and the establishment of facts made therein.

COMPLAINTS

The applicant complains under Article 3 of the Convention about

ill-treatment by the police while being handcuffed. Under Article 14

of the Convention, taken together with Article 3 of the Convention, he

complains that he has been ill-treated due to his Palestinian

nationality.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 3 December 1993 and registered

on 7 March 1994.

On 30 November 1994 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on 1 March

1995, after an extension of the time-limit fixed for that purpose. The

applicant replied on 27 April 1995.

THE LAW

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

Convention about ill-treatment by the police while being handcuffed.

Article 3 (Art. 3) of the Convention reads:

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

treatment or punishment."

The Government first submit that the applicant did not exhaust

domestic remedies. They submit that he invoked an alleged violation

of the Convention only before the last national court, i.e. in his

public law appeal to the Federal Court and failed to give any

explanation of his claim. In its judgment the Federal Court found that

in his public law appeal the applicant had limited himself to

criticising the appealed decision and had failed to indicate which of

his constitutional rights had allegedly been breached by the decisions

and acts concerned. Thus he had not complied with the requirements of

Article 26 (Art. 26) as regards the exhaustion of domestic remedies.

The applicant does not submit any specific comments concerning

exhaustion of domestic remedies.

The Commission notes in the first place that it does not appear

that the applicant has complied with the obligation contained in

Article 26 (Art. 26) of the Convention to exhaust domestic remedies

since he has not invoked Article 3 (Art. 3) of the Convention, either

in form or in substance, in the domestic proceedings. The Commission

need nevertheless not resolve this issue as, even assuming that the

domestic remedies have been exhausted, the application is in any event

manifestly ill-founded for the following reasons.

The Government submit that on 16 August 1992 the applicant was

examined by the medical services at Champ-Dollon. As a result of this

visit the police immediately instituted an internal enquiry. In the

course of this enquiry one policeman who had arrested the applicant and

five policemen who had questioned the applicant made statements about

the relevant facts. The enquiry had not shown that the applicant had

indeed been a victim of any ill-treatment upon his arrest. The

Government submit that there are no grounds for questioning the

soundness of the findings of the police enquiry.

The Government find it surprising that the applicant requested

the institution of criminal proceedings concerning the events at the

time of his arrest as late as on 11 November 1992. They consider that

the reasons given by the applicant to justify this delay, namely the

fact that he was waiting for the results of medical examinations and

that he changed a lawyer several times, are not convincing.

The Government further refer to the discrepancies between the

applicant's different submissions. In particular, in his request to

institute criminal proceedings of 11 November 1992, the applicant

stated that he was beaten by several policemen, both plainclothes and

in uniform. On 2 December 1992, when heard by the security police, the

applicant stated that he was beaten by one person in civil clothes.

The description of this person given by the applicant did not

correspond to any of the policemen involved in the applicant's case.

The Government contend that when heard by the security police on

2 December 1992 the applicant said that he was hit only once before the

interpreter came, whereas later in the proceedings he maintained that

the translator was present during the beating. There are discrepancies

between the applicant's submissions as to the identity of the

interpreter. The Government refer to the decision of 5 February 1993

of the Accusation Chamber of the Canton of Geneva which highlights the

contradictions between the applicant's submissions to the Chamber and

his earlier statements in which he had never submitted that he was

beaten in the presence of the interpreter. In particular, in his

statement of 2 December 1992 he said that he had been hit only once and

before the arrival of the interpreter.

The Government further submit that it transpires from the procès-

verbal of the questioning of the applicant by the investigating judge

on 11 December 1992 that he had not complained about the alleged ill-

treatment during the criminal proceedings against him. In particular,

he did not complain thereof immediately after his arrest.

The Government finally submit that the medical certificates did

not demonstrate that there was a causal link between the applicant's

injuries and the alleged beating. They deny that the events of the

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

The applicant contends that the Swiss authorities cooperated in

order to conceal the actual course of the events concerned and to let

the culprits evade responsibility. He submits that he had informed the

investigating judge of the beating immediately, but that his statement

was disregarded. He mentioned the interpreter, Mr. Z. as being present

at the beating. He never mentioned Mr. N. who had not been present.

He further challenges the credibility of the police report of

11 February 1993.

The Commission recalls that it is not competent to examine

alleged errors of fact or law committed by national courts, except

where it considers that such errors might have involved a possible

violation of the rights and freedoms set forth in the Convention (No.

21283/93, Dec. 5.4.94, D.R. 77-A, p. 81). The Commission further

recalls that the national judge, unlike the Commission, has had the

benefit of listening to the applicant and a witness and has assessed

the credibility and probative value of their statements after careful

consideration. Accordingly, in the absence of any new evidence having

been brought before the Commission and of any indications that the

trial judge incorrectly evaluated the evidence before him, the

Commission must base its examination of the Convention issues before

it on the facts as established by the national courts (cf. Eur. Court

H.R., Klaas v. Germany judgment of 22 September 1993, Series A

no. 269, p. 17-18, paras. 29-30).

The Commission observes that in the present case the applicant

underwent medical examination by a prison doctor two days after his

arrest. While the medical certificate stated that a post-traumatic

perforation of the left eardrum and pain at the thorax had been

established on this date, it does not mention any external bruises

which such maltreatment would have left. Nor did the later report do

so.

The Commission furthermore observes that doubts as to the

credibility of the applicant's allegations also arise in view of

certain contradictions in his statements. Thus, in his appeal of 24

December 1992 the applicant contended that there had been a witness to

his ill-treatment by the police, namely an interpreter H. On

22 January 1993 during the hearing before the Accusation Chamber of the

Canton of Geneva the applicant referred to the interpreter Z.

Furthermore, when requesting the institution of criminal

proceedings on 11 November 1992 the applicant submitted that he had

been beaten by several police officers. However, when heard by the

investigating judge on 11 December 1992, the applicant stated that it

was only one plainclothes officer who had beaten him.

The Commission considers that the authorities conducted a

thorough internal police enquiry into the applicant's allegations and

seven policemen made statements in the course thereof. Furthermore,

the Public Prosecutor investigated the applicant's request to have

criminal proceedings instituted. The evidence taken in this

investigation did not, however, lend credibility to the applicant's

claim as his submissions were contradictory. As a result, the

authorities had doubts as to the veracity of the applicant's

allegations and those doubts were not dissipated after an

investigation. The Commission does not find that the way in which the

authorities enquired into the applicant's allegations is open to

question. It cannot find prima facie evidence that the applicant was

subjected to treatment contrary to Article 3 (Art. 3) of the

Convention.

This part of the application is therefore manifestly ill-founded

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

2. Insofar as the applicant complains under Article 3 taken together

with Article 14 (Art. 3+14) of the Convention, the Commission finds no

issue under these provisions of the Convention. The remainder of the

application is therefore 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.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

Menu

KANAN v. SWITZERLAND

KANAN v. SWITZERLAND

LEXI