Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21084/92

by G. K.

against Switzerland

The European Commission of Human Rights (Second Chamber) sitting

in private on 5 April 1995, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

S. TRECHSEL

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Mr. K. ROGGE, 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 1992

by G. K. against Switzerland and registered on 16 December 1992 under

file No. 21084/92;

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 facts of the case, as submitted by the applicant, may be

summarised as follows.

The applicant, a Swiss citizen born in 1965, is a computer

specialist residing at Wetzikon in Switzerland. Before the Commission

he is represented by Mr. F. Schumacher, a lawyer practising in Zurich.

I.

On Saturday, 6 September 1980 various unauthorised demonstrations

and a number of police interventions took place in Zurich. In the late

afternoon, the applicant, who was then 15 years old, joined a group of

persons walking from the city centre to Tobler square situated on a

hill in a residential area of the town.

At Tobler square some persons placed stones on the tram-lines and

laid vegetables crates from neighbouring shops on the street.

Onlookers attempted to remove these objects, and the police were

called.

The applicant and other persons then walked down the hill back

to the city centre. At the next square they crossed a police squad on

its way to Tobler square. The police stopped, whereupon a group of

persons, among them the applicant, fled into the side streets. The

police chased these persons into a cul-de-sac whereby panic arose.

Subsequently they were arrested.

During the arrest these persons were allegedly beaten and ill-

treated by the police. The applicant was allegedly hit on the head by

a rubber truncheon and his nose injured. He was arrested at 18h30

whereupon he had to lie down on the ground, empty his pockets, remove

his shoes, and wait for transport to the police station.

At the police station he was placed in a cell and at 21h40

questioned by a police officer. The latter noted his crooked nose.

Early on 7 September 1980 the applicant was heard by the Youth

Attorney (Jugendanwalt) who released him at 02h55. His father fetched

him at the police station.

In the same night approximately 300 persons were arrested.

Later on 7 September 1980 the applicant's parents noticed the

applicant's crooked nose. On 8 September 1980 he went to a doctor who

noted a "visible fractured gap without significant dislocation"

("sichtbare Frakturspalte ohne wesentliche Dislokation") of his nose.

The applicant underwent an operation whereby he was briefly

anaesthetised (Kurznarkose).

Criminal proceedings were instituted against the applicant inter

alia on account of riot. On 12 November 1981 the Zurich Juvenile Court

(Jugendgericht) convicted the applicant of contravening an order of the

Municipal Council (Stadtratbeschluss) prohibiting demonstrations, and

sentenced him to a reprimand (Verweis). The applicant was acquitted

of the other charges. In the Court's view he had participated in an

unauthorised demonstration, though it accepted that the applicant might

not have seen the obstacles on Tobler square.

II.

Meanwhile, the applicant's parents filed a criminal complaint

against unknown persons on account of bodily injury suffered on

6 September 1980.

Subsequently, the applicant filed a complaint about the delay in

the proceedings.

On 7 July 1983 the investigating judge discontinued the

proceedings against the police officers. The applicant's appeal was

rejected by the Public Prosecutor's Office (Staatsanwaltschaft) on

2 September 1983 as the father had not paid advance court costs. On

20 February 1984 the Federal Court (Bundesgericht) dismissed his public

law appeal (staatsrechtliche Beschwerde).

III.

On 17 August 1984 the applicant filed a request for compensation

and satisfaction with the Zurich Municipal Council. As the latter did

not regard itself as competent, the applicant instituted compensation

proceedings on 28 June 1985 before the Zurich District Court

(Bezirksgericht), claiming damages of 20,000 SFr.

The District Court dismissed the action on 29 June 1988. The

Court noted that a police officer could arrest a person on strong

suspicion of having committed a criminal offence. The applicant had

been at Tobler square, a riot area in Zurich that day, and could

therefore be suspected of a criminal offence. Moreover, had he not

been arrested, there would have been a danger of the applicant's

fleeing. Given the number of the arrested persons, the detention of

eight and a half hours had not lasted excessively long.

The Court further found that only witness B. had claimed that the

applicant had been injured on his head and had bled on the way to the

police station. The applicant's parents, on the other hand, had

noticed upon the applicant's return from the police station that

something was wrong with his nose: it had not been swollen or bloody,

only tender. In this situation the District Court found the statement

of the applicant's parents more credible, particularly since many other

witnesses had stated that they had not seen anybody among the persons

arrested who had a nose injury. The Court concluded that it remained

unclear whether the applicant had been ill-treated by the police.

The applicant's appeal (Berufung) was dismissed by the Court of

Appeal (Obergericht) of the Canton of Zurich on 14 February 1989. The

Court recalled that if the applicant was subsequently found innocent

this did not imply that his detention had been unlawful. Furthermore,

on 6 September 1980 the police had been faced with a group of persons

walking away from a riot area; a tramdriver had pointed out to the

police that these persons were the instigators; and when these persons

saw the police, they fled. As a result, the applicant was suspected

of having participated in the occurrences at Tobler square.

The Court considered that the applicant's detention of eight and

a half hours had not been excessive, given that 300 persons had been

arrested. Thus, after his arrest at 18h30 he was questioned by the

police at 21h40, and released by the Youth Attorney at 02h55 the next

morning.

The Court further found that the applicant's nose injury had not

been serious. It saw a confirmation herefor in the medical report and

in the fact that the applicant himself had not immediately noticed that

he was injured; rather, as the applicant himself had stated, the police

officer and subsequently his parents had drawn his attention to the

fact that he was injured. It was also unlikely that an injury

resulting from a blow with a police truncheon would remain unnoticed.

The Court considered it unnecessary to hear further witnesses in

respect of this injury. Thus, witness B. had not seen the alleged ill-

treatment, only the applicant's injury after his arrest; indeed, B. had

seen the applicant uninjured while waiting for his transport to the

police station. Finally, the applicant himself had not ruled out that

his nose could have been injured elsewhere.

The applicant's plea of nullity (Nichtigkeitsbeschwerde) was

dismissed by the Court of Cassation (Kassationsgericht) of the Canton

of Zurich on 3 September 1990.

The Court found it established that the police squad which had

intervened below the Tobler square on 6 September 1980 had not

undertaken the arrests indiscriminately. It could furthermore not be

said that detention had lasted unnecessarily long, even if most of the

arrested persons - some 250 out of 300 - had been brought to the police

station five hours after the applicant's arrest. It was also uncertain

when the applicant's nose had been injured.

The applicant filed a public law appeal (staatsrechtliche

Beschwerde) with the Federal Court, complaining of unlawful detention

and ill-treatment by the police. He also complained of a shifting of

the burden of proof, in that the previous courts had claimed that the

injury could have occurred while he was fleeing from the police.

The Federal Court requested the Zurich Municipal Police

(Stadtpolizei) to provide information about the number of people

arrested during the evening of 6 September 1980. On 27 February 1992

the Municipal Police replied that 338 people had been arrested; 121

of them had been released after questioning, 163 had been transferred

to the District Prosecutor's Office (Bezirksanwaltschaft) and 54 to the

Youth Attorney. The applicant submitted his observations in reply to

the Federal Court on 2 April 1992.

On 16 April 1992 the Federal Court dismissed the public law

appeal.

The Court considered as unfounded the applicant's complaints that

the Court of Cassation had proceeded from incorrect facts, or that the

previous courts had shifted the burden of evidence. Rather, these

courts had assumed that it was up to the applicant to prove that his

injury had been inflicted by a policeman. The Court also dismissed

various complaints concerning conclusions drawn from the facts by the

previous courts.

The Federal Court further considered that there had clearly been

a suspicion that the applicant had participated in the riot, given that

he and other persons had on 6 September 1980 come from a riot area and

fled when they saw the police. The Court also found that in the

evening of 6 September 1980 the police and the investigating

authorities had been confronted with an extraordinary number of

persons, and that it had not been possible merely to give priority to

the group of 50 persons to which the applicant belonged.

COMPLAINTS

The applicant invokes Articles 3, 5, 6 and 13 of the Convention.

He complains that the domestic courts refused to provide him with

the names of all arrested persons and the possibility to have them

questioned as witnesses in order to establish that he had been ill-

treated and injured by the police.

The applicant further complains that he was not granted the

opportunity to prove that a police officer had hit his nose. Although

the courts had no witnesses, it was assumed that the applicant had

suffered the injury while trying to flee. His own witnesses could have

established that the police had beaten him. The statements of the

police officers contradicted his own statements and those of other

persons.

The applicant also complains that he was arbitrarily arrested,

together with 50 other persons, on suspicion of having constructed

barricades at Tobler square, although he had nothing to do with these

obstructions.

The applicant complains of the duration of his detention, lasting

eight and a half hours, without there being a danger of fleeing or of

collusion. He was the first person arrested of his age group that

evening and it should have been possible to question and release him

quickly.

He also complains that he was not given any opportunity to obtain

compensation for the damage suffered.

THE LAW

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

Convention of inhuman and degrading treatment. He submits that he was

not granted the opportunity to prove that a police officer had injured

his nose. Although the courts had no witnesses, it was assumed that

the applicant had suffered the injury while trying to flee. His own

witnesses could have established that the police had beaten him. The

statements of the police officers contradicted his own statements and

those of other persons.

Article 3 (Art. 3) of the Convention provides that "no one shall

be subjected to torture or to inhuman or degrading treatment or

punishment".

The Commission notes at the outset that the applicant is not

complaining of ill-treatment suffered while in detention. Rather he

is complaining of a nose injury allegedly suffered during his arrest.

The Commission recalls that in such cases 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. The Commission's task is to

examine whether the applicant has adduced material which might call

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

allegations before the Commission (see Eur. Court H.R., Klaas judgment

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

In the present case the applicant in essence repeats before the

Commission the complaints which he already raised before the domestic

courts, namely that, while his nose injury was inflicted by the police,

the domestic courts in fact shifted the burden of proof onto him.

In examining these complaints the Commission has considered the

decisions of the domestic courts which examined the applicant's

complaints.

Thus, the District Court found in its judgment of 29 June 1988

that only one witness, B., had claimed to have seen the applicant

injured on the way to the police station. On the other hand, the

applicant's parents noticed upon the applicant's return that something

was wrong with his nose, though it was not swollen or bloody. The

Court found the statement of the applicant's parents more credible,

particularly since many other witnesses had also stated that they had

not seen anybody among the persons arrested who had a nose injury. In

this situation the District Court did not find it established that the

applicant had been ill-treated by the police.

The Court of Appeal found in its judgment of 14 February 1989

that the applicant's nose injury had not been serious. It relied in

this respect on the medical report and the fact that the applicant

himself had not immediately noticed his injury. Thus, it was unlikely

that an injury resulting from a blow with a police truncheon remained

unnoticed. The Court further considered that witness B. had not seen

the alleged ill-treatment, only the applicant's injury after his

arrest; in fact, B. had seen the applicant uninjured while waiting for

his transport to the police station. Indeed, the applicant himself had

not ruled out that his nose could have been injured elsewhere.

The Commission considers that the domestic courts dealt

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

confirmation for his allegation that the police had ill-treated him.

Before the Commission the applicant has not provided any elements which

would permit it to depart from the findings of fact of the national

courts (see Eur. Court H.R., Klaas judgment, loc. cit. p. 18, para.

31).

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 further complains that he was arbitrarily arrested,

together with 50 other persons, on suspicion of having constructed

barricades at Tobler square, although he had nothing to do with these

obstructions. He also complains of the duration of his detention,

lasting eight and a half hours, without there being a danger of his

fleeing or of collusion.

The Commission has examined these complaints under Article 5

paras. 1 (c) and 3 (Art. 5-1-c ; 5-3) of the Convention which provide:

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

No one shall be deprived of his liberty save in the following

cases and in accordance with a procedure prescribed by law:

...

(c) the lawful arrest or detention of a person effected for the

purpose of bringing him before the competent legal authority on

reasonable suspicion of having committed an offence or when it

is reasonably considered necessary to prevent his committing an

offence or fleeing after having done so; ...

3. Everyone arrested or detained in accordance with the

provisions of paragraph 1.c of this Article shall be brought

promptly before a judge or other officer authorised by law to

exercise judicial power ..."

Insofar as the applicant complains under Article 5 para. 1 (c)

(Art. 5-1-c) of the Convention of his arrest and detention, the

Commission notes the domestic courts' finding that on 6 September 1980

the police were faced with a group of people, among them the applicant,

walking away from a riot area; the police had been informed that these

persons were allegedly the instigators of the riot; and when these

persons saw the police, they fled. In these circumstances the

Commission considers that the domestic authorities could reasonably

suspect that the applicant had committed an offence, and that the other

requirements of national law had been observed.

Insofar as the applicant complains under Article 5 para. 3

(Art. 5-3) of the Convention of the length of his detention, the

Commission recalls that no issue will arise under this provision if the

arrested person is released before any judicial control of his

detention would have been feasible (see Eur. Court H.R., Brogan and

others judgment of 29 November 1988, Series A no. 145-B, p. 31 et seq.,

para. 58). In the present case, the applicant was arrested on

6 September 1980 at 18h30 whereupon he was brought to the police

station and questioned by the police at 21h40. He was subsequently

questioned by the Youth Attorney who released him on 7 September 1980

at 02h55. His detention, lasting altogether 8 hours and 25 minutes,

thus ceased within a period shorter than that which would have been

necessary for the application of the procedure envisaged in Article 5

para. 3 (Art. 5-3) of the Convention.

This part of the application is therefore also manifestly ill-

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

Convention.

3. The applicant also complains of unfairness in the compensation

proceedings which he instituted, in that the domestic courts refused

to provide him with the names of all arrested persons and the

opportunity of having them questioned as witnesses in order to

establish that he had been ill-treated and injured by the police.

The Commission recalls that under Article 19 (Art. 19) of the

Convention its only task is to ensure the observance of the obligations

undertaken by the Parties to the Convention. In particular, it is not

competent to deal with an application alleging that errors of law or

fact have been committed by domestic courts, except where it considers

that such errors might have involved a possible violation of any of the

rights and freedoms set out in the Convention. The Commission refers

on this point to its established case-law (see e.g. No. 458/59,

Dec. 29.3.60, Yearbook 3 pp. 222, 236; No. 5258/71, Dec. 8.2.73,

Collection 43 pp. 71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31,

45).

It is true that the applicant invokes Article 6 para. 1

(Art. 6-1) of the Convention which states, insofar as relevant, that

"in the determination of his civil rights and obligations ... everyone

is entitled to a fair ... hearing by (a) ... tribunal ...".

However, the Commission recalls that as a rule it is for the

national courts to assess the evidence before them. The Convention

organs' task is to ascertain whether the proceedings considered as a

whole, including the way in which evidence was taken, were fair (see

mutatis mutandis Eur. Court H.R., Asch judgment of 26 April 1991,

Series A no. 203, p. 10, para. 26).

In the present case, the Commission has just found that the

domestic courts carefully examined the applicant's case. The

Commission finds no indication that in these proceedings the applicant,

who was represented by a lawyer, could not sufficiently put forward his

point of view, or that they were otherwise unfairly conducted. The

Commission notes in particular that the applicant had the possibility

to put forward any evidence which he considered pertinent before the

courts concerned, and to call in question any evidence on which the

various courts relied.

This part of the application is therefore again manifestly ill-

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

Convention.

4. Insofar as the applicant complains under Article 13 (Art. 13) of

the Convention that he did not have an effective remedy, the Commission

recalls that the requirements of this provision are less strict than,

and accordingly absorbed by Article 6 (Art. 6) of the Convention (see

Eur. Court H.R., Philis judgment of 27 August 1991, Series A no. 209,

para. 67). It follows that no separate issue arises under this

provision.

The remainder of the application is therefore also manifestly

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

Convention.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (H. DANELIUS)

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G.K. v. SWITZERLAND

G.K. v. SWITZERLAND

LEXI