Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18764/91

by Peter HIPPIN

against Austria

The European Commission of Human Rights sitting in private on

5 September 1994, the following members being present:

MM. C.A. NØRGAARD, President

A. WEITZEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 28 August 1991 by

Peter HIPPIN against Austria and registered on 4 September 1991 under

file No. 18764/91;

Having regard to :

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

Commission;

- the observations submitted by the respondent Government on

19 February 1993 and the observations in reply submitted by the

applicant on 24 March 1993;

- The questions put by the Commission on 11 January 1994 and the

Government's replies of 15 February 1994;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen born in 1962. He lives in

Vienna and is represented before the Commission by Mr. T. Prader, a

lawyer practising in Vienna. The facts of the case, which are partly

disputed between the parties, may be summarised as follows.

On 11 February 1988 the applicant took part in the "Opera Ball

Demonstration". He was arrested at approximately 10.00 p.m. and taken

to Mariahilf police station.

The applicant states that whilst there, a stick was found hidden

amongst his clothing. One of the policemen stated that he would show

the applicant what one could do with such a stick and proceeded to hit

the applicant with the stick several times on his back and his legs.

Soon after the applicant was taken by a police vehicle to Innere Stadt

police station, where he was again mishandled, being subjected to kicks

or punches such that his left eye and collar-bone swelled up and

bruised. The beating continued with the applicant being hit some ten

times with the stick, some of the blows delivered full force. At the

same time the applicant was slapped and insulted. One of the policemen

eventually told his colleagues to stop the beating.

The Government emphasise that the Vienna Police Directorate had

prohibited the demonstration, one of the grounds for the prohibition

being the danger to public safety within the meaning of Article 11

para. 2 of the Convention. They outline the facts of the applicant's

arrest, including the way in which he attacked one police officer with

a wooden stick, ran away when further police officers came on the

scene, and was then caught by a police officer. The applicant beat at

the officer with his stick and his free hand and, after both had fallen

into a clump of bushes, was arrested and taken into custody, struggling

all the time. The Government affirm that the applicant's stick was

taken away from him when he was arrested. They state that some

reddening of the skin on the applicant's back was noticed by police

officers when the applicant was strip searched at the Innere Stadt

police station.

A police doctor certified the applicant as fit for detention.

The Government state that the doctor did not examine the applicant for

injuries, as the applicant stated that he did not need such an

examination.

The applicant was questioned the following morning and told that

proceedings would be brought against him for attempting to resist the

authorities and disturbing the peace. In the course of the

questioning, the applicant did not complain about injuries. He was

released at 10.50 a.m.

On his release the applicant went to his lawyer, his

representative in the present case, who photographed the injuries. The

applicant then went to a hospital where a report was made on his

injuries and treatment (cold compresses and sage ointment) was

prescribed. The report established bloodshot bruising from the right

lower eyelid to the base of the nose and above the cheek-bone and upper

jaw; a small bloodshot bruise on the lower lip; a bloodshot bruise of

approx. 8 by 2 cm. on the right shoulder-blade and a further one at an

angle thereto; a bloodshot bruise of 1 by 0.3 cm. on the left side and

another of 6 by 2.5 cm. at the edge of the lower right-hand shoulder-

blade; scratch marks at the level of the 11th and 12th ribs, and

pressure marks on the right upper thigh of approx. 5 by 1 cm. Almost

circular pressure marks were found on both wrists, as was a diagonal

pressure mark of some 6 by 3 cm. above the right ankle.

The applicant was convicted on 6 April 1988 before the Vienna

Regional Court (Landesgericht) of attempting to resist the forces of

law, in particular by attacking a policeman from behind with a wooden

stick or club whilst the policeman was attempting to ascertain the

identity of another demonstrator, and then by resisting arrest after

an attempted escape. He was sentenced to seven months' imprisonment,

suspended for three years. The conviction related to the period before

the applicant was arrested and taken to the police station. The Court

accepted as plausible (nachvollziehbar) the prosecution's explanation

that the applicant, who had been turned onto his stomach but had not

ceased to resist, received injuries to his face and bruises on his

back. The applicant's appeal to the Vienna Court of Appeal

(Oberlandesgericht) was rejected on 8 August 1988.

On 10 March 1988 the applicant made a constitutional complaint

under Article 144 of the Federal Constitutional Law (Bundes-

Verfassungsgesetz), in which he alleged violation of Articles 3 and 14

of the Convention in respect of his being ill-treated by being hit on

his legs and back with a stick after his arrest. The Constitutional

Court (Verfassungsgerichtshof) put the applicant's complaints to the

prosecuting authorities, which on 17 January 1989 sent a note to the

Constitutional Court that criminal proceedings against the police had

been discontinued because "no criminal behaviour by the police has been

proved". The Constitutional Court itself found that an adequate

explanation for the events - and thus proof of the alleged ill-

treatment - was not possible, in particular given that the applicant

had not been able to offer witnesses and no fresh evidence was

available. The Constitutional Court rejected the constitutional

complaint.

The Government point out that in the investigations into the

applicant's allegations of ill-treatment, the applicant refused to make

any statement or to give any details as to the allegations. To this

the applicant replies that his lawyer had advised him not to give any

details to the police as in the lawyer's experience investigations by

the police into the conduct of individual police officers do not result

in convictions.

On 26 February 1990 the applicant brought an official liability

action (Amtshaftungsklage) against the Republic of Austria, requesting

compensation of AS 20,000 for the injuries suffered whilst in police

custody. The Vienna Regional Court (Landesgericht) rejected the action

on 2 October 1990. It accepted the findings of a report prepared for

the applicant on 4 October 1989 that the injuries had been caused "with

a probability verging on certainty" by a wooden stick or similar

object, but found, again in agreement with the report of 4 October

1989, that it could not be established that the injuries were caused

by the police after the applicant had been taken into custody. The

court found that the injuries could also have been caused whilst the

applicant was being arrested. It continued:

[Translation]

"As to the ... injuries which were caused by a wooden stick

or similar object, mistreatment by the police is not the

only conceivable cause of injury. A demonstrator such as

the plaintiff, bearing a stick and covering his head at a

demonstration, that is, who is prepared to use violence to

achieve the aims of the demonstration, was not able to

convince the court that the basis for his statements is as

he claims. It is to be noted that the plaintiff was not

able to recognise or describe a single policeman who is

alleged to have taken part in the ill-treatment. The court

is not convinced by the reasoning proffered, namely that

the plaintiff suffered the ill-treatment with his head

ducked down. The plaintiff himself refers to ill-treatment

whilst being brought from a cell to a police vehicle. It

is not very likely that the plaintiff would not have been

able, during this or other alleged ill-treatment, to form

an impression of the officers who were mishandling him.

The plaintiff was also not able to describe in more detail

the alleged ill-treatment. Nor could he remember any of

the insults or other comments by the policemen, which might

have made a motive for the ill-treatment at all plausible.

There is thus no reliable reason for aggression on the part

of police officers at two separate police stations which

could give a reason for the plaintiff's ill-treatment. The

plaintiff had, after all, been taken into custody a long

time before. The heat of the action had therefore passed.

There is no plausible explanation for any pent-up

aggression, whether before or after being taken into

custody. On the other hand, the plaintiff's injuries may

have come about before his arrest or after his release from

custody. The court cannot reliably determine how far a man

such as the plaintiff, with the get-up described above, his

behaviour at the demonstration and his intentions and aims,

was prepared to go. This court makes no assumptions about

the plaintiff. One can, however, imagine a frame of mind

of the plaintiff which does not exclude falsely accusing

police officers of ill-treatment. Therefore the court has

not been able to make any finding of fact as to how the

injuries of the plaintiff came about, or whether state

officials were amongst those responsible for the injuries

after the plaintiff had been taken into custody."

[German]

"Was aber die ... Verletzungen betrifft, deren Ursache in

Schlägen mit einem Holzknüppel oder einem ähnlichen

Gegenstand liegt, ist eine Mißhandldung durch Polizeiorgane

nicht die einzige denkbare Verletzungsursache. Ein

Demonstrant wie der Kläger, der vermummt und mit einem

Prügel bewaffnet an einer Demonstration teilnimmt, also

selbst Gewalt zur Erreichung von Demonstrationzielen

einzusetzen bereit ist, vermochte dem Gericht nicht jene

Überzeugung zu vermitteln, die Grundlage für Feststellungen

sein hätte können, wie sie der Kläger anstrebte. Dabei ist

zu beachten, daß der Kläger nicht in der Lage war,

irgendeinen Beamten wiederzuerkennen oder zu beschreiben,

der sich an Mißhandlungen beteiligt haben soll. Die dafür

angebotene Erklärung, Mißhandlungsakte immer mit gebeugten

Kopf in Abwehrhaltung erduldet zu haben, überzeugt nicht.

Der Kläger spricht selbst auch von Mißhandlungen bei der

Verbringung von einer Zelle in den Streifenwagen. Es ist

nicht sehr wahrscheinlich, daß der Kläger dabei oder auch

während der anderen behaupteten Mißhandlungsakte nie

Gelegenheit gehabt hätte, sich einen sinnlichen Eindruck

von mißhandelnden Beamten zu verschaffen. Der Kläger

vermochte such die nähere Art der angeblichen Mißhandlungen

nicht zu beschreiben. Ebenso hatte er keine Beschimpfung

durch Beamte oder sonstige Erklärungen in Erinnerung, die

dem Gericht allenfalls irgendein Mißhandlungsmotiv

glaubhaft erscheinen lassen hätte können. Es läßt sich

also keine verläßliche Begründung für ein

Aggressionspotentiel von Beamten auf zwei verschiedenen

Kommissariaten finden, die eine Ursache für Mißhandlungen

des Klägers nahelegen könnte, war doch der Festnahmeakt

schon längst abgeschlossen. Die Hitze des Geschehens vor

Ort war also schon vorbei. Für einen allenfalls später

entstandenen oder noch von früher vorhandenen

Aggressionsstau bei Polizeibeamten fehlt eine plausible

Erklärung. Dagegen können die Schlagverletzungen des

Klägers schon vor seiner Festnahme vorhanden gewesen oder

erst nach seiner Entlassung aus der Verwahrungshaft

entstanden sein. Wie weit ein Mann wie der Kläger mit der

oben dargestellten Demonstrationsausrüstung, seinem

Demonstrationsverhalten und der diesem zugrunde liegenden

Absicht und Gesinnung zu gehen bereit war, läßt sich für

das Gericht nicht verläßlich beurteilen. Des Gericht

unterstellt daher dem Kläger nichts. Es ist nur auch eine

Gesinnung des Klägers vorstellbar, welche eine unrichtige

Belastung von Polizeibeamten mit Mißhandlungen nicht

ausschließt. Deshalb vermochte das Gericht keine

Feststelleung zu treffen, worauf die dokumentierten

Verletzungen des Klägers wirklich zurückgehen und ob zu

deren Urhebern auch Organe des Bundes nach Abschluß des

Festnahmeaktes gehörten."

The applicant's appeal to the Vienna Court of Appeal

(Oberlandesgericht) was rejected on 18 March 1991 (decision received

by the applicant's representative on 5 April 1991). The Court of

Appeal found that the Regional Court had properly assessed the evidence

and convincingly explained why it did not attach sufficient credibility

to the applicant's version of events to be able to establish that the

applicant's injuries were in fact occasioned at the police station

after he had been taken into custody.

COMPLAINTS

The applicant alleges violation of Article 3 of the Convention

by virtue of injuries received whilst in police custody.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 28 August 1991 and registered

on 4 September 1991.

On 14 October 1992 the Commission decided to communicate the

application to the respondent Government and to invite the parties to

submit observations on its admissibility and merits.

The respondent Government submitted their observations after two

extensions of the time limit on 19 February 1993. The applicant

submitted his observations in reply on 24 March 1993.

On 6 April 1993 the Commission decided to grant legal aid to the

applicant, and on 14 May 1993 the Government submitted a translation

of their observations.

The Commission considered the case on 11 January 1994 and decided

to put further questions as to the facts of the case. The Government

replied on 15 February 1994 and submitted a translation on 16 March

1994. On 6 April 1994 the applicant informed the Commission that he

had no comments to make on the Government's submissions.

THE LAW

The applicant alleges a violation of Article 3 (Art. 3) of the

Convention in respect of various injuries received after his arrest on

11 February 1988. Article 3 (Art. 3) of the Convention provides as

follows:

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

treatment or punishment."

The Government consider that the applicant has failed to exhaust

domestic remedies in that he failed to make an administrative complaint

to the Administrative Court (Verwaltungsgerichtshof). The applicant

points out that he was able, in his constitutional complaint, to put

his complaints under Article 3 (Art. 3) of the Convention to the

Constitutional Court, and that this court dealt with those matters.

The Commission notes that the prosecution authorities considered

that it was not possible to prove criminal behaviour on the part of the

police, that the applicant alleged a violation of his constitutional

rights, including Article 3 (Art. 3) of the Convention, before the

Constitutional Court, and that he brought civil proceedings against the

State by way of an official liability action. The Government have not

suggested in what way a complaint to the Administrative Court could

have remedied the applicant's position, nor have they suggested that

he could in any way have raised substantially the same matters before

the Administrative Court as he now raises before the Commission. The

Commission finds that the applicant has exhausted remedies which were

sufficient and effective as regards his allegations of ill-treatment

contrary to Article 3 (Art. 3). It follows that he has complied with

the condition as to the exhaustion of domestic remedies contained in

Article 26 (Art. 26) of the Convention.

As to the substantive allegations, the Government do not accept

the factual allegations made by the applicant, nor do they accept the

conclusions he draws therefrom. They point out that the domestic

courts were unable to draw any conclusions from the facts available,

and they reject the suggestion that there may have been a conspiracy

on the part of police officers - they see the suggestion as an

indication that the applicant has no valid arguments.

The applicant maintains his complaints. He underlines that the

civil courts established that he had been hit by a stick, and only left

open the question of how and when the injuries were inflicted. He

points out that persons detained at police stations can never have

independent witnesses of events after arrest, as they are detained and

only in the presence of the police. He explains the police readiness

to use excessive violence in the wake of the "Opera Ball Demonstration"

by the degree of publicity and general tension involved. He states

that in the criminal proceedings against him he did in fact recognise

one of the police officers involved, but was advised against making

formal accusations. He emphasises that he did not need to identify

individual police officers in the constitutional or in the civil

proceedings.

The Commission recalls that ill-treatment must reach a certain

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

(Art. 3) (cf, for example, Ireland v. the United Kingdom judgment of

18 January 1978, Series A no. 25, pp. 65-67, paras. 162, 167). The

facts constituting a violation of the Convention must be proved "beyond

reasonable doubt", although the concept of burden of proof is not

strictly applicable before the Convention organs (above-mentioned

Ireland v. the United Kingdom judgment, pp. 64, 65, paras. 160, 161).

The mere possibility that the injuries were sustained in a manner

other than that alleged by the applicant is not sufficient reason for

rejection of a complaint (cf. Tomasi v France, Comm. Rep. 11.12.90,

Eur. Court H.R., Series A no. 241-A, p. 52, para. 100). It must,

however, be established that the injuries in question actually occurred

in the way alleged by the applicant, and it is not normally for the

Convention organs to substitute their own assessment of the facts for

that of the domestic courts (Eur. Court H.R., Klaas judgment of

22 September 1993, Series A no. 269, para. 29). Cogent reasons are

needed before the Convention organs depart from the findings of fact

of the national courts (above-mentioned Klaas judgment, para. 30)

The injuries sustained by the applicant are, in themselves,

sufficiently severe to fall within the scope of Article 3 (Art. 3) of

the Convention if it is established that the injuries were

intentionally and unnecessarily inflicted whilst he was in police

custody, rather than in the course of the events leading up to his

arrest.

The Commission notes that on 6 April 1988 the applicant was

convicted of resisting arrest. Although there was no reference to

third parties having sticks, there was a skirmish before the applicant

was arrested, when he received some degree of injury to his face and

back.

The Commission recalls that the domestic courts accepted the

expert evidence adduced by the applicant both as to the nature of his

injuries, and as to how they came about. The domestic courts found,

however, that the applicant had not been able to give a satisfactory

detailed description of the events. The Regional Court, in the

applicant's official liability action, cast doubt on his credibility.

The courts in the applicant's official liability action, which were

under a duty pursuant to Article 272 of the Code of Civil Procedure

(Zivilprozessordnung) to establish the facts of the case on the basis

of the evidence before them, did not accept that the applicant had

established that the injuries had been caused in the police stations,

as alleged.

The Commission has not been supplied with information which could

permit it, independently of the domestic courts, to establish that the

applicant's injuries were inflicted in the manner he alleges. Neither

of the medical reports prepared when at the time of the incident - the

report prepared by the hospital the applicant attended on 12 February

1988, and the police doctor's certificate that the applicant was fit

to be detained - gives any indication of the timing of the injuries.

Even the applicant's own report of 4 October 1989, which he had had

prepared for the purposes of the official liability action, expressly

states that it could not be ascertained when the applicant received his

various injuries.

Taking all the circumstances of the case together, the Commission

finds that it has not been established "beyond reasonable doubt" that

the facts in the present case were as alleged by the applicant.

It follows that 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 by a majority

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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HIPPIN v. AUSTRIA

HIPPIN v. AUSTRIA

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