AS TO THE ADMISSIBILITY OF

                      Application No. 18896/91

                      by Ronald RIBITSCH

                      against Austria

      The European Commission of Human Rights sitting in private on

20 October 1993, 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

                 B. MARXER

                 M.A. NOWICKI

                 B. CONFORTI

                 N. BRATZA

           Mr.   M. de SALVIA, Deputy 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 5 August 1991 by

Ronald RIBITSCH against the Republic of Austria and registered on

3 October 1991 under file No. 18896/91;

      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 they have been submitted by the

parties, may be summarised as follows.

      The applicant, born in 1958, is an Austrian national and resident

in Vienna.  He is a student.  Before the Commission he is represented

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

A.    Particular circumstances of the case

      On 21 May 1988, in the context of criminal investigations

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

applicant's and his wife's apartment was searched by police officers

of the Vienna Federal Police Department (Bundespolizeidirektion).

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

Police Department arrested the applicant on the suspicion of drug

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

spouses' apartment was again searched.  The applicant was kept in

police detention until the morning of 2 June 1988.

      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., further at 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

show the intended results, he was punched at his head (Kopfnuß), and

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

He was also kicked into his thighs and into 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 him not to

release his wife, who was detained at the same time, in case he would

not admit his guilt.  After his release, he had haematomas at his right

upper arm and one thigh, and he had a cervical syndrome, and suffered

from vomiting, diarrhoea and bad headache.

      The applicant told several persons, inter alia a journalist,

about the above events in the course of his police detention.  He was

examined at a hospital on 2 June and by a medical practitioner on

3 June 1988, and the injuries were confirmed.

      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 Department 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.

      On 13 October 1989 the Vienna District Court (Strafbezirks-

gericht) convicted Police Officer M. of bodily assault (Körperver-

letzung), 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.

      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.

      The Vienna District Court had heard several witnesses, namely the

applicant and his wife, Police Officer F. who had been present at the

applicant's and his wife's questioning, Police Officer P., Chief of the

three units at the Vienna Federal Police Department competent for 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.

      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 Department 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 Department, 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 therefore done many hours of overtime.

      The District Court stated that both the applicant and his wife

had been charged by third persons with having sold heroine 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 an admission of guilt, M. grasped the

applicant's hair, shook his head forward and backward, beat him with

his fist on his right upper arm, threw him to the ground and kicked

him.  Other officers, whom the applicant could not recognise, then also

kicked him.

      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.

      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

accidentally caused was not credible.  His version according to which

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

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

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

did not correspond to the applicant's injuries.

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

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

      On 14 September 1990 the Vienna Regional Court (Landesgericht),

upon the appeal (Berufung) of Police Officer M., 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.

      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 of his wife's

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

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

      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 was 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 line.

      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.

      The Regional Court considered that neither the applicant's nor

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

questioning which resulted 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.

      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 repeatedly hit and had he been kicked, numerous

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

submission that 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.

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

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

Prof. M., 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.

      The Regional Court, having regard to a 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.

      The Regional Court rejected the applicant's requests to take

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

question whether or not particular witnesses had considered his

statements credible, i.e. were irrelevant assumptions and conclusions.

      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.

      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 be proven with the certainty necessary for a criminal

conviction.

      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 Department 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 about having been insulted and

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

      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 Department 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.

      As regards the alleged insults 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.

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

assaulted by police officers, the Constitutional Court noted that the

accused Police Officer T. had been acquitted by the Vienna District

Court on 13 October 1988, 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.

      The decision was served on 22 February 1991.

B.    Relevant domestic law

      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.

      S. 47 of the Austrian Court 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 find the accused guilty 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.

      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.

      The competence of the Constitutional Court to receive complaints

about the violation of constitutionally guaranteed rights is laid down

in S. 144 para. 1 of the Federal Constitution (Bundesverfassungsge-

setz).  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).

COMPLAINTS

1.    The applicant complains that his arrest and detention, in

particular the insults and bodily assaults by police officers in the

course of his detention, amount to inhuman and degrading treatment

contrary to Article 3 of the Convention.

2.    The applicant complains under Article 6 para. 1 of the Convention

that, in the course of the criminal proceedings against three police

officers, his legal situation as a private party to the proceedings

prevented him from pursuing effectively his compensation claims.

3.    Furthermore, the applicant complains under Article 13, in

conjunction with Article 3, of the Convention, that in the proceedings

before the Austrian Constitutional Court he could not effectively lodge

his complaints about ill-treatment by police officers.  He submits in

particular that the Constitutional Court, sitting in camera, declared

these complaints inadmissible without having taken evidence.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 5 August 1991 and registered

on 3 October 1991.

      On 30 March 1992 the Commission decided to communicate the

application to the respondent Government for observations on its

admissibility and merits.

      On 15 July 1992, after an extension of the time-limit, the

Government submitted their observations.  The observations in reply by

the applicant were submitted on 8 October 1992.

      On 4 May 1993 the Commission decided to invite the parties to a

hearing on the admissibility and merits of the applicant's complaint

about treatment contrary to Article 3 of the Convention.

      At the hearing which was held on 20 October 1993 the parties were

represented as follows:

The Government

Mr. Okresek           Head of International Affairs Division,

                      Constitutional Service, Federal Chancellery,

                      Agent;

Mr. Szymanski         Head of Legal Department,

                      Federal Ministry for the Interior, Adviser;

Mr. Schmidt           Human Rights Division, International Law

                      Department, Federal Ministry for Foreign Affairs,

                      Adviser.

The applicant

Mrs. Haase            Rechtsanwaltsanwärterin, for the Representative

                      Mr. Pochieser, Rechtsanwalt.

THE LAW

1.    The applicant complains that in the course of his arrest and

detention he was ill-treated by police officers contrary to Article 3

(Art. 3) of the Convention.

      Article 3 (Art. 3) provides that no one shall be subjected to

torture or to inhuman or degrading treatment or punishment.

a.    The Government maintain that the applicant failed, as required

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

remedies at his disposal under Austrian law.  They submit in particular

that the applicant did not himself bring criminal proceedings against

the police officers concerned, but only raised accusations about ill-

treatment in public and at a later stage joined the proceedings

instituted ex officio by the Vienna Federal Police Department.  He did

not bring a prosecution against the police officers as regards the

alleged insults.  Moreover, he did not file an official liability

action.  He also failed properly to reason his constitutional complaint

as regards the alleged insults so as to enable the Constitutional Court

to assume its competence to entertain this complaint.

      The applicant submits that proceedings against the police

officers concerned had been instituted ex officio.  He further

considers that an official liability action would not have been

effective.

      The Commission observes that the basis of the rule of exhaustion

of domestic remedies under Article 26 (Art. 26) of the Convention is

that, before proceedings are brought in an international court, the

state made answerable must have had an opportunity to redress the

alleged damage by domestic means within the framework of its own legal

system (cf. No. 5964/72, Dec. 29.9.75, D.R. 3 p. 57).  In respect to

alleged ill-treatment contrary to Article 3 (Art. 3) of the Convention,

the Commission has held that raising criminal charges against the

officials concerned or filing a civil action for compensation are

effective remedies to be exhausted pursuant to Article 26 (Art. 26)

(No. 11208/84, Dec. 4.3.86, D.R. 46 p. 182; No. 10078/82, Dec.

13.12.84, D.R. 41 p. 103; No. 5964/72, Dec. 29.9.75, D.R. 3 p. 57).

      The Commission notes that in the context of the criminal

proceedings against three police officers which the applicant joined

as a private party in respect of his possible compensation claims, his

accusations of assault committed by police officers in the course of

his detention were examined by the Austrian criminal courts.  The

criminal courts also had regard to his allegations that the police

officers concerned had insulted him.  The Regional Court, in its

judgment of 14 September 1990, concluded that the applicant's version

of events had altogether not been established.  The applicant further

repeated his allegations of ill-treatment in his complaint proceedings

before the Constitutional Court.

      The Commission, having regard to both the criminal proceedings

against the police officers accused by the applicant and the

proceedings before the Constitutional Court, finds that he exhausted

remedies which were sufficient and effective as regards his allegations

of ill-treatment contrary to Article 3 (Art. 3).  It follows that he

complied with the condition as to the exhaustion of domestic remedies

under Article 26 (Art. 26) of the Convention.

b.    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.

      The applicant submits that the injuries which he suffered in the

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

had been 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.

      The Commission finds that the applicant's complaints under

Article 3 (Art. 3) of the Convention raise difficult issues of fact and

of law which are of such complexity that their determination should

depend upon a full examination of the merits.  These complaints cannot,

therefore, be declared manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.  No other ground for

declaring them inadmissible has been established.

2.    The applicant further complains under Article 6 para. 1

(Art. 6-1) of the Convention that, in the course of the criminal

proceedings against three police officers, his legal situation as a

private party to the proceedings prevented him from effectively

pursuing his compensation claims.

      Article 6 para. 1 (Art. 6-1), so far as relevant, provides that,

in the determination of his civil rights and obligations, everyone is

entitled to a fair hearing.

      The Commission notes that the applicant joined the criminal

proceedings which had been instituted against the three police officers

as a private party under S. 47 of the Code of Criminal Procedure in

respect of his possible compensation claims.  Under the relevant

provisions, the private party has various procedural rights in the

course of the investigations and at the trial, and the criminal court

has to consider the damage resulting from a criminal offence in case

of conviction.  However, in the present case, the accused were

acquitted and the Vienna Regional Court, therefore, did not take any

decision on the merits of the applicant's claims, but referred him to

the civil courts.  There is no indication that the applicant could not

have effectively raised any such claims before the Austrian civil

courts.

      In these circumstances, there is no appearance of a violation of

the applicant's right to a fair hearing under Article 6 para. 1

(Art. 6-1).

      It follows that the applicant's complaint under Article 6

(Art. 6) is manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

3.    Furthermore, the applicant complains under Article 13 (Art. 13),

in conjunction with Article 3 (Art. 3) of the Convention, that in the

proceedings before the Austrian Constitutional Court he could not

effectively lodge his complaints about ill-treatment by police

officers.  He submits in particular that the Constitutional Court,

sitting in camera, declared these complaints inadmissible without

having taken evidence.

      Article 13 (Art. 13) of the Convention provides that everyone

whose rights and freedoms as set forth in the Convention are violated

should have an effective remedy before a national authority.

      The Commission refers to its above findings that the applicant

joined as a private party the criminal proceedings against police

officers involved in the alleged ill-treatment, and could also lodge

his complaints about physical ill-treatment by the police in the

proceedings before the Constitutional Court, and that he thereby

availed himself of effective and sufficient remedies in respect of his

complaints under Article 3 (Art. 3).

      It follows that this complaint is likewise 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 ADMISSIBLE the applicant's complaint that, during his

      police custody, he was subjected to inhuman and degrading

      treatment,

      without prejudging the merits of the case;

      DECLARES INADMISSIBLE the remainder of the application.

Deputy Secretary to the Commission          President of the Commission

         (M. DE SALVIA)                             (C.A. NØRGAARD)