AS TO THE ADMISSIBILITY OF

                      Application No. 19082/91

                      by Martin SPYCHER

                      against Switzerland

      The European Commission of Human Rights (Second Chamber) sitting

in private on 20 October 1993, the following members being present:

           MM.   H. DANELIUS, Vice President

                 S. TRECHSEL

                 J.-C. SOYER

                 H.G. SCHERMERS

                 F. MARTINEZ

                 L. LOUCAIDES

                 J.-C. GEUS

                 M.A. NOWICKI

                 I. CABRAL BARRETO

           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 7 September 1991

by Martin Spycher against Switzerland and registered on

15 November 1991 under file No. 19082/91;

      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 applicant is a Swiss national, born in 1956, who resides in

Zurich.  Before the Commission he is represented by Mr. F. Schumacher,

a lawyer practising in Zurich.

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

summarised as follows.

1.    On 21 March 1981 a demonstration took place in Zurich in support

of an independent youth centre (autonomes Jugendzentrum), which had

been closed down by the authorities.  The authorisation for this

demonstration had been issued by the authorities to the applicant.  In

the course of this demonstration unrest developed and several persons

were arrested by the police.

2.    On 23 March 1981 the applicant was arrested by police officers

near the premises of the youth centre on suspicion of having thrown

stones.  The applicant, however, maintains that he had only picked up

stray rubber bullets and witnessed the arrest of another person.

      According to the applicant he was then brought into a small room

on the premises of the youth centre, the so called "sleep-in", where

some six police officers were present.  One of them removed his

glasses, and he was beaten and his hair pulled.  The applicant was

searched and the authorisation for the demonstration of 21 March 1981

was found on him, whereupon he was again beaten, sprayed in his eyes

with tear gas and strangled with a cable.

3.    On 24 March 1981 the applicant was heard by the District Attorney

(Bezirksanwalt).  The applicant informed him about his ill-treatment

by police officers in the course of his arrest.

      After his release on 25 March 1981, the applicant consulted a

medical doctor who, after having examined him, provided him with a

medical certificate dated 26 March 1981.  The applicant also had photos

of his face taken.

4.    The Zurich District Attorney's Office instituted criminal

investigations against unknown police officers of the Zurich City

Police (Stadtpolizei) for abuse of authority (Amtsmissbrauch) and other

offences.  On 8 January 1982 the applicant was heard as a witness in

these proceedings.

      On 3 January 1983 the District Attorney's Office discontinued the

criminal investigations.  The authorities found that it was not

sufficiently substantiated that the applicant had been ill-treated by

police officers.  Based on the applicant's statements three police

officers could be identified.  In a personal confrontation between the

applicant and the police officers, the applicant excluded one of them

and with regard to a second one he was not sufficiently convinced.

When heard by the District Attorney the third police officer denied his

presence in the room of the youth centre when the applicant was

allegedly ill-treated. In this respect the applicant's statements were

found to be contradictory.

5.    On 24 January 1983 the applicant appealed against the District

Attorney's decision.  The applicant complained inter alia that the

suspected police officers were not heard in his presence and that

during the direct confrontation with them he was not given the

opportunity to put questions to them.  The authority also failed to

consult the case files of other persons arrested at the same time as

the applicant to identify further suspects.

6.    On 22 March 1984 the Zurich Public Prosecutor's Office

(Staatsanwaltschaft) dismissed the applicant's appeal.  It found that

it was in accordance with cantonal procedural law to hear suspects at

their first interrogation alone.  During the confrontation with the

police officers the applicant had not made a request to put questions

to them.  The case files concerning other persons arrested at the same

time as the applicant had been consulted by the District Attorney on

express instruction by the Public Prosecutor but did not reveal further

elements of relevance to the investigations.  As the applicant did not

recognise any other suspect when photos of police officers were shown

to him, the District Attorney correctly did not extend the

investigations further.

7.    On 12 March 1985 the applicant, invoking the Cantonal Liability

Act (kantonales Haftungsgesetz), requested the City of Zurich

(Stadtgemeinde) to pay  compensation of 10.000 Swiss Francs.  On 7

August 1985 the Zurich City Council (Stadtrat) refused the applicant's

claim.

8.    On 13 February 1986 the applicant introduced a civil court action

against the City of Zurich with the Zurich District Court

(Bezirksgericht) claiming compensation of 11.000 Swiss Francs.

      On 25 March 1986 the applicant was granted legal aid.

9.    On 13 January 1988 the District Court dismissed the applicant's

action.  It held that the applicant had not substantiated his

allegations.  The Court noted that the doctor, whom the applicant had

consulted on 25 March 1981, had not noticed any visible scars or

bruises (Schwellungen).  As regards the allegation that tear gas had

been sprayed into the applicant's eyes, the Court, basing itself on the

opinion of a chemical expert, found that, if this had happened the

applicant should have shown different marks in his face. The Court

found that on the photos of the applicant taken by the police, shortly

after his arrest, his eyes were not red, nor were there any marks of

acid on his face.

      The Court further found that in this respect the applicant had

given different and contradictory versions.  On the one hand he had

stated that his spectacles had been removed before the police officers

beat him and, on the other hand, he had stated that his eyes, as also

evidenced by photographs, were not irritated because he wore his

glasses.  The allegation that he had been strangled with a cable had

also not been substantiated.  The applicant had not shown that the

little round mark close to his larynx reported by the doctor in his

certificate of 26 March 1981 could only have been caused by

strangulation.  Lastly the depression diagnosed by the doctor was no

sufficient indication of ill-treatment of the applicant, as it could

also have been caused by the fact that criminal proceedings against the

applicant were then pending.  The Court also noted that the applicant

eventually was convicted of violence and threatening behaviour against

public officials (Gewalt und Drohung gegen Beamte), breach of the

public peace (Landfriedensbruch) and participation in an unauthorised

demonstration (Teilnahme an einer nicht bewilligten Demonstration) and

sentenced to two months' imprisonment with a probationary period.

      The Court also dismissed the applicant's request for transmission

of files of disciplinary proceedings against police officers following

allegations of three other persons that they had been ill-treated on

the same premises and on the same day as the applicant.  The Court

found that these files were not relevant to the applicant's case as the

applicant did not claim that these persons were with him while he was

allegedly ill-treated.

10.   The applicant appealed to the Zurich Court of Appeal

(Obergericht) against the District Court's decision.  He complained

inter alia that the Court had not requested the transmission of files

concerning other arrests carried out at the youth centre on the same

day and that his statements as witness before the District Attorney on

8 January 1982 were not taken into account.  He also challenged the

Court's evaluation of evidence.

      On 4 May 1988 the Court of Appeal dismissed his appeal.  It found

that the District Court had acted correctly when it did not request the

transmission of the files concerning other arrested persons because the

applicant did not allege that these persons were at the same time in

the same room with him.  The Court also found that the applicant's

statements before the District Attorney could not be considered as

statements of a witness in the present proceedings as the applicant was

a party to the proceedings.  In any event the District Court had taken

the applicant's statements into account.  Lastly, the Court found that

the evaluation of evidence undertaken by the District Court was not

arbitrary.

11.   On 8 June 1988 the applicant introduced a public law appeal

(staatsrechtliche Beschwerde) against the Court of Appeal's decision

with the Federal Court (Bundesgericht).  In particular the applicant

complained that the Cantonal Courts had refused the applicant's request

for transmission of all files which concerned arrests at the youth

centre on the day the applicant had been arrested, as these files could

have proved that the police had ill-treated the arrested persons.  He

also complained that the evaluation of evidence by the Cantonal Courts

was arbitrary as the applicant's statements as a witness before the

Investigating Judge and evidence put forward by the applicant had not

been taken sufficiently into account.

      On 27 December 1990 the Federal Court dismissed the applicant's

complaint.  The Court found that the Cantonal Courts had not acted

arbitrarily when they refused the applicant's request for transmission

of the files concerning other arrests at the youth centre.  The Court

further found that the Cantonal Courts had not acted arbitrarily when

they did not accept the applicant's version of the events which was not

supported by the statements of the expert witnesses.  The Court also

held that the Courts had not put on the applicant the burden of proof

as to whether he had inflicted the injuries on himself after his

release: the Cantonal Courts rather had found that the applicant had

not succeeded in proving that he had actually been injured.

      The Federal Court's decision was served on the applicant on

8 March 1991.

COMPLAINTS

1.    The applicant complains that his treatment by the police officers

in the course of his arrest constituted a breach of Article 3 of the

Convention.

2.    The applicant further complains that he did not receive a fair

hearing in breach of Article 6 of the Convention.  In particular, he

complains that his statements as a witness in the criminal proceedings

against the police officers were not sufficiently taken into account,

as well as that of the doctor whom he had consulted on 25 March 1981.

He further complains that his request for transmission of other files

concerning the arrests of other persons on the same day was refused by

the Courts as well as his request for the hearing of all the police

officers on duty at the youth centre.  The applicant also complains

that he had been prevented from recognising the police officers who

ill-treated him as he had been shown photographs which were probably

10 to 20 years old.

3.    The applicant complains that his claim for compensation for the

ill-treatment he suffered in the course of his arrest was refused and

invokes in this respect Article 5 para. 5 of the Convention.

4.    Lastly, he complains under Article 13 of the Convention that he

had no effective remedy before a national authority against the

violations of the Convention as the courts did not sufficiently take

the applicant's evidence into account.

THE LAW

1.    Before the Commission the applicant complains that he was subject

to inhuman and degrading treatment upon his arrest on 23 March 1981 and

refers to Article 3 (Art. 3) of the Convention.

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

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

      degrading treatment or punishment."

      The Commission recalls that ill-treatment must attain a certain

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 and mental effects and, in some

cases, the sex, age and state of health of the victim etc. (Eur. Court

H.R., Ireland v. the United Kingdom judgment of 18 January 1978, Series

A no. 25 pp. 65-67, paras. 162, 167; Soering judgment of 7 July 1989,

Series A no. 161, p. 39, para. 100).

      Such treatment causing, if not actual bodily injury, at least

intense physical and mental suffering falls into the category of

inhuman treatment within the meaning of Article 3 (Art. 3).  It is

degrading if it arouses in the person subjected thereto feelings of

fear, anguish and inferiority  capable of humiliating and debasing this

person and possibly breaking his or her physical or moral resistance

(Eur. Court H.R., Ireland v. the United Kingdom judgment, loc. cit.,

p. 66, para. 167; Soering judgment, loc cit.).

      The Commission notes that the applicant contests the findings of

the national courts according to which he did not succeed in proving

sufficiently his allegations of ill-treatment.  In this respect the

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

had the benefit of listening to the witnesses at first hand and

assessing the credibility and probative value of their testimony 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 national courts (No. 10044/82, Dec.

10.7.84, D.R. 39 pp. 162 et seq., 168).

      The Commission notes that, after the applicant had complained

about his treatment to the District Attorney on 24 March 1981, a

criminal enquiry had been opened and the applicant was confronted with

policemen and had photographs of policemen shown to him.  It was only

after this enquiry did not provide any results that the charge was

dropped by the authorities.

      At the stage of the civil proceedings the doctor of the applicant

was heard by the investigating judge.  The court heard two experts,

both a medical expert and a chemical expert, in particular as regards

the applicant's accusation that tear gas had been sprayed into his

eyes.  As a result the court came to the conclusion that the version

given by the applicant as to how he had been sprayed with tear gas

contained contradictions and the applicant had even given divergent

versions.  Furthermore, the photo taken of the applicant did not show

any signs of irritated eyes.  The court therefore concluded that the

applicant did not sufficiently prove his allegations by supporting

evidence and dismissed the applicant's claim for compensation.

      The Commission considers that the authorities have taken the

applicant's allegations seriously and conducted a thorough enquiry into

the applicant's allegations of ill-treatment.  The court did take

evidence, heard witnesses and took expert opinions.  This evidence,

however, did not sufficiently support the applicant's claim.  The court

even found contradictions in the applicant's statements.  As a result

of the Public Prosecutor's enquiries as well as the court case

instituted by the applicant, the authorities had doubts as to the

applicant's allegations.

      The Commission concludes that at the level of domestic courts and

prosecuting authorities doubts as to the truth of the applicant's

allegations subsisted and that after a thorough investigation by the

domestic authorities these doubts were not dissipated.  The Commission

finds that the applicant did not sufficiently substantiate his

allegations.

      It follows that this part of the application must be rejected as

being manifestly ill-founded in accordance with Article 27 para. 2

(Art. 27-2) of the Convention.

2.    The applicant complains under Article 6 (Art. 6) of the

Convention that he did not receive a fair hearing before the Zurich

District Court and the Zurich Court of Appeal as his evidence was not

taken sufficiently into account and his requests for further evidence

were rejected by the courts.

      Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant to the case, reads as follows:

      "In the determination of his civil rights and obligations

      ... everyone is entitled to a fair and public hearing

      within a reasonable time by an independent and impartial

      tribunal established by law. ..."

      With regard to the judicial decisions of which the applicant

complains, the Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties in 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 constant

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).

      The Commission recalls further that the admissibility of evidence

is primarily a matter for regulation by national law, and as a rule it

is for the national courts to assess the evidence before them.  The

Commission's task is to ascertain whether the proceedings considered

as a whole, including the way in which evidence was taken, were fair

(cf. Eur. Court H.R., Asch judgment of 26 April 1991, Series A No. 203

p. 10, para. 26).

      As regards the applicant's complaint that his testimony was not

taken into account, the Commission notes that the court held that the

applicant's statements before the Public Prosecutor cannot be regarded

as the statement of a witness in the technical sense, as the applicant

was a party in the civil proceedings.  Furthermore the District Court

in its judgment had taken the applicants statement, although not as the

statement of a witness, into account.

      As regards the applicant's complaint that certain files had not

been produced the Commission notes that this request was refused by the

District Court because they did not concern events where the applicant

was present and therefore were of no relevance to his case.

      The Commission cannot find that this reasoning of the District

Court can be seen as being arbitrary.

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

founded in accordance with Article 27 para. 2 (Art. 27-2) of the

Convention.

3.    As regards the applicant's complaint that further police officers

were not heard by the District Court, the Commission recalls that there

is no exhaustion of domestic remedies if the applicant has not raised

before the superior national court, at least in substance, the

complaint made before the Commission (No. 8257/78, Dec. 10.7.78, D.R.

13 p. 248 at 252).  The Commission observes that the applicant did not

raise this complaint before the Federal Court.

      It follows that in this respect the applicant has not satisfied

the requirement as to exhaustion of domestic remedies contained in

Article 26 (Art. 26) of the Convention and that this part of the

application, therefore, is inadmissible by virtue of Article 27 para.

3 (Art. 27-3) of the Convention.

4.    The applicant complains that his claim for compensation for the

ill-treatment he suffered as a result of his arrest was refused and

invokes in this respect Article 5 para. 5 (Art. 5-5) of the Convention.

      Article 5 para. 5 (Art. 5-5) of the Convention reads as follows:

      "Everyone who has been the victim of arrest of detention in

      contravention of the provisions of this Article shall have

      an enforceable right to compensation."

      The Commission recalls that Article 5 para. 5 (Art. 5-5) of the

Convention is only applicable if the Convention organs themselves or

a national authority have established that the detention of a person

constituted a violation of his rights under Article 5 paras. 1 to 4

(Art. 5-1, 5-2, 5-3, 5-4) (No. 6821/74, Dec. 5.7.76, D.R. 6, p. 65 at

p. 70; No. 10371/83, Dec. 6.3.85, D.R. 42, p. 128; Eur. Court H.R.

Brogan and others judgment of 29 November 1988, Series A no. 145-b, p.

35, para. 66).

      The Commission notes that the applicant did not complain either

before the domestic courts or in the present proceedings before the

Commission that his arrest and detention had been contrary to Article

5 paras. 1 to 4 (Art. 5-1, 5-2, 5-3, 5-4) of the Convention.

      The Commission concludes that since no violation of Article 5

paras. 1 to 4 (Art. 5-1, 5-2, 5-3, 5-4) has been alleged by the

applicant, this part of the application must be rejected as

incompatible ratione materiae with the provisions of the Convention in

accordance with Article 27 para. 2 (Art. 27-2) of the Convention.

5.    Lastly, the applicant complains under Article 13 (Art. 13) of the

Convention that he had no possibility of effectively complaining before

a national authority about his ill-treatment by the police because the

courts refused to take further evidence and did not sufficiently

consider the evidence before them.

      Article 13 (Art. 13) of the Convention reads 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 acting in an

      official capacity."

      Even assuming that the applicant had an arguable claim  within

the meaning of Article 13 (Art. 13), the Commission notes that he did

in fact have an effective remedy against the alleged violation of his

right under Article 3 (Art. 3) of the Convention, namely the

possibility to introduce a civil court action under the Cantonal

Liability Act.  The fact that this remedy eventually failed does not

indicate any lack of effectiveness.

      This part of the application is therefore also manifestly ill-

founded in accordance with 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  Acting President of the Second Chamber

           (K. ROGGE)                        (H. DANELIUS)