Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17544/90

by Anita RIBITSCH

against Austria

The European Commission of Human Rights sitting in private on

4 May 1993, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

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 3 August 1990 by

Anita RIBITSCH against Austria and registered on 10 December 1990 under

file No. 17544/90;

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. She is a nurse by profession. Before the Commission she

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

A. Particular circumstances of the case

a. The investigations against the applicant and her husband

On 21 May 1988, in the context of criminal investigations

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

applicant's and her husband's apartment was searched by police officers

of the Vienna Federal Police Department (Bundespolizeidirektion).

On 31 May 1988, at 15 h., police officers of the Vienna Federal

Police Department arrested the applicant on the suspicion of drug

trafficking. She asked her sister to take care of her two children,

then twelve and two years old. Subsequent to her arrest, and again on

1 and 2 June 1988 the spouses' apartment was searched. The applicant

and her husband were kept in police detention until the morning of

2 June 1988.

She gives the following account of events in the course of her

detention: After her arrest, her personal particulars were recorded.

She was then detained. She was first questioned about the suspicion

against her and her husband on 1 June 1988, at 12 h. In the course of

the questioning, the police officers addressed the applicant in an

overfamiliar way ("duzen"), and also insulted her ("Kärntner Schwein",

"du grande Dame, du", "du Trampel", "depate Alte"). Upon her

statements concerning the charges, the police officers declared that

her "story would stink to high heaven", that they "would now put the

screw on her", that they "had lost their patience". The police

officers threatened her that her children would be taken into public

care. As a result of this treatment, she was unfit for work for

several days and had to undergo psychiatric treatment.

b. The proceedings before the Austrian Constitutional Court

On 28 September 1988 the applicant, assisted by counsel, lodged

a complaint under S. 144 of the Federal Constitution (Bundesver-

fassungsgesetz) with the Austrian Constitutional Court (Verfassungs-

gerichtshof) about her arrest on 31 May 1988 and subsequent detention,

about the searches of her home and about having been insulted by police

officers in the course of her detention. In this respect, she

recounted in detail her version of events on the occasion of her

questioning and argued that the conduct of the police officers amounted

to a violation of Article 3 of the Convention.

On 28 November 1989 the Constitutional Court, upon the

applicant's complaint, held that her arrest by police officers of the

Vienna Federal Police Department on 31 May 1988, and her subsequent

detention until 2 June 1988 had violated her right of liberty, and that

the searches of her home had violated her right to respect for her

home. The Constitutional Court rejected the remainder of the

applicant's complaint about having been insulted by police officers in

the course of her 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.

The decision was served on 8 February 1990.

c. The criminal proceedings against police officers as regards the

alleged ill-treatment of the applicant's husband

The applicant's husband had, shortly after his release, raised

accusations of ill-treatment against police officers involved in his

and his wife's questioning, whereupon criminal proceedings had been

instituted against Police Officers M., T. and G.

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.

Police Officers T. and G. were acquitted for lack of proof. The Vienna

District Court found M. guilty of having beaten and kicked the

applicant's husband and having pulled his hair and thereby caused

haematomas on his right upper arm as well as on his thigh and also a

cervical syndrome.

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. The Regional

Court, having heard several witnesses and in particular taken recourse

to expert evidence, found that, on balance, the version of the accused

could not be refuted, nor could at least parts of the allegations made

by the applicant's husband be proven with the certainty necessary for

a criminal conviction.

B. Relevant domestic law

S. 115 of the Austrian Penal Code (Strafgesetzbuch) provides in

particular that anyone who in public or in the presence of several

persons insults, ridicules, or assaults another person or threatens him

with assault, shall be liable to imprisonment not exceeding three

months or a fine ..., if he is not liable to stricter punishment under

another provision. Such an act is committed in the presence of several

persons, if it is committed in the presence of more than three persons

other than the offender and the victim, who could perceive the act

concerned.

According to S. 117 of the Penal Code, offences against the

honour are only prosecuted upon a charge by the victim concerned. The

victim is entitled to bring private prosecution proceedings in

accordance with SS. 2 and 46 of the Code of Criminal Procedure

(Strafprozessordnung).

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 (Bundesverfassungs-

gesetz), and 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 her arrest and detention, in

particular the insulting remarks by police officers in the course of

her detention, amount to inhuman and degrading treatment contrary to

Article 3 of the Convention.

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

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

before the Austrian Constitutional Court she could not effectively

lodge her complaints about ill-treatment by police officers.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 3 August 1990 and registered

on 10 December 1990.

On 30 March 1992 the Commission decided to communicate the

application to the respondent Government for observations on the

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.

THE LAW

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

detention, police officers subjected her to ill-treatment, in

particular in the form of insulting remarks, contrary to Article 3

(Art. 3) of the Convention.

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 Government maintain that the applicant failed, as required

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

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

that the applicant did not bring private prosecution proceedings

against the police officers concerned for insult within the meaning of

S. 115 of the Penal Code. They further consider that she failed

properly to reason her constitutional complaint as regards the alleged

insults so as to enable the Constitutional Court to assume its

competence to entertain this complaint.

The applicant considers that her ill-treatment amounted to bodily

assault which had to be prosecuted ex officio and therefore could not

be the subject of private prosecution proceedings. Furthermore, she

contends that in her complaint to the Constitutional Court she had in

detail recounted the events and their consequences.

According to Article 26 (Art. 26) of the Convention, the

Commission may only deal with the matter after all domestic remedies

have been exhausted, according to the generally recognised rules of

international law.

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 of

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).

In the present case, the applicant did not bring private

prosecution proceedings against the police officers concerned for

insult, or, assuming that the alleged acts had to be prosecuted ex

officio, lay any criminal charges against the police officers

requesting their prosecution. In this context, the Commission had

regard to the criminal proceedings instituted against three police

officers upon accusations of ill-treatment raised by the applicant's

husband, which the applicant's husband joined as a private party

claiming compensation. In the course of these proceedings, the

allegations of the applicant's husband were carefully examined at two

court levels.

The applicant did not institute civil proceedings either, with

a view to claiming compensation in particular as regards the alleged

detrimental consequences of the events in question.

The Commission notes that the applicant, in her complaint to the

Austrian Constitutional Court lodged almost four months after the

relevant incidents, also referred to the alleged insults, arguing

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

competence of the Constitutional Court to receive complaints about the

violation of constitutionally guaranteed rights is limited under S. 144

para. 1 of the Federal Constitution to formal decisions of

administrative authorities or the exercise of direct administrative

authority and coercion against a particular individual. The

Constitutional Court, in its decision of 28 November 1989, declared the

applicant's complaint about the alleged insults committed by police

officers in the course of her detention inadmissible in accordance with

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.

In these circumstances, the Commission finds that the applicant's

complaint to the Constitutional Court about ill-treatment does not

constitute an effective and sufficient remedy for the purposes of

exhaustion of domestic remedies, as required by Article 26 (Art. 26)

of the Convention.

The applicant's submissions do not disclose any special

circumstance which might have absolved her according to the generally

recognised rules of international law from exhausting the effective

domestic remedies at her disposal.

It follows that this part of the application must be rejected

under Article 27 para. 3 in conjunction with Article 26 (Art. 27-3+26)

of the Convention.

2. 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 she could not

effectively lodge her complaint about ill-treatment by police officers.

The Commission refers to its above findings that under Austrian

law, the applicant could have brought criminal charges against the

police officers concerned, or filed a civil action for compensation as

regards the alleged detrimental consequences of the events for her

health.

It follows that this complaint 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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RIBITSCH v. AUSTRIA

RIBITSCH v. AUSTRIA