AS TO THE ADMISSIBILITY OF

                      Application No. 15473/89

                      by Hildegard and Monika KLAAS

                      against the Federal Republic of Germany

      The European Commission of Human Rights sitting in private on

9 July 1991, the following members being present:

           MM.   C. A. NØRGAARD, President

                 J. A. FROWEIN

                 S. TRECHSEL

                 F. ERMACORA

                 E. BUSUTTIL

                 A. S. GÖZÜBÜYÜK

                 J. C. SOYER

                 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

           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 11 July 1989 by

Hildegard and Monika KLAAS against the Federal Republic of Germany and

registered on 11 September 1989 under file No. 15473/89;

      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 first applicant, born in 1937, is a German national and a

social welfare officer by profession.  The second applicant is her

twelve-year-old daughter.  Both applicants are residing at Lemgo.

Before the Commission they are represented by Mr. M. Stüben, a lawyer

practising in Bad Salzuflen.

      On 28 January 1986, at about 7.30 p.m., the first applicant,

accompanied by her then eight-year-old daughter, returned by car from

a visit and stopped at the gateway to the back yard of the house where

she is living.  The Police Officers W. and B., who had followed her,

charged her with having disregarded a red traffic light and driven

away.  The first applicant denied this.  Upon further questioning, she

admitted that she had drunk alcohol and agreed to an alcohol test. As

repeated tests failed, the police officers informed her that she should

accompany them to carry out a blood test.  The first applicant was

subsequently arrested at the back door, brought to the local hospital

for the blood test, and then released.  According to a later judgment

of the Lemgo District Court (Amtsgericht) of 23 April 1987, the result

of the blood-test showed a blood alcohol content level of 0.82 per

mille.  This is disputed by the applicants.

      With regard to the arrest the applicants give the following

account: The first applicant agreed to the blood test, but explained

that she wished first to bring her daughter to a neighbour.  One police

officer refused this and dragged her to the police car.  She was warned

that the could be charged with having resisted a public officer in the

execution of his duties (Widerstand gegen die Staatsgewalt).  When she

called her daughter, he stated that they would take the child along.

Thereupon she nevertheless took her daughter by the hand, went to the

back door, rang her neighbour's bell and opened the door.  At that

moment one police officer grasped her, twisted her left arm to her back

while she was turned around and hit her head on the corner of a

window-sill. The police officers hand-cuffed her.  She lost

consciousness for a short while.  At the police car she recovered and

noticed severe pain in her left shoulder which was pressed backwards

by one of the police officers.  After a while she was able to get into

the police car and was taken to the hospital.

      After these events the first applicant underwent two medical

examinations on 29 and 30 January 1986.  On 11 February 1986, Dr. S,

an internal specialist, certified that he had examined the applicant

on 29 January and noticed abrasions, a bruise at her right cheek-bone

of about 3 x 5 cm, large bruises of about 10 cm to her right arm,

considerable problems in moving her left shoulder and bruises.  He also

stated that she would have trouble for a long time, in particular

with her left shoulder.  She was certified as ill until 8 February

1986.  Furthermore, on 10 February 1986, Dr. K, the head surgeon at the

local hospital, certified that he had examined the first applicant on

30 January 1986.  His diagnosis was identical to that of Dr. S.

      At the request of the Police Officer B., criminal proceedings

were instituted against the first applicant on the suspicion of

resisting a public officer in the execution of his duties, S. 113 of

the German Criminal Code (Strafgesetzbuch), and of drunken driving, S.

316 of the Criminal Code.

      In his report Police Officer B. stated, as regards the first

applicant's arrest, that he and his colleague had the impression that

the first applicant intended to escape.  At the back door the first

applicant prepared to enter the house after her daughter and to close

the door.  Thereupon he grasped the first applicant's right arm and

tore her out of the entrance.  The first applicant started to strike

out and tried to free herself.  There was an altercation. Police

Officer W. took the applicant's left arm and twisted it behind her back

(Polizeigriff).  The first applicant constantly offered resistance and

further physical force was necessary to hand-cuff her. On their way to

the police car she attempted to throw herself to the ground, and he and

his colleague had to take her arms. At the police station, a lacerated

wound was noticed at her right temple.

      On 22 April 1986 the criminal proceedings against the first

applicant were discontinued by the Detmold Public Prosecutor's Office

(Staatsanwaltschaft).  The Office found that there was no reasonable

suspicion concerning drunken driving.  As regards her offence of

resisting a public officer, there was minor guilt and no public

interest in prosecution.  Subsequently the first applicant was fined

DM 500 for having committed the "regulatory offence"

(Ordnungswidrigkeit) of driving with a blood alcohol content level of

more than O.8 per mille, and a one month's prohibition on driving was

imposed.  Her appeals were unsuccessful.

      On 24 April 1986 the first applicant laid information against the

Police Officers B. and W., alleging that they had caused bodily harm

to her within the meaning of SS. 223 and 230 of the Criminal Code.

Having consulted her lawyer, Mr. Stüben, the first applicant withdrew

her criminal charges.  The Public Prosecutor's Office had allegedly

warned her that otherwise the criminal proceedings against her would

be continued.  The investigations against the Police Officers were

discontinued on 10 July 1986.

      On 18 July 1986 the first applicant filed a hierarchical

complaint (Dienstaufsichtsbeschwerde) with the Head of the Detmold

County Administration (Oberkreisdirektor) concerning the Police

Officers B. and W.

      On 18 September 1986, the Head of the Detmold County

Administration, acting as Police Department (Kreispolizeibehörde),

dismissed the first applicant's complaint.  In the decision, it is

stated in particular that the police officers had stopped the first

applicant after a traffic offence, noticed a smell of alcohol and

proposed an alcohol test.  As the test failed four times, the first

applicant was informed that she had to undergo a blood test. Thereupon

she attempted to run into the back yard.  However, one of the police

officers was able to seize her arm and explain that she was

provisionally under arrest.  The request to take her daughter to a

neighbour first was granted.  When the first applicant opened the door

and tried to enter with her daughter, one of the police officers held

her right arm fast, whereupon she started to kick and to beat with her

left hand.  When the police officers held her tight she tried to escape

by turning around.  She had to be hand-cuffed.  In the course of the

arrest she did not knock her head against a window-sill.  The

Department concluded that the use of force had been justified and not

disproportionate to the aim pursued, i.e., the taking of a blood test.

      On 10 April 1987 the first applicant instituted proceedings

before the Detmold Regional Court (Landgericht) against the Land

North-Rhine Westphalia and the two Police Officers B. and W., claiming

compensation for the injuries suffered at her arrest.

      On 10 July 1987 the Detmold Regional Court, in a partial

judgment, dismissed her action against the Police Officers on the

ground that, in cases of official liability, any personal liability on

the part of the officials concerned was excluded.

      On 30 October 1987 the Detmold Regional Court, having held a

hearing on 9 October 1987, dismissed the first applicant's compensation

claims against the Land of North-Rhine Westphalia.  The Court stated

that the police officers had arrested the first applicant on the

suspicion of drunken driving in order to have a blood test carried out.

The first applicant was allowed to bring her daughter into the

neighbour's house.  When she opened the door and the child entered the

house, the police officers had a tight hold of the first applicant,

twisting her arms behind her back (Polizeigriff).  They then

hand-cuffed her. The first applicant thereby suffered a bruise to her

right temple, concussion of her brain and a contusion of the left

shoulder-joint. The Regional Court considered that the first applicant

had failed to prove that the police officers had injured her by a

disproportionate use of force. In this respect, the Court noted that

the testimonies of the first applicant's daughter and of Police

Officers B. and W. were contradictory, and that all three witnesses had

an interest in the outcome of the proceedings.  A further witness could

not confirm that one of the police officers had twisted the first

applicant's arms behind her back;  the witness's statement that the

first applicant had repeatedly bent forward would not necessarily lead

to such a conclusion.  The first applicant could have injured herself

in resisting the arrest.

      On 12 September 1988 the Hamm Court of Appeal (Oberlandes-

gericht) dismissed the first applicant's appeal (Berufung).  It

confirmed in particular the Regional Court's taking and evaluation of

evidence.

      On 8 February 1989 the Federal Constitutional Court (Bundes-

verfassungsgericht) refused to admit the first applicant's

constitutional complaint (Verfassungsbeschwerde) on the ground that it

offered no prospect of success.  The Constitutional Court considered

in particular that the Court of Appeal's evaluation of the evidence did

not appear arbitrary or otherwise in violation of constitutional law.

      Following the communication of the present application to the

respondent Government, the Federal Ministry of Justice invited the

North-Rhine Westphalia Ministry of Justice to submit observations.  On

13 March 1990 the North-Rhine Westphalia Ministry of Justice invited

the President of the Detmold Regional Court to submit observations and

sent a copy of this letter to the President of the Hamm Court of Appeal

for information.  On 26 March 1990 the President of the Hamm Court of

Appeal sent the documents concerned to the President of the Hamm Bar

Association for information and, if appropriate, for further action as

regards disciplinary measures.  By letter of 4 April 1990 the Bar

Association requested the applicants' representative to submit

observations on the complaint directed against him.  The disciplinary

proceedings have been suspended pending the outcome of the proceedings

before the Commission.

COMPLAINTS

1.    The applicants complain under Articles 3 and 8 of the Convention

that the first applicant, in the presence of the second applicant, was

beaten by the police upon her arrest.  The first applicant thereby

suffered serious and lasting injuries, and the second applicant's peace

of mind was impaired.

2.    Furthermore, the applicants complain that the disciplinary

proceedings against their representative hinder them in the effective

exercise of their right of petition under Article 25 para. 1 of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 11 July 1989 and registered on

11 September 1989.

      On 14 February 1990 the Commission decided to bring the

application to the notice of the respondent Government and to invite

them to submit written observations on its admissibility and merits.

      The Government submitted observations on 28 May and 22 August

1990.  The applicants made submissions in reply on 28 August 1990.

      On 7 March 1991 the Commission decided to invite the parties to

a hearing on the admissibility and merits of the application.

      At the hearing which was held on 9 July 1991 the parties were

represented as follows:

The Government

Mr. Stöcker,                Ministerialrat, Federal Ministry of

                            Justice, Agent;

Mrs. Chwolik-Lanfermann     Richterin am Oberlandesgericht,

                            Federal Ministry of Justice, Adviser;

The applicants

Mr. Stüben                  Rechtsanwalt, Representative.

The applicants and the first applicant's husband were also present.

THE LAW

1.    The applicants complain that the first applicant, upon her arrest

on the suspicion of drunken driving, was beaten up and seriously

injured by two policemen in the presence of the second applicant.

a.    The Commission has examined these complaints under Articles 3

and 8 (Art. 3, 8) of the Convention.

      Article 3 (Art. 3) of the Convention provides:

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

      treatment or punishment."

      Article 8 (Art. 8) of the Convention reads as follows:

      "1.      Everyone has the right to respect for his private and

      family life, his home and his correspondence.

      2.   There shall be no interference by a public authority with

      the exercise of this right except such as is in accordance with

      the law and is necessary in a democratic society in the interests

      of national security, public safety or the economic well-being

      of the country, for the prevention of disorder or crime, for the

      protection of health or morals, or for the protection of the

      rights and freedoms of others."

b.    The Government maintain that the second applicant was only by

coincidence witness of the events at the first applicant's arrest and

cannot claim to be a victim of a violation of her rights under the

Convention.

      The Commission notes that the second applicant, the first

applicant's then eight-year-old daughter, was present at her mother's

arrest and experienced the altercation between the policemen and her

mother, which resulted in lasting injuries.

      The Commission, in these circumstances, finds that that the

second applicant was affected by the alleged breaches of the Convention

and may claim to be a victim within the meaning of Article 25 para. 1

(Art. 25-1) of the Convention.

c.    The Government, in their written observations, have submitted

that the first applicant failed to exhaust the domestic remedies

available to her under German law.  It was not sufficient under Article

26 (Art. 26) of the Convention to institute official liability

proceedings and fail with a hierarchical complaint.  She should have

instituted further complaint proceedings both with regard to the order

of arrest and in respect of the circumstances of her arrest. Moreover,

she should have pursued criminal proceedings against the Police

Officers B. and W.  At the hearing, the Government conceded that, in

the course of the official liability proceedings, the German civil

courts had the opportunity to review the lawfulness of the police

measures in question.

      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. 5064/72, Dec.

29.9.75, D.R. 3 p. 57, with further reference).

      The Commission finds that, in the context of the official

liability proceedings instituted by the first applicant, the lawfulness

of her arrest and the use of force by the Police Officers B. and W. had

to be considered by the civil courts as essential conditions for her

compensation claim.  The civil courts could decide upon these matters

independently of any other proceedings, in particular criminal

proceedings against the police officers concerned.

      In these circumstances, the official liability proceedings

constituted an effective and sufficient remedy under German law with

regard to the complaints under Article 3 and 8 (Art. 3, 8) of the

Convention which the first applicant now raises before the Commission.

The condition under Article 26 (Art. 26) of the Convention that

domestic remedies must be exhausted has, therefore, been met.

d.    The Government consider that the measures taken by Police

Officers B. and W., even as presented by the applicant, did not reach

the degree of seriousness required to justify invoking Article 3

(Art. 3) of the Convention. Furthermore, they maintain that, having

regard to the facts as established in the domestic court decisions, the

first applicant's arrest was lawful, and in particular the physical

force necessary and proportionate to carry out the arrest.  Assuming

an interference with the first applicant's right to respect for her

private life under Article 8 para. 1 (Art. 8-1) of the Convention, it

was justified under Article 8 para. 2 (Art. 8-2).

      The Commission finds that the applicants' complaints under

Articles 3 and 8 (Art. 3, 8) 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 Commission has further considered the applicants' complaint

under Article 25 para. 1 (Art. 25-1) in fine of the Convention that the

German authorities hindered them in the effective exercise of their

right of petition in that disciplinary proceedings were instituted

against their representative in the context of their application before

the Commission.

      Article 25 para. 1 (Art. 25-1) provides:

      "The Commission may receive petitions addressed to the Secretary-

      General of the Council of Europe from any person,

      non-governmental organisation or group of individuals claiming

      to be the victim of a violation by one of the High Contracting

      Parties of the rights set forth in this Convention, provided that

      the High Contracting Party against which the complaint has been

      lodged has declared that it recognises the competence of the

      Commission to receive such petitions.  Those of the High

      Contracting Parties who have made such a declaration undertake

      not to hinder in any way the effective exercise of this right."

      The Government submit that the President of the Hamm Court of

Appeal assumed a violation of the representative's professional duties,

and, in accordance with an established practice, transmitted a copy of

the file to the President of the Bar Association.  At the hearing the

Government's representative assured the Commission that the Bar

Association would be informed about the "European Agreement relating

to persons participating in proceedings of the European Commission and

Court of Human Rights" granting immunity, inter alia, to parties and

their representatives.  He was convinced that, as a result of this

information, any disciplinary proceedings pending against the

applicants' representative in respect of the present application would

be discontinued or otherwise terminated.

      The Commission observes that conducting disciplinary proceedings

against the representative of an applicant for bringing a petition with

the Commission raises serious issues under Article 25 para. 1

(Art. 25-1) in fine of the Convention, and under the "European

Agreement relating to persons participating in proceedings before the

European Commission and Court of Human Rights", to which the Federal

Republic of Germany is a Party (cf., as regards Article 25 para. 1

(Art. 25-1) in fine, No. 1593/62, Dec. 4.7.64, Collection 14 p. 34).

      However, having regard to the above-mentioned declaration made

by the Government's representative at the hearing, the Commission finds

that there is no necessity to examine this matter further.

      For these reasons, the Commission

      DECLARES THE APPLICATION ADMISSIBLE

      - unanimously - insofar as it concerns the first applicant and

      - by a majority - insofar as it concerns the second applicant,

      without prejudging the merits of the case;

      DECIDES - unanimously - to take no further action in

      respect of the alleged interference with the effective

      exercise of the applicants' right of petition under

      Article 25 para. 1 (Art. 25-1) in fine of the Convention.

Secretary to the Commission             President of the Commission

   (H.C. KRÜGER)                        (C.A. NØRGAARD)