Resolution CM/ ResDH (2010)38 [1]

Execution of the judgment of the European Court of Human Rights

Wieser against Austria

(Application No. 2293/03, judgment of 22 February 2007, final on 22 May 2007)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns an unjustified strip ‑ search during the applicant ’ s arrest amounting to degrading treatment (violation of Article 3) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures, preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to clos e the examination of this case.

Appendix to Resolution CM/ ResDH (2010)38

Information about the measures to comply with the judgment in the case of

Wieser against Austria

Introductory case summary

The case concerns the unjustified strip-search of the applicant by police during his arrest on 9/02/1998 which was qualified as degrading treatment by the European Court (violation of Article 3).

The European Court noted that the applicant was not simply ordered to undress, but was undressed by the police officers while in a situation of particular distress. The procedure had been invasive and potentially debasing and therefore it should not have been used without a compelling reason. However, the strip-search proved neither necessary nor justified for security reasons as the applicant, who was already handcuffed, was searched for arms and not for drugs or other small objects (§40 of the judgment).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

3 000 EUR

10 012.64 EUR

13 012.64 EUR

Paid on 21/08/2007

b) Individual measures

The applicant was released on 10/02/1998 and criminal proceedings against him were discontinued on 25/06/1998. The European Court awarded him just satisfaction in respect of non-pecuniary damage resulting from the strip search. Consequently, no other individual measure was considered necessary.

II. General measures

The European Court considered that the violation resulted from the particular circumstances in which the strip-search had been carried out in the present case. It did not question the domestic legal provisions nor did it find any procedural flaws. T he violation seems to constitute an isolated violation resulting from the particular circumstances of the case. Thus, the Austria n authorities consider that publication and dissemination of the European Court ’ s judgment should be sufficient to prevent similar violations. The judgment has been sent out to public authorities at federal and regional levels, including the Ministry of the Interior and the federal and regional police services. It has been published in German, particularly in the Newsletter of the Austria n Human Rights Institute ( http://www.menschenrechte.ac.at/docs/07_1/07_1_13 ), and on the website of the Constitutional Service of the Austria n Chancellery ( http://bka.gv.at/ D oc V iew.axd?CobId=29401 ).

III. Conclusions of the respondent state

The government considers that no individual measure is required in this case, other than the payment of the just satisfaction awarded by the European Court , that measures taken will prevent similar violations and that Austria has thus complied with its obligations under Article 46, paragraph 1 of the Convention.

[1] Adopted by the Committee of Ministers on 3 June 2010 at the 1086th meeting of the Ministers’ Deputies