PARTLY DISSENTING OPINION OF JUDGE FOIGHEL, JOINED BY JUDGE morenilla

Although I agree with my colleagues that the handcuffing of the applicant did not constitute a breach of Article 3 of the Convention, I consider, unlike them, that it entailed a violation of Article 8.

As pointed out in paragraph 63 of the judgment, there might be circumstances in which Article 8 could be regarded as affording a protection in relation to conditions during detention which do not attain the level of severity required under Article 3. Such circumstances did in my view obtain in the present case.

For me it is not decisive that the handcuffing was not aimed at humiliating the applicant. I find it more significant that the effect of the measure must have been one of humiliation and lowering of his self ‑ esteem. In particular, as stated in paragraph 57 of the judgment:

“The handcuffing of Mr Raninen had, as conceded by the Government, not been made necessary by his own conduct. Apart from the fact that the measure was itself unjustified, it had been imposed in the context of unlawful arrest and detention. In addition, he had, albeit only briefly, been visible to the public on his entering the military police vehicle outside the prison gate ...”

I therefore consider that the treatment complained of did affect the applicant’s integrity to such a degree as to amount to an interference with his right to respect for private life as guaranteed by paragraph 1 of Article 8.

Furthermore, it has not been argued, nor is there anything to suggest, that the handcuffing was justified for the purposes of paragraph 2 of Article 8. Accordingly, I have voted for a violation of this Article.

Partly dissenting opinion of Judge Pekkanen, JOINED BY JUDGES MAKARCZYK AND JUNGWIERT

1. I regret that I cannot subscribe to the majority’s conclusion that the Government’s preliminary objection on exhaustion of domestic remedies should be rejected.

2. Under Finnish law it was open to the applicant to bring charges or have charges brought against the members of the armed forces who were responsible for the deprivation of his liberty and his handcuffing and to claim damages under the Damage Compensation Act from them or from the State. Although slightly different on the facts, the 1985 Court of Appeal judgment referred to by the Government does in my view show that criminal charges could successfully be brought against a public servant and that damages could be obtained from the State for unlawful deprivation of liberty of even short duration. However, the only step taken by the applicant at the domestic level was to file a petition with the Parliamentary Ombudsman.

3. In Finland the Ombudsman is an independent authority whose main task it is to supervise the application of the law by State authorities, in particular to ensure that they observe their duties and responsibilities as laid down in laws and regulations and that the fundamental rights and freedoms of citizens are not encroached upon in the process of public administration. The Ombudsman is empowered to either express a non-legally binding opinion or, where a public official is suspected of having committed an offence in the performance of his or her duties, to institute criminal or disciplinary proceedings. If he does not find it necessary to press charges it is, still, open to the public prosecutor to instigate criminal proceedings.

4. Whilst it is true that the Ombudsman enjoys high esteem in Finland, any assessment of the potential impact of his findings must have regard to their precise contents.

The Commission’s main argument for considering that the above remedies offered no reasonable prospects of success was “the Ombudsman’s finding that the applicant’s treatment, although reprehensible, did not require that charges be brought against any public official ” (emphasis added; see page 45 of the Commission’s report). However, that argument is misleading, as the conclusion only concerned Corporal R., not any other official. It cannot be inferred from it that the applicant had no reasonable prospects of success were he to institute criminal proceedings against any other members of the armed forces.

The second argument relied on by the Commission was that compensation could not be sought under the Compensation for Deprivation of Liberty Act unless the detention had lasted for at least twenty-four hours, which condition had not been fulfilled in the present instance. However, the Commission failed to consider the fact that the applicant could undeniably have instituted a civil action for damages, as demonstrated by the above-mentioned Court of Appeal ruling.

In my view, these arguments do not sustain the conclusion that the applicant would have had no reasonable prospects of success had he properly availed himself of the remedies which existed under Finnish law.

5. Even if it may be assumed that the Ombudsman’s decision somewhat diminished the chances of success of a criminal charge brought against R. by the public prosecutor or by the applicant himself, the decision would seem to give considerable support for a claim against the State for damages. Not only did the Ombudsman find that the arrest had been unlawful and that the handcuffing had been unjustified, he also observed that the orders given to Corporal R. had been summary and that more experienced military personnel should have been used to fetch the applicant on his release from prison. In addition, the Ombudsman criticised the training and activities of the military police.

6. My main concern in this case is one of principle. The majority’s conclusion that the applicant had fulfilled the requirement of exhaustion under Article 26 of the Convention has the unfortunate consequence of making the case-law less clear in this area and of weakening the principle of subsidiarity. According to this principle, it may be recalled, it is the national authorities which have the primary responsibility for the enforcement of the Convention guarantees; the European Court having only a supervisory role which comes into operation once the national means of redress have been exhausted. It is therefore of utmost importance from the point of view of the Convention system of protection of human rights that the national authorities, notably the courts, are given a proper opportunity to make good the matter complained of before the Strasbourg review enters into play. However, that has not in my view been the case in the proceedings under consideration.

7. In light of the above, I have voted against the dismissal of the preliminary objection.

[1] . This summary by the registry does not bind the Court.

[2] Notes by the Registrar

1. The case is numbered 152/1996/771/972. The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case’s position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[3] 2. Rules of Court B, which came into force on 2 October 1994, apply to all cases concerning States bound by Protocol No. 9.

[4] 1. Note by the Registrar . For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1997), but a copy of the Commission’s report is obtainable from the registry.