DISSENTING OPINION OF JUDGE JEBENS JOINED BY JUDGE HAJIYEV

I disagree with the majority in their finding of a violation of Article 3 in the present case. In my view, the police officers ' treatment of the applicant did at no point amount to torture or inhuman or degrading treatment or punishment.

It is important to notice the background of the case: The Feldkirch Regional Court issued an arrest warrant against the applicant and a search warrant of his house because he was suspected of bodily assault, rape and threats with a firearm, all of it directed against his wife. The arrest warrant pointed out that there was reason to expect “massive resistance” upon arrest and attempts to “escape prosecution”. According to information given by his wife, the applicant was trained in hand-to-hand combat, and “up to anything”. The latter characterization was probably based on the fact that he had on several occasions approached his wife with weapon in hand. Last, but not least, the applicant was, according to his wife, in possession of a firearm.

In my opinion, there was nothing that could give reason for the police to question the truth of the information provided by the applicant ' s wife. On the contrary, the fact that the police officers were met by the applicant with a knife in his hand when they entered his house, must have had the effect of strengthening the veracity of his wife ' s information, in addition to being a reminder of the seriousness of the situation.

The majority have deemed it unnecessary by the police to strip the applicant naked in order to search for a weapon, and have argued that frisking him would have been sufficient. I disagree to this view, because it is, in my opinion, not based on a realistic assessment of the risks involved in police actions like the present one.

First of all, having been informed that the applicant was in possession of a firearm, it was necessary for the police officers to make a bodily search of him. Even without such information, this would have been necessary, in order to check for other objects, like for instance a knife. Second, the search had to be carried out in an effective and secure way, in addition to causing as little harm as possible. Bearing in mind that the applicant was reported to be trained in hand-to-hand combat and “up to anything”, he might easily have acted violently, even though he was handcuffed. Thus, frisking him would have been a clearly inadequate measure. A strip search therefore remained as the only realistic option. However, being handcuffed, which was obviously necessary in the present circumstances, it is hard to imagine how the applicant could have been able to undress himself. The strip search therefore had t o be carried out by the police.

One of the police officers stated before the Independent Administrative Panel that the strip search was applied “for their and the applicant ' s safety and in order to find the weapon”. I see no reason to question the truth of this statement. However, in addition to explaining why this method was used, it clearly indicates that using the ordinary method of body search might have caused the applicant (and the police) injuries, if he had resisted the search. This was a possibility that could in my opinion by no means be excluded.

It is furthermore important to note that the strip search was carried out by police officers who were all male persons. No physical or verbal abuse of the applicant was applied. Finally, the strip search seems to have been carried out within few minutes. The applicant ' s human dignity and bodily integrity was therefore, in my opinion, respected, as far as possible in the circumstances.

Bearing in mind that the threshold of Article 3 in cases involving police treatment depends on the circumstances of the case, see Wainwright v. the United Kingdom , cited above; that a strip search which serves a legitimate purpose and is carried out with respect for human dignity is not in itself incompatible with the Convention, see Yankow v. Bulgaria , cited above, and that the effects of a legitimate treatment must exceed the inevitable element of suffering or humiliation if it is to create a violation of Article 3, see Labita v. Italy , cited above, I must conclude, on the basis of the factual elements which I have explained above, that there has been no violation in this case.

I would like to add that in cases like this, it is important to examine whether the police have acted without having had the necessary reasons for it, or performed in a way that has shown lack of respect of the arrested person ' s human dignity or caused him bodily harm. However, when deciding in such cases, one must also keep in mind the difficult role of the police in cases like this, and make a balanced evaluation. Protecting victims and taking care of people ' s security should not be unnecessarily hampered by the Court. In my opinion, the judgment in the present ca se might have just that effect.