In the case of Hurtado v. Switzerland*,
The European Court of Human Rights, sitting, in accordance
with Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of the Rules of Court, as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr Thór Vilhjálmsson,
Mr L.-E. Pettiti,
Mr A.N. Loizou,
Mr F. Bigi,
Sir John Freeland,
Mr A.B. Baka,
Mr L. Wildhaber,
Mr D. Gotchev,
and also of Mr M.-A. Eissen, Registrar,
Having deliberated in private on 26 January 1994,
Delivers the following judgment, which was adopted on that
date:
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* Note by the Registrar: The case is numbered 37/1993/432/511. 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.
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PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 9 September 1993, within the
three-month period laid down by Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 17549/90) against the Swiss Confederation lodged with
the Commission under Article 25 (art. 25) by a Colombian national,
Mr Antonio Hurtado, on 30 October 1990.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Switzerland
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46). The object of the request was to obtain a decision as to
whether the facts of the case disclosed a breach by the respondent
State of its obligations under Article 3 (art. 3) of the Convention.
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that
he wished to take part in the proceedings and named the lawyer who
would represent him (Rule 30). The applicant, who had been designated
before the Commission by the initial H., agreed to the disclosure of
his identity in the proceedings before the Court.
3. The Chamber to be constituted included ex officio
Mr L. Wildhaber, the elected judge of Swiss nationality (Article 43 of
the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 3 (b)). On 24 September 1993, in the presence of
the Registrar, the President drew by lot the names of the other seven
members, namely Mr L.-E. Pettiti, Mr C. Russo, Mr A.N. Loizou,
Mr F. Bigi, Sir John Freeland, Mr A.B. Baka and Mr D. Gotchev
(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).
Subsequently, Mr Thór Vilhjálmsson, substitute judge, replaced
Mr Russo, who was unable to take part in the further consideration of
the case (Rules 22 para. 1 and 24 para. 1).
4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,
acting through the Registrar, obtained the views of the Agent of the
Swiss Government ("the Government"), the applicant's lawyer and the
Delegate of the Commission on the organisation of the proceedings
(Rules 37 para. 1 and 38).
5. On 21 December 1993 the Government communicated to the
Registrar the text of an agreement concluded with the applicant.
The Delegate of the Commission was consulted and stated, in
a letter of 20 January 1994, that he left the matter to the discretion
of the Court (see paragraph 13 below).
6. On 26 January the Court decided to dispense with a hearing in
the case, having satisfied itself that the conditions for this
derogation from its usual procedure had been met (Rules 26 and 38).
AS TO THE FACTS
7. On 5 October 1989 at around 2 p.m. Mr Hurtado was arrested at
Yverdon-les-Bains by six officers of the task force of the Vaud
cantonal police. They had thrown a stun grenade before entering the
flat, forcing the applicant to the ground and handcuffing and hooding
him. It is alleged that they then proceeded to beat him until he lost
consciousness.
8. He was subsequently taken to the Yverdon police station and
to the headquarters of the Lausanne special branch, where he was
questioned. It was not until his arrival at the prison on the evening
of 6 October that he was able to change his clothes, which had been
dirtied during the police action on the previous day. On 7 October,
at the latest, he asked to see a doctor. He was examined on
13 October. X-rays taken on 16 October revealed a fracture of the
anterior arch of a rib.
9. The applicant lodged a complaint alleging actual bodily harm
and abuse of official authority. The resulting proceedings led to a
finding by the investigating judge that there was no case to answer.
This decision was upheld on 4 September 1990 by the Indictment Division
of the Canton of Vaud and on 16 October 1990 by the Criminal Cassation
Division of the Federal Court.
10. On 24 May 1991 the Yverdon District Criminal Court sentenced
the applicant to five years' imprisonment for a serious breach of the
Federal Dangerous Drugs Act and ordered him to pay part of the costs.
It also directed that he be expelled from Swiss territory and banned
from re-entering for fifteen years.
On 7 October the Criminal Division of the Vaud Cantonal Court
increased the prison sentence to eight years.
PROCEEDINGS BEFORE THE COMMISSION
11. Mr Hurtado applied to the Commission on 30 October 1990; he
alleged that he had suffered inhuman and degrading treatment contrary
to Article 3 (art. 3) of the Convention and that he had been deprived
of an effective remedy within the meaning of Article 13 (art. 13).
12. On 3 April 1992 the Commission declared the complaints based
on Article 3 (art. 3) admissible. It found the rest of the application
(no. 17549/90) inadmissible. In its report of 8 July 1993 (made under
Article 31) (art. 31), the Commission expressed the opinion that there
had been no violation of Article 3 (art. 3) on account of the
circumstances of the applicant's arrest (twelve votes to four), but
that that provision had been violated inasmuch as he had had to wear
soiled clothing (fifteen votes to one) and because he was not given
immediate medical treatment (unanimously). The full text of the
Commission's opinion and of the dissenting opinions contained in the
report is reproduced as an annex to this judgment.
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* Note by the Registrar: for practical reasons this annex will appear
only with the printed version of the judgment (volume 280-A of
Series A of the Publications of the Court), but a copy of the
Commission's report is available from the registry.
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AS TO THE LAW
13. On 21 December 1993 the Court received from the Federal Office
of Justice of the Swiss Confederation the text of the friendly
settlement set out below. It had been proposed by the Deputy Agent of
the Government and was approved on 6 and 15 December 1993 by
Mr Hurtado.
"1. The Swiss Confederation agrees to pay to the
applicant the sum of SF 14,000 as a single, ex gratia payment
to cover all the claims made, including the costs and
expenses incurred by the applicant in Switzerland and
Strasbourg as a result of the events which led him to lodge
application no. 17549/90 with the European Commission of
Human Rights.
2. This payment shall in no way constitute recognition
by the Swiss authorities that there has been a violation of
the provisions of the European Convention on Human Rights.
3. In view of the undertaking referred to under 1., the
applicant and the Swiss Government ask the Court to strike
the case out of the list in accordance with Rule 49 para. 2
of the Rules of Court, as the friendly settlement proposed is
such as to provide a solution of the matter.
4. The applicant states in addition that he considers
the case to be settled and undertakes not to bring before the
national or international authorities other claims arising
out of the events which led to the above-mentioned
application being lodged."
The Delegate of the Commission was consulted pursuant to
Rule 49 para. 2 of the Rules of Court and stated as follows:
"... the Commission expressed the view that
Article 3 (art. 3) of the Convention had been violated, in
particular inasmuch as the applicant was not examined by a
doctor until eight days after his arrest. The Court is
referred, inter alia, to paragraphs 79 and 80 of the
Commission's opinion.
However, the Delegate is mindful of the fact that the
matter of the medical examination of detainees in Switzerland
has been examined by the Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment
itself.
Consequently, the Delegate of the Commission leaves
it to the discretion of the Court to determine whether this
friendly settlement of the case is consistent with respect
for the human rights laid down in the Convention ..."
14. The Court takes formal note of the friendly settlement
concluded between the Government and Mr Hurtado. It discerns no reason
of public policy (ordre public) militating against striking the case
out of the list (Rule 49 paras. 2 and 4).
FOR THESE REASONS, THE COURT UNANIMOUSLY
Decides to strike the case out of the list.
Done in English and in French, and notified in writing under
Rule 55 para. 2, second sub-paragraph, of the Rules of Court
on 28 January 1994.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
Full & Egal Universal Law Academy