Communicated on 26 February 2016
FIFTH SECTION
Application no. 47274/15
Ingo HENTSCHEL and Matthias STARK
against Germany
lodged on 22 September 2015
STATEMENT OF FACTS
1. The applicants, Mr Ingo Hentschel and Mr Matthias Stark, are German nationals who were born in 1969 and 1989 respectively and live in Illertissen and Harburg. They are represented before the Court by Mr M. Noli, a lawyer practising in Munich.
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
A. The circumstances of the case
3. On 9 December 2007 both applicants went to a football match in Munich.
4. After the match ended, to prevent clashes between the rival football supporters, the supporters of one team, including both applicants, were prevented from leaving the stadium for about 30 minutes.
5. After the blockade was lifted, both applicants made their way towards the exit of the stadium. Before reaching the exit, the first applicant was struck on the head by a truncheon. He sustained a bleeding laceration of 3 cm, which had to be treated in hospital. The second applicant was grabbed by the shoulder and, after turning round, was pepper-sprayed in the face at close range. The applicant lay down on the ground and was subsequently struck on his left upper arm by a truncheon. He suffered swelling and redness to his face and pain in his arm.
6. Both applicants were able to identify their attackers as police officers, but were not able to distinguish them further, since the police officers were dressed in black/dark blue uniforms – without any name tags or other identifying signs – and wore black helmets with visors.
B. The investigation
7. On 2 January 2008, owing to press reports about the police operation in the aftermath of the football match, the Munich public prosecutor’s office instigated preliminary investigations. On 7 March 2008 and 25 April 2008 respectively, the applicants and several other spectators at the match pressed criminal charges against unidentified police officers.
8. On 10 September 2008 the public prosecutor discontinued the investigations. He found that the investigations had produced strong evidence that the police had used truncheons against fans, including women and children, in a disproportionate way and without an official order or approval. However, the investigations had not led to a situation where concrete acts of violence could be related to specific police officers. Therefore, the public prosecutor had not been able to identify the suspects who had struck and pepper-sprayed the applicants.
9. The applicants appealed against the decision to discontinue the investigation and argued, in particular, that the public prosecutor had only questioned the squad leaders, but not all officers involved in the operation and deployed in the area of the stadium at issue.
10. On 14 October 2008 the public prosecutor reopened the investigation and on 4 August 2009 discontinued it again, because the further investigations had not led to the identification of the police officers either.
11. On 20 August 2009 the applicants appealed against the decision to discontinue and pointed out that the police officers involved had still not been questioned and that the inspected videos were fragmentary, but nonetheless contradicted certain parts of the statements made by the squad leaders.
12. On 3 February 2011 the Munich General Public Prosecutor confirmed the decision of the public prosecutor to discontinue the investigation. The instructions on available legal remedies attached to the decision informed the applicants that they could request a judicial decision in the framework of proceedings to force criminal prosecution (Klageerzwingungsverfahren).
C. The court proceedings
13. On 19 September 2011 the Munich Court of Appeal declared the applicants’ request to force criminal proceedings (Klageerzwingungsantrag) inadmissible, since it would not be the correct remedy to identify perpetrators or to force further investigations.
14. On 23 March 2015 the Federal Constitutional Court refused, in a reasoned decision, to admit the applicants’ constitutional complaint (2 BvR 1304/12). The court held that the investigations had been conducted diligently and that the remaining gaps could not be attributed to omissions in the investigations. It also found that it had not been necessary to question all the police officers involved.
D. Relevant domestic law
15. According to Section 171 of the Code of Criminal Procedure (Strafprozessordnung) the person who made a criminal complaint (applicant) shall be notified, inter alia, after conclusion of the investigation and ordering the proceedings to be terminated.
16. Section 172 of the Code of Criminal Procedure stipulates, as far as relevant, that an applicant, who is also the aggrieved person, shall be entitled to lodge a complaint against the notification made pursuant to Section 171 to the official superior of the public prosecution office within two weeks after receipt of such notification. If the complaint of the applicant is dismissed, he or she may apply for a court decision in respect of the dismissal of the complaint by the official superior of the public prosecution office. This application for a court decision must indicate the facts which are intended to substantiate preferment of criminal charges, as well as the evidence.
COMPLAINTS
17. The applicants complain under Article 3 of the Convention that they were beaten and pepper-sprayed by police officers who, owing to allegedly insufficient investigations, were neither identified nor punished.
18. They further complain under Article 13 that they had no judicial remedy at their disposal to challenge the discontinuation of the investigation and complain about the ineffectiveness of the investigation.
QUESTIONS TO THE PARTIES
1. Have the applicants been subjected to torture or inhuman or degrading treatment or punishment, in breach of Article 3 of the Convention?
2. Having regard to the procedural protection from torture and inhuman or degrading treatment or punishment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation by the domestic authorities in the present case in breach of Article 3 of the Convention?
3. Having regard to the procedural requirements under Article 3, should the applicants have had at their disposal a judicial remedy to review the decision to discontinue the investigation?
4. Could the Federal Constitutional Court, in the constitutional complaint proceedings, carry out such an effective review?
5. Did the applicants have at their disposal an effective domestic remedy for their complaint under Article 3, as required by Article 13 of the Convention?
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