AS TO THE ADMISSIBILITY OF
Application No. 18764/91
by Peter HIPPIN
against Austria
The European Commission of Human Rights sitting in private on
5 September 1994, the following members being present:
MM. C.A. NØRGAARD, President
A. WEITZEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 28 August 1991 by
Peter HIPPIN against Austria and registered on 4 September 1991 under
file No. 18764/91;
Having regard to :
- reports provided for in Rule 47 of the Rules of Procedure of the
Commission;
- the observations submitted by the respondent Government on
19 February 1993 and the observations in reply submitted by the
applicant on 24 March 1993;
- The questions put by the Commission on 11 January 1994 and the
Government's replies of 15 February 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian citizen born in 1962. He lives in
Vienna and is represented before the Commission by Mr. T. Prader, a
lawyer practising in Vienna. The facts of the case, which are partly
disputed between the parties, may be summarised as follows.
On 11 February 1988 the applicant took part in the "Opera Ball
Demonstration". He was arrested at approximately 10.00 p.m. and taken
to Mariahilf police station.
The applicant states that whilst there, a stick was found hidden
amongst his clothing. One of the policemen stated that he would show
the applicant what one could do with such a stick and proceeded to hit
the applicant with the stick several times on his back and his legs.
Soon after the applicant was taken by a police vehicle to Innere Stadt
police station, where he was again mishandled, being subjected to kicks
or punches such that his left eye and collar-bone swelled up and
bruised. The beating continued with the applicant being hit some ten
times with the stick, some of the blows delivered full force. At the
same time the applicant was slapped and insulted. One of the policemen
eventually told his colleagues to stop the beating.
The Government emphasise that the Vienna Police Directorate had
prohibited the demonstration, one of the grounds for the prohibition
being the danger to public safety within the meaning of Article 11
para. 2 of the Convention. They outline the facts of the applicant's
arrest, including the way in which he attacked one police officer with
a wooden stick, ran away when further police officers came on the
scene, and was then caught by a police officer. The applicant beat at
the officer with his stick and his free hand and, after both had fallen
into a clump of bushes, was arrested and taken into custody, struggling
all the time. The Government affirm that the applicant's stick was
taken away from him when he was arrested. They state that some
reddening of the skin on the applicant's back was noticed by police
officers when the applicant was strip searched at the Innere Stadt
police station.
A police doctor certified the applicant as fit for detention.
The Government state that the doctor did not examine the applicant for
injuries, as the applicant stated that he did not need such an
examination.
The applicant was questioned the following morning and told that
proceedings would be brought against him for attempting to resist the
authorities and disturbing the peace. In the course of the
questioning, the applicant did not complain about injuries. He was
released at 10.50 a.m.
On his release the applicant went to his lawyer, his
representative in the present case, who photographed the injuries. The
applicant then went to a hospital where a report was made on his
injuries and treatment (cold compresses and sage ointment) was
prescribed. The report established bloodshot bruising from the right
lower eyelid to the base of the nose and above the cheek-bone and upper
jaw; a small bloodshot bruise on the lower lip; a bloodshot bruise of
approx. 8 by 2 cm. on the right shoulder-blade and a further one at an
angle thereto; a bloodshot bruise of 1 by 0.3 cm. on the left side and
another of 6 by 2.5 cm. at the edge of the lower right-hand shoulder-
blade; scratch marks at the level of the 11th and 12th ribs, and
pressure marks on the right upper thigh of approx. 5 by 1 cm. Almost
circular pressure marks were found on both wrists, as was a diagonal
pressure mark of some 6 by 3 cm. above the right ankle.
The applicant was convicted on 6 April 1988 before the Vienna
Regional Court (Landesgericht) of attempting to resist the forces of
law, in particular by attacking a policeman from behind with a wooden
stick or club whilst the policeman was attempting to ascertain the
identity of another demonstrator, and then by resisting arrest after
an attempted escape. He was sentenced to seven months' imprisonment,
suspended for three years. The conviction related to the period before
the applicant was arrested and taken to the police station. The Court
accepted as plausible (nachvollziehbar) the prosecution's explanation
that the applicant, who had been turned onto his stomach but had not
ceased to resist, received injuries to his face and bruises on his
back. The applicant's appeal to the Vienna Court of Appeal
(Oberlandesgericht) was rejected on 8 August 1988.
On 10 March 1988 the applicant made a constitutional complaint
under Article 144 of the Federal Constitutional Law (Bundes-
Verfassungsgesetz), in which he alleged violation of Articles 3 and 14
of the Convention in respect of his being ill-treated by being hit on
his legs and back with a stick after his arrest. The Constitutional
Court (Verfassungsgerichtshof) put the applicant's complaints to the
prosecuting authorities, which on 17 January 1989 sent a note to the
Constitutional Court that criminal proceedings against the police had
been discontinued because "no criminal behaviour by the police has been
proved". The Constitutional Court itself found that an adequate
explanation for the events - and thus proof of the alleged ill-
treatment - was not possible, in particular given that the applicant
had not been able to offer witnesses and no fresh evidence was
available. The Constitutional Court rejected the constitutional
complaint.
The Government point out that in the investigations into the
applicant's allegations of ill-treatment, the applicant refused to make
any statement or to give any details as to the allegations. To this
the applicant replies that his lawyer had advised him not to give any
details to the police as in the lawyer's experience investigations by
the police into the conduct of individual police officers do not result
in convictions.
On 26 February 1990 the applicant brought an official liability
action (Amtshaftungsklage) against the Republic of Austria, requesting
compensation of AS 20,000 for the injuries suffered whilst in police
custody. The Vienna Regional Court (Landesgericht) rejected the action
on 2 October 1990. It accepted the findings of a report prepared for
the applicant on 4 October 1989 that the injuries had been caused "with
a probability verging on certainty" by a wooden stick or similar
object, but found, again in agreement with the report of 4 October
1989, that it could not be established that the injuries were caused
by the police after the applicant had been taken into custody. The
court found that the injuries could also have been caused whilst the
applicant was being arrested. It continued:
[Translation]
"As to the ... injuries which were caused by a wooden stick
or similar object, mistreatment by the police is not the
only conceivable cause of injury. A demonstrator such as
the plaintiff, bearing a stick and covering his head at a
demonstration, that is, who is prepared to use violence to
achieve the aims of the demonstration, was not able to
convince the court that the basis for his statements is as
he claims. It is to be noted that the plaintiff was not
able to recognise or describe a single policeman who is
alleged to have taken part in the ill-treatment. The court
is not convinced by the reasoning proffered, namely that
the plaintiff suffered the ill-treatment with his head
ducked down. The plaintiff himself refers to ill-treatment
whilst being brought from a cell to a police vehicle. It
is not very likely that the plaintiff would not have been
able, during this or other alleged ill-treatment, to form
an impression of the officers who were mishandling him.
The plaintiff was also not able to describe in more detail
the alleged ill-treatment. Nor could he remember any of
the insults or other comments by the policemen, which might
have made a motive for the ill-treatment at all plausible.
There is thus no reliable reason for aggression on the part
of police officers at two separate police stations which
could give a reason for the plaintiff's ill-treatment. The
plaintiff had, after all, been taken into custody a long
time before. The heat of the action had therefore passed.
There is no plausible explanation for any pent-up
aggression, whether before or after being taken into
custody. On the other hand, the plaintiff's injuries may
have come about before his arrest or after his release from
custody. The court cannot reliably determine how far a man
such as the plaintiff, with the get-up described above, his
behaviour at the demonstration and his intentions and aims,
was prepared to go. This court makes no assumptions about
the plaintiff. One can, however, imagine a frame of mind
of the plaintiff which does not exclude falsely accusing
police officers of ill-treatment. Therefore the court has
not been able to make any finding of fact as to how the
injuries of the plaintiff came about, or whether state
officials were amongst those responsible for the injuries
after the plaintiff had been taken into custody."
[German]
"Was aber die ... Verletzungen betrifft, deren Ursache in
Schlägen mit einem Holzknüppel oder einem ähnlichen
Gegenstand liegt, ist eine Mißhandldung durch Polizeiorgane
nicht die einzige denkbare Verletzungsursache. Ein
Demonstrant wie der Kläger, der vermummt und mit einem
Prügel bewaffnet an einer Demonstration teilnimmt, also
selbst Gewalt zur Erreichung von Demonstrationzielen
einzusetzen bereit ist, vermochte dem Gericht nicht jene
Überzeugung zu vermitteln, die Grundlage für Feststellungen
sein hätte können, wie sie der Kläger anstrebte. Dabei ist
zu beachten, daß der Kläger nicht in der Lage war,
irgendeinen Beamten wiederzuerkennen oder zu beschreiben,
der sich an Mißhandlungen beteiligt haben soll. Die dafür
angebotene Erklärung, Mißhandlungsakte immer mit gebeugten
Kopf in Abwehrhaltung erduldet zu haben, überzeugt nicht.
Der Kläger spricht selbst auch von Mißhandlungen bei der
Verbringung von einer Zelle in den Streifenwagen. Es ist
nicht sehr wahrscheinlich, daß der Kläger dabei oder auch
während der anderen behaupteten Mißhandlungsakte nie
Gelegenheit gehabt hätte, sich einen sinnlichen Eindruck
von mißhandelnden Beamten zu verschaffen. Der Kläger
vermochte such die nähere Art der angeblichen Mißhandlungen
nicht zu beschreiben. Ebenso hatte er keine Beschimpfung
durch Beamte oder sonstige Erklärungen in Erinnerung, die
dem Gericht allenfalls irgendein Mißhandlungsmotiv
glaubhaft erscheinen lassen hätte können. Es läßt sich
also keine verläßliche Begründung für ein
Aggressionspotentiel von Beamten auf zwei verschiedenen
Kommissariaten finden, die eine Ursache für Mißhandlungen
des Klägers nahelegen könnte, war doch der Festnahmeakt
schon längst abgeschlossen. Die Hitze des Geschehens vor
Ort war also schon vorbei. Für einen allenfalls später
entstandenen oder noch von früher vorhandenen
Aggressionsstau bei Polizeibeamten fehlt eine plausible
Erklärung. Dagegen können die Schlagverletzungen des
Klägers schon vor seiner Festnahme vorhanden gewesen oder
erst nach seiner Entlassung aus der Verwahrungshaft
entstanden sein. Wie weit ein Mann wie der Kläger mit der
oben dargestellten Demonstrationsausrüstung, seinem
Demonstrationsverhalten und der diesem zugrunde liegenden
Absicht und Gesinnung zu gehen bereit war, läßt sich für
das Gericht nicht verläßlich beurteilen. Des Gericht
unterstellt daher dem Kläger nichts. Es ist nur auch eine
Gesinnung des Klägers vorstellbar, welche eine unrichtige
Belastung von Polizeibeamten mit Mißhandlungen nicht
ausschließt. Deshalb vermochte das Gericht keine
Feststelleung zu treffen, worauf die dokumentierten
Verletzungen des Klägers wirklich zurückgehen und ob zu
deren Urhebern auch Organe des Bundes nach Abschluß des
Festnahmeaktes gehörten."
The applicant's appeal to the Vienna Court of Appeal
(Oberlandesgericht) was rejected on 18 March 1991 (decision received
by the applicant's representative on 5 April 1991). The Court of
Appeal found that the Regional Court had properly assessed the evidence
and convincingly explained why it did not attach sufficient credibility
to the applicant's version of events to be able to establish that the
applicant's injuries were in fact occasioned at the police station
after he had been taken into custody.
COMPLAINTS
The applicant alleges violation of Article 3 of the Convention
by virtue of injuries received whilst in police custody.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 28 August 1991 and registered
on 4 September 1991.
On 14 October 1992 the Commission decided to communicate the
application to the respondent Government and to invite the parties to
submit observations on its admissibility and merits.
The respondent Government submitted their observations after two
extensions of the time limit on 19 February 1993. The applicant
submitted his observations in reply on 24 March 1993.
On 6 April 1993 the Commission decided to grant legal aid to the
applicant, and on 14 May 1993 the Government submitted a translation
of their observations.
The Commission considered the case on 11 January 1994 and decided
to put further questions as to the facts of the case. The Government
replied on 15 February 1994 and submitted a translation on 16 March
1994. On 6 April 1994 the applicant informed the Commission that he
had no comments to make on the Government's submissions.
THE LAW
The applicant alleges a violation of Article 3 (Art. 3) of the
Convention in respect of various injuries received after his arrest on
11 February 1988. Article 3 (Art. 3) of the Convention provides as
follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Government consider that the applicant has failed to exhaust
domestic remedies in that he failed to make an administrative complaint
to the Administrative Court (Verwaltungsgerichtshof). The applicant
points out that he was able, in his constitutional complaint, to put
his complaints under Article 3 (Art. 3) of the Convention to the
Constitutional Court, and that this court dealt with those matters.
The Commission notes that the prosecution authorities considered
that it was not possible to prove criminal behaviour on the part of the
police, that the applicant alleged a violation of his constitutional
rights, including Article 3 (Art. 3) of the Convention, before the
Constitutional Court, and that he brought civil proceedings against the
State by way of an official liability action. The Government have not
suggested in what way a complaint to the Administrative Court could
have remedied the applicant's position, nor have they suggested that
he could in any way have raised substantially the same matters before
the Administrative Court as he now raises before the Commission. The
Commission finds that the applicant has exhausted remedies which were
sufficient and effective as regards his allegations of ill-treatment
contrary to Article 3 (Art. 3). It follows that he has complied with
the condition as to the exhaustion of domestic remedies contained in
Article 26 (Art. 26) of the Convention.
As to the substantive allegations, the Government do not accept
the factual allegations made by the applicant, nor do they accept the
conclusions he draws therefrom. They point out that the domestic
courts were unable to draw any conclusions from the facts available,
and they reject the suggestion that there may have been a conspiracy
on the part of police officers - they see the suggestion as an
indication that the applicant has no valid arguments.
The applicant maintains his complaints. He underlines that the
civil courts established that he had been hit by a stick, and only left
open the question of how and when the injuries were inflicted. He
points out that persons detained at police stations can never have
independent witnesses of events after arrest, as they are detained and
only in the presence of the police. He explains the police readiness
to use excessive violence in the wake of the "Opera Ball Demonstration"
by the degree of publicity and general tension involved. He states
that in the criminal proceedings against him he did in fact recognise
one of the police officers involved, but was advised against making
formal accusations. He emphasises that he did not need to identify
individual police officers in the constitutional or in the civil
proceedings.
The Commission recalls that ill-treatment must reach a certain
level of severity if it is to fall within the scope of Article 3
(Art. 3) (cf, for example, Ireland v. the United Kingdom judgment of
18 January 1978, Series A no. 25, pp. 65-67, paras. 162, 167). The
facts constituting a violation of the Convention must be proved "beyond
reasonable doubt", although the concept of burden of proof is not
strictly applicable before the Convention organs (above-mentioned
Ireland v. the United Kingdom judgment, pp. 64, 65, paras. 160, 161).
The mere possibility that the injuries were sustained in a manner
other than that alleged by the applicant is not sufficient reason for
rejection of a complaint (cf. Tomasi v France, Comm. Rep. 11.12.90,
Eur. Court H.R., Series A no. 241-A, p. 52, para. 100). It must,
however, be established that the injuries in question actually occurred
in the way alleged by the applicant, and it is not normally for the
Convention organs to substitute their own assessment of the facts for
that of the domestic courts (Eur. Court H.R., Klaas judgment of
22 September 1993, Series A no. 269, para. 29). Cogent reasons are
needed before the Convention organs depart from the findings of fact
of the national courts (above-mentioned Klaas judgment, para. 30)
The injuries sustained by the applicant are, in themselves,
sufficiently severe to fall within the scope of Article 3 (Art. 3) of
the Convention if it is established that the injuries were
intentionally and unnecessarily inflicted whilst he was in police
custody, rather than in the course of the events leading up to his
arrest.
The Commission notes that on 6 April 1988 the applicant was
convicted of resisting arrest. Although there was no reference to
third parties having sticks, there was a skirmish before the applicant
was arrested, when he received some degree of injury to his face and
back.
The Commission recalls that the domestic courts accepted the
expert evidence adduced by the applicant both as to the nature of his
injuries, and as to how they came about. The domestic courts found,
however, that the applicant had not been able to give a satisfactory
detailed description of the events. The Regional Court, in the
applicant's official liability action, cast doubt on his credibility.
The courts in the applicant's official liability action, which were
under a duty pursuant to Article 272 of the Code of Civil Procedure
(Zivilprozessordnung) to establish the facts of the case on the basis
of the evidence before them, did not accept that the applicant had
established that the injuries had been caused in the police stations,
as alleged.
The Commission has not been supplied with information which could
permit it, independently of the domestic courts, to establish that the
applicant's injuries were inflicted in the manner he alleges. Neither
of the medical reports prepared when at the time of the incident - the
report prepared by the hospital the applicant attended on 12 February
1988, and the police doctor's certificate that the applicant was fit
to be detained - gives any indication of the timing of the injuries.
Even the applicant's own report of 4 October 1989, which he had had
prepared for the purposes of the official liability action, expressly
states that it could not be ascertained when the applicant received his
various injuries.
Taking all the circumstances of the case together, the Commission
finds that it has not been established "beyond reasonable doubt" that
the facts in the present case were as alleged by the applicant.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)
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