JAMAL-ALDIN v. SWITZERLAND



                      AS TO THE ADMISSIBILITY OF

                      Application No. 19959/92

                      by Samir Riadh JAMAL-ALDIN

                      against Switzerland

      The European Commission of Human Rights sitting in private on

23 May 1996, the following members being present:

           MM.   H. DANELIUS, Acting President

                 S. TRECHSEL

                 C.L. ROZAKIS

                 E. BUSUTTIL

                 A. WEITZEL

                 J.-C. SOYER

                 H.G. SCHERMERS

           Mrs.  G.H. THUNE

           Mr.   F. MARTINEZ

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 M.P. PELLONPÄÄ

                 B. MARXER

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 J. MUCHA

                 E. KONSTANTINOV

                 D. SVÁBY

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 P. LORENZEN

                 K. HERNDL

                 E. BIELIUNAS

           Mr.   M. de SALVIA, Deputy 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 23 April 1992 by

Samir Riadh Jamal-Aldin against Switzerland and registered on

11 May 1992 under file No. 19959/92;

      Having regard to :

-     the reports provided for in Rule 47 of the Rules of Procedure of

      the Commission;

-     the observations submitted by the respondent Government on

      4 April 1995 and the observations in reply submitted by the

      applicant on 12 July 1995;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicant, a Swiss national born in 1955, resides in Zurich.

Before the Commission he is represented by Mr F. Schumacher, a lawyer

practising in Zurich.

A.    Particular circumstances of the case

      The facts of the case, as submitted by the parties, may be

summarised as follows.

                                  I.

      In the course of 1981 numerous street demonstrations and riots

took place in Zurich.

      In the evening of 10 July 1981 a car was overturned in a street

in Zurich.  When minutes later two police cars arrived at the scene,

a large crowd of people gathered.  The police attempted to arrest two

persons.  According to the applicant, one of them had suffered a head

injury, whereupon onlookers, among them the applicant, suggested

bringing the person to hospital rather than to arrest him.  The police

officers declined, whereupon the applicant protested.  According to the

subsequent decisions of the Swiss authorities, the applicant grabbed

a policeman from the back and tried to pull him into a side street.

      The applicant and another person unknown to him, R.S., were

arrested.  They were then brought by police car to the U. police

station, where police officers awaited them.  Subsequently, R.S. and

the applicant were allegedly ill-treated; R.S. was apparently beaten

unconscious, though the applicant could protect his face.  Later in a

cell a policeman allegedly hit the applicant with his fist, and the

applicant had to undress.  Whenever he asked for the name of the

policeman, he was beaten.

      The applicant was remanded in custody for one night.  In the

afternoon of 11 July 1981, after having been brought before the

District Attorney, he was released from detention.  Upon his release

he went to a doctor who noted various injuries.

      Criminal proceedings were instituted against the applicant inter

alia on the ground of having obstructed police officers in the exercise

of their duties.  On 7 October 1982 the Zurich District Court

(Bezirksgericht) acquitted the applicant of the charges, though he had

to bear the costs of the proceedings.

      R.S., who instituted compensation proceedings, eventually

obtained damages of 10,500 SFr for the ill-treatment suffered at the

police station.  The courts concerned relied inter alia on the

applicant's evidence.

                                  II.

      On 3 August 1981 the applicant requested the institution of

criminal proceedings against seven police officers on the ground of

ill-treatment on 10 July 1981.  He claimed that upon his arrest and at

the police station he had been severely beaten (massiv geschlagen) and

insulted (beschimpft).  Threats had been used to obtain his photographs

and fingerprints.

      The criminal proceedings were discontinued on 6 March 1984.

                                 III.

      On 20 November 1985 the applicant filed an action against the

Zurich municipality, claiming compensation of 10,000 SFr for the ill-

treatment and 3,400 SFr for costs arising from the proceedings which

he had attempted to institute against the police officers.

      The Zurich District Court dismissed the action on 4 September

1987.  The decision stated, inter alia:

      "2.  The plaintiff claimed that he had been arrested unlawfully

      and without reasonable grounds (...).  According to him, at about

      10.45 p.m. (22.45 hours) he noticed a group of people on

      Limmatquai, slightly to the north of the City Hall.  When he

      reached the group he witnessed a married couple, a doctor and his

      wife, asking police officers to take a girl with a forehead

      injury to hospital (...).  He stated that he saw a nervous police

      officer, allegedly called Eg., threatening these passers-by with

      a rubber bullet gun.  Another officer, allegedly called St.,

      intervened.  The doctor was allegedly pushed aside, as was the

      plaintiff, who says he fell.  As he got up again, he states that

      he was overpowered by, in all, six policemen - as a spectacle-

      wearer, he was pretty defenceless.  He was then taken to the

      police station with another person who had been arrested (...).

      The plaintiff adhered to this version of his arrest in all his

      interviews with the police and the investigating judge.  He

      states that as he was pushed away, a brawl broke out and he no

      longer had an overall view of the situation.  He says that the

      policeman mentioned above then shouted "arrest him - he was

      holding me".  When he heard this, he says, he tried to run away,

      whereupon five more policemen went for him, dragged him around,

      hit and kicked him.  He claims that he was then pushed into the

      police van (...).  He says that it is not true that he grabbed

      police officer Eg. from behind and tried to drag him in the

      direction of Metzgergasse (...).  In another place, he says that

      considerable confusion broke out, so that he can no longer

      remember details.  He is still sure that the police officer

      shoved him away with a gun.  Somehow, he says, he fell - he does

      not know how or whose fault it was.  As he was getting up, he was

      grabbed by the above-mentioned police officer and another one,

      whom he had not seen come up.  Then, as he remembers it, both

      policemen hit him (...).  He says that he was very surprised,

      especially as neither of the police officers had said anything

      to him (...).  He claims that Eg. grabbed him from behind and

      shouted "hold on to him" (...).  In another place he says that

      it is not true that he attacked police officer St.  It is true

      that he fell once; he can no longer say why (...).  In another

      statement, the plaintiff says that police officer Eg. then

      allegedly forced people back with the rubber bullet gun.  He says

      that this caused a brawl.  He says that he then thought that he

      should go home since he had no particular interest in the matter.

      He says that then, in the course of the brawl, the police officer

      shouted, "hold on to him".  Thereupon, other policemen allegedly

      appeared from under the arcades.  He says he walked away in the

      direction of Metzgergasse and then fell over, he does not know

      why.  He does not know whether someone tripped him up or whether

      he was grabbed.  As he was lying on the ground, he says, all hell

      broke loose.  He states that he was beaten as he lay on the

      ground, following which they tried to take him to the police van

      (...).

           In this evidence, the plaintiff seeks to portray himself as

      a mere passer-by who was arrested by the police for no reason at

      all.  He called three witnesses to support his version of

      events."

      The Court first examined the statements of witness R.S., in

respect of which it drew the following conclusions:

           "It emerges from these statements that the witness S. was

      dazed at the time that he was in the police van, and therefore

      that his mental faculties of perception were impaired.  Further,

      his ability to see out of the van was considerably limited, so

      that he could see only a small area outside the police van

      because the rear doors were only half open.  The witness himself

      had the impression that something must have already happened to

      the plaintiff before he first saw him.  The witness also failed

      to mention that the plaintiff fell down before his arrest,

      something which he would have been bound to have seen.  However,

      it appears from the plaintiff's own evidence that he was

      arrested, not right next to the police van, but a certain

      distance away - according to the plaintiff's evidence, in

      Metzgergasse (...), which the witness S. could not see from where

      he was in the police van.  Therefore the plaintiff cannot derive

      any benefit, as far as his arrest is concerned, from this

      witness's evidence.

      In respect of the witness H.W. the Court found: "the witness saw

the plaintiff for the first time by the police van and consequently

cannot have seen the plaintiff's actual arrest, so that the plaintiff

cannot derive any support for his claim that his arrest was wrongful

from this witness's evidence either".

      In respect of the third witness Sci., the Court found: "This

witness's evidence cannot be relied upon, as it diverges so sharply

from that of the plaintiff.  As set out above, the plaintiff himself

states that he fell over before his arrest, as he was trying to move

away from the group of people, and that while he was still lying on the

ground, people started to beat him up.  The witness, however, depicts

none of this.  Therefore his evidence cannot advance the plaintiff's

case in any way."

      The Court also examined in detail the statements of various

police officers, but again it found that they did not confirm the

applicant's allegations:

           "As regards the statements of the various police officers

      referred to above, it should be noted that these arose, partly

      in their individual police reports, partly in their witness

      evidence and partly when they were being questioned as

      defendants.  When the various statements are put together, it can

      be seen that not all the officers described the relevant events

      in exactly the same way and that different statements made by the

      same policeman are not always entirely consistent.  However these

      circumstances cannot invalidate the police officers' statements.

      It is noteworthy that each officer was observing the relevant

      events from a different place and that the dates on which each

      individual statement was made vary considerably in time.

           What is more significant in the present case is rather that

      the plaintiff could be precisely identified and that all the

      statements agree as to the most essential point: that is, that

      the plaintiff grasped Eg. around the body from behind, that the

      plaintiff attempted to drag Eg. into an alley and that the

      plaintiff put up a very strong resistance (a point which will be

      dealt with in more detail below).  It is extremely unlikely that

      five policemen should have agreed on this version of events in

      detail with each other, especially as their original reports had

      to be drafted immediately after the events in question, that very

      night. Such an agreement could only mean that there was a

      conspiracy between the various police officers against the

      plaintiff.  There is absolutely no evidence of this, given that

      the policemen had no previous knowledge of the plaintiff and that

      they could not initially have guessed that they themselves would

      face prosecution.

           In the light of the different statements, we can,

      therefore, regard it as established that, at midnight, in the

      course of a demonstration during the youth unrest in Zurich, the

      plaintiff grabbed a policeman from behind and tried to drag him

      into an alley.  This was sufficient cause for the plaintiff to

      be arrested and taken in a police van to the relevant police

      premises for the purposes of establishing his identity and

      questioning him about the said occurrence.  ...

           3.    However, the plaintiff also submitted that his arrest

      had been carried out in an unlawful manner ...

      a)   The plaintiff's arrest and the process of putting him into

           the police van

           In this regard, the plaintiff stated that five more

      policemen rushed up to him and dragged him around.  He stated

      that he was also struck and kicked.  He was then pushed into the

      police van.  He says that he wanted to speak to the policemen

      because he objected to the way in which they had acted, so he

      jumped out of the police van again.  He says that he was then

      grabbed and beaten again (with a rubber truncheon on the head,

      he thinks) and dragged by the hair.  He was then allegedly picked

      up by the hands and feet by four policemen and bundled into the

      police van.  When the question was put to him directly as to

      whether he had resisted, he had to admit that he had balked,

      although he stressed that it was impossible to talk about

      "resisting" six police officers (...).  In another place, he says

      that while he was getting up, two policemen grabbed him and he

      was then, as far as he remembers, beaten by both of them (either

      with their fists, their hands or their truncheons - that is, he

      is sure that he was beaten with truncheons, amongst other things)

      (...).  He was then taken to the police van, still being beaten.

      He says he "balked" against being arrested by the police

      officers.  He was no longer sure whether he tried to pull himself

      away.  He said that, even as he was being taken to the police

      van, more policemen came up to him and beat him too, including

      with truncheons, and ("kicked") him.  Thereupon, he says, he was

      pushed in through the open doors of the police van.  He

      immediately jumped out of the police van again to speak to the

      officers.  He was then allegedly beaten again by several

      officers, who grabbed him and pushed him back into the police van

      (...).  Elsewhere, he has stated that he did not resist being

      arrested by police officer Eg.; he simply had not managed.  The

      other policemen came up too quickly.  They started to hit him

      immediately.  He was hit after being grabbed by the policemen.

      He says that they then tried to drag him into the police van.

      While being dragged away, he was still being beaten up - in

      particular, kicked.  Before being put into the police van he was

      also punched.  At that point, he said he should amplify his

      statement: he had certainly been punched several times (...).

      He says that in Metzgergasse he was struck at least once with a

      rubber truncheon on the head.  He admits that he jumped out of

      the police van again.  He alleges that he was then beaten by the

      policemen again (...).  Elsewhere, he says that while he was

      lying on the ground, he was struck.  He was beaten on the head

      and the back.  He was punched and beaten with rubber truncheons.

      He was also beaten on the way to the police van.  He says he

      asked to be told why he was being arrested and that he received

      no answer; he was only beaten, not spoken to (...).  As far as

      he could tell, the blows were coming from all directions.  He had

      to assume that he was not being beaten by just one person (...).

      He said that if you defined protecting yourself as "resisting",

      then you could say that he had resisted.  He claims that he was

      beaten after being dragged up from the ground and taken to the

      police van.  He was then thrown into the police van by his hands

      and feet.  Because the doors of the police van were open, he

      jumped out again to ask why he had been arrested.  The only

      answer he received was a blow.  Then he was again thrown into the

      police van (...).  He also says that when he was lying on the

      ground, he was still being kicked (...).

           The plaintiff cannot derive any benefit from these

      statements which he made as a witness in the criminal proceedings

      since, for the purposes of the present civil proceedings, they

      have merely the status of assertions made by a party to the case.

           In relation to this aspect of the case, R.S. gave evidence

      that the plaintiff was grabbed by police officers, wrestled to

      the ground with a headlock and so put into the van with him

      [R.S.] (...)."

      After examining R.S.'s statements in detail, the Court concluded:

           "With regard to these statements, which R.S. partly

      repeated as a witness in the present case, it must be observed

      that he himself is bringing civil proceedings against the

      defendant because he was also allegedly treated unlawfully when

      arrested.  Further, at the time when S. first saw the plaintiff,

      he was dazed.  It is also significant that he could not confirm

      that the plaintiff had jumped out of the police car again.  He

      also says that he did not see the plaintiff "jibbing" and balking

      at his arrest, as the plaintiff himself admits he did.  These

      circumstances already considerably reduce his reliability as a

      witness.  But what is decisive is that S. in no way confirms the

      plaintiff's description of a severe and excessive physical

      assault.  Rather, he describes the plaintiff's arrest simply as

      rough and carried out with the use of force. He says the

      plaintiff was grabbed, wrestled down with a headlock, dragged to

      the police vehicle in a stranglehold as well as being held with

      the officers' hands, pushed around, punched and thrown into the

      police vehicle."

      The Court next found that all the police officers denied having

committed the assaults against the applicant alleged by him.  Thus, the

statements by the officers were on this aspect of the case very

consistent.  They admitted that the applicant had been grabbed roughly

when he was arrested and that there had been a struggle on the ground.

It was also expressly admitted that they were not at all gentle about

putting the applicant into the police van.  They made no attempt to

gloss over their conduct.  However, the applicant could not derive any

benefit from these admissions since, according to the credible

statements of the police officers, he was vehemently resisting arrest

and made repeated attempts to escape from the police van.  This

justified the strong measures resorted to by the police.

      The Court considered that the applicant could not derive any

benefit from the statements of other witnesses either.  The decision

continues:

      "b)  The point at which the plaintiff got out of the police van

           and was taken into the police station

           In this regard, the plaintiff stated that as he got out of

      the police van he was insulted and beaten (...).  He says that

      in the few metres from the van to the door he was severely beaten

      and also verbally abused (...).  Elsewhere, he says that after

      getting out of the van in front of the police station, he was

      kicked and punched (...).  Then, again, he says that as they went

      through the police cordon they were beaten with rubber truncheons

      and punched.  He was beaten, but not as badly as the man who was

      with him.  Then he was held in an arm lock and dragged into the

      police station by his hair (...).  In another place, he says that

      he was the second person out of the police van, that he was

      beaten too, that he was beaten with rubber truncheons and

      punched, that a policeman held him under the arms and dragged him

      by the hair (...).

           As set out above, the plaintiff cannot rely on his own

      statements, even those made when he was being questioned as a

      witness in previous proceedings.

           R.S. was with the plaintiff at the time.  His evidence was

      that he climbed out of the vehicle first.  ...

           The plaintiff can derive no benefit from these statements

      by S., since the witness S. did not see the plaintiff getting out

      of the vehicle and immediately lost consciousness.  Admittedly,

      what he heard and sensed suggested blows being struck, but this

      evidence is not sufficient to prove that the plaintiff was

      unlawfully treated.  As the relevant police officers testified,

      the plaintiff was just as uncooperative when he got out of the

      vehicle as he was at the time of his arrest, so that force had

      again to be used against him. ...  In the light of these

      considerations, we find that the plaintiff cannot establish any

      claim for damages or compensation against the defendant on the

      basis of this aspect of the police officers' conduct either.

      c)   The period spent by the plaintiff at the police station

           The plaintiff claims that while at the police station he

      repeatedly - but in vain - asked for the names of the police

      officers involved.  He says he repeated this request after he had

      been in the cell for a few moments and three men, including Eg.,

      took away his personal effects.  Shortly afterwards, he says, a

      fat police officer whose first name appeared to be Hugo appeared

      and punched him for no reason.  The plaintiff also asked him for

      his name but in vain.  He states that he was forced to undress.

      He again asked for names.  He says he was then ordered to remove

      his glasses and was again repeatedly punched.  He claims to have

      suffered a heavy blow to the right kidney, which felled him.  His

      glasses were taken away from him.  He again asked for names.

      Thereupon one of them grabbed him, pushed him up against the wall

      and started to throttle him with both hands, saying, "Now you're

      nice and quiet".  Again, he asked for the man's name, but the

      only response he got was a punch in the face, with the words,

      "That's my name".  He says he was asked for his address, which

      he gave.  He was called a "dirty swine" in response.  After he

      had been out of the cell again for half an hour, he asked for his

      glasses back (...).  He says he is very short-sighted, needing

      lenses of 5.5 and 6 dioptres.  His request was allegedly refused

      (with the words) "dirty swine, filthy pig, go back where you come

      from" (...).  In another place, he says that, when he was in the

      police station, he again asked for the names of the police

      officers and the reason for his arrest.  He says he was punched

      in the face by a policeman whose first name was Hugo; moreover,

      he had to undress in the cell, was again repeatedly punched and

      kicked in the kidneys and punched in the face while being

      verbally abused (...).  In another statement, he says that as he

      got out of the van he was kicked and punched.  This treatment

      continued in the police station and his glasses were taken away

      (...).  In another place, he says that on his way to the cell he

      was verbally abused by the police officers (...).  He says that

      when he asked for the names of the police officers, he was

      beaten.  He says that a police officer punched him or boxed his

      ears.  When he refused to take off his glasses, the policeman

      frequently hit him.  The policeman seemed to be aiming at his

      glasses.  He was mainly punched.  Suddenly, the fat policeman

      thumped him in the kidneys (...).  He says that as a result of

      the blow to the kidneys, he fell to the ground.  He again asked

      this policeman for his name and the policeman continued to beat

      him.  As he was lying on the ground, this policeman grasped him

      by the neck, pulled him up by the neck and pushed him up against

      the wall, starting to throttle him.  After letting him go, the

      policeman again punched him and remarked that that was his name.

      The other policemen did not intervene physically, but simply

      looked on and abused him verbally (...).  In another place, he

      says that he was then dragged past the entrance to the police

      station and taken to a cell.  He says he was verbally abused,

      with fairly crude language.  He says he is no longer able to

      remember in detail what was said (...).

           It has already been explained that the plaintiff cannot

      derive any benefit from these statements.  However, solely on the

      question of the plaintiff's credibility, we would point out that

      he also asserted that the same police officers were present at

      the offices of the Criminal Investigations Police as had been at

      Limmatquai.  However, that is correct only in relation to the two

      policemen who went with the police van, since the other police

      officers had to wait on Limmatquai because the keys to one of the

      cars had gone missing.

           The plaintiff's version of events was disputed by all the

      police officers.  R.S., who was taken to the police station with

      the plaintiff, did not see the latter any more once they got to

      the police station; he did not see what happened there (...).

           Hence it is established that the plaintiff has been unable

      to provide any proof of the alleged events in the police station,

      so that he cannot claim any damages or compensation from the

      defendant in relation to them.

      d)   The period spent by the plaintiff at the offices of the

           Criminal Investigations Police

           In this regard, the plaintiff gave evidence that he was

      taken into a room where there was a camera tripod and told to

      take off his windcheater so as to be photographed.  He says that

      he refused and repeated his request for names.  He says he was

      threatened with beating if he did not let himself be

      photographed.  The next morning he was processed by the Criminal

      Identification Division.  He says he refused to be processed.

      He says he finally agreed, under threat, to have his fingerprints

      taken and to be photographed (...).  In another place, he says

      that he was forced, by threats, to let himself be photographed

      and to allow himself to be processed by the Criminal

      Identification Division (...).  In another place, he says that

      he refused to be photographed.  He says that he was told that he

      could always refuse but then they would have to force him.  He

      says that he also refused to be processed by the Criminal

      Identification Division.  He says he was told that it was not for

      him to say anything, he had no right to refuse.  He says they

      explained to him that he already knew what could happen (...).

      In another place, he says that he said that he would not let

      himself be photographed, nor would he go into the room.  He says

      that Ha. told him, either you go into the room or you'll be

      forced to go into the room.  He states that he was still afraid,

      because of the preceding events.  He feared that he would be

      beaten up again (...).  He says that Ha. pointed out that he had

      already been beaten in the police station and that the same thing

      could happen to him again if he didn't submit to being

      photographed (...).  In another place, he said that Ha. coerced

      him, in a way which he could no longer remember, to be

      photographed.  When he refused to be photographed, police officer

      Ha. allegedly threatened him in some way, saying that he (the

      plaintiff) had to do it or else something would happen to him.

      He said that he could no longer remember the exact terms of the

      threat (...).

           The plaintiff's own statements are - as has already been

      explained on several occasions - not probative.

           The police officers in question dispute the plaintiff's

      version of events.

           R.S., who was taken with the plaintiff to the offices of

      the Criminal Investigations Police, did not observe what happened

      to the plaintiff there.  He says that in the Criminal

      Investigations Police offices they were taken to a sort of

      reception area, where red forms had to be filled out.  After that

      he had no further contact with the plaintiff (...).  In oral

      evidence, he stated that once inside the offices of the Criminal

      Investigations Police, he did not see the plaintiff again and

      could not say what had happened to him there (...).

           The plaintiff cannot, therefore, for lack of evidence,

      claim damages or compensation from the defendant in relation to

      these events either.

      e)   Medical evidence

           The plaintiff has also sought to prove that he was

      unlawfully treated by the police by means of two medical reports

      by Thomas Walser, a practising doctor.

           On 11 July 1981, the doctor noted the following physical

      injuries to the plaintiff:

      1.   minor haematoma and pressure-sensitivity over the right

           ear;

      2.   minor haematomas under the left eye and on the nose;

      3.   haematomas and contusions on the upper third of the outer

           left upper arm;

      4.   minor haematoma on the right side of the torso, above the

           lowest rib; rib very sensitive when pressed; and

      5.   long abrasion and considerable haematoma in the hollow of

           the left knee.

           The report goes on to note: "According to the patient,

      these injuries were caused on 10-11.7.81 by the police (truncheon

      blows, punches and kicks).  In my view, this account of the

      causes of the injuries is perfectly plausible (...)."

           In his medical report of 7 May 1982, Thomas Walser

      describes the injuries which he found in exactly the same way,

      adding that it was unlikely that there would be any lasting

      injury, that the plaintiff was treated as an out-patient and was

      given a medical certificate for two days' absence from work

      (...).

           Admittedly, the doctor considers it possible that the

      plaintiff's injuries were caused by the police in the way he

      described.  However, it must be noted that - as has already been

      established - the plaintiff put up an unjustified, and very

      strong, resistance to his arrest - so strong indeed, that it led

      to a brawl and a struggle on the ground.  The plaintiff could

      simply have injured himself in the manner found by the doctor

      through his refractory behaviour, for which he himself is

      responsible. In the circumstances, the plaintiff cannot derive

      any benefit from the two medical reports.

           4.    In the light of all the above considerations, all the

      plaintiff's claims are dismissed."

                                  IV.

      The applicant's appeal was dismissed on 5 September 1989 by the

Court of Appeal (Obergericht) of the Canton of Zurich.  In its decision

the Court regarded it as established that the applicant had attempted

to grab a policeman, who was undertaking an arrest, from behind; the

policeman then had forcibly to be freed.  As a result, the applicant's

arrest was justified as he was suspected of having committed inter alia

the criminal offence of obstructing police officers in the exercise of

their duties; as the applicant himself had admitted, there was also a

danger of fleeing.

      The decision continued:

           "Correctly, the burden of proof in relation to the excesses

      allegedly committed by the police officers was placed on the

      plaintiff (...).  In examining the evidence, the court below

      helpfully divided the events into four sections according to time

      and place, namely:

      a)   the plaintiff's arrest and the process of putting him into

           the police van;

      b)   the point at which the plaintiff got out of the police van

           and was taken into the police station;

      c)   the period spent by the plaintiff at the police station;

           and

      d)   the period spent by the plaintiff at the offices of the

           Criminal Investigations Police.

           a)    The plaintiff asserts that the police committed

      serious excesses in the course of arresting him and putting him

      into the police van (dragging him around, kicking him, beating

      him with their hands, fists and a truncheon on the head, back and

      torso, pushing/throwing him into the police van (...)).

           In order to assess the value of these assertions, we must

      refer to the relevant deliberations of the court below (...).

      In summary, the following emerges: S., who was one of the

      witnesses, did not see fundamentally important aspects of the

      plaintiff's arrest, aspects admitted by the plaintiff himself

      (his jumping out of the police van and his "jibbing"/balking at

      being arrested), so that his [S.'s] observations appear

      unreliable.  Moreover, he does not in any way confirm the serious

      excesses allegedly committed by the police.  On the contrary, he

      describes an arrest which was, certainly, rough and forceful -

      as the police officers admitted - but which was reasonable in the

      light of the plaintiff's proven, extremely refractory, conduct.

      The witness W. also appears unreliable because he claimed not to

      have seen certain of the plaintiff's actions at the time of his

      arrest, actions which are of fundamental importance and which are

      admitted by the plaintiff.  The witness Sci. comes over as

      entirely unreliable, since he portrays the plaintiff's arrest in

      a way diametrically opposed to the plaintiff's own description

      (Sci. saying that a policeman held the plaintiff from behind,

      whereupon two other policemen came up, one of whom hit the

      plaintiff on the head with a truncheon, whereas the plaintiff

      speaks of his attempt to run away and his fall).  Further, Sci.

      claims that he did not see the plaintiff doing the things which

      he [the plaintiff] has admitted doing.

           The plaintiff has not succeeded in proving that the police

      officers acted unlawfully in relation to this phase of the

      incident.

           b)    The plaintiff also alleged that the police had

      committed serious excesses at the time when he got out of the

      police van and was taken into the police station.  Summarising

      the deliberations of the lower court (...), we find that,

      according to the credible police statements, when the plaintiff

      was taken out of the van, he behaved just as uncooperatively as

      he had at the time of his arrest (hitting out wildly, struggling

      with his hands and feet, he practically had to be carried).

      Therefore, it was necessary for the police to resort to severe

      measures.  S., who raises similar allegations against the police

      in relation to the time when he himself got out of the van (...),

      did not see any violence being used against the plaintiff, as he

      had already been taken around the corner of the building.  If he

      felt and heard someone being beaten behind him, as he alleges,

      this could perfectly well have been due to the plaintiff's

      refractory behaviour and wild hitting out.

           The plaintiff has not succeeded in establishing that the

      police acted unlawfully in relation to this phase of the incident

      either.

           c)    The plaintiff's allegations of ill-treatment in the

      police station were not supported by any evidence (...).

           The same applies in relation to the alleged attacks in the

      offices of the Criminal Investigations Police (...).

           d)    In relation to the two medical reports (...) produced

      by the plaintiff in evidence of his alleged wrongful treatment,

      we have nothing to add to the findings of the court below (...).

           e)    To summarise, the plaintiff has not succeeded in

      proving that he was wrongfully and unlawfully treated in the

      context of the arrest in question, so that the defendant has no

      liability to pay him compensation or damages under this head.

           5. a)      On appeal, the plaintiff's representative offered

      himself as a witness of the fact that, as early as the moment

      when the plaintiff signed the form appointing him as his

      representative, on 14 July 1981, the plaintiff described the

      material events in exactly the same way as he did when he filed

      his crime report on 3 August 1981 (...) and as he had in the

      statement made immediately after his arrest (...).  Firstly, it

      must be pointed out that the plaintiff's representative can

      testify only as to what the plaintiff told him; this, however,

      will not render the plaintiff's story more credible when compared

      with the evidence adduced by the other side in the form of

      several eye-witnesses.  In particular, it is also noteworthy that

      the plaintiff, when he was originally questioned (...), stated

      that the subsequent incident and disturbance were caused (apart

      from the discussion about the injured "girl") by the above-

      mentioned policeman pushing the doctor's wife back with a rubber

      bullet gun.  The plaintiff said that, since he was standing

      behind the doctor's wife, he was also pushed away (...).

      However, Ms. Ey., an independent witness and the person directly

      affected, does not confirm this story about being pushed with the

      weapon (...).

           b)    In the course of the appeal proceedings, the plaintiff

      renewed his application for the above-mentioned doctor and his

      wife, Dr. M. and Ms. A. Ey., to be called as witnesses (...).

      This court granted his application in a decision of 13 April 1989

      (...).  However, only Annamarie Ey. responded to the witness

      summons (...).  Whereas the plaintiff insisted that evidence

      should be taken from M. Ey. (...), the defendant submitted that

      this was not necessary for the case.

           Ms. Ey., who was never separated from her husband on the

      evening in question (...), saw nothing germane to the essential

      issues in the case - thus she did not see anyone being threatened

      with a rubber bullet gun, nor falling over, nor being arrested;

      and in particular, she did not see the plaintiff at any time on

      the evening in question (...).  The plaintiff's submissions

      regarding what the witness saw (...) are mere surmise.

           Nothing different can be expected to emerge if Dr. M. Ey.

      is examined.  For one thing, he was always next to his wife, so

      that he must have seen the same things as she, and for another

      thing, he "was concentrating all his attention on the injured

      person" (...), so that he would have been unable to observe

      anything, or hardly anything, of what was going on around him;

      in which context it must be remarked that the unmarked police car

      and the police van were not parked next to each other (...).  In

      addition, there is also the following consideration.  It has been

      established that the doctor was busy examining the injured

      person, so that his other observations could only be fragmentary.

      Even if he could confirm, in whole or in part, the plaintiff's

      assertions under argument I, this would not undermine the

      corroborated evidence adduced by the defendant in relation to

      argument I/1, since - as has already been mentioned - the two

      accounts are not mutually exclusive, but could easily complement

      each other in time.  Therefore, it can be stated with certainty

      that evidence from Dr. Ey. could not alter the thrust of the

      evidence (set out above) relating to argument I, and the court

      can justifiably dispense with further descriptions of the

      incident as a whole since these cannot be decisive.  Therefore,

      we hereby review our interlocutory decision of 13 April 1989 and

      decide not to call Dr. Ey. as a witness (...).

           6.    The plaintiff's remaining grounds of appeal are not

      significant and could not be decisive for the outcome of the

      case, so that no examination of them is required.  This is

      particularly true of:

      (i)  the very odd distinction drawn by the plaintiff between an

           "unauthorised demonstration" on the one hand and, on the

           other, provocation involving criminal damage and assemblies

           of persons, not constituting a demonstration (...);

      (ii) the plaintiff's original, fallacious representation of the

           object of the judicial investigation into his behaviour

           (...);

      (iii) the repetition of the plaintiff's version of events (...);

      (iv) the plaintiff's alleged connection with the well-known

           television personality "Frau Müller" (...);

      (v)  the plaintiff's sweeping declaration to the effect that it

           is completely incomprehensible "that the police should

           chase down anybody they like, batter them with truncheons

           and arrest them ..." (...); and

      (vi) details of the course of the investigation (...)."

                                  V.

      The applicant's plea of nullity (Nichtigkeitsbeschwerde) against

this decision was dismissed by the Court of Cassation of the Canton of

Zurich (Kassationsgericht) on 10 October 1990.

                                  VI.

      Against the decision of the Court of Cassation the applicant, who

was represented by a lawyer, filed a public law appeal (staatsrecht-

liche Beschwerde) with the Federal Court (Bundesgericht).

      He invoked the Convention and complained in particular of ill-

treatment upon his arrest and subsequently at the U. police station in

Zurich.  He stated that there were issues, first in respect of the

arrest, "later beating and taking away of the glasses in the cell"

("später Schläge und Wegnahme der Brille in der Zelle"), and then the

occurrences in the police building.  He noted that the Zurich Court of

Appeal and the Court of Cassation had mainly concentrated on the arrest

and the incidents at the entrance of the U. police station.  The

applicant also pointed out that often the victim did not even know who

had attacked him: "for instance the example of the unknown fat officer

with the first name Hugo who very severely attacked the applicant in

the cell at the U. police station and took away his glasses" ("im

vorliegenden Beispiel etwa der unbekannte dicke Beamte mit dem Vornamen

Hugo, welcher den Kläger in der Zelle in der Hauptwache ganz massiv

angriff und ihm die Brille wegnahm").

      The public law appeal was dismissed by the Federal Court on

20 August 1991, the decision being served on 23 October 1991.

      In its decision the Court found that the applicant had

insufficiently substantiated his complaints under Articles 3 and 5 of

the Convention.  He had in particular not demonstrated how the cantonal

courts had breached these provisions.  In this respect the public law

appeal was inadmissible.

      Nevertheless, the Court found that in any event the public law

appeal was also unfounded.  The decision states, inter alia:

           "cc)  The complaint that the Court of Cassation breached the

      right to a fair trial and the prohibition on arbitrariness is

      unfounded, for the following reasons:

           It is true that the District Public Prosecutor stated, on

      page 7 of his suspension order of 6 March 1984, that despite

      certain doubts, "the complainant's description of the alleged

      incidents in front of U. police station can be presumed to be

      accurate".  However, the courts hearing the appellant's civil

      liability action against Zurich City were not bound by the

      District Public Prosecutor's opinion (...).  Rather, these courts

      had to weigh the existing evidence independently and freely

      (...).  Therefore, when the cantonal courts did not examine the

      above-mentioned suspension order, this did not amount to a denial

      of a fair hearing; the Court of Cassation's decision on this

      point is in no way untenable.

           Moreover, the cantonal courts explained in detail why the

      statements of the appellant's witnesses S., Sci. and W. were of

      no assistance or could only be considered with caution.  Thus,

      according to his own statement, R.S., who was arrested on the

      same occasion [as the appellant], did not or could not observe

      precisely the key aspects of what happened to the appellant;

      furthermore, he himself states that his faculties of perception

      had been impaired by his injuries.  The courts did not believe

      the witness Sci. because his description of events differed, not

      only diametrically from that of the police officers but even

      substantially from that of the appellant himself.  Similar

      observations were made regarding the weight to be accorded to

      W.'s testimony (...).  As regards the appellant's view that the

      cantonal courts erred in law in not basing their decision on

      R.S.'s account, the grounds of appeal merely repeat the

      submissions made in the grounds of appeal to the Court of

      Cassation, without analysing the relevant portions of the Court

      of Cassation judgment.  Therefore, we cannot deal with this part

      of the appeal (...).  Nor did the appellant's witness A. Ey.

      personally observe what happened to the appellant himself;

      moreover, certain parts of this witness's evidence are in

      striking contrast to the appellant's version of events.  The

      latter stated, in his first police interview, that immediately

      before his arrest Ms. Ey. was pushed away by a policeman with a

      rubber bullet gun, so that he himself was pushed backwards and,

      after a struggle, arrested (...).  However, when questioned by

      the court, the witness expressly denied having been pushed away

      by a policeman with a rubber bullet gun.

           There is no arbitrariness to be discerned in the relevant

      findings of the cantonal courts as to the probative value of the

      witness evidence called by the appellants.  The corresponding

      complaint is therefore unfounded.  The appellant's other

      submissions on this point merely amount to a rhetorical criticism

      of the assessment of the evidence reached by the cantonal courts.

      The appellant does not set out the concrete findings of fact

      which are alleged to be obviously incorrect.  Therefore, this

      Court cannot deal with this part of the complaint either, for

      lack of evidence.

           b)    As regards the facts of the case, the Court of Appeal

      regarded it as established that the appellant had grasped

      P.C. Eg. (who was engaged in making another arrest) from behind

      and tried to pull him into an alley; that Eg. had to use force

      to free himself, assisted by other police officers; and that

      together they succeeded in taking the appellant, who was

      resisting violently, into police custody (...).

           aa)   On page 6 of his grounds of appeal to the Court of

      Cassation, the appellant described these findings as "entirely

      arbitrary, indeed, perverse". The Court of Cassation,

      nevertheless, dismissed this complaint, referring to the

      statements of police officers Eg., St., Wo. and B. and observing

      that, in order to succeed in a claim of arbitrariness, the

      appellant would have had to analyse the relevant sections of the

      Court of Appeal judgment.

           In his grounds of appeal, the appellant criticises these

      sections of the Court of Cassation judgment, quoting at length

      from his grounds of appeal to the Court of Appeal in which he

      claims to point out contradictions in the statements made by the

      police officers.  He comes to the conclusion that it was never

      demonstrated that there were any grounds for his arrest.  Again,

      these arguments do not fulfil the criteria enabling this Court

      to examine a complaint of arbitrariness in the form of a public

      law appeal; they fail to set out in detail what manifestly

      untenable findings of fact were allegedly made (...).  In

      addition, the complaint appears to be unfounded in any event.

      It is certainly not absolutely untenable to regard the -

      essentially consistent - depiction of events contained in the

      different police reports as proven despite a few, rather

      unimportant, discrepancies between the statements.  The fact that

      these were unimportant discrepancies and not serious

      contradictions was already explored in detail in the judgment of

      the single judge sitting as Zurich District Criminal Court of

      7 October 1982.

           bb)   The appellant's claim that the Court of Cassation

      acted arbitrarily in finding that differences between the police

      officers' statements were explained by the fact that they were

      standing in different places is unfounded.  No such finding is

      made in the impugned judgment; rather, in the relevant passage,

      the Court of Cassation is criticising the appellant for failing

      to devote so much as one word to explaining why the differences

      between the police officers' statements could not be explained

      by the fact that they were standing in different places (...).

      The assertion that the Court of Cassation did not deal with the

      question of the admissibility of the police officers' testimony

      is also incorrect.  Remarks on this point are to be found on page

      13 ff. of the Court of Cassation judgment, with particular

      reference to the principle of the courts' freedom to assess the

      evidence.

           cc)   Before the Court of Appeal, the appellant applied for

      Dr. M. Ey. and Ms. A. Ey., who had been present during some of

      the events of the evening of 10 July 1981 on Limmatquai, to be

      called as witnesses.  Only Ms. Ey. responded to the summons, and

      she was examined as a witness.  The Court of Appeal summoned Dr.

      Ey. once more and then abandoned the attempt, having found that

      it was certain that his testimony would not be able to change the

      thrust of the evidence, a conclusion which was explained in more

      detail in the reasoning of the judgment.

           In the cassation proceedings, the appellant claimed that

      the fact that Dr. Ey.'s testimony had not been taken by the Court

      of Appeal constituted a refusal of justice.  The Court of

      Cassation did not consider this complaint, because the appellant

      failed to provide a detailed criticism of the presumptions

      reached by the Court of Appeal as to [Dr. Ey.'s} evidence.  The

      appellant claims that the Court of Cassation acted arbitrarily

      in this respect.  The complaint is unfounded, in so far as this

      Court can deal with it at all.  The fact that the Court of

      Cassation will deal only with substantiated complaints certainly

      does not breach the provisions of Clause 4 of the Federal

      Constitution, and the appellant does not explain how the Court

      of Cassation's view that his complaint of refusal to examine an

      issue was insufficiently substantiated can be called untenable.

      The appellant merely claims that, before the Court of Appeal, he

      made out grounds for Dr. Ey. to be called as a witness; on the

      other hand, he does not assert, nor could he do so, that he made

      out grounds before the Court of Cassation to show that the early

      assessment of the evidence carried out by the Court of Appeal was

      unlawful.

           dd)   In summary, we find that the Court of Cassation

      judgment under appeal complies with Article 4 of the Federal

      Constitution.

           4. -  In the light of the above considerations, the appeal

      must be dismissed in so far as it has been possible to deal with

      it substantively."

COMPLAINTS

      The applicant raises the following complaints under Articles 3

and 5 of the Convention:

      He complains that he was ill-treated by the Zurich police upon

his arrest and later in police custody, i.e. when leaving the police

van and at the police station, in particular in a police cell.

Although he was short-sighted, his glasses were taken away and not

returned, despite his request.

      The applicant submits that it might still be acceptable that he

and R.S. were groundlessly and unlawfully arrested and ill-treated.

However, on their way to the U. police station both were subjected to

the same treatment; they were welcomed at the police station with a

beating whereupon R.S. became unconscious.  The District Attorney then

artificially separated the proceedings against R.S. and the applicant.

In the case of R.S. the Zurich courts accepted on the basis of his

statements that there had been ill-treatment, whereas his statements

had not sufficed as evidence in his own case.  Either both stories were

true, or both persons were liars and the Zurich municipality was right,

that nobody had been ill-treated.  Either the police officers lied, or

the witnesses R.S., Ey., W. and Sci.

      Under Article 6 of the Convention the applicant complains that

the evidence which he adduced was not considered, in particular that

the witness Dr. Ey. was not heard, and that the proceedings were

unfair.

      Under Article 13 of the Convention the applicant complains that

he did not have an effective remedy at his disposal.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 23 April 1992 and registered

on 11 May 1992.

      On 17 January 1995 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

      The Government's written observations were submitted on 4 April

1995.  The applicant replied on 12 July 1995.

THE LAW

1.    The applicant complains that the Zurich police ill-treated him

contrary to Article 3 (Art. 3) of the Convention.

      According to this provision, "no one shall be subjected to

torture or to inhuman or degrading treatment of punishment".

a)    Under Article 26 (Art. 26) of the Convention, "the Commission may

only deal with the matter after all domestic remedies have been

exhausted, according to the generally recognised rules of international

law".

      The Government contest that the applicant has complied with the

requirements of Article 26 (Art. 26) of the Convention.

      The Government submit that the applicant had two sets of domestic

remedies at his disposal, namely a criminal complaint against the

police officers, and the compensation proceedings.  The Government do

not hold it against the applicant that he failed to pursue the criminal

proceedings.

      On the other hand, the Government point out that the applicant's

public law appeal was declared inadmissible by the Federal Court.  The

Government recall the Commission's case-law according to which there

is no exhaustion of domestic remedies when a domestic appeal has not

been admitted because of a procedural mistake.  In the present case,

however, the Federal Court found that the applicant's public law

appeal, insofar as it concerned the complaint at issue, had not

complied with the statutory requirements for filing such an appeal.

      The Government note that the Federal Court nevertheless examined

the applicant's complaint.  However, in their view this does not alter

the conclusion that the applicant has not exhausted domestic remedies.

Any other interpretation would render obsolete the requirements under

Article 26 (Art. 26) of the Convention.  In particular, it would no

longer be necessary for applicants to comply with the procedural

requirements under domestic law.  It would then suffice if they

invoked, without further substantiation, a breach of the Convention.

      The applicant submits that in fact he did comply with the

requirements under Article 26 (Art. 26) of the Convention.  Thus, the

Federal Court dealt with his complaints in substance, while dismissing

them as being unfounded.  Moreover, in his public law appeal he duly

set out the material facts as well as the constitutional and legal

provisions which had allegedly been violated.

      The Commission notes that the Federal Court, in its judgment of

20 August 1991, found that the applicant had insufficiently

substantiated his complaints under Articles 3 and 5 (Art. 3, 5) of the

Convention, and that in this respect his public law appeal was

inadmissible.  However, the Commission notes that the Federal Court

then nevertheless examined the applicant's complaints as a result of

which it concluded that in any event the public law appeal was

unfounded.

      The Commission is therefore satisfied that the Federal Court in

fact dealt with these complaints in substance, and that the applicant

has, therefore, complied with the requirement as to the exhaustion of

domestic remedies.  The applicant's complaints cannot therefore be

rejected under Article 26 (Art. 26) of the Convention.

b)    The Government contend that in any event this part of the

application is also manifestly ill-founded.  Thus, the facts at issue

were carefully examined in detail by various authorities.  It

transpires from the decisions that the various authorities did not

merely try to get rid of an embarrassing affair.  On the contrary, they

devoted all the necessary care to establish the facts as they had

really happened.  In this context, it is recalled that during the

unrest in Zurich in 1981 many complaints were filed with the

authorities about alleged abuse of police force.  The authorities dealt

individually with each case.  Some complaints were upheld and

compensation was granted, for instance in the case of R.S. who was

arrested together with the applicant.  The fact that there were

differing results indicates that the authorities, rather than deciding

arbitrarily as alleged by the applicant, dealt carefully and

individually with each case.

      The Government recall in this context the Convention organs'

case-law according to which it is not within their province to

substitute their own assessment of the facts for that of the domestic

courts and, as a general rule, it is for the domestic courts to assess

the evidence before them (see Eur. Court H.R., Klaas judgment of

22 September 1993, Series A no. 269, p. 17, para. 29).

      In view of the medical certificate issued in respect of the

applicant, the Government also question whether the minimum level of

ill-treatment has been reached for the present case to fall under

Article 3 (Art. 3) of the Convention.  Thus, Dr. Walser had stated that

the wounds which the applicant had suffered would not lead to any

lasting damage; that the wounds did not require hospital treatment; and

that the applicant had been unfit to work for two days.

      The applicant submits that the various authorities merely glossed

over the facts.  Indeed, the criminal complaint filed by R.S. was also

ignored, just as in the case of the applicant.  R.S. only obtained

compensation in last resort, and the sole reason herefor was the

testimony of the applicant.  Thus, the applicant's statements were good

enough to help R.S. to obtain compensation for precisely the incident

which took place on arrival at the police station, whereas his

testimony about exactly the same incident is to have no probative value

in his own case.

      The applicant submits that his injuries were substantial, and

were consistent with his description of the events.  Nevertheless, the

Government miss the point in relying solely on the medical evidence.

The medical evidence is concerned mainly with listing the physical

injuries, or what was still visible of them.

      In the applicant's view, however, treatment contrary to Article 3

(Art. 3) of the Convention is not confined to physical effects.  It is

principally a matter of psychological effects.  Someone who is arrested

without apparent reason, who is taken to a police station and

immediately severely beaten up, who is forced to watch while a co-

detainee is beaten unconscious, who is obliged to strip in a cell and

is then beaten by a police officer, who is forced to hand over his

spectacles during this time, who is forced to allow himself to be

photographed like a criminal and to have his fingerprints taken, and

who is constantly insulted and threatened throughout all these events,

such a person spends a very fearful night.

      According to the Convention organs' case-law, ill-treatment must

attain a certain level of severity if it is to fall within the scope

of Article 3 (Art. 3).  The assessment of this minimum is, in the

nature of things, relative; it depends on all the circumstances of the

case, such as the duration of the treatment, its physical or mental

effects and, in some cases, the sex, age and state of health of the

victim (Eur. Court H.R., Ireland v. the United Kingdom judgment of 18

January 1978, Series A no. 25, p. 65 et seq., paras. 162 et seq.).

      Moreover, in respect of a person deprived of his liberty, any

recourse to physical force which has not been made strictly necessary

by his own conduct diminishes human dignity and is in principle an

infringement of the right set forth in Article 3 (Art. 3) of the

Convention (see Eur. Court H.R., Ribitsch judgment of 4 December 1995,

Series A no. 336, para. 38).

      In the present case, after the applicant's release from detention

on remand on 11 July 1981, he obtained on the same day a medical

certificate according to which he had sustained various haematomas on

various parts of his body.  The report found that it was unlikely that

there would be any lasting injury and that the applicant had been given

a medical certificate for two days' absence from work.  The report

regarded it as plausible that the injuries had been caused by truncheon

blows, punches and kicks from the police.

      In the Commission's opinion, these injuries reach a level of

severity sufficient to bring them within the scope of Article 3

(Art. 3) of the Convention.

      As regards the various occurrences during which the injuries had

allegedly originated, the Commission notes that it is not normally

within the province of the Convention organs to substitute its own

assessment of the facts for that of the domestic courts and, as a

general rule, it is for these courts to assess the evidence before them

(see Eur. Court H.R., Klaas judgment, loc. cit., p. 17, para. 29).  On

the other hand, the Convention organs' vigilance must be heightened

when dealing with rights such as those set forth in Article 3

(Art. 3) of the Convention (see Eur. Court H.R., Ribitsch judgment,

loc. cit., para. 34).

      Moreover, where a person alleges that the injuries resulted from

treatment during custody, the Government are under an obligation to

provide a complete and sufficient explanation of how the applicant's

injuries were caused (Ribitsch judgment, loc. cit.).

      In the present case, it appears that in the night from 10 to

11 July 1981, a car was overturned in a street in Zurich.  Two police

cars arrived at the scene, and many onlookers gathered.  According to

the applicant, he protested when the police declined to bring a wounded

person to the hospital, whereupon he, the applicant, and another person

were allegedly beaten by the police and arrested.

      According to the judgment of the Zurich District Court of

4 September 1987, however, the Court regarded it as established that

in the course of a demonstration in Zurich, the plaintiff had grabbed

a policeman from behind and tried to drag him into an alley.  The

police thereupon attempted to arrest the applicant.  However, as he

vehemently resisted his arrest, a struggle ensued with various

policemen on the ground which resulted in the injuries later mentioned

in the medical report.

      The District Court relied for its conclusion on the consistent

statements of various police officers who had undertaken the arrest.

Its judgment was confirmed, upon appeal, by the Zurich Court of Appeal,

the Zurich Court of Cassation and the Federal Court.  The various

courts found that the witnesses adduced by the applicant could not

serve to change these conclusions.  Thus, according to the judgment of

the District Court, the witness R.S. had been dazed and was sitting in

the police van.  The witness H.W. had not seen the applicant, and the

statements of the witness Sci. differed sharply from those of the

applicant.  The Court of Appeal in its judgment of 5 September 1989

explained why Mr and Mrs. Ey. could not usefully serve as witnesses.

      Moreover, the applicant has adduced no material before the

Commission which would call into question the findings of the national

courts and add weight to his allegations (see Klaas judgment, loc.

cit., para. 30, p. 17).

      In the Commission's opinion, therefore, the domestic authorities

gave sufficient explanation for the applicant's injuries which did not

appear disproportionate to the circumstances of the applicant's arrest.

      However, the applicant also complains that, after his arrest, he

was beaten, punched and threatened in police custody.  He alleges that

such ill-treatment occurred when he was leaving the police van and

entering the police station as well as overnight at the police station,

in particular in a police cell.  He claims that although he was very

short-sighted, his glasses were taken away from him and not returned,

despite his requests.

      The District Court in its judgment of 4 September 1987 denied any

ill-treatment.  It considered, on the one hand, the consistent

statements of the police officers, and, on the other, that no other

persons had been able directly to witness the events.  The District

Court furthermore found that the injuries sustained by the applicant

stemmed from his struggle with the policemen upon his arrest.  These

conclusions were again confirmed, upon appeal, by the Zurich Court of

Appeal, the Zurich Court of Cassation and the Federal Court.

      The Commission has found that the authorities gave sufficient

explanations in respect of the applicant's injuries.  It furthermore

notes that no additional, or particular, injuries have been made out

which occurred solely during police custody and which would have

required further explanations on the part of the domestic authorities.

      It follows that it has not been sufficiently made out that the

applicant was afforded treatment contrary to Article 3 (Art. 3) of the

Convention by the authorities concerned.  This part of the application

is, therefore, manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

2.    The applicant also complains under Article 5 (Art. 5) of the

Convention of his arrest and detention.

      The Commission notes that the applicant has not explained, other

than in the context mentioned above under Article 3 (Art. 3) of the

Convention, in what respect the arrest and detention were in his view

unlawful.  In any event, and even assuming that the applicant has

complied with the requirement as to the exhaustion of domestic remedies

within the meaning of Article 26 (Art. 26) of the Convention, the

Commission notes the decision of the Zurich Court of Appeal of 5

September 1989 according to which the applicant was suspected of having

committed the criminal offence of obstructing police officers in the

exercise of their duties, and, as the applicant himself had admitted,

that there existed a danger of his fleeing.  Subsequently criminal

proceedings were instituted against the applicant, though these were

eventually terminated.

      The Commission is therefore satisfied that the applicant was

lawfully arrested "for the purpose of bringing him before the competent

legal authority on reasonable suspicion of having committed an offence

or when it is reasonably considered necessary to prevent his ...

fleeing after having done so" within the meaning of Article 5

para. 1 (c) (Art. (-1-c) of the Convention.

      This part of the application is therefore manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

3.    Under Article 6 (Art. 6) of the Convention the applicant

complains of the proceedings and their outcome.  He submits that

evidence which he adduced was not considered, and that the proceedings

were unfair.

a)    Insofar as the applicant may be understood as complaining about

the criminal proceedings which he attempted to institute against the

police officers, the Commission recalls that the Convention guarantees

no right to introduce criminal proceedings against third persons, and

that such proceedings do not fall under Article 6 (Art. 6) of the

Convention.  In this respect the application is therefore incompatible

ratione materiae with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

b)    The applicant complains about the proceedings concerning his

action for compensation, in particular that R.S. obtained compensation

whereas he did not.

      The Commission recalls that under Article 19 (Art. 19) of the

Convention its only task is to ensure the observance of the obligations

undertaken by the Parties to the Convention.  In particular, it is not

competent to deal with an application alleging that errors of law or

fact have been committed by domestic courts, except where it considers

that such errors might have involved a possible violation of any of the

rights and freedoms set out in the Convention.  The Commission refers

on this point to its established case-law (see e.g. No. 458/59, Dec.

29.3.60, Yearbook 3 pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection

43 pp. 71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).

      It is true that the applicant invokes Article 6 para. 1

(Art. 6-1) of the Convention which states, insofar as relevant, that

"in the determination of his civil rights and obligations ... everyone

is entitled to a fair ... hearing by (a) tribunal ...".

      The Commission recalls that, as a rule, it is for the national

courts to assess the evidence before them.  The Convention organs' task

is to ascertain whether the proceedings considered as a whole,

including the way in which evidence was taken, were fair (see Eur.

Court H.R., Asch judgment of 26 April 1991, Series A no. 203, p. 10,

para. 26).

      Insofar as the applicant generally complains that his evidence

was not considered and that the proceedings were unfair, the Commission

has just found that the domestic courts carefully examined the

applicant's case.  The Commission finds no indication that in these

proceedings the applicant, who was represented by a lawyer, could not

sufficiently put forward his point of view, or that they were otherwise

unfairly conducted.

      Insofar as the applicant complains that Dr. Ey. was not heard as

a witness, and even assuming that the applicant has exhausted domestic

remedies in this respect within the meaning of Article 26 (Art. 26) of

the Convention, the Commission notes the reasons given by the Court of

Appeal in its judgment of 5 September 1989, not contested by the

applicant, that Mrs. Ey. had been heard as a witness, and that Dr. Ey.,

who was next to his wife during the events, could not have said more

than she had; that, moreover, Dr. Ey. was busy nursing wounded persons

during the events and that his observations could therefore have been

fragmentary.

      It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

4.    Insofar as the applicant complains under Article 13

(Art. 13) of the Convention that he did not have an effective remedy,

the Commission recalls that the requirements of this provision are less

strict and accordingly absorbed by Article 6 (Art. 6) of the Convention

(see Eur. Court H.R., Philis judgment of 27 August 1991, Series A

no. 209, p. 23, para. 67).  It follows that no separate issue arises

under this provision.

      The remainder of the application is therefore 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.

      Deputy Secretary to                Acting President of

        the Commission                      the Commission

        (M. de SALVIA)                      (H. DANELIUS)

 

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