AS TO THE ADMISSIBILITY OF
Application No. 23632/94
by Adnan KANAN
against Switzerland
The European Commission of Human Rights (Second Chamber) sitting
in private on 16 October 1996, the following members being present:
Mrs. G.H. THUNE, President
MM. S. TRECHSEL
J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
L. LOUCAIDES
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 3 December 1993
by Adnan KANAN against Switzerland and registered on 7 March 1994 under
file No. 23632/94;
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 1 March 1994 and the observations in reply submitted by the
applicant on 27 April 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Palestinian born in 1943. He currently
resides in Denmark.
The facts of the case, as they have been submitted by the
parties, may be summarised as follows:
On 14 August 1992 the applicant was arrested by the police in
Geneva and allegedly beaten by several policemen while being
handcuffed, and detained on remand. On 16 August 1992 he complained
of maltreatment at the time of arrest and underwent medical examination
at Champ-Dollon prison. As a result of this visit the police
immediately instituted an internal enquiry.
On 9 September 1992 a forensic medicine specialist of the Geneva
University issued a medical certificate, stating that on 16 August 1992
a post-traumatic perforation of the left eardrum and pain in the thorax
had been established. A radiological examination effected on that date
had not shown any internal injuries.
On 12 October 1992 two prison doctors issued a medical
certificate, identical with that of 9 September 1992.
On 13 October 1992 within the framework of the internal
investigation a note of the deputy chief officer of the cantonal police
to the chief officer was issued, stating that the applicant had been
arrested on 14 August 1992. Two policemen, G. and B., questioned and
searched the applicant. Subsequently, his car was searched and drugs
were found in several places. The applicant was then detained. The
report concluded that there was nothing to cast doubt on the
credibility of the statements of the policemen concerned and that, as
a result, the investigation had not shown that the applicant had been
subject to any ill-treatment.
On 19 October 1992, in the course of the internal police enquiry
one policeman who had arrested the applicant and five other policemen
who had questioned him either on the day of his arrest or later made
statements as to the facts concerned. They stated that the applicant
had been arrested on 16 August, that he had never been beaten and that
later, when questioned during the investigations against him, he had
never complained about the alleged ill-treatment.
On 11 November 1992 the applicant requested the institution of
criminal proceedings against several police officers, both plainclothes
and in uniform.
On 2 December 1992 the applicant was heard by the security
police. He stated that he had been hit by one person, in civil
clothes. He described this person as being 35 to 38 years old, tall,
with dark hair, dressed in jeans and a bluish leather jacket. He had
been hit before an interpreter came.
On 11 December 1992 the applicant was heard by the investigating
judge of the Canton of Geneva. He stated that he had been beaten by
one plainclothes officer. On the same day the judge heard a police
officer G. who had participated in the applicant's arrest. On
21 December 1992 the General Public Prosecutor of the Geneva Canton
refused to institute criminal proceedings as it had not been
established that a criminal offence had been committed ("vu l'absence
de toute prévention suffisante"). The Prosecutor referred to the
results of the internal police investigation as supporting this
conclusion.
On 24 December 1992 the applicant appealed against this decision,
indicating that the police interpreter Mr. H. had been a witness to the
beating.
On 22 January 1993 the Accusation Chamber (chambre d'accusation)
of the Canton of Geneva heard the applicant, who stated that an
interpreter, Mr. Z., had seen the incident at issue.
On 5 February 1993 the Accusation Chamber of the Canton of Geneva
dismissed the applicant's appeal as it considered that the applicant
had contradicted himself in his statements. Thus, in his request for
the institution of criminal proceedings he maintained that he had been
beaten by several policemen, while during the hearing by the
investigating judge he asserted that only one plainclothes officer had
beaten him. Moreover, the medical certificate, which referred to a
perforation of the left eardrum, did not mention any external injuries
which would naturally have appeared if the applicant had been beaten.
There was also no indication in the medical certificate that there was
a causal link between the alleged maltreatment and the post-traumatic
injury suffered by the applicant.
In a note of 11 February 1993 to the General Prosecutor of the
canton of Geneva the chief officer of the security police stated that
the applicant's statements of 11 November 1992 and 2 December 1992 were
contradictory in that in the former he had failed to specify whether
he had been hit by policemen in civil clothes or in uniform, whereas
in the latter he had affirmed that he had been hit by one plainclothes
officer. The note went on to state that no one of five agents who had
arrested the applicant corresponded with the description given by him.
On 17 February 1993 the applicant wrote a letter to the
Accusation Chamber of the Canton of Geneva and to the Federal Court
(Tribunal fédéral), complaining that he had been ill-treated upon his
arrest. The applicant complained about the decision of 5 February 1993
and requested its annulment as the Chamber had wrongly assessed
evidence before it.
On 4 October 1993 the Federal Court declared the applicant's
public law appeal of 17 February 1993 inadmissible as he had failed to
indicate which of his constitutional rights had been breached; thus he
had only complained in his appeal statement about the contested
decision and the establishment of facts made therein.
COMPLAINTS
The applicant complains under Article 3 of the Convention about
ill-treatment by the police while being handcuffed. Under Article 14
of the Convention, taken together with Article 3 of the Convention, he
complains that he has been ill-treated due to his Palestinian
nationality.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 3 December 1993 and registered
on 7 March 1994.
On 30 November 1994 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on 1 March
1995, after an extension of the time-limit fixed for that purpose. The
applicant replied on 27 April 1995.
THE LAW
1. The applicant complains under Article 3 (Art. 3) of the
Convention about ill-treatment by the police while being handcuffed.
Article 3 (Art. 3) of the Convention reads:
"No one shall be subject to torture or to inhuman or degrading
treatment or punishment."
The Government first submit that the applicant did not exhaust
domestic remedies. They submit that he invoked an alleged violation
of the Convention only before the last national court, i.e. in his
public law appeal to the Federal Court and failed to give any
explanation of his claim. In its judgment the Federal Court found that
in his public law appeal the applicant had limited himself to
criticising the appealed decision and had failed to indicate which of
his constitutional rights had allegedly been breached by the decisions
and acts concerned. Thus he had not complied with the requirements of
Article 26 (Art. 26) as regards the exhaustion of domestic remedies.
The applicant does not submit any specific comments concerning
exhaustion of domestic remedies.
The Commission notes in the first place that it does not appear
that the applicant has complied with the obligation contained in
Article 26 (Art. 26) of the Convention to exhaust domestic remedies
since he has not invoked Article 3 (Art. 3) of the Convention, either
in form or in substance, in the domestic proceedings. The Commission
need nevertheless not resolve this issue as, even assuming that the
domestic remedies have been exhausted, the application is in any event
manifestly ill-founded for the following reasons.
The Government submit that on 16 August 1992 the applicant was
examined by the medical services at Champ-Dollon. As a result of this
visit the police immediately instituted an internal enquiry. In the
course of this enquiry one policeman who had arrested the applicant and
five policemen who had questioned the applicant made statements about
the relevant facts. The enquiry had not shown that the applicant had
indeed been a victim of any ill-treatment upon his arrest. The
Government submit that there are no grounds for questioning the
soundness of the findings of the police enquiry.
The Government find it surprising that the applicant requested
the institution of criminal proceedings concerning the events at the
time of his arrest as late as on 11 November 1992. They consider that
the reasons given by the applicant to justify this delay, namely the
fact that he was waiting for the results of medical examinations and
that he changed a lawyer several times, are not convincing.
The Government further refer to the discrepancies between the
applicant's different submissions. In particular, in his request to
institute criminal proceedings of 11 November 1992, the applicant
stated that he was beaten by several policemen, both plainclothes and
in uniform. On 2 December 1992, when heard by the security police, the
applicant stated that he was beaten by one person in civil clothes.
The description of this person given by the applicant did not
correspond to any of the policemen involved in the applicant's case.
The Government contend that when heard by the security police on
2 December 1992 the applicant said that he was hit only once before the
interpreter came, whereas later in the proceedings he maintained that
the translator was present during the beating. There are discrepancies
between the applicant's submissions as to the identity of the
interpreter. The Government refer to the decision of 5 February 1993
of the Accusation Chamber of the Canton of Geneva which highlights the
contradictions between the applicant's submissions to the Chamber and
his earlier statements in which he had never submitted that he was
beaten in the presence of the interpreter. In particular, in his
statement of 2 December 1992 he said that he had been hit only once and
before the arrival of the interpreter.
The Government further submit that it transpires from the procès-
verbal of the questioning of the applicant by the investigating judge
on 11 December 1992 that he had not complained about the alleged ill-
treatment during the criminal proceedings against him. In particular,
he did not complain thereof immediately after his arrest.
The Government finally submit that the medical certificates did
not demonstrate that there was a causal link between the applicant's
injuries and the alleged beating. They deny that the events of the
case constitute a violation of Article 3 (Art. 3) of the Convention.
The applicant contends that the Swiss authorities cooperated in
order to conceal the actual course of the events concerned and to let
the culprits evade responsibility. He submits that he had informed the
investigating judge of the beating immediately, but that his statement
was disregarded. He mentioned the interpreter, Mr. Z. as being present
at the beating. He never mentioned Mr. N. who had not been present.
He further challenges the credibility of the police report of
11 February 1993.
The Commission recalls that it is not competent to examine
alleged errors of fact or law committed by national courts, except
where it considers that such errors might have involved a possible
violation of the rights and freedoms set forth in the Convention (No.
21283/93, Dec. 5.4.94, D.R. 77-A, p. 81). The Commission further
recalls that the national judge, unlike the Commission, has had the
benefit of listening to the applicant and a witness and has assessed
the credibility and probative value of their statements after careful
consideration. Accordingly, in the absence of any new evidence having
been brought before the Commission and of any indications that the
trial judge incorrectly evaluated the evidence before him, the
Commission must base its examination of the Convention issues before
it on the facts as established by the national courts (cf. Eur. Court
H.R., Klaas v. Germany judgment of 22 September 1993, Series A
no. 269, p. 17-18, paras. 29-30).
The Commission observes that in the present case the applicant
underwent medical examination by a prison doctor two days after his
arrest. While the medical certificate stated that a post-traumatic
perforation of the left eardrum and pain at the thorax had been
established on this date, it does not mention any external bruises
which such maltreatment would have left. Nor did the later report do
so.
The Commission furthermore observes that doubts as to the
credibility of the applicant's allegations also arise in view of
certain contradictions in his statements. Thus, in his appeal of 24
December 1992 the applicant contended that there had been a witness to
his ill-treatment by the police, namely an interpreter H. On
22 January 1993 during the hearing before the Accusation Chamber of the
Canton of Geneva the applicant referred to the interpreter Z.
Furthermore, when requesting the institution of criminal
proceedings on 11 November 1992 the applicant submitted that he had
been beaten by several police officers. However, when heard by the
investigating judge on 11 December 1992, the applicant stated that it
was only one plainclothes officer who had beaten him.
The Commission considers that the authorities conducted a
thorough internal police enquiry into the applicant's allegations and
seven policemen made statements in the course thereof. Furthermore,
the Public Prosecutor investigated the applicant's request to have
criminal proceedings instituted. The evidence taken in this
investigation did not, however, lend credibility to the applicant's
claim as his submissions were contradictory. As a result, the
authorities had doubts as to the veracity of the applicant's
allegations and those doubts were not dissipated after an
investigation. The Commission does not find that the way in which the
authorities enquired into the applicant's allegations is open to
question. It cannot find prima facie evidence that the applicant was
subjected to treatment contrary to Article 3 (Art. 3) 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.
2. Insofar as the applicant complains under Article 3 taken together
with Article 14 (Art. 3+14) of the Convention, the Commission finds no
issue under these provisions of the Convention. 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, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy