EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 15473/89
Hildegard and Monika KLAAS
against
THE FEDERAL REPUBLIC OF GERMANY
REPORT OF THE COMMISSION
(adopted on 21 May 1992)
TABLE OF CONTENTS
PAGE
I. INTRODUCTION
(paras. 1 - 20) . . . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2 - 4) . . . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5 - 15). . . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 16 - 20) . . . . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 21 - 76). . . . . . . . . . . . . . . . . . . . . . . 4
A. The particular circumstances of the case
(paras. 21 - 68) . . . . . . . . . . . . . . . . . . . . 4
a. The first applicant's arrest
(paras. 21 - 23) . . . . . . . . . . . . . . . . . 4
b. Proceedings against the first applicant
(paras. 24 - 29) . . . . . . . . . . . . . . . . . 4
c. Proceedings against Police Officers B. and W.
(paras. 30 - 33) . . . . . . . . . . . . . . . . . 6
d. Compensation proceedings
(paras. 34 - 68) . . . . . . . . . . . . . . . . . 6
B. Relevant domestic law and practice
(paras. 69 - 76) . . . . . . . . . . . . . . . . . . . .12
III. OPINION OF THE COMMISSION
(paras. 77 - 124) . . . . . . . . . . . . . . . . . . . . . .14
A. Complaints declared admissible
(para. 77) . . . . . . . . . . . . . . . . . . . . . . .14
B. Points at issue
(para. 78) . . . . . . . . . . . . . . . . . . . . . . .14
C. The alleged violation of the first applicant's
Convention rights
(paras. 79 - 111). . . . . . . . . . . . . . . . . . . .14
I. Article 3 of the Convention
(paras. 79 - 107). . . . . . . . . . . . . . . . .14
Conclusion
(para. 108). . . . . . . . . . . . . . . . . . . .19
II. Article 8 of the Convention
(paras. 109 - 110) . . . . . . . . . . . . . . . .19
Conclusion
(para. 111). . . . . . . . . . . . . . . . . . . .19
D. The alleged violation of the second applicant's
Convention rights
(paras. 112 - 120). . . . . . . . . . . . . . . . . . .19
I. Article 3 of the Convention
(paras. 112 - 113) . . . . . . . . . . . . . . . .19
Conclusion
(para. 114). . . . . . . . . . . . . . . . . . . .20
II. Article 8 of the Convention
(paras. 115 - 119) . . . . . . . . . . . . . . . .20
Conclusion
(para. 120). . . . . . . . . . . . . . . . . . . .20
E. Recapitulation
(paras. 121 - 124) . . . . . . . . . . . . . . . . . . .21
DISSENTING OPINION BY MM. NØRGAARD, DANELIUS AND MARXER . . .22
DISSENTING OPINION BY MM. F. MARTINEZ AND J.-C. GEUS. . . . .22
DISSENTING OPINION BY Mr. L. LOUCAIDES. . . . . . . . . . . .23
DISSENTING OPINION BY Mr. M.P. PELLONPÄÄ. . . . . . . . . . .23
CONCURRING OPINION BY Mr. E. BUSUTTIL . . . . . . . . . . . .24
APPENDIX I : HISTORY OF THE PROCEEDINGS. . . . . . . . . .25
APPENDIX II : DECISION ON THE ADMISSIBILITY . . . . . . . .26
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The first applicant, born in 1937, is a German national and a
social welfare officer by profession. The second applicant is her
daughter, born in 1977. Both applicants are residing at Lemgo. Before
the Commission they were represented by Mr. M. Stüben, a lawyer
practising in Bad Salzuflen.
3. The application is directed against the Federal Republic of
Germany. The Government were represented by their Agents,
Mr. Meyer-Ladewig, Ministerialdirigent, and Mr. Stöcker, Ministerial-
rat, of the Federal Ministry of Justice.
4. The case relates to the first applicant's arrest on suspicion of
drunken driving on 28 January 1986. The first applicant was allegedly
beaten up and seriously injured by two policemen in the presence of her
then eight-year-old daughter. The applicants invoke Articles 3 and
8 of the Convention.
B. The proceedings
5. The application was introduced on 11 July 1989 and registered on
11 September 1989.
6. On 14 February 1990 the Commission decided to give notice of the
application to the respondent Government and to invite them to present
their observations in writing on its admissibility and merits.
7. Following the communication of the present application to the
respondent Government, the Federal Ministry of Justice contacted the
North-Rhine Westphalia Ministry of Justice. The latter referred the
matter to the President of the Detmold Regional Court (Landgericht) and
informed the President of the Hamm Court of Appeal (Oberlandesgericht)
of the application. The President of the Hamm Court of Appeal sent the
documents concerned to the President of the Hamm Bar Association for
information and, if appropriate, for further action as regards
disciplinary measures. By letter of 4 April 1990 the Bar Association
requested the applicants' representative to submit observations on the
complaint directed against him. The disciplinary proceedings were then
suspended pending the outcome of the proceedings before the Commission.
8. Following an extension of their time-limit, the Government's
observations were submitted on 28 May and 22 August 1990. The
applicants submitted their observations in reply, also after an
extension of the time-limit, on 28 August 1990.
9. On 7 March 1991 the Commission decided to invite the parties to
a hearing on the admissibility and merits of the application.
10. The hearing took place on 9 July 1991. The applicants and the
first applicant's husband attended in person and were assisted by their
lawyer Mr. Stüben, representative. The respondent Government were
represented by Mr. Stöcker, as Agent, and by Mrs. Chwolik-Lanfermann,
Richterin am Oberlandesgericht, Federal Ministry of Justice, as
Adviser.
11. As regards the disciplinary proceedings against the applicants'
counsel, the Government's representative, at the hearing, assured the
Commission that the Bar Association would be informed about the
"European Agreement relating to persons participating in proceedings
of the European Commission and Court of Human Rights" granting
immunity, inter alia, to parties and their representatives. He was
convinced that, as a result of this information, any disciplinary
proceedings pending against the applicants' representative in respect
of the present application would be discontinued or otherwise
terminated.
12. Following the hearing the Commission declared the application
admissible.
13. Furthermore, having regard to the above-mentioned declaration
made by the Government's representative at the hearing, the Commission
decided to take no further action in respect of the alleged
interference with the effective exercise of the applicants' right of
petition under Article 25 para. 1 in fine of the Convention.
14. By letter of 10 September 1991 the respondent Government informed
the Commission that the disciplinary proceedings against the
applicant's representative had meanwhile been finally discontinued.
15. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, placed itself
at the disposal of the parties with a view to securing a friendly
settlement of the case. Active consultations with the parties took
place between 18 July and 30 October 1991. The Commission now finds
that there is no basis on which such a settlement can be effected.
C. The present Report
16. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. C. A. NØRGAARD, President
J. A. FROWEIN
S. TRECHSEL
E. BUSUTTIL
A. S. GÖZÜBÜYÜK
J.-C. SOYER
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
17. The text of this Report was adopted on 21 May 1992 and is now
transmitted to the Committee of Ministers of the Council of Europe, in
accordance with Article 31 para. 2 of the Convention.
18. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
i) to establish the facts, and
ii) to state an opinion as to whether the facts found disclose a
breach by the State concerned of its obligations under the
Convention.
19. A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
20. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
a. The first applicant's arrest
21. On 28 January 1986, at about 7.30 p.m., the first applicant,
accompanied by her then eight-year-old daughter, returned by car from
a visit and stopped at the entrance to the back-yard of the house where
she is living. The Police Officers W. and B., who had followed her,
charged her with having ignored a red traffic light and driven away.
The first applicant denied this. Upon further questioning, she
admitted having consumed alcohol and agreed to a breathalyser test. As
repeated tests failed, the police officers informed her that she would
have to accompany them to carry out a blood test. The first applicant
was subsequently arrested, taken to the local hospital for the blood
test, and then released.
22. The circumstances of the arrest are disputed between the parties.
The applicants give the following account: The first applicant, having
unintentionally failed the breathalyser test, agreed to the blood test,
but explained that she wished first to take her daughter to a
neighbour. One police officer refused this and dragged her to the
police car. She was warned that she could be charged with having
resisted a public officer in the execution of his duties (Widerstand
gegen die Staatsgewalt). When she called her daughter, the police
officer said that they would take the child along. Thereupon she
nevertheless took her daughter by the hand, went to the back door, rang
her neighbour's doorbell and opened the door. At that moment one
police officer grabbed her, twisted her left arm behind her back while
she was turned around and hit her head on the corner of a window-sill.
The police officers then hand-cuffed her. She lost consciousness for
a short while. She recovered at the police car and noticed severe pain
in her left shoulder which was pressed backwards by one of the police
officers. Eventually she was able to get into the police car and was
driven to the hospital.
23. The first applicant underwent two medical examinations on 29 and
30 January 1986. On 11 February 1986, Dr. S., an internal specialist,
certified that he had examined the applicant on 29 January and noticed
abrasions, a bruise on her right cheek-bone of about 3 x 5 cm, large
bruises of about 10 cm to her right arm, considerable problems in
moving her left shoulder, and bruises on that shoulder. He also stated
that she would suffer long-term problems, in particular with her left
shoulder. She was certified as ill until 8 February 1986.
Furthermore, on 10 February 1986, Dr. K., the head surgeon at the local
hospital, certified that he had examined the first applicant on
30 January 1986. His diagnosis was identical to that of Dr. S. In the
proceedings before the Commission, the first applicant submitted
photographs showing the above-mentioned bruises.
b. Proceedings against the first applicant
24. On 29 January 1986, Police Officer B. laid charges against the
first applicant, stating in particular that he and his colleague had
followed the first applicant's car after she had ignored a red traffic
light. They had intended to check her when she had stopped at the
entrance to a back-yard. Her attempt quickly to close the roll shutter
of the entrance had failed as they had also parked the police car
there.
25. The above report continued that, in the course of the check, the
Police Officers had noticed a strong smell of alcohol. After thorough
explanations, the first applicant had failed correctly to carry out the
breathalyser test four times, and had therefore been informed that she
had to undergo a blood test. Thereupon she had attempted to escape
into the back-yard. However, Police Officer B. had been able to grab
her arm and stop her. The applicant had been very aggressive. When
informed she was to be arrested, the first applicant had suddenly
calmed down and declared that she would come along after having first
taken her daughter, whom Police Officer B. assumed to be twelve years
old, to a neighbour. The Police Officers had agreed in order to avoid
a further escalation of the events. They had followed the applicants
to the back door of the house. As the first applicant had acted in a
strange manner when opening the back door - the door opened to the
right and she had placed her daughter to the left - the Police Officers
had watched her carefully. When the first applicant had prepared to
enter the house after her daughter and to close the door, Police
Officer W. had quickly opened the door and Police Officer B. had
grabbed the first applicant's right arm and pulled her outside. The
child had gone upstairs.
26. Police Officer B. further stated in his report that, at this
stage, he and his colleague had asked by radio-phone for extra support
to take care of the child. The first applicant had then started to
strike out in an attempt to free herself. There had been an
altercation. Police Officer W. had taken the applicant's left arm and
twisted it behind her back. Police Officer B. had kept a tight hold
on her right arm. The first applicant had constantly offered
resistance and further physical force had been necessary to hand-cuff
her in order to avoid further criminal offences, in particular bodily
injury. On their way to the police car she had attempted to throw
herself to the ground, and he and his colleague had had to take her
arms. Then, another police car had arrived. The applicants' neighbour
had offered to take care of the child.
27. The report finally mentioned that the first applicant had then
been taken to the local hospital, where the blood test had been carried
out. Furthermore, at the hospital, the Police Officers had noticed a
lacerated wound at the first applicant's right temple.
28. Upon the above request of Police Officer B., criminal proceedings
were instituted against the first applicant who was suspected of having
resisted a public officer in the execution of his duties, S. 113 of the
German Criminal Code (Strafgesetzbuch), and of drunken driving, S. 316
of the Criminal Code.
29. On 22 April 1986 the criminal proceedings against the first
applicant were discontinued by the Detmold Public Prosecutor's Office
(Staatsanwaltschaft). The Office found that there was no reasonable
suspicion concerning drunken driving. As regards the offence of
resisting a public officer, there was minor guilt and no public
interest in prosecution. Subsequently, the Lemgo District Court
(Amtsgericht) fined the first applicant DM 500 for having committed the
"regulatory offence" (Ordnungswidrigkeit) of driving with a blood
alcohol content level of more than O.8 per mille, and a one month's
prohibition on driving was imposed. The District Court found that the
result of the blood-test showed a blood alcohol content level of
0.82 per mille. The first applicant's appeals were unsuccessful.
c. Proceedings against Police Officers B. and W.
30. By letter of 24 April 1986 the first applicant, represented by
her lawyer Mr. Stüben, laid a charge against the Police Officers B. and
W., alleging that they had caused bodily harm to her within the meaning
of SS. 223 and 230 of the Criminal Code. According to the statements
in the above letter, the Police Officers had held the first applicant's
arms tightly from behind without prior warning and twisted them around
and behind her back, with the effect that she had hit her head on the
stone ledge of the rear entrance to the house inhabited by her and
others, thereby also dislocating her left shoulder and causing a
haematoma on the right upper arm due to a disproportionate use of
force.
31. Subsequently, the first applicant, having consulted Mr. Stüben,
withdrew her criminal charges. The Public Prosecutor's Office had
allegedly warned her that otherwise the criminal proceedings against
her would be continued. The investigations against the Police Officers
were discontinued on 10 July 1986.
32. On 18 July 1986 the first applicant, represented by Mr. Stüben,
filed a hierarchical complaint (Dienstaufsichtsbeschwerde) with the
Head of the Detmold County Administration (Oberkreisdirektor)
concerning the Police Officers B. and W. As regards the events in
question it was stated in the above complaint that the first applicant
had rung her neighbour's doorbell and waited for her to come downstairs
when the bearded police officer twisted her arm backwards from behind.
She had then hit her head against a stone window ledge. With further
physical force, she had been taken to the police car.
33. On 18 September 1986 the Head of the Detmold County
Administration, acting as Police Department (Kreispolizeibehörde),
dismissed the first applicant's complaint. In the decision, it is
stated in particular that the police officers had stopped the first
applicant after a traffic offence, noticed a smell of alcohol and
proposed a breathalyser test. As the test had failed four times, the
first applicant had been informed that she would have to undergo a
blood test. Thereupon she had attempted to run into the back-yard.
However, one of the police officers had been able to seize her arm and
explain that she was provisionally under arrest. The request to take
her daughter to a neighbour had first been granted. When the first
applicant had opened the door and tried to enter with her daughter, one
of the police officers had held onto her right arm, whereupon she had
started to kick and to hit with her left hand. When the police
officers had held onto her she had tried to escape by turning around.
She had to be hand-cuffed. In the course of the arrest she had not
knocked her head against a window-sill. The Department concluded that
the use of force had been justified and not disproportionate to the aim
pursued, i.e., the taking of a blood test.
d. Compensation proceedings
34. On 10 April 1987 the first applicant instituted proceedings
before the Detmold Regional Court (Landgericht) against the Land
North-Rhine Westphalia and the two Police Officers B. and W., claiming
compensation for the injuries suffered at the time of her arrest.
35. On 10 July 1987 the Detmold Regional Court, in a partial
judgment, dismissed her action against the Police Officers on the
ground that, in cases of official liability, any personal liability on
the part of the officials concerned was excluded.
36. On 9 October 1987 the Detmold Regional Court held a hearing in
the case. The applicants' neighbour, Police Officers B. and W. and the
second applicant were heard as witnesses.
37. The applicants' neighbour, thirty-five years old, stated that on
28 January 1986 the second applicant had made her come outside. She
had seen the first applicant, two police officers and a police car.
The light had been poor, but the street lights were on. She had
noticed the first applicant's stained face, but no injuries. She had
only noticed later that the first applicant was hand-cuffed. The first
applicant had complained about pain in her shoulder and asked that the
police officers should remove the hand-cuffs. She had also put this
question to the police officers who, however, refused the request. The
first applicant's knees had given way several times. She had feared
that the first applicant would collapse at any moment.
38. The applicants' neighbour continued in her testimony that she did
not remember the faces of the two police officers involved in the
incident, but that one of them had been dark-haired and the other one
blond. She would not recognise Police Officers B. and W. However, she
remembered that the blond police officer had held the first applicant's
arms from behind. She had first thought that this police officer had
twisted the first applicant's arm behind her back and held it tight
there; however, this had to be wrong as the first applicant had been
hand-cuffed. The police officers had explained to her that they were
waiting for colleagues in another police car to take care of the child.
She had informed the police officers that the first applicant's car
would have to be driven out of the entrance. The police officers then
started looking for the first applicant's keys. The first applicant
had indicated that the keys were in the corridor. The applicant's
neighbour then stated that she had found the keys still outdoors, about
1 to 2 m in front of the door.
39. Upon further questioning, the applicants' neighbour stated that,
judging from the first applicant's behaviour, she must have been in
terrible pain. The first applicant had complained about pain in her
left shoulder. While she went to look for the keys, the dark-haired
police officer had asked her whether the first applicant was always so
drunk. She had not seen whether the blond police officer standing
behind the first applicant had lifted her arms although, while the
police officer was standing behind her, the first applicant had bent
forward suddenly several times.
40. In his testimony, Police Officer B., twenty-eight years old,
referred in particular to his report of 29 January 1992. He then gave
the following account: he and his colleague had noticed the first
applicant's drive through a red traffic light, and, therefore, followed
her in order to file a report. They had found the first applicant at
an entrance when she had been about to close a roll shutter.
41. He then described that they had noticed a smell of alcohol, and
how the attempts to carry out a breathalyser test failed. He mentioned
that he was not sure whether the first applicant had deliberately not
blown for a sufficient time, or whether she had had difficulties.
After having been informed about the necessity of a blood test, the
first applicant had become irritated and had emphasised that she had
her child with her. Police Officer B. remembered that it was a girl
of approximately twelve years of age. The first applicant had then
attempted to go away to the back-yard. He had held her fast and told
her that she was provisionally under arrest.
42. Police Officer B. continued in his testimony that he and his
colleague had intended to call for support to come and take care of the
child. The first applicant wanted her child to be taken to a
neighbour. They therefore accompanied the first applicant to the door
at the end of the courtyard. He was at that time not holding onto her.
The first applicant had opened the door, pushed the child standing in
front of her into the corridor and attempted to enter the house as well
and to close the door behind her and to shut the two police officers
out. As he and his colleague had already had the feeling that the
first applicant had this intention his colleague W. had managed to open
the door again in time. He, Police Officer B., had grabbed the first
applicant's right arm. The first applicant had not yet entered the
house, but the door had been between her and his colleague W.
43. According to Police Officer B., his colleague W. had to overcome
the first applicant's resistance in opening the door and he had
forcibly to keep a tight hold onto her and pull her outside. He had
grabbed the first applicant's right arm with his right hand and pulled
her outside. She had resisted and used both her arms and legs to hit
out. His colleague W. had then taken the first applicant's left arm
and twisted it behind her back. After some difficulties they managed
to get the first applicant's arms hand-cuffed behind her back. Taking
her arms, they had found it difficult to get her back to the street,
as she attempted to throw herself to the ground. Since being pulled
out of the corridor, the first applicant had shouted more or less
hysterically, but she had made no complaints about pain.
44. Furthermore, Police Officer B. stated that the first applicant
had not knocked her head against a wall when she was pulled outside.
Having been shown two photographs of the first applicant with injuries
at her right cheek, he remembered having mentioned such an injury in
his report of 29 January 1986. He could not, however, explain the
cause of this injury.
45. Upon further questioning, Police Officer B. confirmed that the
first applicant had not complained about any pains in her shoulder.
She had requested that the hand-cuffs be removed, a request they had
refused as they had feared further difficulties. He could not remember
whether he or his colleague W. had kept hold of the first applicant in
the street until they had put her into the police car. He further
could not remember whether the first applicant had bent forward
suddenly, e.g. as a result of a sudden jerking on her hand-cuffs and
the resulting pain.
46. Upon further questioning, Police Officer B. also confirmed being
certain that the first applicant did not knock her head at a wall. He
said that she did not have this injury when they had first talked to
her. He assumed that the first applicant might have got this injury
during the altercation when the hand-cuffs had been put on.
47. The Regional Court then heard Police Officer W., thirty-five
years old. He stated that when he and his colleague B. had informed
the first applicant that a blood test would be necessary, she intended
getting away. He would not say that she ran away; however, his
colleague B. had then declared that the first applicant was under
arrest. As regards the first applicant's child, they had agreed that
her child should be taken to the house. They had accompanied her
across the yard to the door. He could not remember whether he was
already holding the first applicant at that time. He remembered that
he had walked on her right side, and that, in front of the door, he had
stood on her right side near to the wall. The hinges of the door were
at the right-hand side and it opened towards the outside. The first
applicant had then opened the door, let her child enter and attempted
to follow while, at the same time, trying to close the door. As he had
suspected the first applicant might try to do something like that, he
had held onto the door, and his colleague B. had held tightly onto the
first applicant. It had been completely dark beside the door. He
could not therefore exclude that the first applicant had knocked her
head at the wall or elsewhere. He had not noticed anything like this.
He and his colleague had maintained eye-contact.
48. Upon questioning, he could not remember whether there had been
a lamp throwing any light onto the yard.
49. Police Officer W. further stated that the first applicant had
vehemently resisted her arrest. He had taken her left arm and twisted
it around behind her back and he had had to grab her tightly in order
to do this. They had then hand-cuffed her arms behind her back. He
could not remember whether they had done so in the yard or whether they
had first taken her to the street and then hand-cuffed her. It was
only later that they noticed the first applicant's head injury and they
had not noticed how she had obtained it.
50. When questioned, Police Officer W. stated that the first
applicant had requested the removal of her hand-cuffs. However, he
could not remember whether she had requested that the hand-cuffs should
be removed because she could not bear to have them on as he did not
remember her complaining about any pain, in particular about suffering
any pain in her left shoulder. After her arrest the first applicant
had not calmed down, but had been noisy. She also had repeatedly
attempted to resist accompanying the police officers, without success
however. He could not remember when the applicants' neighbour had
arrived. Furthermore, he could not remember whether he or his
colleague B. had been holding onto the first applicant while they had
been waiting for the second police car.
51. When questioned further, Police Officer W. stated that he did not
remember either whether the first applicant had bent forward suddenly
while she was still hand-cuffed. He repeated that the first applicant
had resisted her arrest and had been lashing out when he had twisted
her arm around to her back. He could not remember whether she had been
lashing out with both arms. He assumed that the first applicant had
not intended hitting him or his colleague B. The situation had in any
case been too turbulent. He did not think that the first applicant had
attempted to throw herself to the ground. He could not remember
whether the yard had been wet or covered with snow or icy. He did not
think that the yard had been icy.
52. Police Officer B. intervened and stated that he remembered that
it had been slippery, and he assumed that this had been due to ice.
53. Upon further questioning, Police Officer W. denied that he had
pushed the first applicant, in particular her head against the wall.
54. Following a particular instruction about the meaning of a
testimony and the role of a witness as well as the right to refuse
testimony, the Regional Court then heard the second applicant.
55. The second applicant stated that she remembered the incident with
her mother and the police in their yard. She had seen her mother
blowing into an apparatus belonging to the police, and had then heard
that her mother would have to go for a blood test. She and her mother
had then accompanied the police officers across the yard because she
was supposed to go to their neighbour. Her mother had rung the
doorbell and opened the door using a key. She had then gone into the
house and closed the door behind her. She did not know that one of the
police officers had forcibly kept the door open. After having closed
the door she had looked through the glass-panels in the door into the
yard. She explained that one of the glass-panels was simple glass, as
it had been once replaced by her father. She had therefore been able
to see that one of the police officers had pushed her mother's head
against the wall. She emphasised that the police officer had
repeatedly pushed her mother's head against the wall next to the door
using his hand. The officer concerned had blond hair. Her mother and
the police officer had been close to the door, the distance having been
approximately one metre. She herself had not been right in front of
the glass-panel. She subsequently had run upstairs to their neighbour.
56. The second applicant further explained that when her mother had
rung the doorbell and opened the door, she had been standing to her
right. Her mother had opened the door only a little bit, and she had
just been able to get in. She then had immediately closed the door
behind her.
57. The second applicant also stated that she did not recognise
Police Officers B. and W. It had been quite dark in the yard.
However, there had been light in the staircase. She could not remember
whether there had also been a lamp in the yard.
58. When questioned, the second applicant confirmed that she had
immediately closed the door. Her mother had looked into the corner
next to the door when the police officer pushed her. The second
applicant added that she seemed to remember that the dark-haired police
officer had a beard. She had not seen that one of the police officers
had twisted her mother's arm around and behind her back.
59. On 30 October 1987 the Detmold Regional Court dismissed the first
applicant's compensation claims against the Land of North-Rhine
Westphalia.
60. In its judgment, the Regional Court first summarised the
established facts. It stated in particular that Police Officers B. and
W. had noticed the first applicant after she had ignored a red traffic
light, and that the breathalyser test had failed several times. When
informing the first applicant that she had to accompany them for a
blood test, the Police Officers had gained the impression that the
first applicant had intended to leave the entrance and move towards the
adjacent back-yard. Thereupon the Police Officer B. had taken hold of
the first applicant and informed her that she was provisionally
arrested. The first applicant had then asked to take her daughter, at
that time eight years old, to their neighbour. The Police Officers had
agreed and accompanied the applicants to the back-door at the end of
the yard which was more than 60 m long. The first applicant had rung
her neighbour's doorbell and at the same time opened the door using a
key. Her daughter had slipped through the door into the house, whereas
the first applicant was held fast by the Police Officers who twisted
her arm behind her back, and hand-cuffed her arms on her back. The
first applicant had then been taken to the police car.
61. The Regional Court noted that the first applicant had thereby
suffered a bruise to her right temple, a concussion and a contusion of
the left shoulder-joint.
62. The Regional Court then summarised the submissions of the first
applicant and the defendant. The first applicant had in particular
alleged that she had never attempted to escape; that she had not
attempted to enter the house after her daughter; that the Police
Officer W. had grabbed her arm, pulled her around and repeatedly
knocked her head against a wall and repeatedly pulled her hand-cuffed
hands upwards, thereby causing a terrible pain.
63. The Regional Court found that the injuries suffered by the first
applicant in the course of her arrest by Police Officers B. and W. did
not give rise to a compensation claim.
64. The Regional Court considered that the first applicant's
provisional arrest had in itself not been unlawful. The Police
Officers, in the circumstances concerned, could reasonably have assumed
that the first applicant intended to abscond. Had the first applicant
succeeded in entering the house without the Police Officers,
considerable difficulties could conceivably have arisen, either by her
refusing them entry into her apartment, or by her consuming or claiming
to have consumed more alcohol, thereby rendering the determination of
her blood alcohol content level impossible or appreciably more
difficult.
65. The Regional Court further considered that the first applicant,
as plaintiff, had failed to prove that the police officers had injured
her by a use of force disproportionate to the aim pursued, namely to
secure the ensuing investigations. As regards her bruise, the
testimonies of the first applicant's daughter and of Police Officers
B. and W. were contradictory, and all three witnesses had an interest
in the outcome of the proceedings. The applicants' neighbour had not
been able to confirm that one of the police officers had pulled upwards
the first applicant's arms behind her back; the statement of the
witness that the first applicant had repeatedly bent forward would not
necessarily lead to such a conclusion.
66. The Regional Court further found that it could not accept the
first applicant's version as very probable. It did not seem unlikely
that the first applicant had injured herself while resisting the
attempts to hand-cuff her. She could have thereby hit her head against
the wall, and the contusion of her shoulder could have occurred when
her arm was twisted behind her back and the hand-cuffs put on.
67. On 12 September 1988 the Hamm Court of Appeal (Oberlandes-
gericht) dismissed the first applicant's appeal (Berufung). It
confirmed in particular the Regional Court's taking and evaluation of
evidence.
68. On 8 February 1989 the Federal Constitutional Court (Bundes-
verfassungsgericht) refused to admit the first applicant's
constitutional complaint (Verfassungsbeschwerde) on the ground that it
offered no prospect of success. The Constitutional Court considered
in particular that the Court of Appeal's evaluation of the evidence did
not appear arbitrary or otherwise in violation of constitutional law.
B. Relevant Domestic Law and Practice
69. According to S. 113 para. 1 of the German Criminal Code (Straf-
gesetzbuch), anybody who resists, by force or threat of violence, or
who physically attacks a public officer or a soldier of the Federal
Armed Forces authorised to enforce laws, regulations, judgments, court
decisions or orders, in the execution of such official acts, shall be
punished by imprisonment for a term not to exceed two years or by a
fine. According to S. 113 para. 3 the offence shall not be punished
if the official act concerned was unlawful, even if the offender
mistakenly believed the act to be lawful.
70. Under S. 223 para. 1 of the Penal Code deliberate bodily harm is
rendered punishable by imprisonment for a term not to exceed three
years or by a fine, as is negligent bodily harm under S. 230.
71. S. 316 of the Criminal Code provides in particular that anybody
driving a vehicle in public traffic who, due to his consumption of
alcoholic beverages or other intoxicants, is not capable of driving his
vehicle safely, shall be punished by imprisonment for a term not to
exceed one year or by a fine. Anybody having negligently committed the
said offence shall be punished in the same way.
72. S. 24 a of the Road Traffic Act (Straßenverkehrsgesetz) provides
that anybody driving a motor vehicle in road traffic commits a
"regulatory offence" (Ordnungswidrigkeit), if he has a blood alcohol
content level equal to or above 0.8 per mille or has in his body a
quantity of alcohol resulting in such a blood alcohol content level,
and shall be punished by a fine not to exceed DM 3,000. Anybody
committing this offence negligently shall also be punished.
73. With regard to official liability, S. 839 para. 1 of the Civil
Code (Bürgerliches Gesetzbuch) provides that, if an official, with
wilful intent or negligently, commits a breach of his official duties
towards a third party, he shall compensate the third party any damage
resulting therefrom. S. 34 of the Basic Law (Grundgesetz) provides
that, if any person, in the exercise of a public office entrusted to
him, violates his official obligations towards a third party, liability
shall rest in principle with the state or the public body which employs
him.
74. The order of a blood test is regulated in S. 81 a of the Code of
Criminal Procedure (Strafprozeßordnung) according to which a physical
examination of any person charged with having committed an offence may
be ordered for the establishment of facts relevant to the proceedings
concerned. For this purpose, without consent of the person concerned,
blood samples may be taken and other physical interventions be
conducted by a physician according to the rules of medical science for
the purposes of examination, if there is no risk of detriment to the
person's health. Such examinations are ordered by a judge, in case of
danger in delay, also by the public prosecutor's office or its
assistant civil servants, inter alia police officers of a particular
higher rank.
75. S. 127 para. 1, first sentence, of the Code of Criminal Procedure
provides that anybody, without court order, may provisionally arrest
an offender apprehended in the criminal act or tracked immediately
afterwards, if the offender is susceptible to abscond or if it is not
possible to identify him or her immediately. Under S. 127 para. 2 the
Public Prosecutor's Office or their assistant servants, in case of
danger in delay, may effect a provisional arrest also under the
conditions of an arrest warrant or an order of detention in a
psychiatric hospital.
76. SS. 35 et seq. of the North-Rhine Westphalia Police Act (Polizei-
gesetz) of 1980 governed the use of compulsory measures by police
authorities in the Land North-Rhine Westphalia at the time in question
in the present case (reform of the Police Act in 1990). S. 40 of the
Police Act 1980 (corresponding to S. 62 of the Act 1990) provided that
a person could be hand-cuffed, if this person would presumably resist
an instruction by the police officers concerned or escape.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
77. The following complaints were declared admissible:
- the first applicant's complaint that, in the presence of the
second applicant, she was subjected to inhuman and degrading treatment
by the police upon her arrest;
- the first applicant's complaint that the above treatment violated
her right to respect for her private and family life;
- the second applicant's complaint that the above treatment of her
mother in her presence also subjected herself to inhuman and degrading
treatment;
- the second applicant's complaint that the above treatment of her
mother in her presence violated her right to respect for her private
and family life.
B. Points at issue
78. Accordingly, the issues to be determined are:
- whether the first applicant, in the course of her arrest, was
subjected to inhuman or degrading treatment within the meaning of
Article 3 (Art. 3) of the Convention;
- whether, in the course of her arrest, the first applicant's right
under Article 8 (Art. 8) of the Convention has been violated;
- whether the second applicant, for the same reasons, was subjected
to inhuman or degrading treatment within the meaning of Article 3
(Art. 3) of the Convention;
- whether, having regard to the circumstances of the first
applicant's arrest in her presence, the second applicant's right under
Article 8 (Art. 8) has been violated.
C. The alleged violation of the first applicant's Convention rights
I. Article 3 (Art. 3) of the Convention
79. The first applicant alleges a breach of Article 3 (Art. 3) of the
Convention which provides as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
80. The first applicant submits that in the course of her arrest
she was beaten up by the police in presence of her daughter and thereby
suffered serious and lasting injuries. She considers that the police
action as described by her amounted to inhuman and degrading treatment.
In particular, her injuries were not unintentional and accidental
consequences of a lawful use of force by State authorities. She had
not given any reason to such disproportionate use of force.
81. The Government consider that the measures taken by Police
Officers B. and W. did not reach the degree of seriousness required in
the case-law of the Convention organs to justify invoking Article 3
(Art. 3). They rely on the facts as established in the domestic court
decisions and maintain that the first applicant's arrest was lawful,
and in particular the physical force necessary and proportionate to
carry out the arrest. Referring to Article 2 para. 2 (b) (Art. 2-2-b)
of the Convention, they submit that the hand-cuffing of a provisionally
arrested person strongly resisting arrest could not constitute a breach
of the Convention even in case of accidental, exceptional injuries.
82. The Commission recalls that 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 etc. (Eur. Court
H.R., Ireland v. the United Kingdom judgment of 18 January 1978,
Series A no. 25, pp. 65-67, paras. 162, 167; Tyrer judgment of
25 April 1978, Series A no. 26, pp. 14-15, paras. 29-30; Soering
judgment of 7 July 1989, Series A no. 161, p. 39, para. 100).
83. Such treatment causing, if not actual bodily injury, at least
intense physical and mental suffering falls into the category of
inhuman treatment within the meaning of Article 3 (Art. 3). It is
degrading if it arouses in the person subjected thereto feelings of
fear, anguish and inferiority capable of humiliating and debasing this
person and possibly breaking his or her physical or moral resistance
(Eur. Court H.R., Ireland v. the United Kingdom judgment, loc. cit.,
p. 68, para. 174; Guzzardi judgment of 6 November 1980, Series A
no. 39, p. 40, para. 107; Abdulaziz, Cabales and Balkandali judgment
of 28 May 1985, Series A no. 94, p. 42, paras. 90-91; Soering judgment,
loc. cit.).
84. The Commission notes that the alleged ill-treatment of the first
applicant occurred in the early evening of 28 January 1986. In the
course of a traffic check, Police Officers B. and W. suspected the
first applicant of drunken driving. After no clear results were
obtained from a breathalyser test, she was arrested and taken to
hospital for a blood test as regards her blood alcohol content level.
The first applicant was at the time in question 48 years old, she was
working as a social welfare officer and had no entries in her criminal
record. She was accompanied by her then eight-year-old daughter, the
second applicant. Police Officers B. and W. were at that date about
27 and 34 years old, respectively.
85. As regards the particular circumstances of this arrest, the
Commission is confronted with different versions.
86. The applicants state that, when informed that a blood test was
necessary, the first applicant wanted to take her daughter, the second
applicant, to a neighbour. She went to the back door, rang her
neighbour's doorbell and opened the door. One police officer then
grabbed her, twisted her left arm behind her back while she was turned
around and hit her head on the corner of a window-sill. The police
officers hand-cuffed her. She lost consciousness for a short while.
She recovered at the police car and noticed a severe pain in her left
shoulder which was pressed backwards by one of the police officers.
87. The Police Officers B. and W. have made statements concerning the
events in question on several occasions, namely Police Officer B. in
his report of 29 January 1986, and both Police Officers at the hearing
before the Detmold Regional Court.
88. In his first statement, Police Officer B. stated in particular
that, from the very beginning of the traffic check, the first applicant
had given the impression that she intended to escape and that she had
been very aggressive. At the back door of the house, it had been
necessary forcibly to prevent her from escaping into the house. Due
to her violent resistance, Police Officer W. had taken the first
applicant's left arm and twisted it behind her back, while he had kept
a tight hold onto her right arm. Further physical force had been
necessary to hand-cuff her. Moreover, when she was taken to the police
car, she had attempted to throw herself to the ground. Police Officer
B. also mentioned the first applicant's wound at her right temple, but
gave no indication as to its cause.
89. In their statements before the Detmold Regional Court the two
Police Officers gave a similar outline of the events.
90. Police Officer B. also stated that the first applicant had
shouted more or less hysterically, but had not complained about pain.
Upon questioning, Police Officer B. denied that the first applicant had
hit her head against a wall when she was torn outside. He remembered
the first applicant's injury at her right cheek but stated that he
could not explain the cause of the injury.
91. Police Officer W. stated that the first applicant had vehemently
resisted her arrest. He had taken her left arm and twisted it around
behind her back and he had had to grab her tightly in order to do this.
They had then hand-cuffed her arms behind her back. He denied that he
had pushed the first applicant, in particular her head against the
wall. He had not noticed how the first applicant had been injured, in
particular whether she had hit her head against the wall or elsewhere.
He would not, however, exclude anything like this. He described the
situation of her arrest as very turbulent. In particular the first
applicant had been lashing out, but had not intended hitting them. He
also remembered that the first applicant had requested the removal of
her hand-cuffs, and could not exclude that she had made complaints
about pain, in particular about pain in her left shoulder.
92. In the context of the first applicant's official liability
proceedings against the Land North-Rhine Westphalia, the employer of
the two Police Officers concerned, the Detmold Regional Court, in its
judgment of 30 October 1987, found that the first applicant's injuries
suffered in the course of her arrest by Police Officers B. and W. did
not give rise to a compensation claim.
93. The Regional Court, having heard the two Police Officers, the
applicants' neighbour and the second applicant as witnesses, considered
in particular that the first applicant's provisional arrest had in
itself not been unlawful. The Police Officers had reasonably assumed
that the first applicant intended to abscond, and that considerable
difficulties would have arisen, had she not been arrested. The first
applicant, as plaintiff, had failed to prove that, in the course of
this arrest, the police officers had injured her by a use of force
disproportionate to the aim of securing the ensuing investigations.
The testimonies of the witnesses were partly contradictory, or did not
confirm her allegations. Moreover, it found that it could not accept
the first applicant's version as very probable. It did not seem
unlikely that she had injured herself upon her resistance to the hand-
cuffing.
94. The Regional Court's taking and assessment of evidence was
confirmed upon appeal by the Hamm Court of Appeal on 12 September 1988.
The Federal Constitutional Court, upon the first applicant's
constitutional complaint, found that the evaluation of evidence did not
appear arbitrary or otherwise in violation of constitutional law.
95. The Commission has examined the question whether the first
applicant, on the occasion of her arrest, suffered ill-treatment
contrary to Article 3 (Art. 3), on the basis of any evidence possibly
relevant in this respect, and subjected the evidence obtained at the
national level to independent assessment taking due account of the
arguments of the parties including any reference to the findings of the
competent national authorities (cf. Stocké v. the Federal Republic of
Germany, Comm. Report 12.10.89, para. 171, with reference to Colak v.
the Federal Republic of Germany, Comm. Report 6.10.87, paras. 143-144;
No. 10044/82, Dec. 10.7.84, D.R. 39 pp. 162 et seq., 168). There was
no new evidence brought before the Commission calling for any further
investigation with a view to ascertaining the facts under Article 28
para. 1 (a) (Art. 28-1-a) of the Convention.
96. The Commission notes that the first applicant's provisional
arrest was based on S. 127 of the Code of Criminal Procedure, and the
use of compulsory measures, in particular hand-cuffing, was lawful if
necessary according to SS. 35 et seq., 40 of the North-Rhine Westphalia
Police Act of 1980. For the purposes of the criminal investigations
against her a blood test could be ordered under S. 81 (a) of the German
Code of Criminal Procedure. Driving under the influence of alcohol
could constitute the offence of drunken driving under S. 316 of the
German Penal Code or a regulatory offence under the Road Traffic Act,
depending on the blood alcohol content level. The first applicant was
later fined DM 500 for a regulatory offence on that count.
97. The Commission proceeds on the basis of the finding of the
Detmold Regional Court, in its judgment of 30 October 1987, that the
first applicant's provisional arrest had been lawful. The Police
Officers had reasonably assumed that the first applicant intended to
abscond, and that considerable difficulties would have arisen, had she
not been arrested. The applicant's allegations to the contrary related
mainly to her real intentions, not to the situation in the back-yard
from the officers' point of view. They do not disclose any clear non-
observance of the relevant law by the arresting officers.
98. As regards the question whether the force used by Police Officers
B. and W. against the first applicant for the purpose of her arrest was
strictly proportionate, the Commission attaches particular weight to
the injuries suffered by the first applicant in the course of her
arrest (Tomasi v. France, Comm. Report 11.12.90, paras. 92-100, 105).
99. The Commission notes that in February 1986 Dr. S., an internal
specialist, certified that he had examined the applicant on 29 January
and noticed abrasions, a bruise on her right cheek-bone of about
3 x 5 cm, large bruises of about 10 cm to her right arm, considerable
problems in moving her left shoulder, and bruises on that shoulder.
He also stated that she would suffer long-term problems, in particular
with her left shoulder. The first applicant was certified as ill until
8 February 1986. Furthermore, on 10 February 1986, Dr. K., the head
surgeon at the local hospital, certified that he had examined the first
applicant on 30 January 1986. His diagnosis was identical to that of
Dr. S. The Detmold Regional Court, in its judgment of 30 October 1987,
also found that the first applicant had suffered a bruise to her right
temple, a concussion and a contusion of the left shoulder-joint.
100. The respondent Government have not explained that the first
applicant's injuries resulted from a use of force proportionate in the
circumstances of her arrest. They regarded these injuries as
accidental and regrettable consequences of an arrest which had as such
been lawful. Their submissions in this respect were based upon the
findings of the Detmold Regional Court in its judgment of
30 October 1987 and upon the statements of Police Officers B. and W.,
heard as witnesses in these proceedings.
101. However, the Commission finds that the Regional Court's judgment
merely contained assumptions as to the possible cause of the first
applicant's injuries other than an excessive use of force by Police
Officers B. and W. In their testimonies at the hearing before the
Regional Court, Police Officers B. and W. could not explain the
possible cause of the first applicant's bruise on her right temple.
Their statements, which did not show any considerable discrepancies,
reflect a substantial use of force in order to arrest the first
applicant provisionally. Their description as to the resistance
offered by the first applicant does not establish the necessity of
using such force in hand-cuffing and taking her to the police car as
to cause the above-mentioned injuries. The domestic courts did not
attach special importance to the detailed statements of the second
applicant and of the applicants' neighbour which apparently confirmed
the first applicant's account. In this context, the neighbour's
reference to unexplained sudden movements forward by the first
applicant is particularly noticeable. This seems to indicate that the
first applicant's allegations as to the Police Officers' lifting her
arms which were hand-cuffed on her back could be correct.
102. The Commission, in examining whether there has been a violation
of Article 3 (Art. 3), cannot share the approach to the question of
proof and assessment of evidence, as expressed by the respondent
Government on the basis of the Regional Court's judgment.
103. The Commission recalls that in cases where injuries occurred in
the course of police custody, it is not sufficient for the Government
to point at other possible causes of injuries, but it is incumbent on
the Government to produce evidence showing facts which cast doubt on
the account given by the victim and supported by medical evidence (cf.,
Ireland v. the United Kingdom, Comm. Report 25.1.76, Eur. Court H.R.,
Series B no. 23-I, p. 413; see also, mutatis mutandis, Tomasi v.
France, Comm. Report, loc. cit., para. 99; Eur. Court H.R., Bozano
judgment of 18 December 1986, Series A no. 111, p. 26, para. 59).
104. Such considerations likewise apply in cases where a person is
arrested by police authorities and thereby subjected to their power.
In the present case, having regard to the injuries suffered by the
first applicant in the course of her arrest, her allegations of a
disproportionate use of force seem plausible in the absence of any
evidence or convincing other explanation.
105. In these circumstances, the Commission, even assuming that the
first applicant attempted to abscond and offered some resistance to her
provisional arrest, considers that the force used by the two Police
Officers to arrest a woman of 48 years, who was accompanied by her
minor daughter, was disproportionate to the aim of securing
investigations against her in respect of a traffic offence.
106. The enforcement of the first applicant's arrest in a place
accessible to the public with excessive force by two Police Officers
also created in the first applicant feelings of fear and inferiority
capable of humiliating her. The Commission here notes that, at an
early stage of the arrest, the second applicant was present, at a later
stage a neighbour.
107. The first applicant was thereby subjected to treatment, which,
in view of the injuries, went beyond the inevitable element of
suffering connected with a legitimate arrest in the context of police
investigations, and amounted to inhuman and degrading treatment
contrary to Article 3 (Art. 3).
Conclusion
108. The Commission concludes, by 10 votes to 5, that there has been
a violation of Article 3 (Art. 3)of the Convention in respect of the
first applicant.
II. Article 8 (Art. 8) of the Convention
109. The first applicant has also invoked Article 8 (Art. 8) of the
Convention in respect of the above allegations. Article 8 (Art. 8)
reads as follows:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
110. Having regard to its above conclusion under Article 3 (Art. 3)
(see para. 108), the Commission does not consider it necessary to
examine the first applicant's complaint under Article 8 (Art. 8) of the
Convention.
Conclusion
111. The Commission concludes, by 10 votes to 5, that no separate
issue arises under Article 8 (Art. 8) of the Convention in respect of
the first applicant.
D. The alleged violation of the second applicant's Convention rights
I. Article 3 (Art. 3) of the Convention
112. The second applicant complains that having regard to the use of
force against her mother in her presence, she suffered inhuman and
degrading treatment within the meaning of Article 3 (Art. 3) of the
Convention.
113. The Commission finds that, although the course of the first
applicant's arrest had repercussions on the second applicant's state
of mind and created feelings of fear, these negative effects of the
events at issue do not constitute inhuman or degrading treatment coming
within the ambit of Article 3 (Art. 3).
Conclusion
114. The Commission concludes, by 14 votes to 1, that there has been
no violation of Article 3 (Art. 3) of the Convention in respect of the
second applicant.
II. Article 8 (Art. 8) of the Convention
115. The second applicant further alleges a breach of Article 8
(Art. 8) of the Convention in that the use of force against her mother
in her presence violated her right to respect for her private and
family life.
116. The Commission recalls that the notion of private life covers the
physical and moral integrity of the person (cf. Eur. Court H.R., X and
Y v. the Netherlands judgment of 26 March 1985, Series A no. 91, p. 11,
para. 22; No. 8239/78, Dec. 4.12.78, D.R. 16 p. 184, 189; No. 8278/78,
Dec. 13.12.79, D.R. 18 p. 154; No. 10435/83, Dec. 10.12.84, D.R. 40
p. 251; Costello-Roberts v. the United Kingdom, Comm. Report 8.10.91,
para. 49).
117. The Commission finds that, although the measures in question were
not directed against the second applicant, the use of force against a
mother in the presence of her minor child amounts to a negative
experience with considerable repercussions on the child's state of
mind. The Commission, having regard to the second applicant's
uncontested statements that she watched major parts of her mother's
forcible arrest and noting that she considerably suffered from what she
had seen, finds that there was also an interference with the second
applicant's right to respect for her private life.
118. In respect of the first applicant, the Commission has found above
(see para. 105) that, taking into account all circumstances, the force
used by Police Officers B. and W. to arrest the first applicant was
disproportionate to the aim of securing criminal investigations against
her in respect of a traffic offence, and amounted to a violation of
Article 3 (Art. 3) of the Convention.
119. Having regard to the comparable situation, no other finding can
be reached as regards the interference with the second applicant's
right under Article 8 para. 1 (Art. 8-1), which was thus not justified
under Article 8 para. 2 (Art. 8-3).
Conclusion
120. The Commission concludes, by 8 votes to 7, that there has been
a violation of Article 8 (Art. 8) of the Convention in respect of the
second applicant.
E. Recapitulation
121. The Commission concludes, by 10 votes to 5, that there has been
a violation of Article 3 (Art. 3) of the Convention in respect of the
first applicant (para. 108).
122. The Commission concludes, by 10 votes to 5, that no separate
issue arises under Article 8 (Art. 8) of the Convention in respect of
the first applicant (para. 111).
123. The Commission concludes, by 14 votes to 1, that there has been
no violation of Article 3 (Art. 3) of the Convention in respect of the
second applicant (para. 114).
124. The Commission concludes, by 8 votes to 7, that there has been
a violation of Article 8 (Art. 8) of the Convention in respect of the
second applicant (para. 120).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
DISSENTING OPINION BY MM. C.A. NØRGAARD,
S. TRECHSEL, H. DANELIUS AND B. MARXER
We have voted against the conclusions in paras. 108, 111 and 120
for the following reasons.
1. We consider that the treatment to which the first applicant was
exposed, although serious, did not have the severity necessary to bring
it under the scope of Article 3 of the Convention. On the other hand,
the treatment was in our view an interference with the first
applicant's right to respect for her private life for which there was
no justification under Article 8 para. 2 of the Convention.
Consequently, we find that Article 8 was violated in regard to the
first applicant.
2. As regards the second applicant, we do not consider that the fact
that she became a witness to the circumstances of her mother's arrest -
which was based upon a suspicion of her mother having driven a car
under the influence of alcohol with her then eight year old daughter
(the second applicant) as a passenger - constitutes an interference
with the second applicant's right to respect for her private life.
Consequently, there was, in respect of the second applicant, no
violation of Article 8 of the Convention.
DISSENTING OPINION BY MM. F. MARTINEZ AND J.-C. GEUS
We consider that, in respect of the second applicant, there was
no violation of Article 8 of the Convention for the reasons indicated
in the dissenting opinion of Mr. Nørgaard and others.
DISSENTING OPINION BY Mr. L. LOUCAIDES
I am unable to agree with the conclusion of the majority that
there has been no violation of Article 3 of the Convention in respect
of the second applicant.
I believe that a complainant can be considered a victim of
inhuman treatment not only as a result of acts directed against him
personally, but also as a result of acts directed against somebody
else, but which have immediate adverse effects on the complainant
himself of such severity as to cause him suffering amounting to inhuman
treatment.
This is what, in my opinion, has happened in the case of the
second applicant.
The use of violence of the kind described in the Commission's
Report by two policemen against the mother of the second applicant, an
eight year old girl, the only other person present, must inevitably
have caused severe suffering to her. In the circumstances of the case
this amounted in my opinion to inhuman treatment. The suffering was
a foreseeable and immediate consequence of the arbitrary acts of the
two policemen who at the time knew of the presence of the second
applicant.
Therefore I also find a breach of Article 3 in respect of the
second applicant and voted against finding a violation of Article 8 of
the Convention as no separate issue arises under this provision.
DISSENTING OPINION BY Mr. M.P. PELLONPÄÄ
I consider that, in respect of the first applicant, there was a
violation not of Article 3 but of Article 8 of the Convention for the
reasons indicated in the dissenting opinion of Mr. Nørgaard and others.
CONCURRING OPINION BY Mr. E. BUSUTTIL
I have voted for a violation of Article 3 in this case on the
basis that the first applicant's treatment by the police amounted to
degrading treatment.
In my view, the treatment accorded to her did not attain the
level of severity required to bring it within the ambit of inhuman
treatment as interpreted in the case-law of the Convention organs. On
the other hand, it is clear to me that she was subjected to humiliating
treatment in the presence of her eight-year-old daughter and eventually
hand-cuffed for resisting the police, which the Detmold Public
Prosecutor's Office later considered to be a minor offence attracting
no public interest in prosecution.
APPENDIX I
HISTORY OF PROCEEDINGS
Date Item
_________________________________________________________________
11 July 1989 Introduction of the application
11 September 1989 Registration of the application
Examination of admissibility
14 February 1990 Commission's decision to invite
the Government to submit observations
on the admissibility and merits of
the application
28 May, 22 August 1990 Government's observations
28 August 1990 Applicant's observations in reply
7 March 1991 Commission's decision to hold an oral
hearing
9 July 1991 Oral hearing on admissibility and
merits, Commission's decisions to
declare the application admissible
and that no action is required with
regard to complaint under
Article 25 para. 1 in fine of the
Convention
Examination of the merits
18 July 1991, ) Commission's consideration of the
4 April 1992 ) state of proceedings
12 May 1992 Commission's deliberations on the
merits and final votes
21 May 1992 Adoption of the Report
Full & Egal Universal Law Academy