AS TO THE ADMISSIBILITY OF
Application No. 31176/96
by Robert NEUBER
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 23 October 1997, the following members being present:
Mrs J. LIDDY, President
MM M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, 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 11 April 1996 by
Robert NEUBER against Austria and registered on 25 April 1996 under
file No. 31176/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1973, is an Austrian national, residing
in Vienna. Before the Commission he is represented by Mr. Pochieser,
a lawyer practising in Vienna.
The facts, as they have been submitted by the applicant, may be
summarised as follows.
On 31 July 1993 the applicant was injured by the police upon
being arrested.
On 10 September 1993 the applicant filed a complaint with the
Vienna Independent Administrative Panel (Unabhängiger Verwaltungs-
senat), in which he gave the following account of the above incident.
On 31 July 1993 he attended a party in a pub in Vienna, which he left
at about 11 p.m. together with a friend in order to buy cigarettes. He
had already drunk a certain amount of alcohol. On their way back he and
his friend climbed into an unlocked car. At that moment the police
arrived. The applicant got out of the car and ran away. One of the
police officers fired twice into the air. When he, the applicant,
stopped, a third shot hit his hand causing severe injuries. Due to
these injuries he had to stay in hospital from 31 July until
11 August 1993. From 11 August 1993 on he got treatment as an out-
patient. He still suffered from restricted movement in his hand.
Further, the applicant alleged that one of the police officers involved
had initially prevented the doctor on emergency call from assisting
him.
The applicant claimed that the police had interfered with his
rights under Article 3 of the Convention since, when the police officer
fired the shots, it was in the knowledge that the applicant might be
severely wounded or even killed. Further, the use of a firearm was in
any case disproportionate, as it was not necessary to enforce his
arrest. Further, the obstruction of medical care, even for a short
period, constituted in itself inhuman treatment.
The Vienna Federal Police Authority (Bundespolizeidirektion) in
its written comments gave a different version of the events: it stated
that the police had been called by a witness who had reported that two
men were damaging cars. When the police officers arrived, they saw the
applicant and his friend sitting in a car, fiddling about in the glove
compartment. Both men immediately took to their heels when they saw the
police. Police officers S. and K. requested them to stop. When they did
not respond to this request, police officer S. pursued the applicant.
After having again requested the applicant to stop, he fired two
warning shots. However, the applicant continued to run and police
officer S. continued his pursuit. A third shot went off
unintentionally, when police officer S. fell. This shot hit the
applicant's hand. Police officer S. immediately went to look after the
applicant and stopped a taxi. The taxi-driver gave him the first-aid
box and - upon the police officer's request - called an ambulance.
Immediately after his arrival the doctor on emergency call took care
of the applicant who was then taken to hospital.
According to the medical report of the Meidling Hospital, the
applicant sustained numerous injuries to the skin, muscles, bones and
nerves of his right hand.
On 2 February 1994 the Independent Administrative Panel held a
public hearing. It heard the applicant and a number of witnesses.
During the proceedings the applicant maintained the view that the
police officer had fired at him intentionally. He stated, however, that
he had neither seen that the police officer had aimed at him nor that
the police officer had fallen. He submitted, furthermore, that even
assuming that the shot went off unintentionally, the facts of the case
disclosed that he had been subjected to inhuman treatment. He argued
in particular that the act of pursuing him with the pistol drawn
combined with the readiness to use this pistol while running was
unjustified and disproportionate. Moreover, he contested that he and
his friend had damaged any car and stated that his running away had
simply been a panic reaction.
Police officer S., on the other hand, declared that after having
fired two warning shots he was chasing the applicant when he fell and
a shot went off. He claimed that he kept his pistol in his hand while
pursuing the applicant because he was not certain whether the applicant
was himself carrying a weapon.
By decision of 2 February 1994 the Independent Administrative
Panel dismissed (abweisen) the complaint relating to the two warning
shots and rejected (zurückweisen) as inadmissible the complaints
relating to the third shot which hit the applicant's hand and the
alleged obstruction of medical care.
The Independent Administrative Panel found it established that
the police were called by a witness who had seen two men damaging
several cars. When the police officers arrived the applicant and his
friend were sitting in a car with a broken window. When they saw the
police they fled. Although the police officers loudly requested the
applicant and his friend to stop they continued their flight. After
police officers S. and K. had each fired a warning shot, police officer
S. pursued the applicant. He fired a second warning shot, but the
applicant did not stop. Thereafter, police officer S. fell and a third
shot hitting the applicant's hand went off. Police officer S. then
stopped a taxi and requested the driver to call an ambulance. The
doctor on emergency call was able to take care of the applicant without
any hindrance.
In reaching these conclusions, the Independent Administrative
Panel relied on the statements of the witnesses examined, namely the
police officers, the doctor on emergency call and the man who had
called the police. It found that police officer S. had made a
particularly good and credible impression. Moreover, his statement that
he had fallen was supported by other evidence such as traces on the
pavement, the police officer's injuries mentioned in the police report
drawn up on the following day, and the statement of the doctor on
emergency call, who remembered that a police officer had shown him his
injured arm. Also, police officer S.'s statement, according to which
the shot went off when he fell, was highly credible. It was in
accordance with the account he had given immediately after the incident
to police officer K. If the shot had been intentional, police officer
S. would have had no reason to lie about this, since even the firing
of a shot aimed at a fugitive was permitted under certain conditions
which would have been fulfilled in the present case. The applicant on
the other hand had admitted that he had not been able to see whether
the shot was aimed at him, since he was running away and so had his
back to the police officer. Finally, the statement of the doctor on
emergency call had not confirmed the applicant's allegation concerning
the obstruction of medical care.
The Independent Administrative Panel refused to take an opinion
of a firearms expert finding that the question the applicant wanted to
clarify was irrelevant.
In its legal assessment the Independent Administrative Panel
considered that there were solid reasons to suspect the applicant of
aggravated criminal damage (Sachbeschädigung) and burglary
(Einbruchsdiebstahl). The police officers had to prevent him from
absconding and to enforce his lawful arrest. According to
S. 2 para. 2 (3) of the Use of Weapons Act (Waffengebrauchsgesetz)
police officers were entitled to make use of their weapons in order to
enforce a lawful arrest. Police officer S. requested the applicant
twice to stop, took up his pursuit and fired two warning shots. He,
therefore, acted in conformity with S. 4 of the Use of Weapons Act
which provides that a police officer before using a weapon has to make
use of less dangerous means. It followed that the firing of two warning
shots was justified and proportionate. As to the third shot which hit
the applicant's hand the Independent Administrative Panel recalled its
finding that this shot had gone off unintentionally. Since police
officer S. had no intention to fire, this third shot was an accident
and did not constitute an act of direct administrative compulsion
(Ausübung unmittelbarer verwaltungsbehördlicher Befehls- und
Zwangsgewalt). Therefore, the complaint had to be rejected as
inadmissible.
The Independent Administrative Panel also rejected as
inadmissible the complaint relating to alleged obstruction of medical
care finding that no such facts had been established and that there was
therefore no subject of complaint (Beschwerdegegenstand).
On 2 May 1994 the applicant filed a complaint with the
Constitutional Court (Verfassungsgerichtshof). He complained about the
Independent Administrative Panel's refusal to decide on the merits of
his complaints concerning the third shot and the obstruction of medical
care. He contested, in particular, the finding of the Independent
Administrative Panel that the third shot did not constitute an act of
direct administrative compulsion.
On 26 September 1994 the Constitutional Court refused to
entertain the applicant's request for lack of prospects of success and
transferred the case to the Administrative Court (Verwaltungs-
gerichtshof).
On 19 December 1994 the applicant supplemented his complaint to
the Administrative Court. Besides the complaints raised before the
Constitutional Court he submitted that the two warning shots were not
justified and disproportionate in the circumstances. Moreover, he
complained that the Independent Administrative Panel wrongly assessed
the evidence in respect of the third shot and failed to take the
evidence proposed by him.
On 28 June 1995 the Administrative Court rejected the applicant's
complaint relating to the two warning shots as being lodged out of
time, since the applicant had failed to raise this complaint before the
Constitutional Court and had therefore failed to comply with the time-
limit. It dismissed the remaining complaints.
The Administrative Court confirmed the finding of the Independent
Administrative Panel that the third shot did not constitute an act of
direct administrative compulsion. As regards the assessment of
evidence, the Administrative Court observed that the applicant had not
contested that the police officer had fallen, but only that the shot
had gone off unintentionally. The documentary evidence and the expert
opinion requested by the applicant in order to prove that it was
impossible that a shot of the pistol at issue was released by a fall
or a blow was irrelevant as the Independent Administrative Panel had
found it established that the police officer had instinctively and,
thus, unwillingly exercised some pressure on the trigger, when falling.
In respect of the applicant's complaint about the alleged
prevention of medical care the Administrative Court observed that this
was not in accordance with the facts established by the Independent
Administrative Panel and that the applicant had not substantiated in
which respect the authority had wrongly assessed the evidence. The
Administrative Court further found that the Independent Administrative
Panel had correctly rejected the complaint for formal reasons.
The decision was served on the applicant's representative on
13 October 1995.
COMPLAINTS
1. The applicant complains under Article 3 of the Convention that
he was subjected to inhuman and degrading treatment. He submits that
police officer S. used unnecessary force when he pursued and arrested
him and then obstructed the doctor in helping him after he had been hit
by a bullet. Invoking Article 2 of the Convention, the applicant
complains that the use of the firearm by the police officer endangered
his life and was disproportionate.
2. The applicant complains under Article 13 of the Convention that
in so far as the Independent Administrative Panel rejected his
complaints as being inadmissible, it refused to decide on the merits
of his submissions and his requests to take evidence.
THE LAW
1. The applicant complains under Article 3 (Art. 3) of the
Convention that he was subjected to inhuman and degrading treatment.
He submits that police officer S. used unnecessary force when he
pursued and arrested him and then obstructed the doctor in helping him
after he had been hit by a bullet. Invoking Article 2 (Art. 2) of the
Convention, the applicant complains that the use of the firearm by the
police officer endangered his life and was disproportionate.
The Commission notes that the applicant's complaint about the use
of force, namely the use of a firearm for the purpose of arresting him,
appears to relate to the two warning shots as well as to the shot which
actually hit his hand. Further, he complains about the alleged
obstruction of medical assistance after he had been hit.
a. However, under Article 26 (Art. 26) of the Convention the
Commission may only deal with a matter after all domestic remedies have
been exhausted according to generally recognised rules of international
law.
The Commission notes that the Administrative Court rejected the
applicant's complaint relating to the two warning shots on the ground
that he had not raised them before the Constitutional Court and had,
therefore, not complied with the relevant time-limit. In this context
the Commission recalls that domestic remedies have not been exhausted,
where an appeal is not admitted because of a procedural mistake by the
applicant (No. 19117/91, Dec. 12.1.94, D.R. 76, p. 70).
It follows that the applicant's complaint relating to the two
warning shots must be rejected under Article 27 para. 3 (Art. 27-3) of
the Convention for non-exhaustion of domestic remedies.
b. Next, the Commission will examine whether the pursuit of the
applicant with a firearm which resulted in his being injured or the
alleged obstruction of medical care by the police constituted treatment
contrary to Article 3 (Art. 3) of the Convention, which reads as
follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Commission recalls that ill-treatment must attain a minimum
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 HR,
Ireland v. the United Kingdom judgment of 18 January 1978, Series A no.
25, p. 65, para. 162).
Further, the Commission recalls that it is not normally its task
to substitute its 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 HR, Klaas v. Germany judgment
of 22 September 1993, Series A no. 269, p. 17, para. 29).
In examining these complaints the Commission will, therefore,
consider the decisions of the domestic authorities.
The Independent Administrative Panel carefully and at length
evaluated the evidence before it and came to the conclusion that police
officer S., in order to prevent the applicant from absconding and to
enforce his lawful arrest used proportionate force, including the use
of a firearm, in that he first requested the applicant to stop, then
fired two warning shots and then continued to pursue him. It further
found that in the course of this further pursuit, police officer S.
fell and an unintentional shot went off which hit the applicant's hand.
The Administrative Court confirmed the findings of the
Independent Administrative Panel. It also stated that the Independent
Administrative Panel's refusal to take the expert opinion did not
constitute a procedural defect as the question the applicant wanted to
clarify by this expert opinion was irrelevant to the proceedings.
The Commission considers that the domestic courts dealt
adequately and carefully with the applicant's complaints, but found no
confirmation for the applicant's allegation that the police officer had
fired intentionally. In reaching its conclusions the Independent
Administrative Panel, in particular, had the benefit of seeing the
applicant and the various witnesses give their evidence and of
evaluating their credibility. The applicant has not adduced any
material before the Commission which would permit it to depart from the
findings of fact of the national courts (Klaas v. Germany judgment,
loc. cit., p. 17, para. 30).
The Commission, therefore, finds that neither the proportionate
use of force against the applicant in order to effect his lawful
arrest, nor the injuries sustained by him as a result of an
unintentional shot which went off in the course of this pursuit can be
regarded as treatment contrary to Article 3 (Art. 3) of the Convention.
Further, the Commission considers that no issue arises under Article
2 (Art. 2) of the Convention.
As to the complaint relating to the alleged obstruction of
medical treatment by the police, the Commission notes that neither the
domestic proceedings nor the proceedings before the Commission have
shown any evidence that would support the applicant's allegation.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant complains under Article 13 (Art. 13) of the
Convention that in so far as the Independent Administrative Panel
rejected his complaints as being inadmissible, it refused to decide on
the merits of his submissions and his requests to take evidence. For
this reason he had no effective remedy against the administrative acts
of the police officer.
Article 13 (Art. 13) of the Convention provides as follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons in official capacity."
This provision guarantees the availability of a remedy at a
national level to enforce the substance of the Convention rights and
freedoms. In particular, the domestic authorities must be in a position
to examine the lawfulness and the substantive justification of the
matter complained of and to grant appropriate relief (No. 19066/91,
Dec. 5.4.93, D.R. 74, p. 179 at p. 189).
The Commission observes that the applicant had the right to bring
his complaints before the Independent Administrative Panel and to have
this decision - also in respect of procedural defects - reviewed by the
Administrative Court. Both bodies carefully examined whether the acts
complained of violated the applicant's rights under Article 3 (Art. 3)
of the Convention.
Thus, the applicant had an effective remedy before a national
authority at his disposal within the meaning of Article 13 (Art. 13)
of the Convention.
It follows that also this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy