AS TO THE ADMISSIBILITY OF
Application No. 18896/91
by Ronald RIBITSCH
against Austria
The European Commission of Human Rights sitting in private on
20 October 1993, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
B. MARXER
M.A. NOWICKI
B. CONFORTI
N. BRATZA
Mr. M. de SALVIA, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 5 August 1991 by
Ronald RIBITSCH against the Republic of Austria and registered on
3 October 1991 under file No. 18896/91;
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 facts of the case, as they have been submitted by the
parties, may be summarised as follows.
The applicant, born in 1958, is an Austrian national and resident
in Vienna. He is a student. Before the Commission he is represented
by Mr. H. Pochieser, a lawyer practising in Vienna.
A. Particular circumstances of the case
On 21 May 1988, in the context of criminal investigations
concerning the death of two persons due to opium poisoning, the
applicant's and his wife's apartment was searched by police officers
of the Vienna Federal Police Department (Bundespolizeidirektion).
On 31 May 1988, at 12 h., police officers of the Vienna Federal
Police Department arrested the applicant on the suspicion of drug
trafficking. Subsequent to his arrest, and on 1 and 2 June 1988 the
spouses' apartment was again searched. The applicant was kept in
police detention until the morning of 2 June 1988.
He gives the following account of events in the course of his
detention: After his arrest, his personal particulars were recorded.
He was first questioned about the suspicion against him from 21.15 h.
until 22.10 h., further at the next day from 16 h. until 18.30 h. and
on 2 June 1988 for twenty minutes as from 8.10 h. At the questioning,
four to five police officers were present, three of them cross-examined
the applicant. They allegedly suggested various versions of admissions
to him, and then grossly insulted him ("Kärntner Sau", "Drogenschwein",
Schweinepriester", "Arschloch"). As these police activities did not
show the intended results, he was punched at his head (Kopfnuß), and
was beaten with fists into the renal region and the right upper arm.
He was also kicked into his thighs and into the renal area. He was
pulled by his hair to the floor, and his head was beaten against the
floor. The police officers allegedly also threatened him not to
release his wife, who was detained at the same time, in case he would
not admit his guilt. After his release, he had haematomas at his right
upper arm and one thigh, and he had a cervical syndrome, and suffered
from vomiting, diarrhoea and bad headache.
The applicant told several persons, inter alia a journalist,
about the above events in the course of his police detention. He was
examined at a hospital on 2 June and by a medical practitioner on
3 June 1988, and the injuries were confirmed.
Following reports in a public broadcast on 7 June 1988 about the
applicant's accusations of ill-treatment by the police, the Vienna
Federal Police Department opened investigations against the police
officers concerned. The results of these investigations were submitted
to the Vienna Public Prosecutor's Office (Staatsanwaltschaft) on
25 October 1988. On 22 November 1988 the applicant, represented by
counsel, joined these criminal proceedings as a private party under
S. 47 of the Code of Criminal Procedure (Strafprozeßordnung) in respect
of his compensation claims.
On 13 October 1989 the Vienna District Court (Strafbezirks-
gericht) convicted Police Officer M. of bodily assault (Körperver-
letzung), and sentenced him to two months' imprisonment on probation.
He was ordered to pay the applicant AS 1,000. The two other Police
Officers T. and G. were acquitted.
The Vienna District Court found M. guilty of having beaten and
kicked the applicant and having pulled his hair on 1 June 1988 and
thereby caused several haematomas at his right upper arm as well as at
his thigh and also a cervical syndrome.
The Vienna District Court had heard several witnesses, namely the
applicant and his wife, Police Officer F. who had been present at the
applicant's and his wife's questioning, Police Officer P., Chief of the
three units at the Vienna Federal Police Department competent for drug
offences, as well as six further witnesses, two of them physicians who
had seen the applicant's injuries and whom he had told about the
alleged ill-treatment.
In the reasons of its judgment, the District Court stated that
the three accused were members of one of three units of the Vienna
Federal Police Department competent for drug offences; Police Officer
G. was the head of this unit. The District Court then described the
main course of the criminal investigations concerning two cases of
death due to opium poisoning, which were first conducted by another
unit at the Federal Police Department, and later transferred to the
unit the accused were working in. Due to the publicity of the two
cases of death, their unit had been under a particular pressure to
complete the inquiries, and therefore done many hours of overtime.
The District Court stated that both the applicant and his wife
had been charged by third persons with having sold heroine to one of
the two persons who had died. Inquiries were started against the
applicant and his wife, their apartment was searched. On 31 May 1988
they were arrested and questioned by Police Officer M. in the presence
of the witness F., the co-accused G. and other police officers. They
were insulted by the police officers, except by F. Police Officer G.
grasped the applicant's moustache and pulled him through the room, M.
also beat him. The applicant was again questioned by M. on 1 June
1988. In order to obtain an admission of guilt, M. grasped the
applicant's hair, shook his head forward and backward, beat him with
his fist on his right upper arm, threw him to the ground and kicked
him. Other officers, whom the applicant could not recognise, then also
kicked him.
The District Court established the facts on the basis of the
applicant's allegations as confirmed in particular by one of the
witnesses, namely the journalist, whom he had already on 2 June 1988
told in detail about the events and who had taken notes. Furthermore,
on the occasion of a confrontation with various persons one year after
the events, the applicant had immediately recognised M. and other
participants in his questioning.
The District Court found that the applicant's statements were
credible and refuted the partly incoherent allegations of the accused
M. and other police officers who mainly tried to discredit the
applicant. The defence of the accused M. that the injuries had been
accidentally caused was not credible. His version according to which
the applicant, who had been brought for a test, had climbed out of the
police car on a crowded car park and fallen onto the door frame and
then to the ground, while M. attempted to hold him, was unlikely and
did not correspond to the applicant's injuries.
Finally, the District Court found that it had not been proven
that the two other accused had caused any of the applicant's injuries.
On 14 September 1990 the Vienna Regional Court (Landesgericht),
upon the appeal (Berufung) of Police Officer M., quashed the District
Court's judgment of 13 October 1989 and acquitted M. As regards his
compensation claims, the applicant was referred to the civil courts,
in accordance with S. 366 para. 1 of the Code of Criminal Procedure.
With regard to the applicant's credibility, the Regional Court
noted that on 6 October 1988 the Vienna District Court had convicted
him of drug trafficking. For several years the applicant had been
unemployed, and he was living with two minor children of his wife's
earnings and social security benefits. As consumer of drugs and for
various private purposes, he had a considerable need of money.
As regards the relevant events, the Regional Court noted that,
according to the findings of the District Court which were solely based
on the applicant's account, Police Officer M. had already insulted and
beaten him, without, however, causing any injuries. On the next day,
the questioning had escalated, the applicant's wife had been insulted
and threatened, and he himself had also been insulted, hit on his head
and been kicked. In this respect, the Regional Court also referred to
the submissions of the applicant and his wife in proceedings which they
had meanwhile instituted before the Constitutional Court (Verfassungs-
gerichtshof). The District Court had assumed that the public pressure
to solve the case of murder in question was the reason for such
escalation. The applicant, upon detailed questioning at the hearing
before the Regional Court, could not explain the escalation in
question, as he had acted perfectly correctly. According to the
applicant's further accusations, M. had repeatedly pulled him by his
hair to the floor, and had ill-treated and kicked him together with
other police officers. Had not Police Officer F. calmed M. down, he
could have been killed by M. He had also had the impression that the
police officers had taken drugs. The statements of the applicant's
wife were on the same line.
This account of events was contradicted by the statements of
Police Officer M. and also of Police Officer F. whom the applicant
himself had called correct in his behaviour. According to the
statements of the Police Officers, the applicant had threatened that
he would create difficulties and ridicule them.
The Regional Court considered that neither the applicant's nor
his wife's statements could logically explain the escalation of the
questioning which resulted in allegedly criminal behaviour.
Furthermore, the identity of the other police officers who had
allegedly kicked him remained unclear. In this respect, the Regional
Court noted in particular the applicant's allegations that only four
police officers had been present and also conducted the questioning of
his wife, that he himself had exonerated Police Officers T. and G. and
never reproached Police Officer F.
Moreover, the Regional Court considered that the applicant's
summary of events did not correspond to his injuries, which in any way
varied in the applicant's submissions and the statements of witnesses.
Had his head been repeatedly hit and had he been kicked, numerous
injuries, in particular in his face, were to be expected. His further
submission that he had been beaten in such a manner as to leave few
signs, would suggest a careful planning on the part of the accused,
whereas the applicant recounted that they had lost any self-control in
their intention to obtain a confession.
As regards haematomas on the applicant's right upper arm, the
Regional Court, having regard to the opinion of the forensic expert
Prof. M., found that the explanation given by the accused M., as
confirmed by Police Officer F., namely an accident on the occasion of
the applicant's transport in a police car, could not be excluded.
The Regional Court, having regard to a forensic expert opinion,
further considered that the symptoms, namely pain in the neck, numbness
of his fingers and, a week later, stiffness of his neck, moreover
diarrhoea, which the applicant's physician viewed as cervical syndrome
suggesting ill-treatment, could also have resulted from a general
infection. The Regional Court noted in this respect that the applicant
had previously had stomach problems and had only drunk water in the
course of his detention.
The Regional Court rejected the applicant's requests to take
further evidence, on the ground that these requests related to the
question whether or not particular witnesses had considered his
statements credible, i.e. were irrelevant assumptions and conclusions.
The Regional Court finally noted that the applicant had not laid
information against the police officers concerned, but raised charges
in public in the context of a broadcast. There were altogether serious
reasons not to trust his allegations.
The Regional Court concluded that, on balance, the version of the
accused could not be refuted, nor had at least parts of the applicant's
allegations be proven with the certainty necessary for a criminal
conviction.
On 26 November 1990 the Constitutional Court, upon the
applicant's complaint under S. 144 of the Federal Constitution (Bundes-
verfassungsgesetz), held that his arrest by police officers of the
Vienna Federal Police Department on 31 May 1988 at about 12h30, and his
subsequent detention until 2 June 1988 at 9h30 had violated his right
to liberty, and that the searches of his home had violated his right
to respect for his home. The Constitutional Court rejected the
remainder of the applicant's complaint about having been insulted and
ill-treated by police officers in the course of his detention.
The Constitutional Court found that the applicant's arrest and
detention, which had not been ordered by a court, had been unlawful,
as the Federal Police Department had failed to show any immediate
danger of collusion which could have justified a police action without
a warrant of arrest. Likewise, the three searches of the applicant's
home had been carried out without a search warrant, no immediate danger
exceptionally justifying such action.
As regards the alleged insults committed by police officers in
the course of the applicant's detention, the Constitutional Court
referred to its constant case-law according to which mere insults as
such did not amount to an administrative act relating to the exercise
of direct administrative authority and coercion, even if such insulting
remarks were allegedly made in the course of an official act. Thus
there was no act which could be challenged before the Constitutional
Court, and this part of the complaint was inadmissible.
With regard to the applicant's allegations that he had been
assaulted by police officers, the Constitutional Court noted that the
accused Police Officer T. had been acquitted by the Vienna District
Court on 13 October 1988, and the accused Police Officer M. by the
Vienna Regional Court on 14 September 1990. The Constitutional Court
considered that, in view of this outcome of the criminal proceedings,
where evidence had been taken on a broad basis, it could not accept the
applicant's allegations. Thus it could not accept the alleged ill-
treatment as proven beyond doubt. In these circumstances, seen as a
whole, a further examination of the relevant facts and thus proof of
a violation of Article 3 of the Convention was no longer possible for
the purposes of the complaint proceedings.
The decision was served on 22 February 1991.
B. Relevant domestic law
Under S. 83 para. 1 of the Austrian Penal Code (Strafgesetzbuch),
bodily assault is punishable by imprisonment not exceeding six months
or by a fine of an amount not exceeding 360 daily rates (Tagessätze).
According to S. 313 of the Penal Code the maximum punishment may be
increased by one half, if the offence was committed by a public
official taking advantage of his position.
S. 47 of the Austrian Court of Criminal Procedure (Strafprozeß-
ordnung) concerns the right of the victim of a criminal offence to be
a private party (Privatbeteiligter) claiming damages in the context of
the criminal proceedings. The private party is in particular entitled
to supply the public prosecutor and the investigating judge with
anything likely to find the accused guilty and, to establish the
compensation claim, to have access to the files, and to be summoned for
the trial. According to SS. 222 and 249 the private party may request
the hearing of witnesses or experts, and put questions to them.
SS. 365 to 379 of the Code of Criminal Procedure regulate the
competence of criminal courts in respect of civil rights. S. 365
provides that the criminal court must, ex officio, consider the damage
resulting from a criminal offence. Pursuant to S. 366, the private
party is referred to the civil courts regarding any compensation
claims, if the accused is not convicted.
The competence of the Constitutional Court to receive complaints
about the violation of constitutionally guaranteed rights is laid down
in S. 144 para. 1 of the Federal Constitution (Bundesverfassungsge-
setz). It relates to complaints against formal decisions of
administrative authorities or complaints concerning the exercise of
direct administrative authority and coercion against a particular
individual (Ausübung unmittelbarer verwaltungsbehördlicher Befehls- und
Zwangsgewalt gegen eine bestimmte Person).
COMPLAINTS
1. The applicant complains that his arrest and detention, in
particular the insults and bodily assaults by police officers in the
course of his detention, amount to inhuman and degrading treatment
contrary to Article 3 of the Convention.
2. The applicant complains under Article 6 para. 1 of the Convention
that, in the course of the criminal proceedings against three police
officers, his legal situation as a private party to the proceedings
prevented him from pursuing effectively his compensation claims.
3. Furthermore, the applicant complains under Article 13, in
conjunction with Article 3, of the Convention, that in the proceedings
before the Austrian Constitutional Court he could not effectively lodge
his complaints about ill-treatment by police officers. He submits in
particular that the Constitutional Court, sitting in camera, declared
these complaints inadmissible without having taken evidence.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 5 August 1991 and registered
on 3 October 1991.
On 30 March 1992 the Commission decided to communicate the
application to the respondent Government for observations on its
admissibility and merits.
On 15 July 1992, after an extension of the time-limit, the
Government submitted their observations. The observations in reply by
the applicant were submitted on 8 October 1992.
On 4 May 1993 the Commission decided to invite the parties to a
hearing on the admissibility and merits of the applicant's complaint
about treatment contrary to Article 3 of the Convention.
At the hearing which was held on 20 October 1993 the parties were
represented as follows:
The Government
Mr. Okresek Head of International Affairs Division,
Constitutional Service, Federal Chancellery,
Agent;
Mr. Szymanski Head of Legal Department,
Federal Ministry for the Interior, Adviser;
Mr. Schmidt Human Rights Division, International Law
Department, Federal Ministry for Foreign Affairs,
Adviser.
The applicant
Mrs. Haase Rechtsanwaltsanwärterin, for the Representative
Mr. Pochieser, Rechtsanwalt.
THE LAW
1. The applicant complains that in the course of his arrest and
detention he was ill-treated by police officers contrary to Article 3
(Art. 3) of the Convention.
Article 3 (Art. 3) provides that no one shall be subjected to
torture or to inhuman or degrading treatment or punishment.
a. The Government maintain that the applicant failed, as required
by Article 26 (Art. 26) of the Convention, to exhaust the domestic
remedies at his disposal under Austrian law. They submit in particular
that the applicant did not himself bring criminal proceedings against
the police officers concerned, but only raised accusations about ill-
treatment in public and at a later stage joined the proceedings
instituted ex officio by the Vienna Federal Police Department. He did
not bring a prosecution against the police officers as regards the
alleged insults. Moreover, he did not file an official liability
action. He also failed properly to reason his constitutional complaint
as regards the alleged insults so as to enable the Constitutional Court
to assume its competence to entertain this complaint.
The applicant submits that proceedings against the police
officers concerned had been instituted ex officio. He further
considers that an official liability action would not have been
effective.
The Commission observes that the basis of the rule of exhaustion
of domestic remedies under Article 26 (Art. 26) of the Convention is
that, before proceedings are brought in an international court, the
state made answerable must have had an opportunity to redress the
alleged damage by domestic means within the framework of its own legal
system (cf. No. 5964/72, Dec. 29.9.75, D.R. 3 p. 57). In respect to
alleged ill-treatment contrary to Article 3 (Art. 3) of the Convention,
the Commission has held that raising criminal charges against the
officials concerned or filing a civil action for compensation are
effective remedies to be exhausted pursuant to Article 26 (Art. 26)
(No. 11208/84, Dec. 4.3.86, D.R. 46 p. 182; No. 10078/82, Dec.
13.12.84, D.R. 41 p. 103; No. 5964/72, Dec. 29.9.75, D.R. 3 p. 57).
The Commission notes that in the context of the criminal
proceedings against three police officers which the applicant joined
as a private party in respect of his possible compensation claims, his
accusations of assault committed by police officers in the course of
his detention were examined by the Austrian criminal courts. The
criminal courts also had regard to his allegations that the police
officers concerned had insulted him. The Regional Court, in its
judgment of 14 September 1990, concluded that the applicant's version
of events had altogether not been established. The applicant further
repeated his allegations of ill-treatment in his complaint proceedings
before the Constitutional Court.
The Commission, having regard to both the criminal proceedings
against the police officers accused by the applicant and the
proceedings before the Constitutional Court, finds that he exhausted
remedies which were sufficient and effective as regards his allegations
of ill-treatment contrary to Article 3 (Art. 3). It follows that he
complied with the condition as to the exhaustion of domestic remedies
under Article 26 (Art. 26) of the Convention.
b. The Government contest the applicant's allegations of ill-
treatment. They refer to the findings of the criminal courts in the
proceedings against the three police officers involved in the
applicant's questioning. As regards the alleged insults, the
Government further submit that the minimum level of severity required
for these insults to fall within the scope of Article 3 (Art. 3) was
not attained.
The applicant submits that the injuries which he suffered in the
course of his detention as a result of ill-treatment by police officers
had been seen by several witnesses and recorded in a medical report.
The Regional Court only quashed Police Officer M.'s conviction and the
findings of the first instance court because of the gaps in his memory
at the time of the appeal proceedings, i.e. two years after the events
in question. He considers that the Regional Court's judgment is
inconsistent and arbitrary and intended to protect the police officers
and a deplorable administrative practice.
The Commission finds that the applicant's complaints under
Article 3 (Art. 3) of the Convention raise difficult issues of fact and
of law which are of such complexity that their determination should
depend upon a full examination of the merits. These complaints cannot,
therefore, be declared manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for
declaring them inadmissible has been established.
2. The applicant further complains under Article 6 para. 1
(Art. 6-1) of the Convention that, in the course of the criminal
proceedings against three police officers, his legal situation as a
private party to the proceedings prevented him from effectively
pursuing his compensation claims.
Article 6 para. 1 (Art. 6-1), so far as relevant, provides that,
in the determination of his civil rights and obligations, everyone is
entitled to a fair hearing.
The Commission notes that the applicant joined the criminal
proceedings which had been instituted against the three police officers
as a private party under S. 47 of the Code of Criminal Procedure in
respect of his possible compensation claims. Under the relevant
provisions, the private party has various procedural rights in the
course of the investigations and at the trial, and the criminal court
has to consider the damage resulting from a criminal offence in case
of conviction. However, in the present case, the accused were
acquitted and the Vienna Regional Court, therefore, did not take any
decision on the merits of the applicant's claims, but referred him to
the civil courts. There is no indication that the applicant could not
have effectively raised any such claims before the Austrian civil
courts.
In these circumstances, there is no appearance of a violation of
the applicant's right to a fair hearing under Article 6 para. 1
(Art. 6-1).
It follows that the applicant's complaint under Article 6
(Art. 6) is manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
3. Furthermore, the applicant complains under Article 13 (Art. 13),
in conjunction with Article 3 (Art. 3) of the Convention, that in the
proceedings before the Austrian Constitutional Court he could not
effectively lodge his complaints about ill-treatment by police
officers. He submits in particular that the Constitutional Court,
sitting in camera, declared these complaints inadmissible without
having taken evidence.
Article 13 (Art. 13) of the Convention provides that everyone
whose rights and freedoms as set forth in the Convention are violated
should have an effective remedy before a national authority.
The Commission refers to its above findings that the applicant
joined as a private party the criminal proceedings against police
officers involved in the alleged ill-treatment, and could also lodge
his complaints about physical ill-treatment by the police in the
proceedings before the Constitutional Court, and that he thereby
availed himself of effective and sufficient remedies in respect of his
complaints under Article 3 (Art. 3).
It follows that this complaint is likewise manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES ADMISSIBLE the applicant's complaint that, during his
police custody, he was subjected to inhuman and degrading
treatment,
without prejudging the merits of the case;
DECLARES INADMISSIBLE the remainder of the application.
Deputy Secretary to the Commission President of the Commission
(M. DE SALVIA) (C.A. NØRGAARD)
Full & Egal Universal Law Academy