Inadmissible
Volltext (verifizierbarer Originaltext)
AS TO THE ADMISSIBILITY OF
Application No. 19959/92
by Samir Riadh JAMAL-ALDIN
against Switzerland
The European Commission of Human Rights sitting in private on
23 May 1996, the following members being present:
MM.
H. DANELIUS, Acting President
S. TRECHSEL
C.L. ROZAKIS
E. BUSUTTIL
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs.
G.H. THUNE
Mr.
F. MARTINEZ
Mrs.
J. LIDDY
MM.
L. LOUCAIDES
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
Mr.
M. de SALVIA, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 23 April 1992 by
Samir Riadh Jamal-Aldin against Switzerland and registered on
11 May 1992 under file No. 19959/92;
Having regard to :
-
the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
-
the observations submitted by the respondent Government on
4 April 1995 and the observations in reply submitted by the
applicant on 12 July 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Swiss national born in 1955, resides in Zurich.
Before the Commission he is represented by Mr F. Schumacher, a lawyer
practising in Zurich.
A.
Particular circumstances of the case
The facts of the case, as submitted by the parties, may be
summarised as follows.
I.
In the course of 1981 numerous street demonstrations and riots
took place in Zurich.
In the evening of 10 July 1981 a car was overturned in a street
in Zurich.
When minutes later two police cars arrived at the scene,
a large crowd of people gathered.
The police attempted to arrest two
persons.
According to the applicant, one of them had suffered a head
injury, whereupon onlookers, among them the applicant, suggested
bringing the person to hospital rather than to arrest him.
The police
officers declined, whereupon the applicant protested.
According to the
subsequent decisions of the Swiss authorities, the applicant grabbed
a policeman from the back and tried to pull him into a side street.
The applicant and another person unknown to him, R.S., were
arrested.
They were then brought by police car to the U. police
station, where police officers awaited them.
Subsequently, R.S. and
the applicant were allegedly ill-treated; R.S. was apparently beaten
unconscious, though the applicant could protect his face.
Later in a
cell a policeman allegedly hit the applicant with his fist, and the
applicant had to undress.
Whenever he asked for the name of the
policeman, he was beaten.
The applicant was remanded in custody for one night.
In the
afternoon of 11 July 1981, after having been brought before the
District Attorney, he was released from detention.
Upon his release
he went to a doctor who noted various injuries.
Criminal proceedings were instituted against the applicant inter
alia on the ground of having obstructed police officers in the exercise
of their duties.
On 7 October 1982 the Zurich District Court
(Bezirksgericht) acquitted the applicant of the charges, though he had
to bear the costs of the proceedings.
R.S., who instituted compensation proceedings, eventually
obtained damages of 10,500 SFr for the ill-treatment suffered at the
police station.
The courts concerned relied inter alia on the
applicant's evidence.
II.
On 3 August 1981 the applicant requested the institution of
criminal proceedings against seven police officers on the ground of
ill-treatment on 10 July 1981.
He claimed that upon his arrest and at
the police station he had been severely beaten (massiv geschlagen) and
insulted (beschimpft).
Threats had been used to obtain his photographs
and fingerprints.
The criminal proceedings were discontinued on 6 March 1984.
III.
On 20 November 1985 the applicant filed an action against the
Zurich municipality, claiming compensation of 10,000 SFr for the ill-
treatment and 3,400 SFr for costs arising from the proceedings which
he had attempted to institute against the police officers.
The Zurich District Court dismissed the action on 4 September
1987.
The decision stated, inter alia:
"2.
The plaintiff claimed that he had been arrested unlawfully
and without reasonable grounds (...).
According to him, at about
10.45 p.m. (22.45 hours) he noticed a group of people on
Limmatquai, slightly to the north of the City Hall.
When he
reached the group he witnessed a married couple, a doctor and his
wife, asking police officers to take a girl with a forehead
injury to hospital (...).
He stated that he saw a nervous police
officer, allegedly called Eg., threatening these passers-by with
a rubber bullet gun.
Another officer, allegedly called St.,
intervened.
The doctor was allegedly pushed aside, as was the
plaintiff, who says he fell.
As he got up again, he states that
he was overpowered by, in all, six policemen - as a spectacle-
wearer, he was pretty defenceless.
He was then taken to the
police station with another person who had been arrested (...).
The plaintiff adhered to this version of his arrest in all his
interviews with the police and the investigating judge.
He
states that as he was pushed away, a brawl broke out and he no
longer had an overall view of the situation.
He says that the
policeman mentioned above then shouted "arrest him - he was
holding me".
When he heard this, he says, he tried to run away,
whereupon five more policemen went for him, dragged him around,
hit and kicked him.
He claims that he was then pushed into the
police van (...).
He says that it is not true that he grabbed
police officer Eg. from behind and tried to drag him in the
direction of Metzgergasse (...).
In another place, he says that
considerable confusion broke out, so that he can no longer
remember details.
He is still sure that the police officer
shoved him away with a gun.
Somehow, he says, he fell - he does
not know how or whose fault it was.
As he was getting up, he was
grabbed by the above-mentioned police officer and another one,
whom he had not seen come up.
Then, as he remembers it, both
policemen hit him (...).
He says that he was very surprised,
especially as neither of the police officers had said anything
to him (...).
He claims that Eg. grabbed him from behind and
shouted "hold on to him" (...).
In another place he says that
it is not true that he attacked police officer St.
It is true
that he fell once; he can no longer say why (...).
In another
statement, the plaintiff says that police officer Eg. then
allegedly forced people back with the rubber bullet gun.
He says
that this caused a brawl.
He says that he then thought that he
should go home since he had no particular interest in the matter.
He says that then, in the course of the brawl, the police officer
shouted, "hold on to him".
Thereupon, other policemen allegedly
appeared from under the arcades.
He says he walked away in the
direction of Metzgergasse and then fell over, he does not know
why.
He does not know whether someone tripped him up or whether
he was grabbed.
As he was lying on the ground, he says, all hell
broke loose.
He states that he was beaten as he lay on the
ground, following which they tried to take him to the police van
(...).
In this evidence, the plaintiff seeks to portray himself as
a mere passer-by who was arrested by the police for no reason at
all.
He called three witnesses to support his version of
events."
The Court first examined the statements of witness R.S., in
respect of which it drew the following conclusions:
"It emerges from these statements that the witness S. was
dazed at the time that he was in the police van, and therefore
that his mental faculties of perception were impaired.
Further,
his ability to see out of the van was considerably limited, so
that he could see only a small area outside the police van
because the rear doors were only half open.
The witness himself
had the impression that something must have already happened to
the plaintiff before he first saw him.
The witness also failed
to mention that the plaintiff fell down before his arrest,
something which he would have been bound to have seen.
However,
it appears from the plaintiff's own evidence that he was
arrested, not right next to the police van, but a certain
distance away - according to the plaintiff's evidence, in
Metzgergasse (...), which the witness S. could not see from where
he was in the police van.
Therefore the plaintiff cannot derive
any benefit, as far as his arrest is concerned, from this
witness's evidence.
In respect of the witness H.W. the Court found: "the witness saw
the plaintiff for the first time by the police van and consequently
cannot have seen the plaintiff's actual arrest, so that the plaintiff
cannot derive any support for his claim that his arrest was wrongful
from this witness's evidence either".
In respect of the third witness Sci., the Court found: "This
witness's evidence cannot be relied upon, as it diverges so sharply
from that of the plaintiff.
As set out above, the plaintiff himself
states that he fell over before his arrest, as he was trying to move
away from the group of people, and that while he was still lying on the
ground, people started to beat him up.
The witness, however, depicts
none of this.
Therefore his evidence cannot advance the plaintiff's
case in any way."
The Court also examined in detail the statements of various
police officers, but again it found that they did not confirm the
applicant's allegations:
"As regards the statements of the various police officers
referred to above, it should be noted that these arose, partly
in their individual police reports, partly in their witness
evidence and partly when they were being questioned as
defendants.
When the various statements are put together, it can
be seen that not all the officers described the relevant events
in exactly the same way and that different statements made by the
same policeman are not always entirely consistent.
However these
circumstances cannot invalidate the police officers' statements.
It is noteworthy that each officer was observing the relevant
events from a different place and that the dates on which each
individual statement was made vary considerably in time.
What is more significant in the present case is rather that
the plaintiff could be precisely identified and that all the
statements agree as to the most essential point: that is, that
the plaintiff grasped Eg. around the body from behind, that the
plaintiff attempted to drag Eg. into an alley and that the
plaintiff put up a very strong resistance (a point which will be
dealt with in more detail below).
It is extremely unlikely that
five policemen should have agreed on this version of events in
detail with each other, especially as their original reports had
to be drafted immediately after the events in question, that very
night. Such an agreement could only mean that there was a
conspiracy between the various police officers against the
plaintiff.
There is absolutely no evidence of this, given that
the policemen had no previous knowledge of the plaintiff and that
they could not initially have guessed that they themselves would
face prosecution.
In the light of the different statements, we can,
therefore, regard it as established that, at midnight, in the
course of a demonstration during the youth unrest in Zurich, the
plaintiff grabbed a policeman from behind and tried to drag him
into an alley.
This was sufficient cause for the plaintiff to
be arrested and taken in a police van to the relevant police
premises for the purposes of establishing his identity and
questioning him about the said occurrence.
...
3.
However, the plaintiff also submitted that his arrest
had been carried out in an unlawful manner ...
a)
The plaintiff's arrest and the process of putting him into
the police van
In this regard, the plaintiff stated that five more
policemen rushed up to him and dragged him around.
He stated
that he was also struck and kicked.
He was then pushed into the
police van.
He says that he wanted to speak to the policemen
because he objected to the way in which they had acted, so he
jumped out of the police van again.
He says that he was then
grabbed and beaten again (with a rubber truncheon on the head,
he thinks) and dragged by the hair.
He was then allegedly picked
up by the hands and feet by four policemen and bundled into the
police van.
When the question was put to him directly as to
whether he had resisted, he had to admit that he had balked,
although he stressed that it was impossible to talk about
"resisting" six police officers (...).
In another place, he says
that while he was getting up, two policemen grabbed him and he
was then, as far as he remembers, beaten by both of them (either
with their fists, their hands or their truncheons - that is, he
is sure that he was beaten with truncheons, amongst other things)
(...).
He was then taken to the police van, still being beaten.
He says he "balked" against being arrested by the police
officers.
He was no longer sure whether he tried to pull himself
away.
He said that, even as he was being taken to the police
van, more policemen came up to him and beat him too, including
with truncheons, and ("kicked") him.
Thereupon, he says, he was
pushed in through the open doors of the police van.
He
immediately jumped out of the police van again to speak to the
officers.
He was then allegedly beaten again by several
officers, who grabbed him and pushed him back into the police van
(...).
Elsewhere, he has stated that he did not resist being
arrested by police officer Eg.; he simply had not managed.
The
other policemen came up too quickly.
They started to hit him
immediately.
He was hit after being grabbed by the policemen.
He says that they then tried to drag him into the police van.
While being dragged away, he was still being beaten up - in
particular, kicked.
Before being put into the police van he was
also punched.
At that point, he said he should amplify his
statement: he had certainly been punched several times (...).
He says that in Metzgergasse he was struck at least once with a
rubber truncheon on the head.
He admits that he jumped out of
the police van again.
He alleges that he was then beaten by the
policemen again (...).
Elsewhere, he says that while he was
lying on the ground, he was struck.
He was beaten on the head
and the back.
He was punched and beaten with rubber truncheons.
He was also beaten on the way to the police van.
He says he
asked to be told why he was being arrested and that he received
no answer; he was only beaten, not spoken to (...).
As far as
he could tell, the blows were coming from all directions.
He had
to assume that he was not being beaten by just one person (...).
He said that if you defined protecting yourself as "resisting",
then you could say that he had resisted.
He claims that he was
beaten after being dragged up from the ground and taken to the
police van.
He was then thrown into the police van by his hands
and feet.
Because the doors of the police van were open, he
jumped out again to ask why he had been arrested.
The only
answer he received was a blow.
Then he was again thrown into the
police van (...).
He also says that when he was lying on the
ground, he was still being kicked (...).
The plaintiff cannot derive any benefit from these
statements which he made as a witness in the criminal proceedings
since, for the purposes of the present civil proceedings, they
have merely the status of assertions made by a party to the case.
In relation to this aspect of the case, R.S. gave evidence
that the plaintiff was grabbed by police officers, wrestled to
the ground with a headlock and so put into the van with him
[R.S.] (...)."
After examining R.S.'s statements in detail, the Court concluded:
"With regard to these statements, which R.S. partly
repeated as a witness in the present case, it must be observed
that he himself is bringing civil proceedings against the
defendant because he was also allegedly treated unlawfully when
arrested.
Further, at the time when S. first saw the plaintiff,
he was dazed.
It is also significant that he could not confirm
that the plaintiff had jumped out of the police car again.
He
also says that he did not see the plaintiff "jibbing" and balking
at his arrest, as the plaintiff himself admits he did.
These
circumstances already considerably reduce his reliability as a
witness.
But what is decisive is that S. in no way confirms the
plaintiff's description of a severe and excessive physical
assault.
Rather, he describes the plaintiff's arrest simply as
rough and carried out with the use of force. He says the
plaintiff was grabbed, wrestled down with a headlock, dragged to
the police vehicle in a stranglehold as well as being held with
the officers' hands, pushed around, punched and thrown into the
police vehicle."
The Court next found that all the police officers denied having
committed the assaults against the applicant alleged by him.
Thus, the
statements by the officers were on this aspect of the case very
consistent.
They admitted that the applicant had been grabbed roughly
when he was arrested and that there had been a struggle on the ground.
It was also expressly admitted that they were not at all gentle about
putting the applicant into the police van.
They made no attempt to
gloss over their conduct.
However, the applicant could not derive any
benefit from these admissions since, according to the credible
statements of the police officers, he was vehemently resisting arrest
and made repeated attempts to escape from the police van.
This
justified the strong measures resorted to by the police.
The Court considered that the applicant could not derive any
benefit from the statements of other witnesses either.
The decision
continues:
"b)
The point at which the plaintiff got out of the police van
and was taken into the police station
In this regard, the plaintiff stated that as he got out of
the police van he was insulted and beaten (...).
He says that
in the few metres from the van to the door he was severely beaten
and also verbally abused (...).
Elsewhere, he says that after
getting out of the van in front of the police station, he was
kicked and punched (...).
Then, again, he says that as they went
through the police cordon they were beaten with rubber truncheons
and punched.
He was beaten, but not as badly as the man who was
with him.
Then he was held in an arm lock and dragged into the
police station by his hair (...).
In another place, he says that
he was the second person out of the police van, that he was
beaten too, that he was beaten with rubber truncheons and
punched, that a policeman held him under the arms and dragged him
by the hair (...).
As set out above, the plaintiff cannot rely on his own
statements, even those made when he was being questioned as a
witness in previous proceedings.
R.S. was with the plaintiff at the time.
His evidence was
that he climbed out of the vehicle first.
...
The plaintiff can derive no benefit from these statements
by S., since the witness S. did not see the plaintiff getting out
of the vehicle and immediately lost consciousness.
Admittedly,
what he heard and sensed suggested blows being struck, but this
evidence is not sufficient to prove that the plaintiff was
unlawfully treated.
As the relevant police officers testified,
the plaintiff was just as uncooperative when he got out of the
vehicle as he was at the time of his arrest, so that force had
again to be used against him. ...
In the light of these
considerations, we find that the plaintiff cannot establish any
claim for damages or compensation against the defendant on the
basis of this aspect of the police officers' conduct either.
c)
The period spent by the plaintiff at the police station
The plaintiff claims that while at the police station he
repeatedly - but in vain - asked for the names of the police
officers involved.
He says he repeated this request after he had
been in the cell for a few moments and three men, including Eg.,
took away his personal effects.
Shortly afterwards, he says, a
fat police officer whose first name appeared to be Hugo appeared
and punched him for no reason.
The plaintiff also asked him for
his name but in vain.
He states that he was forced to undress.
He again asked for names.
He says he was then ordered to remove
his glasses and was again repeatedly punched.
He claims to have
suffered a heavy blow to the right kidney, which felled him.
His
glasses were taken away from him.
He again asked for names.
Thereupon one of them grabbed him, pushed him up against the wall
and started to throttle him with both hands, saying, "Now you're
nice and quiet".
Again, he asked for the man's name, but the
only response he got was a punch in the face, with the words,
"That's my name".
He says he was asked for his address, which
he gave.
He was called a "dirty swine" in response.
After he
had been out of the cell again for half an hour, he asked for his
glasses back (...).
He says he is very short-sighted, needing
lenses of 5.5 and 6 dioptres.
His request was allegedly refused
(with the words) "dirty swine, filthy pig, go back where you come
from" (...).
In another place, he says that, when he was in the
police station, he again asked for the names of the police
officers and the reason for his arrest.
He says he was punched
in the face by a policeman whose first name was Hugo; moreover,
he had to undress in the cell, was again repeatedly punched and
kicked in the kidneys and punched in the face while being
verbally abused (...).
In another statement, he says that as he
got out of the van he was kicked and punched.
This treatment
continued in the police station and his glasses were taken away
(...).
In another place, he says that on his way to the cell he
was verbally abused by the police officers (...).
He says that
when he asked for the names of the police officers, he was
beaten.
He says that a police officer punched him or boxed his
ears.
When he refused to take off his glasses, the policeman
frequently hit him.
The policeman seemed to be aiming at his
glasses.
He was mainly punched.
Suddenly, the fat policeman
thumped him in the kidneys (...).
He says that as a result of
the blow to the kidneys, he fell to the ground.
He again asked
this policeman for his name and the policeman continued to beat
him.
As he was lying on the ground, this policeman grasped him
by the neck, pulled him up by the neck and pushed him up against
the wall, starting to throttle him.
After letting him go, the
policeman again punched him and remarked that that was his name.
The other policemen did not intervene physically, but simply
looked on and abused him verbally (...).
In another place, he
says that he was then dragged past the entrance to the police
station and taken to a cell.
He says he was verbally abused,
with fairly crude language.
He says he is no longer able to
remember in detail what was said (...).
It has already been explained that the plaintiff cannot
derive any benefit from these statements.
However, solely on the
question of the plaintiff's credibility, we would point out that
he also asserted that the same police officers were present at
the offices of the Criminal Investigations Police as had been at
Limmatquai.
However, that is correct only in relation to the two
policemen who went with the police van, since the other police
officers had to wait on Limmatquai because the keys to one of the
cars had gone missing.
The plaintiff's version of events was disputed by all the
police officers.
R.S., who was taken to the police station with
the plaintiff, did not see the latter any more once they got to
the police station; he did not see what happened there (...).
Hence it is established that the plaintiff has been unable
to provide any proof of the alleged events in the police station,
so that he cannot claim any damages or compensation from the
defendant in relation to them.
d)
The period spent by the plaintiff at the offices of the
Criminal Investigations Police
In this regard, the plaintiff gave evidence that he was
taken into a room where there was a camera tripod and told to
take off his windcheater so as to be photographed.
He says that
he refused and repeated his request for names.
He says he was
threatened with beating if he did not let himself be
photographed.
The next morning he was processed by the Criminal
Identification Division.
He says he refused to be processed.
He says he finally agreed, under threat, to have his fingerprints
taken and to be photographed (...).
In another place, he says
that he was forced, by threats, to let himself be photographed
and to allow himself to be processed by the Criminal
Identification Division (...).
In another place, he says that
he refused to be photographed.
He says that he was told that he
could always refuse but then they would have to force him.
He
says that he also refused to be processed by the Criminal
Identification Division.
He says he was told that it was not for
him to say anything, he had no right to refuse.
He says they
explained to him that he already knew what could happen (...).
In another place, he says that he said that he would not let
himself be photographed, nor would he go into the room.
He says
that Ha. told him, either you go into the room or you'll be
forced to go into the room.
He states that he was still afraid,
because of the preceding events.
He feared that he would be
beaten up again (...).
He says that Ha. pointed out that he had
already been beaten in the police station and that the same thing
could happen to him again if he didn't submit to being
photographed (...).
In another place, he said that Ha. coerced
him, in a way which he could no longer remember, to be
photographed.
When he refused to be photographed, police officer
Ha. allegedly threatened him in some way, saying that he (the
plaintiff) had to do it or else something would happen to him.
He said that he could no longer remember the exact terms of the
threat (...).
The plaintiff's own statements are - as has already been
explained on several occasions - not probative.
The police officers in question dispute the plaintiff's
version of events.
R.S., who was taken with the plaintiff to the offices of
the Criminal Investigations Police, did not observe what happened
to the plaintiff there.
He says that in the Criminal
Investigations Police offices they were taken to a sort of
reception area, where red forms had to be filled out.
After that
he had no further contact with the plaintiff (...).
In oral
evidence, he stated that once inside the offices of the Criminal
Investigations Police, he did not see the plaintiff again and
could not say what had happened to him there (...).
The plaintiff cannot, therefore, for lack of evidence,
claim damages or compensation from the defendant in relation to
these events either.
e)
Medical evidence
The plaintiff has also sought to prove that he was
unlawfully treated by the police by means of two medical reports
by Thomas Walser, a practising doctor.
On 11 July 1981, the doctor noted the following physical
injuries to the plaintiff:
1.
minor haematoma and pressure-sensitivity over the right
ear;
2.
minor haematomas under the left eye and on the nose;
3.
haematomas and contusions on the upper third of the outer
left upper arm;
4.
minor haematoma on the right side of the torso, above the
lowest rib; rib very sensitive when pressed; and
5.
long abrasion and considerable haematoma in the hollow of
the left knee.
The report goes on to note: "According to the patient,
these injuries were caused on 10-11.7.81 by the police (truncheon
blows, punches and kicks).
In my view, this account of the
causes of the injuries is perfectly plausible (...)."
In his medical report of 7 May 1982, Thomas Walser
describes the injuries which he found in exactly the same way,
adding that it was unlikely that there would be any lasting
injury, that the plaintiff was treated as an out-patient and was
given a medical certificate for two days' absence from work
(...).
Admittedly, the doctor considers it possible that the
plaintiff's injuries were caused by the police in the way he
described.
However, it must be noted that - as has already been
established - the plaintiff put up an unjustified, and very
strong, resistance to his arrest - so strong indeed, that it led
to a brawl and a struggle on the ground.
The plaintiff could
simply have injured himself in the manner found by the doctor
through his refractory behaviour, for which he himself is
responsible. In the circumstances, the plaintiff cannot derive
any benefit from the two medical reports.
4.
In the light of all the above considerations, all the
plaintiff's claims are dismissed."
IV.
The applicant's appeal was dismissed on 5 September 1989 by the
Court of Appeal (Obergericht) of the Canton of Zurich.
In its decision
the Court regarded it as established that the applicant had attempted
to grab a policeman, who was undertaking an arrest, from behind; the
policeman then had forcibly to be freed.
As a result, the applicant's
arrest was justified as he was suspected of having committed inter alia
the criminal offence of obstructing police officers in the exercise of
their duties; as the applicant himself had admitted, there was also a
danger of fleeing.
The decision continued:
"Correctly, the burden of proof in relation to the excesses
allegedly committed by the police officers was placed on the
plaintiff (...).
In examining the evidence, the court below
helpfully divided the events into four sections according to time
and place, namely:
a)
the plaintiff's arrest and the process of putting him into
the police van;
b)
the point at which the plaintiff got out of the police van
and was taken into the police station;
c)
the period spent by the plaintiff at the police station;
and
d)
the period spent by the plaintiff at the offices of the
Criminal Investigations Police.
a)
The plaintiff asserts that the police committed
serious excesses in the course of arresting him and putting him
into the police van (dragging him around, kicking him, beating
him with their hands, fists and a truncheon on the head, back and
torso, pushing/throwing him into the police van (...)).
In order to assess the value of these assertions, we must
refer to the relevant deliberations of the court below (...).
In summary, the following emerges: S., who was one of the
witnesses, did not see fundamentally important aspects of the
plaintiff's arrest, aspects admitted by the plaintiff himself
(his jumping out of the police van and his "jibbing"/balking at
being arrested), so that his [S.'s] observations appear
unreliable.
Moreover, he does not in any way confirm the serious
excesses allegedly committed by the police.
On the contrary, he
describes an arrest which was, certainly, rough and forceful -
as the police officers admitted - but which was reasonable in the
light of the plaintiff's proven, extremely refractory, conduct.
The witness W. also appears unreliable because he claimed not to
have seen certain of the plaintiff's actions at the time of his
arrest, actions which are of fundamental importance and which are
admitted by the plaintiff.
The witness Sci. comes over as
entirely unreliable, since he portrays the plaintiff's arrest in
a way diametrically opposed to the plaintiff's own description
(Sci. saying that a policeman held the plaintiff from behind,
whereupon two other policemen came up, one of whom hit the
plaintiff on the head with a truncheon, whereas the plaintiff
speaks of his attempt to run away and his fall).
Further, Sci.
claims that he did not see the plaintiff doing the things which
he [the plaintiff] has admitted doing.
The plaintiff has not succeeded in proving that the police
officers acted unlawfully in relation to this phase of the
incident.
b)
The plaintiff also alleged that the police had
committed serious excesses at the time when he got out of the
police van and was taken into the police station.
Summarising
the deliberations of the lower court (...), we find that,
according to the credible police statements, when the plaintiff
was taken out of the van, he behaved just as uncooperatively as
he had at the time of his arrest (hitting out wildly, struggling
with his hands and feet, he practically had to be carried).
Therefore, it was necessary for the police to resort to severe
measures.
S., who raises similar allegations against the police
in relation to the time when he himself got out of the van (...),
did not see any violence being used against the plaintiff, as he
had already been taken around the corner of the building.
If he
felt and heard someone being beaten behind him, as he alleges,
this could perfectly well have been due to the plaintiff's
refractory behaviour and wild hitting out.
The plaintiff has not succeeded in establishing that the
police acted unlawfully in relation to this phase of the incident
either.
c)
The plaintiff's allegations of ill-treatment in the
police station were not supported by any evidence (...).
The same applies in relation to the alleged attacks in the
offices of the Criminal Investigations Police (...).
d)
In relation to the two medical reports (...) produced
by the plaintiff in evidence of his alleged wrongful treatment,
we have nothing to add to the findings of the court below (...).
e)
To summarise, the plaintiff has not succeeded in
proving that he was wrongfully and unlawfully treated in the
context of the arrest in question, so that the defendant has no
liability to pay him compensation or damages under this head.
5. a)
On appeal, the plaintiff's representative offered
himself as a witness of the fact that, as early as the moment
when the plaintiff signed the form appointing him as his
representative, on 14 July 1981, the plaintiff described the
material events in exactly the same way as he did when he filed
his crime report on 3 August 1981 (...) and as he had in the
statement made immediately after his arrest (...).
Firstly, it
must be pointed out that the plaintiff's representative can
testify only as to what the plaintiff told him; this, however,
will not render the plaintiff's story more credible when compared
with the evidence adduced by the other side in the form of
several eye-witnesses.
In particular, it is also noteworthy that
the plaintiff, when he was originally questioned (...), stated
that the subsequent incident and disturbance were caused (apart
from the discussion about the injured "girl") by the above-
mentioned policeman pushing the doctor's wife back with a rubber
bullet gun.
The plaintiff said that, since he was standing
behind the doctor's wife, he was also pushed away (...).
However, Ms. Ey., an independent witness and the person directly
affected, does not confirm this story about being pushed with the
weapon (...).
b)
In the course of the appeal proceedings, the plaintiff
renewed his application for the above-mentioned doctor and his
wife, Dr. M. and Ms. A. Ey., to be called as witnesses (...).
This court granted his application in a decision of 13 April 1989
(...).
However, only Annamarie Ey. responded to the witness
summons (...).
Whereas the plaintiff insisted that evidence
should be taken from M. Ey. (...), the defendant submitted that
this was not necessary for the case.
Ms. Ey., who was never separated from her husband on the
evening in question (...), saw nothing germane to the essential
issues in the case - thus she did not see anyone being threatened
with a rubber bullet gun, nor falling over, nor being arrested;
and in particular, she did not see the plaintiff at any time on
the evening in question (...).
The plaintiff's submissions
regarding what the witness saw (...) are mere surmise.
Nothing different can be expected to emerge if Dr. M. Ey.
is examined.
For one thing, he was always next to his wife, so
that he must have seen the same things as she, and for another
thing, he "was concentrating all his attention on the injured
person" (...), so that he would have been unable to observe
anything, or hardly anything, of what was going on around him;
in which context it must be remarked that the unmarked police car
and the police van were not parked next to each other (...).
In
addition, there is also the following consideration.
It has been
established that the doctor was busy examining the injured
person, so that his other observations could only be fragmentary.
Even if he could confirm, in whole or in part, the plaintiff's
assertions under argument I, this would not undermine the
corroborated evidence adduced by the defendant in relation to
argument I/1, since - as has already been mentioned - the two
accounts are not mutually exclusive, but could easily complement
each other in time.
Therefore, it can be stated with certainty
that evidence from Dr. Ey. could not alter the thrust of the
evidence (set out above) relating to argument I, and the court
can justifiably dispense with further descriptions of the
incident as a whole since these cannot be decisive.
Therefore,
we hereby review our interlocutory decision of 13 April 1989 and
decide not to call Dr. Ey. as a witness (...).
6.
The plaintiff's remaining grounds of appeal are not
significant and could not be decisive for the outcome of the
case, so that no examination of them is required.
This is
particularly true of:
(i)
the very odd distinction drawn by the plaintiff between an
"unauthorised demonstration" on the one hand and, on the
other, provocation involving criminal damage and assemblies
of persons, not constituting a demonstration (...);
(ii) the plaintiff's original, fallacious representation of the
object of the judicial investigation into his behaviour
(...);
(iii) the repetition of the plaintiff's version of events (...);
(iv) the plaintiff's alleged connection with the well-known
television personality "Frau Müller" (...);
(v)
the plaintiff's sweeping declaration to the effect that it
is completely incomprehensible "that the police should
chase down anybody they like, batter them with truncheons
and arrest them ..." (...); and
(vi) details of the course of the investigation (...)."
V.
The applicant's plea of nullity (Nichtigkeitsbeschwerde) against
this decision was dismissed by the Court of Cassation of the Canton of
Zurich (Kassationsgericht) on 10 October 1990.
VI.
Against the decision of the Court of Cassation the applicant, who
was represented by a lawyer, filed a public law appeal (staatsrecht-
liche Beschwerde) with the Federal Court (Bundesgericht).
He invoked the Convention and complained in particular of ill-
treatment upon his arrest and subsequently at the U. police station in
Zurich.
He stated that there were issues, first in respect of the
arrest, "later beating and taking away of the glasses in the cell"
("später Schläge und Wegnahme der Brille in der Zelle"), and then the
occurrences in the police building.
He noted that the Zurich Court of
Appeal and the Court of Cassation had mainly concentrated on the arrest
and the incidents at the entrance of the U. police station.
The
applicant also pointed out that often the victim did not even know who
had attacked him: "for instance the example of the unknown fat officer
with the first name Hugo who very severely attacked the applicant in
the cell at the U. police station and took away his glasses" ("im
vorliegenden Beispiel etwa der unbekannte dicke Beamte mit dem Vornamen
Hugo, welcher den Kläger in der Zelle in der Hauptwache ganz massiv
angriff und ihm die Brille wegnahm").
The public law appeal was dismissed by the Federal Court on
20 August 1991, the decision being served on 23 October 1991.
In its decision the Court found that the applicant had
insufficiently substantiated his complaints under Articles 3 and 5 of
the Convention.
He had in particular not demonstrated how the cantonal
courts had breached these provisions.
In this respect the public law
appeal was inadmissible.
Nevertheless, the Court found that in any event the public law
appeal was also unfounded.
The decision states, inter alia:
"cc)
The complaint that the Court of Cassation breached the
right to a fair trial and the prohibition on arbitrariness is
unfounded, for the following reasons:
It is true that the District Public Prosecutor stated, on
page 7 of his suspension order of 6 March 1984, that despite
certain doubts, "the complainant's description of the alleged
incidents in front of U. police station can be presumed to be
accurate".
However, the courts hearing the appellant's civil
liability action against Zurich City were not bound by the
District Public Prosecutor's opinion (...).
Rather, these courts
had to weigh the existing evidence independently and freely
(...).
Therefore, when the cantonal courts did not examine the
above-mentioned suspension order, this did not amount to a denial
of a fair hearing; the Court of Cassation's decision on this
point is in no way untenable.
Moreover, the cantonal courts explained in detail why the
statements of the appellant's witnesses S., Sci. and W. were of
no assistance or could only be considered with caution.
Thus,
according to his own statement, R.S., who was arrested on the
same occasion [as the appellant], did not or could not observe
precisely the key aspects of what happened to the appellant;
furthermore, he himself states that his faculties of perception
had been impaired by his injuries.
The courts did not believe
the witness Sci. because his description of events differed, not
only diametrically from that of the police officers but even
substantially from that of the appellant himself.
Similar
observations were made regarding the weight to be accorded to
W.'s testimony (...).
As regards the appellant's view that the
cantonal courts erred in law in not basing their decision on
R.S.'s account, the grounds of appeal merely repeat the
submissions made in the grounds of appeal to the Court of
Cassation, without analysing the relevant portions of the Court
of Cassation judgment.
Therefore, we cannot deal with this part
of the appeal (...).
Nor did the appellant's witness A. Ey.
personally observe what happened to the appellant himself;
moreover, certain parts of this witness's evidence are in
striking contrast to the appellant's version of events.
The
latter stated, in his first police interview, that immediately
before his arrest Ms. Ey. was pushed away by a policeman with a
rubber bullet gun, so that he himself was pushed backwards and,
after a struggle, arrested (...).
However, when questioned by
the court, the witness expressly denied having been pushed away
by a policeman with a rubber bullet gun.
There is no arbitrariness to be discerned in the relevant
findings of the cantonal courts as to the probative value of the
witness evidence called by the appellants.
The corresponding
complaint is therefore unfounded.
The appellant's other
submissions on this point merely amount to a rhetorical criticism
of the assessment of the evidence reached by the cantonal courts.
The appellant does not set out the concrete findings of fact
which are alleged to be obviously incorrect.
Therefore, this
Court cannot deal with this part of the complaint either, for
lack of evidence.
b)
As regards the facts of the case, the Court of Appeal
regarded it as established that the appellant had grasped
P.C. Eg. (who was engaged in making another arrest) from behind
and tried to pull him into an alley; that Eg. had to use force
to free himself, assisted by other police officers; and that
together they succeeded in taking the appellant, who was
resisting violently, into police custody (...).
aa)
On page 6 of his grounds of appeal to the Court of
Cassation, the appellant described these findings as "entirely
arbitrary, indeed, perverse". The Court of Cassation,
nevertheless, dismissed this complaint, referring to the
statements of police officers Eg., St., Wo. and B. and observing
that, in order to succeed in a claim of arbitrariness, the
appellant would have had to analyse the relevant sections of the
Court of Appeal judgment.
In his grounds of appeal, the appellant criticises these
sections of the Court of Cassation judgment, quoting at length
from his grounds of appeal to the Court of Appeal in which he
claims to point out contradictions in the statements made by the
police officers.
He comes to the conclusion that it was never
demonstrated that there were any grounds for his arrest.
Again,
these arguments do not fulfil the criteria enabling this Court
to examine a complaint of arbitrariness in the form of a public
law appeal; they fail to set out in detail what manifestly
untenable findings of fact were allegedly made (...).
In
addition, the complaint appears to be unfounded in any event.
It is certainly not absolutely untenable to regard the -
essentially consistent - depiction of events contained in the
different police reports as proven despite a few, rather
unimportant, discrepancies between the statements.
The fact that
these were unimportant discrepancies and not serious
contradictions was already explored in detail in the judgment of
the single judge sitting as Zurich District Criminal Court of
7 October 1982.
bb)
The appellant's claim that the Court of Cassation
acted arbitrarily in finding that differences between the police
officers' statements were explained by the fact that they were
standing in different places is unfounded.
No such finding is
made in the impugned judgment; rather, in the relevant passage,
the Court of Cassation is criticising the appellant for failing
to devote so much as one word to explaining why the differences
between the police officers' statements could not be explained
by the fact that they were standing in different places (...).
The assertion that the Court of Cassation did not deal with the
question of the admissibility of the police officers' testimony
is also incorrect.
Remarks on this point are to be found on page
13 ff. of the Court of Cassation judgment, with particular
reference to the principle of the courts' freedom to assess the
evidence.
cc)
Before the Court of Appeal, the appellant applied for
Dr. M. Ey. and Ms. A. Ey., who had been present during some of
the events of the evening of 10 July 1981 on Limmatquai, to be
called as witnesses.
Only Ms. Ey. responded to the summons, and
she was examined as a witness.
The Court of Appeal summoned Dr.
Ey. once more and then abandoned the attempt, having found that
it was certain that his testimony would not be able to change the
thrust of the evidence, a conclusion which was explained in more
detail in the reasoning of the judgment.
In the cassation proceedings, the appellant claimed that
the fact that Dr. Ey.'s testimony had not been taken by the Court
of Appeal constituted a refusal of justice.
The Court of
Cassation did not consider this complaint, because the appellant
failed to provide a detailed criticism of the presumptions
reached by the Court of Appeal as to [Dr. Ey.'s} evidence.
The
appellant claims that the Court of Cassation acted arbitrarily
in this respect.
The complaint is unfounded, in so far as this
Court can deal with it at all.
The fact that the Court of
Cassation will deal only with substantiated complaints certainly
does not breach the provisions of Clause 4 of the Federal
Constitution, and the appellant does not explain how the Court
of Cassation's view that his complaint of refusal to examine an
issue was insufficiently substantiated can be called untenable.
The appellant merely claims that, before the Court of Appeal, he
made out grounds for Dr. Ey. to be called as a witness; on the
other hand, he does not assert, nor could he do so, that he made
out grounds before the Court of Cassation to show that the early
assessment of the evidence carried out by the Court of Appeal was
unlawful.
dd)
In summary, we find that the Court of Cassation
judgment under appeal complies with Article 4 of the Federal
Constitution.
4. -
In the light of the above considerations, the appeal
must be dismissed in so far as it has been possible to deal with
it substantively."
COMPLAINTS
The applicant raises the following complaints under Articles 3
and 5 of the Convention:
He complains that he was ill-treated by the Zurich police upon
his arrest and later in police custody, i.e. when leaving the police
van and at the police station, in particular in a police cell.
Although he was short-sighted, his glasses were taken away and not
returned, despite his request.
The applicant submits that it might still be acceptable that he
and R.S. were groundlessly and unlawfully arrested and ill-treated.
However, on their way to the U. police station both were subjected to
the same treatment; they were welcomed at the police station with a
beating whereupon R.S. became unconscious.
The District Attorney then
artificially separated the proceedings against R.S. and the applicant.
In the case of R.S. the Zurich courts accepted on the basis of his
statements that there had been ill-treatment, whereas his statements
had not sufficed as evidence in his own case.
Either both stories were
true, or both persons were liars and the Zurich municipality was right,
that nobody had been ill-treated.
Either the police officers lied, or
the witnesses R.S., Ey., W. and Sci.
Under Article 6 of the Convention the applicant complains that
the evidence which he adduced was not considered, in particular that
the witness Dr. Ey. was not heard, and that the proceedings were
unfair.
Under Article 13 of the Convention the applicant complains that
he did not have an effective remedy at his disposal.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 23 April 1992 and registered
on 11 May 1992.
On 17 January 1995 the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48
para. 2 (b) of the Rules of Procedure.
The Government's written observations were submitted on 4 April
1995.
The applicant replied on 12 July 1995.
THE LAW
1.
The applicant complains that the Zurich police ill-treated him
contrary to Article 3 (Art. 3) of the Convention.
According to this provision, "no one shall be subjected to
torture or to inhuman or degrading treatment of punishment".
a)
Under Article 26 (Art. 26) of the Convention, "the Commission may
only deal with the matter after all domestic remedies have been
exhausted, according to the generally recognised rules of international
law".
The Government contest that the applicant has complied with the
requirements of Article 26 (Art. 26) of the Convention.
The Government submit that the applicant had two sets of domestic
remedies at his disposal, namely a criminal complaint against the
police officers, and the compensation proceedings.
The Government do
not hold it against the applicant that he failed to pursue the criminal
proceedings.
On the other hand, the Government point out that the applicant's
public law appeal was declared inadmissible by the Federal Court.
The
Government recall the Commission's case-law according to which there
is no exhaustion of domestic remedies when a domestic appeal has not
been admitted because of a procedural mistake.
In the present case,
however, the Federal Court found that the applicant's public law
appeal, insofar as it concerned the complaint at issue, had not
complied with the statutory requirements for filing such an appeal.
The Government note that the Federal Court nevertheless examined
the applicant's complaint.
However, in their view this does not alter
the conclusion that the applicant has not exhausted domestic remedies.
Any other interpretation would render obsolete the requirements under
Article 26 (Art. 26) of the Convention.
In particular, it would no
longer be necessary for applicants to comply with the procedural
requirements under domestic law.
It would then suffice if they
invoked, without further substantiation, a breach of the Convention.
The applicant submits that in fact he did comply with the
requirements under Article 26 (Art. 26) of the Convention.
Thus, the
Federal Court dealt with his complaints in substance, while dismissing
them as being unfounded.
Moreover, in his public law appeal he duly
set out the material facts as well as the constitutional and legal
provisions which had allegedly been violated.
The Commission notes that the Federal Court, in its judgment of
20 August 1991, found that the applicant had insufficiently
substantiated his complaints under Articles 3 and 5 (Art. 3, 5) of the
Convention, and that in this respect his public law appeal was
inadmissible.
However, the Commission notes that the Federal Court
then nevertheless examined the applicant's complaints as a result of
which it concluded that in any event the public law appeal was
unfounded.
The Commission is therefore satisfied that the Federal Court in
fact dealt with these complaints in substance, and that the applicant
has, therefore, complied with the requirement as to the exhaustion of
domestic remedies.
The applicant's complaints cannot therefore be
rejected under Article 26 (Art. 26) of the Convention.
b)
The Government contend that in any event this part of the
application is also manifestly ill-founded.
Thus, the facts at issue
were carefully examined in detail by various authorities.
It
transpires from the decisions that the various authorities did not
merely try to get rid of an embarrassing affair.
On the contrary, they
devoted all the necessary care to establish the facts as they had
really happened.
In this context, it is recalled that during the
unrest in Zurich in 1981 many complaints were filed with the
authorities about alleged abuse of police force.
The authorities dealt
individually with each case.
Some complaints were upheld and
compensation was granted, for instance in the case of R.S. who was
arrested together with the applicant.
The fact that there were
differing results indicates that the authorities, rather than deciding
arbitrarily as alleged by the applicant, dealt carefully and
individually with each case.
The Government recall in this context the Convention organs'
case-law according to which it is not within their province to
substitute their own assessment of the facts for that of the domestic
courts and, as a general rule, it is for the domestic courts to assess
the evidence before them (see Eur. Court H.R., Klaas judgment of
22 September 1993, Series A no. 269, p. 17, para. 29).
In view of the medical certificate issued in respect of the
applicant, the Government also question whether the minimum level of
ill-treatment has been reached for the present case to fall under
Article 3 (Art. 3) of the Convention.
Thus, Dr. Walser had stated that
the wounds which the applicant had suffered would not lead to any
lasting damage; that the wounds did not require hospital treatment; and
that the applicant had been unfit to work for two days.
The applicant submits that the various authorities merely glossed
over the facts.
Indeed, the criminal complaint filed by R.S. was also
ignored, just as in the case of the applicant.
R.S. only obtained
compensation in last resort, and the sole reason herefor was the
testimony of the applicant.
Thus, the applicant's statements were good
enough to help R.S. to obtain compensation for precisely the incident
which took place on arrival at the police station, whereas his
testimony about exactly the same incident is to have no probative value
in his own case.
The applicant submits that his injuries were substantial, and
were consistent with his description of the events.
Nevertheless, the
Government miss the point in relying solely on the medical evidence.
The medical evidence is concerned mainly with listing the physical
injuries, or what was still visible of them.
In the applicant's view, however, treatment contrary to Article 3
(Art. 3) of the Convention is not confined to physical effects.
It is
principally a matter of psychological effects.
Someone who is arrested
without apparent reason, who is taken to a police station and
immediately severely beaten up, who is forced to watch while a co-
detainee is beaten unconscious, who is obliged to strip in a cell and
is then beaten by a police officer, who is forced to hand over his
spectacles during this time, who is forced to allow himself to be
photographed like a criminal and to have his fingerprints taken, and
who is constantly insulted and threatened throughout all these events,
such a person spends a very fearful night.
According to the Convention organs' case-law, ill-treatment must
attain a certain level of severity if it is to fall within the scope
of Article 3 (Art. 3).
The assessment of this minimum is, in the
nature of things, relative; it depends on all the circumstances of the
case, such as the duration of the treatment, its physical or mental
effects and, in some cases, the sex, age and state of health of the
victim (Eur. Court H.R., Ireland v. the United Kingdom judgment of 18
January 1978, Series A no. 25, p. 65 et seq., paras. 162 et seq.).
Moreover, in respect of a person deprived of his liberty, any
recourse to physical force which has not been made strictly necessary
by his own conduct diminishes human dignity and is in principle an
infringement of the right set forth in Article 3 (Art. 3) of the
Convention (see Eur. Court H.R., Ribitsch judgment of 4 December 1995,
Series A no. 336, para. 38).
In the present case, after the applicant's release from detention
on remand on 11 July 1981, he obtained on the same day a medical
certificate according to which he had sustained various haematomas on
various parts of his body.
The report found that it was unlikely that
there would be any lasting injury and that the applicant had been given
a medical certificate for two days' absence from work.
The report
regarded it as plausible that the injuries had been caused by truncheon
blows, punches and kicks from the police.
In the Commission's opinion, these injuries reach a level of
severity sufficient to bring them within the scope of Article 3
(Art. 3) of the Convention.
As regards the various occurrences during which the injuries had
allegedly originated, the Commission notes that it is not normally
within the province of the Convention organs to substitute its own
assessment of the facts for that of the domestic courts and, as a
general rule, it is for these courts to assess the evidence before them
(see Eur. Court H.R., Klaas judgment, loc. cit., p. 17, para. 29).
On
the other hand, the Convention organs' vigilance must be heightened
when dealing with rights such as those set forth in Article 3
(Art. 3) of the Convention (see Eur. Court H.R., Ribitsch judgment,
loc. cit., para. 34).
Moreover, where a person alleges that the injuries resulted from
treatment during custody, the Government are under an obligation to
provide a complete and sufficient explanation of how the applicant's
injuries were caused (Ribitsch judgment, loc. cit.).
In the present case, it appears that in the night from 10 to
11 July 1981, a car was overturned in a street in Zurich.
Two police
cars arrived at the scene, and many onlookers gathered.
According to
the applicant, he protested when the police declined to bring a wounded
person to the hospital, whereupon he, the applicant, and another person
were allegedly beaten by the police and arrested.
According to the judgment of the Zurich District Court of
4 September 1987, however, the Court regarded it as established that
in the course of a demonstration in Zurich, the plaintiff had grabbed
a policeman from behind and tried to drag him into an alley.
The
police thereupon attempted to arrest the applicant.
However, as he
vehemently resisted his arrest, a struggle ensued with various
policemen on the ground which resulted in the injuries later mentioned
in the medical report.
The District Court relied for its conclusion on the consistent
statements of various police officers who had undertaken the arrest.
Its judgment was confirmed, upon appeal, by the Zurich Court of Appeal,
the Zurich Court of Cassation and the Federal Court.
The various
courts found that the witnesses adduced by the applicant could not
serve to change these conclusions.
Thus, according to the judgment of
the District Court, the witness R.S. had been dazed and was sitting in
the police van.
The witness H.W. had not seen the applicant, and the
statements of the witness Sci. differed sharply from those of the
applicant.
The Court of Appeal in its judgment of 5 September 1989
explained why Mr and Mrs. Ey. could not usefully serve as witnesses.
Moreover, the applicant has adduced no material before the
Commission which would call into question the findings of the national
courts and add weight to his allegations (see Klaas judgment, loc.
cit., para. 30, p. 17).
In the Commission's opinion, therefore, the domestic authorities
gave sufficient explanation for the applicant's injuries which did not
appear disproportionate to the circumstances of the applicant's arrest.
However, the applicant also complains that, after his arrest, he
was beaten, punched and threatened in police custody.
He alleges that
such ill-treatment occurred when he was leaving the police van and
entering the police station as well as overnight at the police station,
in particular in a police cell.
He claims that although he was very
short-sighted, his glasses were taken away from him and not returned,
despite his requests.
The District Court in its judgment of 4 September 1987 denied any
ill-treatment.
It considered, on the one hand, the consistent
statements of the police officers, and, on the other, that no other
persons had been able directly to witness the events.
The District
Court furthermore found that the injuries sustained by the applicant
stemmed from his struggle with the policemen upon his arrest.
These
conclusions were again confirmed, upon appeal, by the Zurich Court of
Appeal, the Zurich Court of Cassation and the Federal Court.
The Commission has found that the authorities gave sufficient
explanations in respect of the applicant's injuries.
It furthermore
notes that no additional, or particular, injuries have been made out
which occurred solely during police custody and which would have
required further explanations on the part of the domestic authorities.
It follows that it has not been sufficiently made out that the
applicant was afforded treatment contrary to Article 3 (Art. 3) of the
Convention by the authorities concerned.
This part of the application
is, therefore, manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
2.
The applicant also complains under Article 5 (Art. 5) of the
Convention of his arrest and detention.
The Commission notes that the applicant has not explained, other
than in the context mentioned above under Article 3 (Art. 3) of the
Convention, in what respect the arrest and detention were in his view
unlawful.
In any event, and even assuming that the applicant has
complied with the requirement as to the exhaustion of domestic remedies
within the meaning of Article 26 (Art. 26) of the Convention, the
Commission notes the decision of the Zurich Court of Appeal of 5
September 1989 according to which the applicant was suspected of having
committed the criminal offence of obstructing police officers in the
exercise of their duties, and, as the applicant himself had admitted,
that there existed a danger of his fleeing.
Subsequently criminal
proceedings were instituted against the applicant, though these were
eventually terminated.
The Commission is therefore satisfied that the applicant was
lawfully arrested "for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an offence
or when it is reasonably considered necessary to prevent his ...
fleeing after having done so" within the meaning of Article 5
para. 1 (c) (Art. (-1-c) of the Convention.
This part of the application is therefore manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3.
Under Article 6 (Art. 6) of the Convention the applicant
complains of the proceedings and their outcome.
He submits that
evidence which he adduced was not considered, and that the proceedings
were unfair.
a)
Insofar as the applicant may be understood as complaining about
the criminal proceedings which he attempted to institute against the
police officers, the Commission recalls that the Convention guarantees
no right to introduce criminal proceedings against third persons, and
that such proceedings do not fall under Article 6 (Art. 6) of the
Convention.
In this respect the application is therefore incompatible
ratione materiae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
b)
The applicant complains about the proceedings concerning his
action for compensation, in particular that R.S. obtained compensation
whereas he did not.
The Commission recalls that under Article 19 (Art. 19) of the
Convention its only task is to ensure the observance of the obligations
undertaken by the Parties to the Convention.
In particular, it is not
competent to deal with an application alleging that errors of law or
fact have been committed by domestic courts, except where it considers
that such errors might have involved a possible violation of any of the
rights and freedoms set out in the Convention.
The Commission refers
on this point to its established case-law (see e.g. No. 458/59, Dec.
29.3.60, Yearbook 3 pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection
43 pp. 71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).
It is true that the applicant invokes Article 6 para. 1
(Art. 6-1) of the Convention which states, insofar as relevant, that
"in the determination of his civil rights and obligations ... everyone
is entitled to a fair ... hearing by (a) tribunal ...".
The Commission recalls that, as a rule, it is for the national
courts to assess the evidence before them.
The Convention organs' task
is to ascertain whether the proceedings considered as a whole,
including the way in which evidence was taken, were fair (see Eur.
Court H.R., Asch judgment of 26 April 1991, Series A no. 203, p. 10,
para. 26).
Insofar as the applicant generally complains that his evidence
was not considered and that the proceedings were unfair, the Commission
has just found that the domestic courts carefully examined the
applicant's case.
The Commission finds no indication that in these
proceedings the applicant, who was represented by a lawyer, could not
sufficiently put forward his point of view, or that they were otherwise
unfairly conducted.
Insofar as the applicant complains that Dr. Ey. was not heard as
a witness, and even assuming that the applicant has exhausted domestic
remedies in this respect within the meaning of Article 26 (Art. 26) of
the Convention, the Commission notes the reasons given by the Court of
Appeal in its judgment of 5 September 1989, not contested by the
applicant, that Mrs. Ey. had been heard as a witness, and that Dr. Ey.,
who was next to his wife during the events, could not have said more
than she had; that, moreover, Dr. Ey. was busy nursing wounded persons
during the events and that his observations could therefore have been
fragmentary.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4.
Insofar as the applicant complains under Article 13
(Art. 13) of the Convention that he did not have an effective remedy,
the Commission recalls that the requirements of this provision are less
strict and accordingly absorbed by Article 6 (Art. 6) of the Convention
(see Eur. Court H.R., Philis judgment of 27 August 1991, Series A
no. 209, p. 23, para. 67).
It follows that no separate issue arises
under this provision.
The remainder of the application is therefore manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Deputy Secretary to
Acting President of
the Commission
the Commission
(M. de SALVIA)
(H. DANELIUS)