[неофициальный перевод]
ЕВРОПЕЙСКИЙ СУД ПО ПРАВАМ ЧЕЛОВЕКА
СУДЕБНОЕ РЕШЕНИЕ
РИБИЧ (RIBITSCH) ПРОТИВ АВСТРИИ
(Страсбург, 4 декабря 1995 года)
(Извлечение)
КРАТКОЕ НЕОФИЦИАЛЬНОЕ ИЗЛОЖЕНИЕ ОБСТОЯТЕЛЬСТВ ДЕЛА
A. Основные факты
Г-н Рибич, 1958 г. рождения, гражданин Австрии, проживает
совместно с женой в Вене. 21 мая 1988 г. его квартира была
подвергнута обыску сотрудниками полиции в связи с уголовными
расследованиями фактов и обстоятельств смерти двух человек от
повышенной дозы героина. В последующие дни проводились
дополнительные обыски и допросы заявителя и его жены.
В полдень 31 мая 1988 г. заявитель и его жена были арестованы
по подозрению в незаконном обороте наркотиков и содержались под
стражей в полиции до утра 2 июня 1988 г. После освобождения
заявитель сообщил нескольким лицам, включая одного журналиста, о
плохом обращении, которому он якобы подвергся, находясь в полиции.
2 июня заявитель был обследован в больнице города Мейдлинга, а 3
июня его осмотрел врач - терапевт. В медицинском заключении
больницы было зафиксировано наличие нескольких кровоподтеков на
правой руке г-на Рибича, что было подтверждено врачом - терапевтом
во время судебного разбирательства. Коллега журналиста сделал
фотографии этих травм. После освещения инцидента по радио против
полицейских, замешанных в этом деле, было начато уголовное
расследование. Заявитель принимал в нем участие в качестве
гражданской стороны.
Во время судебного разбирательства 13 октября 1989 г. районный
уголовный суд г. Вены заслушал обвиняемых полицейских, свидетелей,
заявителя, его жену и врача - терапевта, который обследовал
заявителя ранее. В результате судебного разбирательства один из
полицейских был приговорен за нанесение телесных повреждений к
двум месяцам тюремного заключения, отстранен от выполнения
служебных обязанностей и получил предписание суда выплатить
заявителю одну тысячу австрийских шиллингов. Суд принял версию
событий, представленную г-ном Рибичем, и исключил возможность
того, что его телесные повреждения могли носить случайный
характер. Двое других полицейских были оправданы.
14 сентября 1990 г. Земельный суд отменил Решение районного
суда и оправдал полицейского. Тщательно рассмотрев обстоятельства
дела, суд пришел к выводу, что представленная полицейским версия
событий, согласно которой заявитель ударился о дверь полицейской
автомашины, не была опровергнута и что по крайней мере некоторые
утверждения заявителя не могут быть доказаны с уверенностью,
необходимой для осуждения в уголовном порядке. Кроме того, суд
напомнил, что г-н Рибич ранее, в 1988 г., уже привлекался к
ответственности за незаконный оборот наркотиков.
26 ноября 1990 г. Конституционный суд по жалобе заявителя вынес
Решение, что арест и заключение под стражу заявителя, равно как и
обыск без ордера в его доме, были незаконными и нарушили его право
на свободу и неприкосновенность жилища; однако Суд отклонил жалобу
заявителя относительно ненадлежащего обращения.
B. Разбирательство в Комиссии по правам человека
В жалобе, поданной в Комиссию 5 августа 1991 г., заявитель
утверждал, что происшедшее с ним в полиции подпадает под действие
статьи 3 Конвенции и положений других ее статей. 20 октября 1993
г. Комиссия признала приемлемой жалобу о нарушении статьи 3
Конвенции, остальную часть жалобы она отклонила.
Предприняв безуспешную попытку добиться мирового соглашения,
Комиссия представила 4 июля 1994 г. доклад, в котором изложила
факты по делу и выразила мнение, что статья 3 Конвенции была
нарушена (десятью голосами против шести).
Комиссия передала дело в Суд 9 сентября 1994 г.
ИЗВЛЕЧЕНИЕ ИЗ СУДЕБНОГО РЕШЕНИЯ
ВОПРОСЫ ПРАВА
I. О предполагаемом нарушении статьи 3 Конвенции
27. Г-н Рибич утверждал, что, находясь под стражей в отделении
безопасности федеральной полиции г. Вены, он подвергся плохому
обращению, несовместимому со статьей 3 Конвенции, которая гласит:
"Никто не должен подвергаться пыткам и бесчеловечному или
унижающему достоинство обращению или наказанию".
28. Правительство оспорило это утверждение. Комиссия признала
его достаточно обоснованным.
29. Заявитель утверждал, что ряд свидетелей, включая
журналиста, психолога и врачей (см. п. 13 и 16 выше), видели
телесные повреждения, имевшиеся у него после освобождения из
полицейского участка, в частности кровоподтеки на внутренней и
внешней сторонах предплечья правой руки. Эти повреждения могли
иметь только одно объяснение, а именно: действия допрашивавших его
полицейских, которые до этого грубо оскорбляли его и угрозами
принуждали сделать признание (см. п. 15 и 16 выше).
30. Правительство не оспаривало того, что телесные повреждения
были получены г-ном Рибичем во время его нахождения в полиции,
однако отметило, что внутреннее расследование не выявило
незаконных действий со стороны полицейских. Вместе с тем
Правительство сослалось на выводы районного суда г. Вены, его
оценку доказательств, в частности путем дополнительного судебно-
медицинского заключения, а также показаний г-на Рибича и их
достоверности. Правительство заявило, что для доказательства
нарушения Конвенции необходимо, чтобы факт плохого обращения был
доказан "вне всяких сомнений".
31. Комиссия выразила мнение, что государство несет моральную
ответственность за любое лицо, содержащееся под арестом, поскольку
оно полностью находится во власти полиции. В случае получения
телесных повреждений в этот период именно Правительство должно
предоставить доказательства, ставящие под сомнение описание
событий, сделанное пострадавшим, особенно в тех случаях, когда его
показания подтверждены медицинскими документами. В данном деле
объяснения Правительства недостаточны для того, чтобы обоснованно
усомниться в показаниях заявителя относительно ненадлежащего
обращения, которому он подвергся, находясь под стражей в полиции.
32. Суд напоминает, что, согласно положениям Конвенции,
установление и проверка фактов являются в основном прерогативой
Комиссии (статья 28 п. 1 и статья 31). Однако Суд не
ограничивается фактами, установленными Комиссией; он свободен в их
оценке в свете всех представленных ему материалов (см. Решение по
делу Класса от 22 сентября 1993 г. Серия A, т. 269, с. 17, п. 29).
Суд указал далее, что в принципе он не должен противопоставлять
свое видение фактов позиции внутренних судов, но тем не менее и он
связан выводами внутренних судов не больше, чем выводами Комиссии.
Рассмотрение обстоятельств дела Судом должно быть особенно
тщательным в тех случаях, когда выводы Комиссии отличаются от
выводов внутренних судов. Суд должен быть особенно внимателен,
когда речь идет о правах, содержащихся в статье 3 Конвенции,
которая категорически запрещает пытки и унижающее достоинство
обращение или наказание, независимо от поведения потерпевшего. В
отличие от большинства статей Конвенции и Протоколов N 1 и 4 в
статье 3 не предусмотрены никакие исключения, и в соответствии со
статьей 15 п. 2 не может быть отступлений от статьи 3 даже в
случае чрезвычайного положения, угрожающего существованию нации
(см. Решение по делу Ирландия против Соединенного Королевства от
18 января 1978 г. Серия A, т. 25, с. 65, п. 163).
33. В данном деле Суд отмечает следующие факты:
1) Наличие телесных повреждений у г-на Рибича было установлено
еще 2 июня 1988 г. в медицинском заключении, выданном в больнице
Мейдлинга, и было подтверждено 3 июня 1988 г. врачом - терапевтом,
д-ром Шейдлбауэром, и рядом других свидетелей. Во время слушания
дела в первой инстанции д-р Шейдлбауэр заявил, что он считает
весьма маловероятным, чтобы эти травмы были получены заявителем
при ударе о дверь легковой автомашины; во время апелляционного
разбирательства специалист в области судебной медицины,
назначенный Земельным уголовным судом, заявил, что такой удар
может объяснить "только одну из нескольких травм, которые,
возможно, были нанесены". Не оспаривается, что заявитель имел ряд
кровоподтеков на внешней и внутренней сторонах предплечья правой
руки (см. п. 13, 16, 17 и 20 выше).
2) В объяснениях, представленных полицейским инспектором
Марклем, имеются противоречия. Его отчет, ошибочно датированный 1
июня 1988 г., был якобы составлен по рекомендации вышестоящего
начальника, г-на Гросса, хотя последний заявил, что ему не было
известно о каких-либо телесных повреждениях (см. п. 15 и 17 выше).
Показания г-на Маркля относительно того, когда заявитель впервые
показал ему ушибы на правой руке, являются противоречивыми.
Наконец, он не предпринял каких-либо действий по заявлениям
свидетелей о том, что г-н Рибич продавал стиральный порошок,
который выдавал за героин (см. п. 17 выше).
3) Водитель автомашины, полицейский Фролих, заявил, что он не
видел, чтобы г-н Рибич падал (см. п. 15 выше).
4) После тщательного изучения доказательств районный уголовный
суд г. Вены признал полицейского Маркля виновным в нанесении
телесных повреждений. Суд посчитал заслуживающей доверия версию
событий, представленную г-ном Рибичем, опираясь, в частности, на
ее совпадение с показаниями врача - терапевта. И наоборот, суд
охарактеризовал как "вызывающую сомнения" линию защиты, принятую г-
ном Марклем, показания которого казались противоречивыми и
сбивчивыми (см. п. 17 выше).
5) В свою очередь Земельный уголовный суд г. Вены оправдал г-на
Маркля, поскольку он не имел достаточных оснований "отвергнуть
показания обвиняемого или принять хотя бы частично показания
гражданской стороны - г-на Рибича - с уверенностью, которая могла
бы послужить основанием для осуждения в уголовном порядке".
Излагая мотивы своего решения, суд выразил сомнение в
достоверности показаний заявителя на основании, не связанном с
рассматриваемым им делом, что в октябре 1988 г. г-н Рибич был
осужден за преступление, связанное с наркотиками, что он был
безработным, что он жил не по средствам и что вместо того, чтобы
подать жалобу, "предпочел выступить с обвинениями по австрийскому
радио". Обосновывая свое расхождение с оценкой доказательств судом
первой инстанции, Земельный уголовный суд высказал предположение о
том, что вряд ли полицейский, у которого были веские основания
знать о повышенном внимании к делу средств массовой информации,
позволил бы себе вопреки логике совершить преступные действия (см.
п. 22 выше).
6) Конституционный суд не рассматривал существо жалобы г-на
Рибича на плохое обращение. Он отметил незаконность обысков и
ареста заявителя и его жены (см. п. 23 выше).
34. Не вызывает сомнений, что г-н Рибич получил телесные
повреждения, находясь под стражей в полиции, что в любом случае
являлось противозаконным, поскольку он полностью находился под
контролем полиции. Оправдание полицейского Маркля судом, связанным
принципом презумпции невиновности, не освобождает Австрию от
ответственности по Конвенции. Поэтому Правительство было обязано
представить правдоподобное объяснение того, каким образом
заявитель получил телесные повреждения. Однако Правительство всего
лишь сослалось на результаты внутреннего уголовного
разбирательства, при котором, как выяснилось, не были соблюдены
строгие требования, предъявляемые к доказательствам, необходимым
для того, чтобы добиться осуждения в уголовном порядке. Также
очевидно, что в этом контексте важную роль сыграло утверждение,
что телесные повреждения у заявителя были вызваны ударом о дверь
автомашины. Подобно Комиссии, Суд считает такой довод
неубедительным; он полагает, что даже если г-н Рибич падал, когда
его перевозили под охраной, такое объяснение было бы весьма
неполным и поэтому недостаточным для объяснения полученных
повреждений.
На основании всех имеющихся в его распоряжении материалов Суд
пришел к выводу, что Правительство не представило убедительных
доказательств того, что телесные повреждения заявителя были
получены каким-либо иным образом, чем - полностью, в основном или
частично - вследствие того обращения, которому он подвергся,
находясь под стражей.
35. Г-н Рибич утверждал, что то, что он претерпел, находясь под
стражей в полиции, является бесчеловечным и унижающим достоинство
обращением. Полученные им удары, а также оскорбления и угрозы,
которым подверглись он и его жена, находившаяся в заключении
одновременно с ним, причинили сильные физические и моральные
страдания. Более того, ряд свидетелей подтвердили, что заявителю
были нанесены телесные повреждения и он перенес серьезную
психологическую травму (см. п. 16 выше).
36. Принимая во внимание исключительную незащищенность
заявителя во время незаконного содержания под стражей в полиции,
Комиссия заявила, что у нее не вызывает сомнений, что заявитель
подвергся физическому насилию, которое представляет собой
бесчеловечное и унижающее достоинство обращение.
37. Правительство не оспаривало, что телесные повреждения
заявителя, если предполагать установленным, что они действительно
были нанесены во время его нахождения под стражей в полиции, были
достаточно тяжелыми и тем самым подпадающими под действие статьи
3.
38. Суд подчеркивает, что в отношении лица, лишенного свободы,
любое применение физической силы, которое не было крайне
необходимо из-за его собственного поведения, унижает его
человеческое достоинство и является в принципе нарушением статьи 3
Конвенции. Суд вновь напоминает, что сложность проведения
расследований и неоспоримые трудности борьбы с преступностью не
должны вести к ограничениям защиты физической неприкосновенности
лица (см. Решение по делу Томази от 27 августа 1992 г. Серия A, т.
241-A, с. 42, п. 115).
39. В данном деле телесные повреждения, полученные г-ном
Рибичем, свидетельствуют о том, что он претерпел обращение,
которое может быть охарактеризовано как ненадлежащее,
бесчеловечное и унижающее достоинство.
40. Соответственно, имело место нарушение статьи 3.
II. Применение статьи 50 Конвенции
41. Статья 50 Конвенции предусматривает:
"Если Суд установит, что решение или мера, принятые судебными
или иными властями Высокой Договаривающейся Стороны, полностью или
частично противоречат обязательствам, вытекающим из настоящей
Конвенции, а также если внутреннее право упомянутой Стороны
допускает лишь частичное возмещение последствий такого решения или
такой меры, то решением Суда, если в этом есть необходимость,
предусматривается справедливое возмещение потерпевшей стороне".
42. В соответствии с положениями этой статьи заявитель
потребовал выплатить компенсацию за моральный вред и возместить
судебные расходы и издержки.
A. Моральный вред
43. Г-н Рибич заявил, что он понес моральный вред, который он
оценил в 250000 (двести пятьдесят тысяч) австрийских шиллингов.
44. Правительство не сделало никаких замечаний по этому поводу.
45. Представитель Комиссии заявил, что такая сравнительно
высокая сумма должна быть присуждена с тем, чтобы способствовать
обращению в суд лиц, находящихся в таком же положении, что и г-н
Рибич.
46. Суд считает, что заявителю причинен неоспоримый моральный
вред. Принимая во внимание различные относящиеся к делу
обстоятельства, Суд, действуя на справедливой основе, как это
предписывает статья 50, обязывает выплатить заявителю 100000 (сто
тысяч) австрийских шиллингов.
B. Судебные расходы и издержки
47. Г-н Рибич также потребовал оплатить понесенные им судебные
расходы и издержки. За слушания дел в судах Австрии он потребовал
выплаты 78780 (семидесяти восьми тысяч семисот восьмидесяти)
австрийских шиллингов. За рассмотрение дел в органах Конвенции он
потребовал выплатить 385375 (триста восемьдесят пять тысяч триста
семьдесят пять) австрийских шиллингов за вычетом 20185 (двадцати
тысяч ста восьмидесяти пяти) австрийских шиллингов за судебную
помощь, которую он получил в Комиссии.
48. Правительство заявило, что, учитывая нормы гонораров
Коллегии адвокатов Австрии, большинство требуемых сумм
представляются чрезмерно высокими.
49. Представитель Комиссии не сделал никаких замечаний по этому
вопросу.
50. На справедливой основе в соответствии с применяемыми им
критериями Суд присуждает заявителю сумму в 200000 (двести тысяч)
австрийских шиллингов за вычетом 18576 (восемнадцати тысяч пятисот
семидесяти шести) французских франков, которые уже были выплачены
Советом Европы в качестве судебной помощи.
ПО ЭТИМ ОСНОВАНИЯМ СУД
1. Постановил шестью голосами против трех, что имело место
нарушение статьи 3 Конвенции;
2. Постановил шестью голосами против трех, что государство -
ответчик должно выплатить заявителю в течение трех месяцев 100000
(сто тысяч) австрийских шиллингов за моральный ущерб;
3. Постановил единогласно, что государство - ответчик должно
выплатить заявителю в течение трех месяцев 200000 (двести тысяч)
австрийских шиллингов в погашение издержек и расходов за вычетом
18576 (восемнадцати тысяч пятисот семидесяти шести) французских
франков, конвертированных в австрийские шиллинги по валютному
курсу на день вынесения настоящего Решения;
4. Отклонил единогласно оставшуюся часть требования о
справедливом возмещении.
Совершено на английском и французском языках и оглашено во
Дворце прав человека в Страсбурге 4 декабря 1995 г.
Председатель
Рольф РИССДАЛ
Грефье
Герберт ПЕТЦОЛЬД
В соответствии со статьей 51 п. 2 Конвенции и статьей 53 п. 2
Регламента Суда A к настоящему Решению прилагается совместное
особое мнение судей.
СОВМЕСТНОЕ ОСОБОЕ МНЕНИЕ СУДЕЙ РИССДАЛА,
МАТШЕРА И ЯМБРЕКА
1. В данном случае мы не можем согласиться с мнением
большинства членов Палаты, в частности из-за того, что
придерживаемся отличного взгляда на обстоятельства дела.
В мае 1988 г., после того как два человека скончались от
повышенной дозы героина, специальное подразделение федеральной
полиции г. Вены проводило расследования среди окружения наркоманов
с целью выявить, кто снабдил умерших наркотиками. В ходе этих
расследований помимо других лиц был допрошен г-н Рибич, который
был известен как наркоман, а также как лицо, подозреваемое в сбыте
наркотиков. Два человека, один из которых был близким другом
одного из скончавшихся, опознали г-на Рибича как поставщика дозы
героина, вызвавшей смертельный исход.
31 мая 1988 г. полиция арестовала заявителя и провела обыск в
его квартире. После того как полицейские обнаружили там некоторое
количество наркотиков, г-н Рибич был препровожден в полицию для
допроса в штаб-квартире подразделения безопасности федеральной
полиции г. Вены, где он находился в период с полудня 31 мая до
утра 2 июня 1988 г.
Впоследствии г-н Рибич заявил, что он подвергся ненадлежащему
обращению во время содержания под стражей в полиции. Он не подал
жалобу в компетентные органы, однако сообщил о происшедшем
нескольким друзьям и родственникам, включая одного журналиста.
Именно по совету этого журналиста г-н Рибич обратился в больницу и
проконсультировался у своего врача - терапевта. Несколько дней
спустя этот журналист организовал программу на австрийском радио с
освещением произошедших событий.
В отличие от подобных случаев в других государствах (см., в
частности, Решение по делу Класса от 22 сентября 1993 г. Серия A,
т. 269) компетентные органы по собственной инициативе начали
расследование произошедших событий, как только они были о них
информированы.
Результаты расследования были направлены в прокуратуру, которая
начала судебное разбирательство против трех полицейских за
нанесение телесных повреждений.
В Решении, вынесенном районным уголовным судом г. Вены, один из
трех полицейских был признан виновным, приговорен к двум месяцам
тюремного заключения и отстранен от выполнения своих обязанностей;
двое других полицейских были оправданы. Мотивы Решения районного
суда были подробно изложены. В основном судья полагался на
показания свидетелей - г-на Рибича и других лиц, которые могут
считаться его друзьями и родственниками, а также на документы,
выданные сотрудниками больницы и врачом - терапевтом, в которых
говорилось о травмах, нанесенных г-ну Рибичу, и других симптомах,
которые он описал. Судья отказался удовлетворить просьбу защиты о
проведении судебно-медицинской экспертизы для выяснения причин,
вызвавших эти травмы.
При апелляции, которая была подана осужденным полицейским,
Земельный уголовный суд прежде всего распорядился, чтобы Институт
судебной медицины университета г. Вены представил судебно-
медицинское заключение. Основная цель этого документа заключалась
в установлении, насколько это возможно, причин травм, отмеченных
врачами, и симптомов, на которые жаловался заявитель. Выводы
заключения сводились к тому, что эти травмы и симптомы могли быть
вызваны самыми различными причинами; вполне возможно, что они были
вызваны причинами, отличными от тех, которые принял районный суд.
Земельный уголовный суд, состоящий из трех профессиональных судей,
тщательно рассмотрел представленные ему доказательства, подробно
изучил показания заявителя и других свидетелей и оправдал
полицейского на основании убедительных фактов. Кроме того, в
Австрии не принято, чтобы апелляционные суды отменяли решения
нижестоящего суда, если не имеется серьезных сомнений в том, что
эти решения достаточно обоснованны.
Конституционный суд отклонил апелляцию заявителя, сделав
замечание, что он не нашел оснований поставить под сомнение
процедуру, которой следовал Земельный суд, его оценку
свидетельских показаний или принятое им Решение.
Конституционный суд мог бы пересмотреть весь ход
разбирательства и провести свою собственную оценку обстоятельств
дела. Однако, как было указано в предыдущем абзаце, Суд не нашел
для этого никаких оснований и тем самым поддержал по существу
Решение Земельного суда.
Наше заключение: государство - ответчик по своей собственной
инициативе распорядилось провести расследование, результатом
которого было тщательное рассмотрение дела независимыми судами на
трех различных уровнях юрисдикции. В задачи Европейского суда не
входит заменять своей оценкой оценку фактов внутренними судами,
если только они провели ее не должным образом, что не имело места
в данном деле.
Мы не можем сделать вывод, что были нарушены положения статьи 3
Конвенции, поскольку имелись обоснованные сомнения относительно
утверждений заявителя о ненадлежащем обращении, вызвавшем телесные
повреждения во время его нахождения под стражей в отделении
венской федеральной полиции, хотя и оказалось невозможным получить
неопровержимые доказательства того, что травмы и симптомы, о
которых говорил заявитель после освобождения из полицейского
заключения, были вызваны какими-либо иными причинами, чем теми
действиями, о которых он заявил.
2. В свете сомнительного поведения заявителя, а также принимая
во внимание тот факт, что в районном суде он потребовал выплатить
всего лишь 1000 (одну тысячу) австрийских шиллингов, которые были
ему присуждены, мы не считаем возможным голосовать за выплату
какой-либо дополнительной компенсации за моральный ущерб.
EUROPEAN COURT OF HUMAN RIGHTS
CASE OF RIBITSCH v. AUSTRIA
JUDGMENT
(Strasbourg, 04.XII.1995)
In the case of Ribitsch v. Austria <*>,
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the
relevant provisions of Rules of Court A <**>, as a Chamber
composed of the following judges:
--------------------------------
Notes by the Registrar
<*> The case is numbered 42/1994/489/571. The first number is
the case's position on the list of cases referred to the Court in
the relevant year (second number). The last two numbers indicate
the case's position on the list of cases referred to the Court
since its creation and on the list of the corresponding
originating applications to the Commission.
<**> Rules A apply to all cases referred to the Court before
the entry into force of Protocol No. 9 (P9) and thereafter only to
cases concerning States not bound by that Protocol (P9). They
correspond to the Rules that came into force on 1 January 1983, as
amended several times subsequently.
Mr R. Ryssdal, President,
Mr F. Matscher,
Mr J. De Meyer,
Mr I. Foighel,
Mr J.M. Morenilla,
Sir John Freeland,
Mr B. Repik,
Mr P. Jambrek,
Mr P. Kuris,
and also of Mr H. Petzold, Registrar,
Having deliberated in private on 27 June and 21 November 1995,
Delivers the following judgment, which was adopted on the last-
mentioned date:
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 9 September 1994,
within the three-month period laid down by Article 32 para. 1 and
Article 47 (art. 32-1, art. 47) of the Convention. It originated
in an application (no. 18896/91) against the Republic of Austria
lodged with the Commission under Article 25 (art. 25) by Mr Ronald
Ribitsch, an Austrian national, on 5 August 1991.
The Commission's request referred to Articles 44 and 48 (art.
44, art. 48) and to the declaration whereby Austria recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the
facts of the case disclosed a breach by the respondent State of
its obligations under Article 3 (art. 3) of the Convention.
2. In response to the enquiry made in accordance with Rule 33
para. 3 (d) of Rules of Court A, the applicant stated that he
wished to take part in the proceedings and designated the lawyer
who would represent him (Rule 30). The lawyer was given leave by
the President to use the German language (Rule 27 para. 3).
3. The Chamber to be constituted included ex officio Mr F.
Matscher, the elected judge of Austrian nationality (Article 43
(art. 43) of the Convention), and Mr R. Ryssdal, the President of
the Court (Rule 21 para. 3 (b)). On 24 September 1994, in the
presence of the Registrar, the President drew by lot the names of
the other seven members, namely Mr {Thor Vilhjalmsson} <*>, Mr I.
Foighel, Mr J.M. Morenilla, Sir John Freeland, Mr B. Repik, Mr P.
Jambrek and Mr P. Kuris (Article 43 in fine of the Convention and
Rule 21 para. 4) (art. 43). Subsequently, Mr J. De Meyer,
substitute judge, replaced Mr {Thor Vilhjalmsson}, who was unable
to take part in the further consideration of the case (Rule 22
paras. 1 and 2 and Rule 24 para. 1).
--------------------------------
<*> Здесь и далее по тексту слова на национальном языке набраны
латинским шрифтом и выделены фигурными скобками.
4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the Austrian
Government ("the Government"), the applicant's lawyer and the
Delegate of the Commission on the organisation of the proceedings
(Rules 37 para. 1 and 38). Pursuant to the orders made in
consequence on 17 October 1994 and 6 March 1995, the Registrar
received the Government's memorial on 28 February 1995 and the
applicant's memorial on 14 March 1995. On 24 March the Secretary
to the Commission informed the Registrar that the Delegate would
submit his observations at the hearing. On 21 April he produced
certain documents requested by the Registrar on the President's
instructions.
5. In accordance with the President's decision, the hearing
took place in public in the Human Rights Building, Strasbourg, on
21 June 1995. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr W. Okresek, Head of the International Affairs Division,
Constitutional Department, Federal Chancellery, Agent,
Mr W. Szymanski, Head of the Legal Service, Federal Ministry of
the Interior,
Mr {J. Rohrbock}, Adviser, Federal Ministry of the Interior,
Advisers;
(b) for the Commission
Mr H.G. Schermers, Delegate;
(c) for the applicant
Mr H. Pochieser, Rechtsanwalt, Counsel.
The Court heard addresses by Mr Schermers, Mr Pochieser and Mr
Okresek, and their replies to its question.
On 3 July 1995 the Registrar received the Government's written
reply to the applicant's claims under Article 50 (art. 50); the
applicant's observations relating thereto were received on 27
July.
AS TO THE FACTS
6. Mr Ronald Ribitsch, an Austrian national born in 1958, lives
with his wife in Vienna.
I. Background to the case
7. At the material time the Security Branch of the Vienna
Federal Police Authority ({Sicherheitsburo} der
Bundespolizeidirektion) included three units assigned to
investigating drug offences. One of these, led by Chief Inspector
{Pottinger}, had particular responsibility for cases involving
fatalities.
8. On 21 May 1988, following the deaths of two people from
heroin overdoses, the girlfriend of one of the deceased went to
the headquarters of Mr {Pottinger's} unit and made a statement
alleging that her boyfriend had told her that he intended to
obtain drugs from the applicant.
Acting on this information several of the unit's officers
questioned the applicant on the same day and searched his home,
although they had no warrant. The search revealed nothing and the
applicant and his wife were authorised to leave for Turkey on
holiday that very day.
9. On 22 May 1988 one of the deceased was recognised as a rock
singer who was very well known in Austria. This led to pressure
from the media to find the dealer who had sold the heroin that had
caused the deaths. Mr {Pottinger's} unit conducted numerous
inquiries between 22 and 31 May 1988.
10. On the latter date another Security Branch unit, led by
Chief Inspector Gross, and including at the material time Police
Officers Markl, Trnka and {Frohlich}, received an anonymous
telephone call accusing Mr Ribitsch of selling heroin to one of
the deceased.
At about 12.30 p.m. a number of officers belonging to this unit
arrested the applicant and his wife for drug trafficking and
searched their home, although they had neither a search warrant
nor an arrest warrant. The search revealed 0.5 g of hashish.
II. The applicant's detention in police custody
11. Mr Ribitsch and his wife were held in police custody at the
headquarters of the Security Branch of the Vienna Federal Police
Authority from about 12.30 p.m. on 31 May 1988 to about 9.30 a.m.
on 2 June 1988.
12. There are two conflicting versions of what occurred during
the period of police custody.
According to the applicant, the officers questioning him
grossly insulted him and then assaulted him repeatedly in order to
wring a confession from him. He received punches to the head
(Kopfnuss), kidneys and right arm and kicks to the upper leg and
kidneys. He was pulled to the ground by the hair and his head was
banged against the floor. Ninety per cent of his injuries were
inflicted by blows from Police Officer Markl. When released he had
bruises on his right arm and one thigh and was suffering from a
cervical syndrome, vomiting, diarrhoea and a violent headache.
A different version was given by Mr Markl in a report that was
dated 1 June 1988 but purported to give an account of events
which, according to the report itself, had occurred on 1 June from
about 3.20 p.m. onwards, on 2 June at about 8 a.m. and on 2 June
at about 9.30 a.m. The report stated that in the afternoon of 1
June the applicant was taken from police headquarters to an
acoustic research institute so that his voice could be compared
with that of a person who had made an anonymous phone call to the
Vienna emergency services. As he was getting out of the police
car, and while he had handcuffs on his wrists, Mr Ribitsch had
slipped and his right arm had banged into the rear door. Mr Markl,
who had opened the door for him, managed to grab hold of his left
arm, but was not able to prevent him from falling. However, his
fall had largely been broken and he had landed "gently" on his
behind. It was only the next morning, when being questioned, that
the applicant informed the police of his injury, although he
refused medical attention.
13. On being released from police custody the applicant
informed several members of his family, a psychologist and a
journalist of the ill-treatment he had allegedly suffered. On the
latter's advice he went to Meidling Hospital in the afternoon of 2
June, where he was examined from 5.35 p.m. onwards, and to his
general practitioner the following day. The hospital report
recorded bruises measuring 2 to 3 cm in the middle of the outside
of the right arm, and an appended neurological report recorded
bruises on the outside and inside of the right arm. No other
injury to his limbs was found. An X-ray showed no broken bones.
The doctor's report stated that the applicant had several bruises
on his right arm and symptoms characteristic of a cervical
syndrome, that he was suffering from vomiting and a violent
headache and that he had a temperature of 37.5- C. A photographer
took a photograph of Mr Ribitsch's injuries.
III. The criminal proceedings brought against the police
officers in the Vienna District Criminal Court
14. On 7 June 1988, following a programme on Austrian radio
about the methods allegedly used by the police when they
questioned Mr and Mrs Ribitsch, the Vienna Federal Police
Authority began an inquiry into the officers concerned and sent
the results to the public prosecutor's department on 25 October
1988.
On 22 November the applicant lodged a civil party claim for
damages under Article 47 of the Code of Criminal Procedure
(Strafprozessordnung).
A. The preliminary inquiries
15. On 26 June 1989 the judge of the Vienna District Criminal
Court (Strafbezirksgericht) conducted the preliminary inquiries
(Vorermittlungen) and heard Mr and Mrs Ribitsch as witnesses and
Police Officers Trnka, Gross, {Frohlich} and Markl as accused
(Beschuldigte).
In its report the Commission gave the following account of the
statements they made:
"23. The applicant stated that on 31 May 1988 he had been
arrested by four police officers, inter alia Markl and Trnka.
Following the taking of photographs and fingerprints, the
questioning had started in the afternoon and evening. At the first
questioning five police officers had been present, who had
interrogated him in turns. The applicant also indicated that the
police officers, with the exception of Police Officer {Frohlich},
were drinking wine. In the course of the questioning, their
superior Mr Gross had started to pull his handle-bar moustache and
to go around the room with him, and then also slapped him in the
face. As he still had not confessed, Police Officer Markl had
begun to hit him. He knew about this officer's identity as he had
seen him signing the record. Police Officer {Frohlich} had been
sitting at the typewriter. He had been the only officer behaving
correctly. Police Officer Markl had continued to hit him in the
course of the ensuing interrogations. Markl had been the one
hitting him most of the time, though, while he had been lying on
the floor, others had also kicked him. On the second day, even a
legally qualified person had been present for a short time and had
seen that he had been beaten. Police Officer Markl further had
attempted to provoke him to hit back. 90% of his injuries had been
caused by Markl. The haematoma on his right upper arm had been
caused by Markl's punches. Markl had further kicked him and caused
a haematoma on his right or left lower leg; the print of the shoe
had later been seen on his trousers. Police Officer Markl had also
grasped his hair and had thrown him to the floor. Upon
questioning, the applicant stated that there had been no accident
when he was taken by car to have his voice compared.
24. Police Officer Trnka stated that he had been working with,
inter alia, the Police Officers Markl and {Frohlich}. He could not
remember whether he had been present upon the applicant's arrest.
He had conducted the questioning of the applicant's wife. The
applicant had been questioned in another room, he had sometimes
been there to put questions to the applicant. He had learnt about
the injuries sustained by the applicant in the media. He himself
had not beaten or kicked the applicant, nor seen that his
colleagues had done so. The police officers had not drunk alcohol
in the course of the interrogations. Moreover, though working
hard, they had always taken a break at least between midnight and
7 a.m.
25. Police Officer Gross explained that he had been leading the
particular work unit since 1983, Police Officer Markl had been in
this unit for two years, Police Officer {Frohlich} for one year
and Police Officer Trnka for five years. He had been present at
times at the interrogations of both the applicant and his wife. He
had not touched the applicant or pulled his moustache, though he
remembered that the applicant had a peculiar moustache. At the
relevant time, they had worked overtime, but there had not been
any particular pressure upon them. He had been informed at that
time that the applicant had stumbled in the course of getting out
of a police car, Police Officer Markl or {Frohlich} had informed
him of this. He had not known about any injuries. He had
instructed his colleagues to draft a report on the incident. There
had been no alcohol in the room where the interrogations had taken
place.
26. According to Police Officer {Frohlich}, who had joined the
work unit in April 1988, Police Officer Markl had conducted the
questioning of the applicant in the presence of always two or
three colleagues. Upon questioning, he confirmed that a legally
qualified person, namely a superior, had been present for a short
time at one of the interrogations. No alcohol had been drunk in
the course of the questioning. They had worked overtime, but there
had been no particular pressure. {Frohlich}, stating that he had
been present at most of the questioning, denied that the applicant
had been bodily assaulted. {Frohlich} continued that on 1 June
1988 he had, together with Police Officer Markl, taken the
applicant to have his voice compared. {Frohlich} had driven and
Markl had been at the rear with the applicant who had been
handcuffed with his hands in front of his body. The applicant had
probably stepped out of the rear left door. {Frohlich} indicated
that he had not seen the applicant stumble, but heard something
like it. When he had turned around, he had seen Markl already
holding the applicant. The applicant had said that he was not
hurt. The next day the applicant had mentioned the bruise on his
upper arm. One of them had informed Police Officer Gross about the
bruise, and Gross had advised them to draft a report on the
incident.
27. Police Officer Markl stated that he had joined the work
unit of Police Officer Gross in May 1988. He had at the time
interrogated the applicant, but he had certainly not been alone:
in order to avoid unfounded allegations, other colleagues had been
present for at least part of the time. Markl denied having used
violence against the applicant, and supposed that the applicant
and his wife, for unknown reasons, wanted to take revenge on them.
As to the course of the interrogations, Markl specified that at
the beginning the applicant had denied any involvement in the
offences at issue; only in the further course of questioning had
he given the decisive hint as to the identity of the actual
culprit. As regards the injuries sustained by the applicant, Markl
confirmed his statements in his report of 1 June 1988. During the
drive, he had been sitting next to the applicant, who had been
handcuffed with his hands in front of his body, in the rear of the
police car. Markl continued that he had opened the door on the
applicant's side from the outside. The applicant had stumbled
while getting out and fallen, knocking his right arm against the
doorframe. Markl had only been able to stop him falling. The
applicant had said that he was all right. Only the next day had he
mentioned a bruise on his right upper arm. Markl could not
remember any other injuries or a footprint on the applicant's
trousers. Markl clarified that he had written the report
concerning the accident on 2 June, but had put the date of the
incident. Markl further confirmed that a superior, possibly
presented as a legally qualified person, had shortly been present
at one of the interrogations. Markl also indicated that he worked
normally 60 to 70 hours overtime per month; at the relevant time
he had possibly done 80 to 90 hours overtime. Moreover, they had
not consumed any kind of alcohol during their work."
B. The trial
16. On 13 October 1989 the trial of Police Officers Trnka,
Gross and Markl on charges of assault occasioning bodily harm
opened in the Vienna District Criminal Court, composed of a single
judge. During the trial the judge examined the accused and several
witnesses, namely Mr and Mrs Ribitsch, Police Officer {Frohlich},
Mr Pretzner, the head of the three units of the Security Branch of
the Vienna Federal Police Authority, and all those who had seen
the applicant's injuries or been informed by him of the ill-
treatment he had undergone. These included Dr Scheidlbauer, the
general practitioner, Dr Tripp, the psychologist, Mr Buchacher,
the journalist, and Mr Lehner, the photographer.
In its report the Commission gave the following account of
their statements:
"30. Police Officer Markl referred to his earlier statements.
Upon questioning, he explained that due to information given to
him, the investigations concerning the case in question had been
transferred from another work unit at the Vienna Federal Police
Authority. Following their arrest, the applicant and his wife had
been brought to the Police Authority. Questioned about the further
development of matters regarding the applicant, Police Officer
Markl stated that the applicant's identity had been established
and he had been questioned about the offences concerned. Markl
confirmed that Police Officer {Frohlich} had been present in the
course of the interrogation. However, he could not remember
whether Police Officers Gross and Trnka had been also there. The
applicant had claimed to be innocent, and even claimed that he had
nothing to do with drugs and in particular opium. He had
complained that the police was again creating difficulties.
Moreover, the applicant had repeatedly indicated that he would
cause troubles and ridicule them. Police Officer Markl then
described the events when the applicant had been taken out of the
building of the Police Authority: The applicant had been
handcuffed with his hands in front of his body, he had been
sitting in the rear of the police car. Upon arrival, Markl had
opened the door where the child lock had been in position as a
precautionary measure. When getting out of the car, the applicant
had lost his balance, had fallen and hit his right arm against the
door frame. He had shown his injury, a round bruise, but had not
wanted to see a doctor. Upon further questioning by the public
prosecutor, Markl stated that, upon the arrest, a piece of hashish
had been found upon the applicant, nothing upon his wife. However,
police informers had told them that the applicant had been dealing
with heroin and had been selling washing powder to drug addicts.
This information had not been recorded as the informers were not
prepared to make a statement for the record. Upon further
questioning, Markl indicated that, having first denied any
relationship to one of the victims, the applicant and his wife had
later admitted a close relationship.
31. Police Officer Trnka first made some more general remarks
about the organisation and distribution of work between the three
units dealing with drug offences. He remembered that he had been
present at the arrest of the applicant and his wife and that he
had interrogated the applicant's wife. Though he had not assisted
in the questioning of the applicant in the adjoining office, he
had occasionally come to put questions to the applicant. They had
mainly inquired about discrepancies in the spouses' statements
about their alibi. He had learnt about the injury sustained by the
applicant only after his release.
32. Police Officer Gross, the head of the work unit concerned,
also explained that following information obtained by Police
Officer Markl on the particular case, it had been transferred from
another work unit which had initially conducted the
investigations. He had seen the applicant for the first time
during the interrogation in the afternoon. Together with Police
Officer Trnka he had questioned the applicant's wife, but also the
applicant in order to verify their alibi, as there had been
discrepancies in their statements. As regards the applicant's
injury, he remembered that either Police Officer Markl or Police
Officer {Frohlich} had informed him about the incident in the
course of the escorted visit. He had instructed them to draft a
report. Being asked in detail about the applicant's allegations of
ill-treatment, Gross stated that it appeared practically
impossible to pull the applicant around by his moustache without
leaving injuries to his face.
33. The applicant, heard as a witness, stated that, following
his arrest in the late morning, he had first been questioned in
the late afternoon by Police Officers Markl and {Frohlich}, in
particular about his alibi. Violence had been used, Gross had
pulled him around the room by his moustache, and he had been
slightly hit on his head. In the afternoon of the second day, he
had again been interrogated, and because he had refused to admit
that he had given drugs to the two persons who had subsequently
died, he had been beaten every half-hour. He had also been kicked
while lying on the floor, and had therefore not seen the persons
who had kicked him. Police Officer Markl had hit him on the upper
arm and kicked him. On one occasion, a legally qualified person
had been present who had not stopped the beatings. Police officers
from another group had also been present; there had been continual
changes. In between, he had been escorted to have his voice
compared. Questioned about the escorted visit, the applicant
denied that he had stumbled while getting out of the car. He also
confirmed that Police Officer {Frohlich} had not hurt him.
34. The applicant continued that he had been released on 2 June
1988 at the same time as his wife; they had gone home where he had
met his brother and a psychologist, Dr Tripp, with whom he was
acquainted. He had only later noticed that a footprint on his
trousers was consistent with an injury to his leg. After having
taken a shower and changed clothes, he had met the journalist
Buchacher. Subsequently he had gone to the hospital. Two fingers
of his right hand had been numb. On the next day he had got a
stiff neck, he had vomited. The applicant stated that he had not
eaten for two days and that he had a nervous stomach. He further
stated that he had health problems due to the fact that Markl had
pulled him by the hair off a chair and on to the floor.
35. The applicant's wife stated that she had been questioned by
Police Officer Trnka, subsequently cross-examined by four persons
and later by Police Officers Markl and {Frohlich}. She had been
released at the same time as her husband who had told her
immediately that he had been hit and beaten and pulled by his
moustache and hair. She had seen the bruises mentioned by him, and
also the shoe-print on his trousers. Her husband had said that
Police Officer Markl had caused the injuries. Her husband had
complained about pain in the neck, headache, and later a feeling
of numbness in his right hand.
36. Police Officer {Frohlich} was next heard as a witness. He
stated that following a tip-off about who had given the deceased
the drugs the case had been transferred to their work unit.
Because of the rivalry existing between the units, information of
such kind would not be passed on. Upon his arrest, the applicant
had said that he would cause difficulties. However, during his
interrogation, the applicant had been quite calm. {Frohlich}
denied having seen that the applicant had been hit. As regards the
escorted drive, {Frohlich} indicated that he had parked the police
car rather close to another car. Police Officer Markl had opened
the door for the applicant. According to {Frohlich}, there had
been a noise and, turning around, he had seen that Markl was
holding the applicant. {Frohlich} confirmed that Police Officer
Gross had advised them to draft a report on the incident.
37. The applicant's doctor, Dr Scheidlbauer, confirmed that he
had examined the applicant who had been undressed. The applicant
had several haematomas, the largest on his right upper arm.
Scheidlbauer had the impression that the applicant had either
bumped against something or had been hit. Scheidlbauer excluded
that a fall against a doorframe could have caused these
haematomas. The applicant had not indicated that he had been hit
by the police. Scheidlbauer had not ascertained injuries to the
legs, but there were other bruises and the applicant had
complained about vomiting and headache. The applicant had not had
a concussion but, as a consequence of a cervical syndrome, had
been unable to turn his head. Upon questioning, Scheidlbauer
stated that such a cervical syndrome could have several causes,
inter alia, a cold or the fact that somebody had been several
times pulled by his hair. However, the cause could not be
objectively established.
38. The psychologist Tripp, who had seen the applicant after
his release, confirmed that the applicant had told him about his
arrest and detention and about having been hit and maltreated by
the police, in particular one police officer. Tripp further said
that he had not looked for any injuries. He also stated that he
had not for a moment had the impression that the applicant had
made up his story.
39. The court next heard Mr Pretzner, the head of the section -
with three work units - at the Vienna Federal Police Authority
which had been responsible for the investigations in the opium
poisoning cases. Pretzner first explained the organisation and
distribution of work between the units and, in this context,
excluded rivalry between the units. Moreover, Pretzner stated that
he had been present at the questioning of the applicant by Police
Officers Markl and {Frohlich} for about ten minutes. Pretzner
remembered that he had advised the applicant that a confession
could result in the court passing a more lenient sentence. Being
confronted with the applicant's allegations, Pretzner denied that
the applicant had been tortured or beaten; rather, the atmosphere
had been friendly.
40. The applicant's sister-in-law, Mrs Hoke, described the
state of the applicant and his wife following the release from
detention. Mrs Hoke confirmed in particular that she had seen the
bruise on his right upper arm and that the applicant had told her
that he had been pulled around by his hair, thrown to the floor,
punched and that two or three police officers had been present
most of the time, the most brutal one having been the Police
Officer Markl. She could not remember having seen a shoe-print on
the applicant's trousers.
41. [The applicant's brother] I. Ribitsch stated that when they
had met at the applicant's apartment the applicant had told him
that he had been subjected to physical violence while in
detention, namely that he had been beaten, kicked and pulled by
the hair to the ground. I. Ribitsch had seen several bruises on
the applicant's body, and a shoe-print on the applicant's
trousers. The applicant had also told him that he had problems
with his stomach and had vomited.
42. The applicant's sister-in-law, Mrs Hoke, and his brother I.
Ribitsch were subsequently questioned about whether the applicant
had mentioned an accident in the course of an escorted visit. Mrs
Hoke stated that the applicant had mentioned that one of the
police officers had told him that this was the cause of his
injuries. I. Ribitsch had not heard about this.
43. The reporter Buchacher had been informed by the applicant's
sister-in-law, Mrs Hoke, about the applicant's allegations of ill-
treatment in the course of his police detention. Buchacher had
thereupon arranged by phone a meeting with the applicant.
Buchacher had been shown several injuries, haematomas on the
applicant's right arm, the largest on the outside, one or two
smaller on the inside. Buchacher had photographed them the next
day for the purposes of a story in a magazine. Upon questioning,
Buchacher indicated that the applicant had told him that his voice
had been compared, but not that he had fallen out of the police
car.
44. Buchacher then turned to read from the notes which he had
made in the course of the conversation with the applicant at the
time according to which the applicant had given the following
account: the head of the group had pulled him by the beard and hit
him on the head with the flat of his hand; during the first
interrogations he had been insulted, but not yet been hit.
Following the escorted visit to the Acoustics Research Institute,
the police officers had shaken him by the feet and hands and
beaten him for about twenty minutes. There had been bottles of
wine in the office and the police officers had been smelling of
alcohol. Police Officer {Frohlich} had behaved correctly and not
hit him, Police Officer Markl had hit him the most. They had also
threatened to place his children at a children's home. Only at the
last interrogation in the morning before his release, all police
officers, including Markl, had been friendly and polite.
45. Buchacher also indicated that he had seen a footprint on
the applicant's trousers which appeared to have been dragged over
the floor. Buchacher continued that he had verified that the shoe-
print coincided with a haematoma on the applicant's leg below his
knee. Upon questioning, Buchacher stated that he did not have the
impression that the applicant had been acting.
46. The photographer Lehner, a colleague of the journalist
Buchacher, confirmed that he had photographed the injuries
suffered by the applicant, namely a severe bruising on his right
upper arm. He also remembered injuries to the applicant's legs. He
had not taken photographs of the smaller injuries as they would
not have been visible."
C. The judgment
17. At the end of the trial the District Criminal Court found
Police Officer Markl guilty of assault occasioning bodily harm,
within the meaning of Article 83 para. 1 of the Criminal Code
(Strafgesetzbuch), and sentenced him to two months' imprisonment,
suspended, and three years' probation. It also ordered him to pay
Mr Ribitsch the sum of 1,000 Austrian schillings (ATS). The other
two police officers, Mr Trnka and Mr Gross, were acquitted.
In its judgment of 13 October 1989 the court gave a brief
account of the criminal investigation, referring to the pressure
the officers in Mr Gross's unit had been under to find the guilty
person and the many hours of overtime they had put in on that
account. It then described the ill-treatment suffered by the
applicant while in police custody and excluded the possibility
that his injuries could have been caused accidentally. The court
based its judgment on the evidence given by Mr Ribitsch, who had
made an excellent impression in the witness box, and by the
witnesses, particularly the journalist who had seen the applicant
on the day when he was released from police custody and had taken
notes. It went on to say:
"In summary, the court therefore notes that the injuries
sustained by Ronald Ribitsch were seen by several people who were
not in any way involved in the events giving rise to the case.
These injuries consisted of several bruises - not a slight
abrasion or a small bruise - on the upper right arm. The claim
that a cervical syndrome was sustained is credible, given the
description of how it occurred, namely by the head being pulled
violently backwards by the hair. It is a fact recognised by the
courts (gerichtsbekannt) that it is impossible to prove the
existence of a cervical syndrome by objective means, even using X-
rays. To have consulted a medical expert for this purpose would
therefore merely have led to a delay in the proceedings. A
haematoma about as big as an egg, many other bruises and a
cervical syndrome constitute bodily harm. This is not a question
for an expert; it is a matter for the court, which it has duly
determined in accordance with the consistent case-law.
It is not only the testimony that has so far been heard which
is persuasive of Ronald Ribitsch's credibility but also his
excellent memory of the persons concerned. In this connection, the
court would refer to the identity parade on 26 June 1989, that is
more than one year after the offence (file, item 10). At this
identity parade, consisting of a total of nine persons, Ronald
Ribitsch did not hesitate for one moment in recognising those
involved in the police interviews, and in particular the accused
Markl.
Ranged against this evidence is the line of defence established
by the accused, which can only be described as disquieting. Both
he and his defence lawyer, as well as his superior officer, Mr
Pretzner, attempted at the trial (file, page 114 in item 25) to
make Ronald Ribitsch out to be a despicable, work-shy individual.
Apart from the fact that an officer of the Security Branch does
not have the right to beat someone up in order to induce him to
make a confession, simply because he is unemployed, what is
noteworthy here is the obviously misguided attitude of the accused
to his legal obligations. In his efforts to portray the witness
Ribitsch as a depraved individual, he suddenly claimed at the
trial that the two anonymous callers had been Wilhelm Puschl and
Ursula Hennemann. He had, he stated, in the meantime learned from
them that 'Ribitsch [was] a despicable creature (eine miese
{Krote}) because he [sold] washing powder to the poorest of the
poor, the drug addicts' (file, page 128 in item 25). When the
court asked him whether he had reported this, he was forced to
reply that he had not. He subsequently went on to entangle himself
in more and more contradictions concerning the statements made by
these two witnesses (file, page 129 in item 25). If the accused's
claim were really true this would mean that an officer of the
Security Branch, who had good reason to suspect someone of, at the
very least, deliberately inflicting grievous bodily harm by
selling washing powder he passed off as heroin, did not consider
it necessary in any way at all to perform his duty under Article
84 of the Code of Criminal Procedure. The conclusion must be drawn
that the accused Markl would prefer to allow criminal acts to be
committed with potentially fatal consequences than to run the risk
of having people say that he now wants to pin something on
Ribitsch - which he is obviously afraid of (see page 129).
With regard to the application for a forensic doctor to be
appointed with a view to showing that the injuries and the
haematoma could also have been caused by a fall against the edge
of the car door and that the other bruises on the inside of the
upper right arm were caused when the former suspect's arm was
grabbed, the court notes as follows: The accused Markl himself
states in his (wrongly dated) report (file, page 419) that when
Ronald Ribitsch was taken away for the voice comparison to be made
he evidently missed his footing getting out of the car, which
caused him to lose his balance and his right arm to bang into the
edge of the car door, which had remained open. He, Markl, who had
been standing right next to him, had managed to grab his upper
left arm but had not been able to prevent him from falling.
However, due to his intervention the fall had been rendered much
less serious, and Ribitsch had only fallen gently on to his
behind. Markl therefore himself states that he grabbed Ribitsch by
the left arm, so that he cannot have inflicted a bruise on the
inside of the right arm by catching him in this way. However, this
version of events in the report is also contradicted by the
witness {Frohlich} (file, page 103 in item 25). This witness
stated that there had been a big problem finding a place to park.
He had had to park very close to another vehicle, so that he had
had a great deal of trouble getting out of his own. It is "very
strange" (lebensfremd) that, although the driver of the vehicle
had great difficulty getting out of it on his side, and although,
because of the tight squeeze, the suspect at the time (Mr
Ribitsch) must obviously also have had trouble getting out - Markl
stated that Ronald Ribitsch sat directly behind the driver - there
was yet sufficient room for Ribitsch to fall against the edge of
the door and then on to his bottom. If one considers Ronald
Ribitsch's size, that is impossible. Furthermore, the witness
Scheidlbauer, who is a general practitioner, made a statement as
an expert witness that was both credible and "easy to understand"
(nachvollziehbar), namely that whilst the largest bruise had been
on the upper right arm it had not been the only one there. He
continued by drawing attention to a phenomenon that the courts
have recognised in many previous cases, namely that a person who
falls against a hard edge normally has a graze or a skin wound,
whereas when a person falls against or is struck by something
without sharp edges, whether it is something with a large surface
area or a fist, it is not the surface that is affected but the
soft tissues underneath the skin (file, page 107). Similarly, a
cervical syndrome could be the result of Ribitsch's head being
violently shaken.
In law, both the objective and the subjective elements of the
offence have been made out and Josef Markl is therefore guilty of
the offence of assault occasioning bodily harm as defined in
Article 83 para. 1 of the Criminal Code. The conditions laid down
in Article 42 of the Criminal Code are not satisfied since this
kind of behaviour cannot be classified as a trivial offence.
Moreover, the specific, and above all general, requirements of
deterrence militate against the application of this rule. Josef
Markl was unable to prevent himself from committing the acts in
issue in the instant case, even though he must have known that
similar proceedings (where the facts were more serious) had
already been brought against one of his superior officers, Mr
Gross.
In sentencing the accused, the court considers the fact that
the accused has no previous convictions to be a mitigating
circumstance. On the other hand, his particularly brutal conduct
constitutes an aggravating circumstance. Given a possible maximum
sentence of nine months, the sentence imposed of two months is
reasonable in view of the offender's personality and the degree of
culpability. For general reasons of deterrence - more and more
accusations directed against the brutal policemen ({prugelnde}
Polizisten) of the Security Branch have been made in recent years
- a fine would not have been sufficient.
In view of the length of prison sentence imposed, it must,
however, be assumed that the threat of its execution will be
sufficient to deter Josef Markl and others from committing
criminal acts. For this reason, the court has been able to impose
a suspended sentence."
IV. Police Officer Markl's appeal
to the Vienna Regional Criminal Court
18. Mr Markl appealed against the judgment to the Vienna
Regional Criminal Court (Landesgericht {fur} Strafsachen).
A. The expert opinion
19. By an interlocutory decision of 2 March 1990 the court
ordered an expert opinion to be produced by the University of
Vienna Institute of Forensic Medicine concerning the probability
of there being a causal connection between Mr Ribitsch's injuries
and the accident which had allegedly occurred when he was taken
out under police escort, and the credibility from the medical
point of view of the applicant's statements regarding the ill-
treatment he had undergone.
20. After interviewing both Mr Ribitsch and Mr Markl and
organising a reconstruction of the applicant's alleged fall
against the rear door of the police car, the expert from the
Institute of Forensic Medicine summarised his findings as follows:
"Therefore, judging by Meidling Accident Hospital's medical
records, Ronald Ribitsch had a group of bruises on the outside of
his upper right arm covering an area of 2 by 3 cm. Moreover, the
findings of the neurological examination also contain a
description of bruising to the inside of the right arm. Thus, the
only injuries established by doctors were the bruises on the
outside and inside of the upper right arm described above. These
bruises must be regarded as minor and are to be interpreted as the
result of dull blows to these parts of the body (lokale stumpfe
Gewalteinwirkung). They are not likely to result in more than 24
days' sickness or unfitness for work.
Whether there was further bruising in the area of one armpit
and below the right knee must be left to the judge's assessment of
the evidence, as no medical findings were available to form the
basis for an opinion on this question. The decisive factor is the
credibility of the witness evidence. Even if one assumes that
these haematomas existed it would make no difference to the
assessment of the consequences of the injuries described above.
The general practitioner Dr Fritz Scheidlbauer diagnosed a
cervical syndrome and pointed to vomiting, headaches and a raised
body temperature. However, the neurological examination conducted
at Meidling Hospital did not reveal any evidence of a head injury
or a displaced cervical vertebra. These symptoms can be
interpreted in this case as non-specific complaints, resulting,
for example, from a general infection (Allgemeininfekt) (Ronald
Ribitsch stated that he was suffering from diarrhoea). On the
other hand, from the point of view of forensic medicine, no
connection can be proved with any trauma that may have been
suffered.
The results of the test carried out with the car - no big
differences are to be expected with a VW Golf - showed that the
bruising to the outside of the upper right arm was roughly
consistent as far as its position was concerned with the bruise on
the outside of the upper arm described in the outpatient records
and visible in the photograph. From the medical point of view
these injuries must be described as non-specific injuries, and
they only support the conclusion that this area of the body was
violently struck by a blunt 'instrument', without it being
possible to conclude from the nature of the damage what kind of
instrument it was. The possibility cannot therefore be excluded
that the injury was caused by a bump against the car door.
Even if one proceeds upon the assumption that the injuries
described by the witnesses existed, the general diagnosis must, on
the whole, be described as non-specific, so that no certain
conclusion can be drawn from the medical point of view as to
whether there was maltreatment, although blows to the upper arm
and, perhaps, a kick in the knee area cannot be excluded. However,
serious ill-treatment lasting several hours cannot in any case be
deduced from the overall pattern of the injuries.
However, the version submitted by Josef Markl, namely that
Ronald Ribitsch fell against the car door can explain only one of
several injuries that may have been sustained."
B. The hearing
21. At the hearing on 14 September 1990 the expert's report and
a statement by the "police detention centre" to the effect that
the prison doctor had seen Mr Ribitsch at 8 a.m. on 1 June 1988
and had declared him fit for detention were read out. The court
then heard Police Officer Markl, Mr Ribitsch and the expert from
the Institute of Forensic Medicine.
In its report, the Commission gave the following account of Mr
Markl's and the applicant's declarations:
"60. Police Officer Markl was again questioned on the
accusations against him, brought both by the applicant and his
wife. Markl expressed the view that the applicant's wife had
suffered from the fact of her detention as such and had, together
with her husband, concentrated upon Markl against whom to bring
their accusations. Markl remembered that upon his arrest the
applicant had threatened to cause difficulties. At a later stage,
when his superior Pretzner had been present, there had, as usual,
been a rather calm atmosphere. At the questioning on 2 June 1988,
the applicant had shown him the bruising on his right upper arm,
but had not wanted to see a physician. Markl also repeated his
version of the incident upon the applicant's escorted visit.
61. The applicant was questioned about his professional
training and his past occupations, his financial situation,
furthermore about his contacts with drugs. Questioned about the
alleged escalation of the interrogation, the applicant stated that
the police officers had wished to find a culprit by any means. As
regards the first questioning on 31 May 1988, he stated that
Police Officer Gross had disliked one of his answers and,
therefore, pulled him by his moustache out of the chair and later
put him down again. As he had not resisted, his moustache had not
been torn off. Police Officer Markl had already hit him at that
stage, however not in the face; throughout the beating Markl had
attempted to avoid marks as far as possible. The applicant further
stated that he had not suffered any accidental incident upon his
escorted visit, and he insisted that at the time he had been
driven in a two-door car, whereas the reconstruction had been done
with a four-door car. The applicant was subsequently questioned in
detail about the course of the maltreatment to which he had
allegedly been subjected. He repeated his earlier statements that
Markl had mainly beaten and kicked him and pulled him by the hair,
though, when lying on the floor, he had the impression of being
kicked by more than one person. Questioned about the varying
statements in the course of the proceedings as to the shoe-print,
the applicant insisted that the haematoma had been on his lower
leg underneath his knee, as had the shoe-print on his trousers. He
could not say with certainty that Markl had kicked him, causing
this particular haematoma. The applicant also said that he had
chosen counsel to represent him in this matter only after having
gathered information. The reporter of the public broadcast had
coincidentally been present in a pub where he had told friends
about the incidents."
C. The judgment
22. At the end of the trial the Regional Criminal Court quashed
the District Court's judgment of 13 October 1989 and acquitted Mr
Markl. Pursuant to Article 366 para. 1 of the Code of Criminal
Procedure, it referred the applicant to the civil courts in
respect of his claim for damages.
In its judgment of 14 September 1990 the court set out its
reasons as follows:
"However, the defence lawyer's written appeal against
conviction and his oral pleadings at the hearing on 2 March 1990
cause attention to be focused on the question whether on its own,
and in context, the evidence incriminating the accused provides a
sufficient degree of reliability to support a verdict of guilty,
since it must be borne in mind that the civil party Ronald
Ribitsch has been involved, from time to time at any rate, in the
drug scene.
The position confronting the appeal court as regards evidence
(Beweislage) is as follows: while it is true that the statements
made by all the witnesses informed by the civil party Ronald
Ribitsch tallied perfectly with his own version of events, which
always remained the same, the objective accuracy of this version
stands or falls solely on the reliability of the evidence given by
Ronald Ribitsch. Moreover, like the court of first instance, the
appeal court has no doubt as to the subjective accuracy of the
statements made by the witnesses Dr Scheidlbauer, Dr Tripp,
Elisabeth Hoke, Robert Buchacher and Peter Lehner, and can
therefore base its decision on the record of their testimony, in
accordance with Article 473 para. 2 of the Code of Criminal
Procedure. Nevertheless, it considers it necessary to inquire into
Ronald Ribitsch's credibility, to weigh up his story against that
of the accused and to supplement the evidence adduced in the
proceedings at first instance by consulting an expert from the
Institute of Forensic Medicine."
With regard to the applicant's credibility, the Regional Court
pointed out that on 6 October 1988 the District Criminal Court had
found him guilty of drug offences and ordered him to pay a fine.
Moreover, he had been unemployed for several years and lived off
his wife's income and social security benefits. These resources
were not, however, sufficient to cover his expenses as a drug user
who was the father of two minor children at the material time, or
his other personal expenses. The court then summarised the
versions given by Mr Ribitsch on the one hand and Mr Markl on the
other of the events which had occurred while the applicant was in
police custody, and went on to say:
"Neither Ronald Ribitsch's account nor the testimony of his
wife Anita in the file have been able to satisfy the appeal court
conclusively that there was a situation which could logically
explain why the police interviews degenerated into criminal
behaviour. Moreover, seeing that only four police officers were
present and asked questions during the interviews, and were busy
for part of the time interviewing Anita Ribitsch, that Police
Officers Gerhard Trnka and Helmut Gross, who were subsequently
acquitted, were cleared of blame by Ronald Ribitsch himself (vol.
II, pages 95 and 96) and that neither Ronald Ribitsch nor his wife
Anita accused Police Officer {Mario Frohlich}, who treated them
correctly, of any offence (Ronald Ribitsch to Buchacher, vol II,
pages 122 and 123; Anita Ribitsch, vol. I, page 47), the appeal
court considers that it remains a completely open question which
other Security Branch officers might have been Josef Markl's
accomplices (Mit - oder {Nebentater}). The view of the evidence
taken by the court of first instance, to the effect that public
pressure to solve the crime, which was reflected in the numerous
hours of overtime (confirmed by the Chief of Police, Dr {Bogl}, in
vol. I, pages 37 and 43), constituted sufficient motivation, does
not appear to the appeal court to be capable of bearing scrutiny
({tragfahig}), since one cannot simply assume that a police
officer, and one moreover who had good reason to be aware of the
heightened vigilance of the media, would let himself be drawn into
criminal acts in a way that defies all logic.
Ronald Ribitsch's version of events, according to which,
"between 3 p.m. and 10.45 p.m. on 1 June 1988 he was questioned
for periods of about three-quarters of an hour, each time by three
police officers, after which two more officers banged his head
against the floor and kicked him for a quarter of an hour" (vol.
I, page 27) leads one to expect a large number of injuries,
especially to prominent parts of the face. Similarly, Ribitsch's
claim (loc. cit.) that he was hit on the body in such a way "that
this did not leave many marks but was nevertheless very painful"
would suggest that the officers had gone about their task in a
methodical way, but this cannot be reconciled with Ronald
Ribitsch's account, according to which the officers, in their
efforts to force him to confess, had lost all control over their
actions. This version of events does not tally with Mr Ribitsch's
assertion that it was possible for him to distinguish between the
officers questioning him and those who were maltreating him, given
that, according to other statements made by Ribitsch, Josef Markl
participated both in the interrogation and in the ill-treatment."
The court then turned to the question of the injuries noted on
the applicant's person.
(i) It referred to Mr Markl's statements to the effect that Mr
Ribitsch had lost his balance when he bumped into the car's rear
door and had slid to the ground before he, Markl, could grab hold
of his left arm and break his fall. According to the forensic
medical report, it was not impossible for the bruises on the
outside of the applicant's right arm to have been caused by this
fall, even though the general practitioner questioned by the court
of first instance on this subject had stated that this was rather
unlikely. Lastly, the expert from the Institute of Forensic
Medicine, who had organised the reconstruction of the events, had
stated that the more violent Mr Ribitsch's collision (Anprall)
with the car door had been, the more likely it was to have caused
the injuries, but that the more it resembled a mere slip to the
ground (Abgleiten), the more improbable was the version of the
events given by the accused.
(ii) The court added that only one of the witnesses, namely the
journalist, had noted the existence of a bruise on the inside of
the right arm, which in any case was not by itself proof of ill-
treatment. Moreover, Mr Markl had stated in that connection that
he could not be sure he had not also grabbed Mr Ribitsch's right
arm to stop him falling.
(iii) As for the applicant's other symptoms, namely the
cervical syndrome, stiffness of the fingers and diarrhoea, the
court pointed out that, according to the report from the Institute
of Forensic Medicine, these might also have been signs of a
general infection.
The court refused the applicant's lawyer's request that further
evidence be taken, such as re-examination of the witnesses,
production of the recording made by Austrian radio, reconstruction
of the events with a two-door VW Golf and a psycho-neurological
report; it also refused the prosecution's request for production
of the Security Branch log-books so that it could be checked
whether a two-door or four-door car had been used. It concluded in
these terms:
"Finally, if one considers the fact that the civil party Ronald
Ribitsch did not see fit to report the offence, that he has been
unable in the course of these proceedings to state why he did not
do so, that, for incomprehensible reasons, he chose the course of
making a public accusation on Austrian radio and that during the
proceedings he became entangled in contradictions concerning the
alibi to be proven by the witness Stranner, then there are
considerable doubts as to the reliability ({verlassliche
Tragfahigkeit}) of his evidence.
The appeal court is therefore unable to reach a conclusive
decision either to reject the accused's evidence or to accept even
in part the evidence adduced by the civil party Ronald Ribitsch
with the certainty which alone may be made the basis of a verdict
of guilty in criminal proceedings.
..."
V. The applicant's application
to the Constitutional Court
23. Mr Ribitsch then applied to the Constitutional Court, which
gave judgment on 26 November 1990. It held that the applicant's
arrest, his detention in police custody and the searches carried
out at his home had been unlawful and had infringed his right to
liberty of person and respect for his home. The police had not
been in possession of either an arrest warrant or a search warrant
and had not been able to establish the risk of collusion or
immediate danger. It ruled that it had no jurisdiction to rule on
the question of the insults allegedly uttered by the police to the
applicant. As for the ill-treatment he had allegedly undergone, it
noted that the three defendants had been acquitted by the lower
courts and concluded:
"In the light of this outcome of the criminal proceedings
(during which a large body of evidence was presented), the
Constitutional Court considers that it is not in a position
(ausser Stande) to uphold the applicant's allegations and to
consider the claims of ill-treatment made in the application to
this court to have been proved beyond doubt. In summary, in the
proceedings before the Constitutional Court it was no longer
possible, in the circumstances, to clarify the relevant facts any
further, nor, consequently, to furnish proof of the alleged human
rights violation.
On this point also, therefore - in the absence of a valid
object - the application must be declared inadmissible
({unzulassig})."
PROCEEDINGS BEFORE THE COMMISSION
24. Mr Ribitsch applied to the Commission on 5 August 1991.
Relying on Articles 3 and 6 para. 1 (art. 3, art. 6-1) of the
Convention and Article 13 in conjunction with Article 3 (art.
13+3), he complained that he had undergone inhuman and degrading
treatment during his detention in police custody, that he had been
prevented from effectively prosecuting his action for damages on
account of his status as civil party in the criminal proceedings
and that he had not had an effective remedy in the Constitutional
Court.
25. On 20 October 1993 the Commission declared admissible the
complaint under Article 3 (art. 3) and the remainder of the
application (no. 18896/91) inadmissible.
In its report of 4 July 1994 (Article 31) (art. 31), it
expressed the opinion (by ten votes to six) that there had been a
breach of Article 3 (art. 3). The full text of the Commission's
opinion and of the two separate opinions contained in the report
is reproduced as an annex to this judgment <*>.
--------------------------------
<*> Note by the Registrar: for practical reasons this annex
will appear only with the printed version of the judgment (volume
336 of Series A of the Publications of the Court), but a copy of
the Commission's report is obtainable from the registry.
FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT
26. In their memorial the Government asked the Court to hold
"that the applicant's rights under Article 3 (art. 3) of the
Convention were not infringed by the officers of the Vienna
Federal Police Authority".
AS TO THE LAW
I. Alleged violation of Article 3 (art. 3)
of the Convention
27. Mr Ribitsch claimed that while in police custody at the
Security Branch of the Vienna Federal Police Authority he had
undergone ill-treatment incompatible with Article 3 (art. 3) of
the Convention, which provides:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
28. The Government contested this allegation. The Commission
considered it well-founded.
29. The applicant asserted that the injuries he had on his
release from police custody, particularly the bruises on the
inside and outside of his right arm, had been seen by a number of
witnesses, including a journalist, a psychologist and doctors (see
paragraphs 13 and 16 above). These injuries had only one cause,
namely the ill-treatment inflicted by the police officers who
questioned him, who, after grossly insulting him, had assaulted
him repeatedly in order to induce him to make a confession (see
paragraphs 12, 15 and 16 above).
30. The Government did not dispute that Mr Ribitsch's injuries
were sustained while he was in police custody, but pointed out
that it had not been possible during the domestic criminal
proceedings to establish culpable conduct on the part of the
policemen. In that connection they referred to the conclusions of
the Vienna Regional Criminal Court, which had conducted its own
assessment of the evidence, in particular by ordering a forensic
medical report, and had thoroughly scrutinised Mr Ribitsch's
statements and his credibility. They submitted that, for a
violation of the Convention to be found, it was necessary for ill-
treatment to be proved "beyond reasonable doubt".
31. The Commission expressed the view that a State was morally
responsible for any person in detention, since he was entirely in
the hands of the police. In the event of injuries being sustained
during police custody, it was for the Government to produce
evidence establishing facts which cast doubt on the account of
events given by the victim, particularly if this account was
supported by medical certificates. In the instant case, the
explanations put forward by the Government were not sufficient to
cast a reasonable doubt on the applicant's allegations concerning
the ill-treatment he had allegedly undergone while in police
custody.
32. The Court reiterates that, under the Convention system, the
establishment and verification of the facts is primarily a matter
for the Commission (Article 28 para. 1 and Article 31) (art. 28-1,
art. 31). It is not, however, bound by the Commission's findings
of fact and remains free to make its own appreciation in the light
of all the material before it (see, among other authorities, the
Klaas v. Germany judgment of 22 September 1993, Series A no. 269,
p. 17, para. 29). The Court further points out that in principle
it is not its task to substitute its own assessment of the facts
for that of the domestic courts, but that it is not bound by the
domestic courts' findings any more than it is by those of the
Commission.
Its scrutiny must be particularly thorough where the Commission
has reached conclusions at variance with those of the courts
concerned. Its vigilance must be heightened when dealing with
rights such as those set forth in Article 3 (art. 3) of the
Convention, which prohibits in absolute terms torture and inhuman
or degrading treatment or punishment, irrespective of the victim's
conduct. Unlike most of the substantive clauses of the Convention
and of Protocols Nos. 1 and 4 (P1, P4), Article 3 (art. 3) makes
no provision for exceptions and, under Article 15 para. 2 (art. 15-
2), there can be no derogation therefrom even in the event of a
public emergency threatening the life of the nation (see the
Ireland v. the United Kingdom judgment of 18 January 1978, Series
A no. 25, p. 65, para. 163).
33. In the instant case the Court notes the following facts:
(1) The existence of injuries to Mr Ribitsch's person was
established as early as 2 June 1988 in a report by Meidling
Hospital and noted on 3 June 1988 by a general practitioner, Dr
Scheidlbauer, and a number of other witnesses. During the
proceedings at first instance Dr Scheidlbauer stated that he
considered it rather unlikely that a fall against a car door had
caused those injuries; during the appeal proceedings the expert in
forensic medicine appointed by the Regional Criminal Court stated
that such a fall could explain "only one of several injuries that
may have been sustained". It is not disputed that the applicant
had a number of bruises on the inside and the outside of his right
arm (see paragraphs 13, 16, 17 and 20 above).
(2) The explanations given by Police Officer Markl contain
discrepancies. His report, incorrectly dated 1 June 1988, had
allegedly been drawn up on the advice of his superior officer, Mr
Gross, although the latter asserted that he had not known about
any injuries (see paragraphs 15 and 17 above). Mr Markl's
statements as to when the applicant first showed him the injuries
on his right arm are contradictory. Lastly, he took no action on
the allegations by witnesses that Mr Ribitsch had been selling
washing powder which he had passed off as heroin (see paragraph 17
above).
(3) Police Officer {Frohlich}, the driver of the car, said that
he had not seen Mr Ribitsch fall (see paragraph 15 above).
(4) The Vienna District Criminal Court, after conducting a
detailed analysis of the evidence and conduct of Police Officer
Markl, found him guilty of assault occasioning bodily harm. It
considered Mr Ribitsch's version of events credible, basing its
assessment in particular on the consistent nature of the witness
evidence and on the general practitioner's statements. On the
other hand, it described as "disquieting" the line of defence
adopted by Mr Markl, whose statements seemed contradictory and
confused (see paragraph 17 above).
(5) The Vienna Regional Criminal Court, on the other hand,
acquitted Mr Markl, concluding that it was "unable to reach a
conclusive decision either to reject the accused's evidence or to
accept even in part the evidence adduced by the civil party Ronald
Ribitsch with the certainty which alone may be made the basis of a
verdict of guilty in criminal proceedings". In stating its
reasons, the Regional Criminal Court cast doubt on the applicant's
credibility, notably on the basis of considerations unrelated to
the course of events while he was in police custody. These
included his conviction for a drug offence in October 1988, the
fact that he was unemployed, the fact that he was living beyond
his means and the fact that he "chose the course of making a
public accusation on Austrian radio" rather than lodging a
complaint. In justifying its departure from the view of the
evidence taken by the court of first instance, the Regional
Criminal Court also included the observation that "one cannot
simply assume that a police officer, and one moreover who had good
reason to be aware of the heightened vigilance of the media, would
let himself be drawn into criminal acts in a way that defies all
logic" (see paragraph 22 above).
(6) The Constitutional Court did not examine the merits of Mr
Ribitsch's complaint of ill-treatment. It noted the unlawfulness
of the searches and the arrest of the applicant and his wife (see
paragraph 23 above).
34. It is not disputed that Mr Ribitsch's injuries were
sustained during his detention in police custody, which was in any
case unlawful, while he was entirely under the control of police
officers. Police Officer Markl's acquittal in the criminal
proceedings by a court bound by the principle of presumption of
innocence does not absolve Austria from its responsibility under
the Convention. The Government were accordingly under an
obligation to provide a plausible explanation of how the
applicant's injuries were caused. But the Government did no more
than refer to the outcome of the domestic criminal proceedings,
where the high standard of proof necessary to secure a criminal
conviction was not found to have been satisfied. It is also clear
that, in that context, significant weight was given to the
explanation that the injuries were caused by a fall against a car
door. Like the Commission, the Court finds this explanation
unconvincing; it considers that, even if Mr Ribitsch had fallen
while he was being moved under escort, this could only have
provided a very incomplete, and therefore insufficient,
explanation of the injuries concerned.
On the basis of all the material placed before it, the Court
concludes that the Government have not satisfactorily established
that the applicant's injuries were caused otherwise than -
entirely, mainly, or partly - by the treatment he underwent while
in police custody.
35. Mr Ribitsch maintained that the ill-treatment he suffered
while in police custody constituted inhuman and degrading
treatment. The blows he received and the insults and threats
uttered against him and his wife, who was detained at the same
time, had caused him intense physical and mental suffering.
Moreover, a number of witnesses had confirmed that the applicant
had sustained physical injuries and was suffering from
considerable psychological trauma (see paragraph 16 above).
36. Taking into account the applicant's particular
vulnerability while he was unlawfully held in police custody, the
Commission declared itself fully satisfied that he had been
subjected to physical violence which amounted to inhuman and
degrading treatment.
37. The Government did not dispute that the applicant's
injuries, assuming that it had been proved that they were
deliberately inflicted on him while he was in police custody,
reached a level of severity sufficient to bring them within the
scope of Article 3 (art. 3).
38. The Court emphasises that, 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. It reiterates that the
requirements of an investigation and the undeniable difficulties
inherent in the fight against crime cannot justify placing limits
on the protection to be afforded in respect of the physical
integrity of individuals (see the Tomasi v. France judgment of 27
August 1992, Series A no. 241-A, p. 42, para. 115).
39. In the instant case the injuries suffered by Mr Ribitsch
show that he underwent ill-treatment which amounted to both
inhuman and degrading treatment.
40. Accordingly, there has been a breach of Article 3 (art. 3).
II. Application of Article 50 (art. 50)
of the Convention
41. Article 50 (art. 50) of the Convention provides:
"If the Court finds that a decision or a measure taken by a
legal authority or any other authority of a High Contracting Party
is completely or partially in conflict with the obligations
arising from the ... Convention, and if the internal law of the
said Party allows only partial reparation to be made for the
consequences of this decision or measure, the decision of the
Court shall, if necessary, afford just satisfaction to the injured
party."
42. Under this provision (art. 50) the applicant requested
compensation for non-pecuniary damage and reimbursement of his
costs and expenses.
A. Non-pecuniary damage
43. Mr Ribitsch maintained that he had suffered non-pecuniary
damage on which he set the figure of ATS 250,000.
44. The Government did not make any observation on the
question.
45. The Delegate of the Commission argued that a relatively
high sum should be awarded in order to encourage people in the
same position as Mr Ribitsch to bring court proceedings.
46. The Court considers that the applicant suffered undeniable
non-pecuniary damage. Taking the various relevant factors into
account, and making its assessment on an equitable basis, as
required by Article 50 (art. 50), it awards him ATS 100,000.
B. Costs and expenses
47. Mr Ribitsch also requested reimbursement of his costs and
expenses. For the proceedings in the Austrian courts he claimed
ATS 78,780. For the proceedings before the Convention institutions
he requested ATS 385,375, after deducting ATS 20,185 in respect of
the legal aid he had received before the Commission.
48. The Government argued that, with reference to the Austrian
Bar's guidelines on fees, most of the amounts claimed were
excessive.
49. The Delegate of the Commission did not express any view on
the question.
50. Making its assessment on an equitable basis and in the
light of the criteria it applies in this matter, the Court awards
the applicant ATS 200,000, from which should be deducted the sum
of 18,576 French francs already paid by the Council of Europe in
respect of legal aid.
FOR THESE REASONS, THE COURT
1. Holds by six votes to three that there has been a breach of
Article 3 (art. 3) of the Convention;
2. Holds by six votes to three that the respondent State is to
pay the applicant, within three months, 100,000 (one hundred
thousand) Austrian schillings for non-pecuniary damage;
3. Holds unanimously that the respondent State is to pay the
applicant, within three months, 200,000 (two hundred thousand)
Austrian schillings in respect of costs and expenses, less 18,576
(eighteen thousand five hundred and seventy-six) French francs to
be converted into Austrian schillings at the rate of exchange
applicable on the date of delivery of the present judgment;
4. Dismisses unanimously the remainder of the claim for just
satisfaction.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 4 December
1995.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of Rules of Court A, the joint
dissenting opinion of Mr Ryssdal, Mr Matscher and Mr Jambrek is
annexed to this judgment.
Initialled: R. R.
Initialled: H. P.
JOINT DISSENTING OPINION OF JUDGES RYSSDAL,
MATSCHER AND JAMBREK
(Translation)
1. In the present case we are unable to agree with the majority
of the Chamber, in particular because we attach a different weight
to the facts.
In May 1988, following the deaths of two people from heroin
overdoses, the special unit of the Vienna Federal Police Authority
conducted inquiries among people on the drug scene with the aim of
discovering who had supplied the drug to the deceased. In the
course of these inquiries it questioned, among others, Mr
Ribitsch, who was known to be a drug user and was also suspected
of being a dealer. Two informants, one of whom was a close friend
of one of the deceased, had identified Mr Ribitsch as the supplier
of the fatal dose of heroin.
On 31 May 1988 police officers arrested the applicant and
searched his home. These officers having found a quantity of drugs
at the premises, Mr Ribitsch was taken into police custody for
questioning at the headquarters of the Security Branch of the
Vienna Federal Police Authority from noon on 31 May until the
morning of 2 June 1988.
Mr Ribitsch subsequently claimed that he had been subjected to
ill-treatment while in police custody. He did not lodge a
complaint with the competent authorities but informed a number of
his friends and relatives, including a journalist. It was only on
the journalist's advice that Mr Ribitsch went to a hospital and
consulted his general practitioner. A few days later the
journalist organised a programme on Austrian radio about the
events in question.
Unlike what happened in similar cases brought against other
States (see, in particular, the case of Klaas v. Germany, judgment
of 22 September 1993, Series A no. 269), the competent
authorities, of their own motion, opened an inquiry into the
events in question as soon as they had been informed of them.
The results of the inquiry were sent to the public prosecutor's
department, which brought criminal proceedings against three
police officers for assault occasioning bodily harm.
In a judgment given by the Vienna District Criminal Court one
of the three police officers was found guilty and sentenced to two
months' imprisonment, suspended, while the other two were
acquitted. The reasons for the District Court's judgment were set
out at length. The judge mainly relied on the evidence given by
the witnesses - Mr Ribitsch and other persons who can be numbered
among his friends and relatives - and on the certificates made out
by the hospital staff and the general practitioner, in which an
account was given of the injuries to Mr Ribitsch's person and
other symptoms the latter had described. The judge refused to
allow a defence application for a forensic medical report on the
cause of these injuries.
On an appeal by the police officer convicted by the District
Court, the Vienna Regional Criminal Court first of all ordered a
forensic medical report from the University of Vienna Institute of
Forensic Medicine. The main aim of this report was to establish,
as far as possible, the cause of the injuries noted by the doctors
and the symptoms the applicant had complained of. Its conclusion
was that the injuries and symptoms concerned could be explained in
various ways; it was quite possible that they had been due to a
cause different from that accepted by the District Court. The
Regional Criminal Court, composed of three career judges,
carefully evaluated the evidence before it, examining in detail
the statements of the applicant and the other witnesses, and
acquitted the police officer, on cogent grounds. Moreover, it is
the practice of appellate courts in Austria not to overturn the
judgment of a lower court unless they have serious doubts whether
it is well-founded.
The Constitutional Court dismissed an appeal by the applicant,
having observed that it could see no reason to criticise the
procedure followed in the Regional Court, its assessment of the
evidence or the decision it had reached.
The Constitutional Court could have reviewed the whole of the
proceedings in the case and conducted its own assessment of the
facts. However, as explained in the previous paragraph, it saw no
reason to do so, thus endorsing in substance the Regional Court's
judgment on the appeal.
Our conclusion: The respondent Government ordered of their own
motion an inquiry which led to close scrutiny of the case by
independent courts at three different levels of jurisdiction. It
is not the Court's task to substitute its own assessment of the
facts for that conducted by the national courts, unless these have
proceeded improperly, which was not the position in the instant
case.
As there obviously was reasonable doubt as to the applicant's
allegations of ill-treatment causing bodily injuries in the course
of his detention at the Vienna Federal Police Department, even
though it was not possible to provide irrefutable proof that the
injuries and symptoms complained of by the applicant after his
release from police custody were caused otherwise than by the acts
he alleged, we cannot conclude that there has been a breach of
Article 3 (art. 3) of the Convention.
2. In view of the ambiguous behaviour of the applicant and
taking into account that before the District Court he claimed for
damages only ATS 1,000, which were awarded to him, we did not feel
able to vote for any further compensation for non-pecuniary
damages.
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