In the case of Ribitsch v. Austria (1),
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 (2), as a Chamber composed of the
following judges:
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:
_______________
Notes by the Registrar
1. 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.
2. 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.
_______________
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 Thór Vilhjálmsson, 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 Thór Vilhjálmsson, who was unable to take part in the further
consideration of the case (Rule 22 paras. 1 and 2 and Rule 24 para. 1).
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. Rohrböck, 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 (Sicherheitsbüro der Bundespolizeidirektion) included
three units assigned to investigating drug offences. One of these, led
by Chief Inspector Pöttinger, 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 Pöttinger'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 Pöttinger'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 Fröhlich, 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, Fröhlich 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 Fröhlich,
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 Fröhlich 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
Fröhlich. 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
Fröhlich 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 Fröhlich 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 Fröhlich,
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.
Fröhlich, stating that
he had been present at most of the questioning,
denied that the
applicant had been bodily assaulted.
Fröhlich continued that on
1 June 1988 he had, together with Police Officer
Markl, taken the
applicant to have his voice compared.
Fröhlich 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.
Fröhlich
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 Fröhlich, 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 Fröhlich 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 Fröhlich 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
Fröhlich, 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 Fröhlich 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 Fröhlich.
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 Fröhlich 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.
Fröhlich denied having seen that the applicant
had been hit. As
regards the escorted drive, Fröhlich 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 Fröhlich,
there had been a noise and, turning around, he
had seen that
Markl was holding the applicant. Fröhlich
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 Fröhlich 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 Fröhlich 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 Kröte) 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 Fröhlich (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
(prügelnde 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 für 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
Fröhlich, 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
Nebentäter). 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 Bögl, in vol. I, pages 37 and 43),
constituted sufficient
motivation, does not appear to the appeal court
to be capable of
bearing scrutiny (tragfähig), 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 (verläßliche
Tragfähigkeit) 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
(unzulässig)."
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 (1).
_______________
1. 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 Fröhlich, 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.
