G.K. v. SWITZERLAND
AS TO THE ADMISSIBILITY OF
Application No. 21084/92
by G. K.
against Switzerland
The European Commission of Human Rights (Second Chamber) sitting
in private on 5 April 1995, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
S. TRECHSEL
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 3 December 1992
by G. K. against Switzerland and registered on 16 December 1992 under
file No. 21084/92;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
Facts
THE FACTS
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant, a Swiss citizen born in 1965, is a computer
specialist residing at Wetzikon in Switzerland. Before the Commission
he is represented by Mr. F. Schumacher, a lawyer practising in Zurich.
I.
On Saturday, 6 September 1980 various unauthorised demonstrations
and a number of police interventions took place in Zurich. In the late
afternoon, the applicant, who was then 15 years old, joined a group of
persons walking from the city centre to Tobler square situated on a
hill in a residential area of the town.
At Tobler square some persons placed stones on the tram-lines and
laid vegetables crates from neighbouring shops on the street.
Onlookers attempted to remove these objects, and the police were
called.
The applicant and other persons then walked down the hill back
to the city centre. At the next square they crossed a police squad on
its way to Tobler square. The police stopped, whereupon a group of
persons, among them the applicant, fled into the side streets. The
police chased these persons into a cul-de-sac whereby panic arose.
Subsequently they were arrested.
During the arrest these persons were allegedly beaten and ill-
treated by the police. The applicant was allegedly hit on the head by
a rubber truncheon and his nose injured. He was arrested at 18h30
whereupon he had to lie down on the ground, empty his pockets, remove
his shoes, and wait for transport to the police station.
At the police station he was placed in a cell and at 21h40
questioned by a police officer. The latter noted his crooked nose.
Early on 7 September 1980 the applicant was heard by the Youth
Attorney (Jugendanwalt) who released him at 02h55. His father fetched
him at the police station.
In the same night approximately 300 persons were arrested.
Later on 7 September 1980 the applicant's parents noticed the
applicant's crooked nose. On 8 September 1980 he went to a doctor who
noted a "visible fractured gap without significant dislocation"
("sichtbare Frakturspalte ohne wesentliche Dislokation") of his nose.
The applicant underwent an operation whereby he was briefly
anaesthetised (Kurznarkose).
Criminal proceedings were instituted against the applicant inter
alia on account of riot. On 12 November 1981 the Zurich Juvenile Court
(Jugendgericht) convicted the applicant of contravening an order of the
Municipal Council (Stadtratbeschluss) prohibiting demonstrations, and
sentenced him to a reprimand (Verweis). The applicant was acquitted
of the other charges. In the Court's view he had participated in an
unauthorised demonstration, though it accepted that the applicant might
not have seen the obstacles on Tobler square.
II.
Meanwhile, the applicant's parents filed a criminal complaint
against unknown persons on account of bodily injury suffered on
6 September 1980.
Subsequently, the applicant filed a complaint about the delay in
the proceedings.
On 7 July 1983 the investigating judge discontinued the
proceedings against the police officers. The applicant's appeal was
rejected by the Public Prosecutor's Office (Staatsanwaltschaft) on
2 September 1983 as the father had not paid advance court costs. On
20 February 1984 the Federal Court (Bundesgericht) dismissed his public
law appeal (staatsrechtliche Beschwerde).
III.
On 17 August 1984 the applicant filed a request for compensation
and satisfaction with the Zurich Municipal Council. As the latter did
not regard itself as competent, the applicant instituted compensation
proceedings on 28 June 1985 before the Zurich District Court
(Bezirksgericht), claiming damages of 20,000 SFr.
The District Court dismissed the action on 29 June 1988. The
Court noted that a police officer could arrest a person on strong
suspicion of having committed a criminal offence. The applicant had
been at Tobler square, a riot area in Zurich that day, and could
therefore be suspected of a criminal offence. Moreover, had he not
been arrested, there would have been a danger of the applicant's
fleeing. Given the number of the arrested persons, the detention of
eight and a half hours had not lasted excessively long.
The Court further found that only witness B. had claimed that the
applicant had been injured on his head and had bled on the way to the
police station. The applicant's parents, on the other hand, had
noticed upon the applicant's return from the police station that
something was wrong with his nose: it had not been swollen or bloody,
only tender. In this situation the District Court found the statement
of the applicant's parents more credible, particularly since many other
witnesses had stated that they had not seen anybody among the persons
arrested who had a nose injury. The Court concluded that it remained
unclear whether the applicant had been ill-treated by the police.
The applicant's appeal (Berufung) was dismissed by the Court of
Appeal (Obergericht) of the Canton of Zurich on 14 February 1989. The
Court recalled that if the applicant was subsequently found innocent
this did not imply that his detention had been unlawful. Furthermore,
on 6 September 1980 the police had been faced with a group of persons
walking away from a riot area; a tramdriver had pointed out to the
police that these persons were the instigators; and when these persons
saw the police, they fled. As a result, the applicant was suspected
of having participated in the occurrences at Tobler square.
The Court considered that the applicant's detention of eight and
a half hours had not been excessive, given that 300 persons had been
arrested. Thus, after his arrest at 18h30 he was questioned by the
police at 21h40, and released by the Youth Attorney at 02h55 the next
morning.
The Court further found that the applicant's nose injury had not
been serious. It saw a confirmation herefor in the medical report and
in the fact that the applicant himself had not immediately noticed that
he was injured; rather, as the applicant himself had stated, the police
officer and subsequently his parents had drawn his attention to the
fact that he was injured. It was also unlikely that an injury
resulting from a blow with a police truncheon would remain unnoticed.
The Court considered it unnecessary to hear further witnesses in
respect of this injury. Thus, witness B. had not seen the alleged ill-
treatment, only the applicant's injury after his arrest; indeed, B. had
seen the applicant uninjured while waiting for his transport to the
police station. Finally, the applicant himself had not ruled out that
his nose could have been injured elsewhere.
The applicant's plea of nullity (Nichtigkeitsbeschwerde) was
dismissed by the Court of Cassation (Kassationsgericht) of the Canton
of Zurich on 3 September 1990.
The Court found it established that the police squad which had
intervened below the Tobler square on 6 September 1980 had not
undertaken the arrests indiscriminately. It could furthermore not be
said that detention had lasted unnecessarily long, even if most of the
arrested persons - some 250 out of 300 - had been brought to the police
station five hours after the applicant's arrest. It was also uncertain
when the applicant's nose had been injured.
The applicant filed a public law appeal (staatsrechtliche
Beschwerde) with the Federal Court, complaining of unlawful detention
and ill-treatment by the police. He also complained of a shifting of
the burden of proof, in that the previous courts had claimed that the
injury could have occurred while he was fleeing from the police.
The Federal Court requested the Zurich Municipal Police
(Stadtpolizei) to provide information about the number of people
arrested during the evening of 6 September 1980. On 27 February 1992
the Municipal Police replied that 338 people had been arrested; 121
of them had been released after questioning, 163 had been transferred
to the District Prosecutor's Office (Bezirksanwaltschaft) and 54 to the
Youth Attorney. The applicant submitted his observations in reply to
the Federal Court on 2 April 1992.
On 16 April 1992 the Federal Court dismissed the public law
appeal.
The Court considered as unfounded the applicant's complaints that
the Court of Cassation had proceeded from incorrect facts, or that the
previous courts had shifted the burden of evidence. Rather, these
courts had assumed that it was up to the applicant to prove that his
injury had been inflicted by a policeman. The Court also dismissed
various complaints concerning conclusions drawn from the facts by the
previous courts.
The Federal Court further considered that there had clearly been
a suspicion that the applicant had participated in the riot, given that
he and other persons had on 6 September 1980 come from a riot area and
fled when they saw the police. The Court also found that in the
evening of 6 September 1980 the police and the investigating
authorities had been confronted with an extraordinary number of
persons, and that it had not been possible merely to give priority to
the group of 50 persons to which the applicant belonged.
COMPLAINTS
The applicant invokes Articles 3, 5, 6 and 13 of the Convention.
He complains that the domestic courts refused to provide him with
the names of all arrested persons and the possibility to have them
questioned as witnesses in order to establish that he had been ill-
treated and injured by the police.
The applicant further complains that he was not granted the
opportunity to prove that a police officer had hit his nose. Although
the courts had no witnesses, it was assumed that the applicant had
suffered the injury while trying to flee. His own witnesses could have
established that the police had beaten him. The statements of the
police officers contradicted his own statements and those of other
persons.
The applicant also complains that he was arbitrarily arrested,
together with 50 other persons, on suspicion of having constructed
barricades at Tobler square, although he had nothing to do with these
obstructions.
The applicant complains of the duration of his detention, lasting
eight and a half hours, without there being a danger of fleeing or of
collusion. He was the first person arrested of his age group that
evening and it should have been possible to question and release him
quickly.
He also complains that he was not given any opportunity to obtain
compensation for the damage suffered.
Considerations
THE LAW
1. The applicant complains under Article 3 (Art. 3) of the
Convention of inhuman and degrading treatment. He submits that he was
not granted the opportunity to prove that a police officer had injured
his nose. Although the courts had no witnesses, it was assumed that
the applicant had suffered the injury while trying to flee. His own
witnesses could have established that the police had beaten him. The
statements of the police officers contradicted his own statements and
those of other persons.
Article 3 (Art. 3) of the Convention provides that "no one shall
be subjected to torture or to inhuman or degrading treatment or
punishment".
The Commission notes at the outset that the applicant is not
complaining of ill-treatment suffered while in detention. Rather he
is complaining of a nose injury allegedly suffered during his arrest.
The Commission recalls that in such cases it is not normally its
task to substitute its own assessment of the facts for that of the
domestic courts and, as a general rule, it is for the domestic courts
to assess the evidence before them. The Commission's task is to
examine whether the applicant has adduced material which might call
into question the findings of the national courts and add weight to his
allegations before the Commission (see Eur. Court H.R., Klaas judgment
of 22 September 1993, Series A no. 269, p. 17, para. 29).
In the present case the applicant in essence repeats before the
Commission the complaints which he already raised before the domestic
courts, namely that, while his nose injury was inflicted by the police,
the domestic courts in fact shifted the burden of proof onto him.
In examining these complaints the Commission has considered the
decisions of the domestic courts which examined the applicant's
complaints.
Thus, the District Court found in its judgment of 29 June 1988
that only one witness, B., had claimed to have seen the applicant
injured on the way to the police station. On the other hand, the
applicant's parents noticed upon the applicant's return that something
was wrong with his nose, though it was not swollen or bloody. The
Court found the statement of the applicant's parents more credible,
particularly since many other witnesses had also stated that they had
not seen anybody among the persons arrested who had a nose injury. In
this situation the District Court did not find it established that the
applicant had been ill-treated by the police.
The Court of Appeal found in its judgment of 14 February 1989
that the applicant's nose injury had not been serious. It relied in
this respect on the medical report and the fact that the applicant
himself had not immediately noticed his injury. Thus, it was unlikely
that an injury resulting from a blow with a police truncheon remained
unnoticed. The Court further considered that witness B. had not seen
the alleged ill-treatment, only the applicant's injury after his
arrest; in fact, B. had seen the applicant uninjured while waiting for
his transport to the police station. Indeed, the applicant himself had
not ruled out that his nose could have been injured elsewhere.
The Commission considers that the domestic courts dealt
adequately and carefully with the applicant's complaints, but found no
confirmation for his allegation that the police had ill-treated him.
Before the Commission the applicant has not provided any elements which
would permit it to depart from the findings of fact of the national
courts (see Eur. Court H.R., Klaas judgment, loc. cit. p. 18, para.
31).
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant further complains that he was arbitrarily arrested,
together with 50 other persons, on suspicion of having constructed
barricades at Tobler square, although he had nothing to do with these
obstructions. He also complains of the duration of his detention,
lasting eight and a half hours, without there being a danger of his
fleeing or of collusion.
The Commission has examined these complaints under Article 5
paras. 1 (c) and 3 (Art. 5-1-c ; 5-3) of the Convention which provide:
"1. Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:
...
(c) the lawful arrest or detention of a person effected for the
purpose of bringing him before the competent legal authority on
reasonable suspicion of having committed an offence or when it
is reasonably considered necessary to prevent his committing an
offence or fleeing after having done so; ...
3. Everyone arrested or detained in accordance with the
provisions of paragraph 1.c of this Article shall be brought
promptly before a judge or other officer authorised by law to
exercise judicial power ..."
Insofar as the applicant complains under Article 5 para. 1 (c)
(Art. 5-1-c) of the Convention of his arrest and detention, the
Commission notes the domestic courts' finding that on 6 September 1980
the police were faced with a group of people, among them the applicant,
walking away from a riot area; the police had been informed that these
persons were allegedly the instigators of the riot; and when these
persons saw the police, they fled. In these circumstances the
Commission considers that the domestic authorities could reasonably
suspect that the applicant had committed an offence, and that the other
requirements of national law had been observed.
Insofar as the applicant complains under Article 5 para. 3
(Art. 5-3) of the Convention of the length of his detention, the
Commission recalls that no issue will arise under this provision if the
arrested person is released before any judicial control of his
detention would have been feasible (see Eur. Court H.R., Brogan and
others judgment of 29 November 1988, Series A no. 145-B, p. 31 et seq.,
para. 58). In the present case, the applicant was arrested on
6 September 1980 at 18h30 whereupon he was brought to the police
station and questioned by the police at 21h40. He was subsequently
questioned by the Youth Attorney who released him on 7 September 1980
at 02h55. His detention, lasting altogether 8 hours and 25 minutes,
thus ceased within a period shorter than that which would have been
necessary for the application of the procedure envisaged in Article 5
para. 3 (Art. 5-3) of the Convention.
This part of the application is therefore also manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant also complains of unfairness in the compensation
proceedings which he instituted, in that the domestic courts refused
to provide him with the names of all arrested persons and the
opportunity of having them questioned as witnesses in order to
establish that he had been ill-treated and injured by the police.
The Commission recalls that under Article 19 (Art. 19) of the
Convention its only task is to ensure the observance of the obligations
undertaken by the Parties to the Convention. In particular, it is not
competent to deal with an application alleging that errors of law or
fact have been committed by domestic courts, except where it considers
that such errors might have involved a possible violation of any of the
rights and freedoms set out in the Convention. The Commission refers
on this point to its established case-law (see e.g. No. 458/59,
Dec. 29.3.60, Yearbook 3 pp. 222, 236; No. 5258/71, Dec. 8.2.73,
Collection 43 pp. 71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31,
45).
It is true that the applicant invokes Article 6 para. 1
(Art. 6-1) of the Convention which states, insofar as relevant, that
"in the determination of his civil rights and obligations ... everyone
is entitled to a fair ... hearing by (a) ... tribunal ...".
However, the Commission recalls that as a rule it is for the
national courts to assess the evidence before them. The Convention
organs' task is to ascertain whether the proceedings considered as a
whole, including the way in which evidence was taken, were fair (see
mutatis mutandis Eur. Court H.R., Asch judgment of 26 April 1991,
Series A no. 203, p. 10, para. 26).
In the present case, the Commission has just found that the
domestic courts carefully examined the applicant's case. The
Commission finds no indication that in these proceedings the applicant,
who was represented by a lawyer, could not sufficiently put forward his
point of view, or that they were otherwise unfairly conducted. The
Commission notes in particular that the applicant had the possibility
to put forward any evidence which he considered pertinent before the
courts concerned, and to call in question any evidence on which the
various courts relied.
This part of the application is therefore again manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. Insofar as the applicant complains under Article 13 (Art. 13) of
the Convention that he did not have an effective remedy, the Commission
recalls that the requirements of this provision are less strict than,
and accordingly absorbed by Article 6 (Art. 6) of the Convention (see
Eur. Court H.R., Philis judgment of 27 August 1991, Series A no. 209,
para. 67). It follows that no separate issue arises under this
provision.
The remainder of the application is therefore also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
Order
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (H. DANELIUS)