JAMAL-ALDIN v. SWITZERLAND

THE FACTS

The applicant, a Swiss national born in 1955, resides in Zurich.

Before the Commission he is represented by Mr F. Schumacher, a lawyer

practising in Zurich.

The facts of the case, as submitted by the parties, may be

summarised as follows.

I.

In the course of 1981 numerous street demonstrations and riots

took place in Zurich.

In the evening of 10 July 1981 a car was overturned in a street

in Zurich. When minutes later two police cars arrived at the scene,

a large crowd of people gathered. The police attempted to arrest two

persons. According to the applicant, one of them had suffered a head

injury, whereupon onlookers, among them the applicant, suggested

bringing the person to hospital rather than to arrest him. The police

officers declined, whereupon the applicant protested. According to the

subsequent decisions of the Swiss authorities, the applicant grabbed

a policeman from the back and tried to pull him into a side street.

The applicant and another person unknown to him, R.S., were

arrested. They were then brought by police car to the U. police

station, where police officers awaited them. Subsequently, R.S. and

the applicant were allegedly ill-treated; R.S. was apparently beaten

unconscious, though the applicant could protect his face. Later in a

cell a policeman allegedly hit the applicant with his fist, and the

applicant had to undress. Whenever he asked for the name of the

policeman, he was beaten.

The applicant was remanded in custody for one night. In the

afternoon of 11 July 1981, after having been brought before the

District Attorney, he was released from detention. Upon his release

he went to a doctor who noted various injuries.

Criminal proceedings were instituted against the applicant inter

alia on the ground of having obstructed police officers in the exercise

of their duties. On 7 October 1982 the Zurich District Court

(Bezirksgericht) acquitted the applicant of the charges, though he had

to bear the costs of the proceedings.

R.S., who instituted compensation proceedings, eventually

obtained damages of 10,500 SFr for the ill-treatment suffered at the

police station. The courts concerned relied inter alia on the

applicant's evidence.

II.

On 3 August 1981 the applicant requested the institution of

criminal proceedings against seven police officers on the ground of

ill-treatment on 10 July 1981. He claimed that upon his arrest and at

the police station he had been severely beaten (massiv geschlagen) and

insulted (beschimpft). Threats had been used to obtain his photographs

and fingerprints.

The criminal proceedings were discontinued on 6 March 1984.

III.

On 20 November 1985 the applicant filed an action against the

Zurich municipality, claiming compensation of 10,000 SFr for the ill-

treatment and 3,400 SFr for costs arising from the proceedings which

he had attempted to institute against the police officers.

The Zurich District Court dismissed the action on 4 September

1987. The decision stated, inter alia:

"2. The plaintiff claimed that he had been arrested unlawfully

and without reasonable grounds (...). According to him, at about

10.45 p.m. (22.45 hours) he noticed a group of people on

Limmatquai, slightly to the north of the City Hall. When he

reached the group he witnessed a married couple, a doctor and his

wife, asking police officers to take a girl with a forehead

injury to hospital (...). He stated that he saw a nervous police

officer, allegedly called Eg., threatening these passers-by with

a rubber bullet gun. Another officer, allegedly called St.,

intervened. The doctor was allegedly pushed aside, as was the

plaintiff, who says he fell. As he got up again, he states that

he was overpowered by, in all, six policemen - as a spectacle-

wearer, he was pretty defenceless. He was then taken to the

police station with another person who had been arrested (...).

The plaintiff adhered to this version of his arrest in all his

interviews with the police and the investigating judge. He

states that as he was pushed away, a brawl broke out and he no

longer had an overall view of the situation. He says that the

policeman mentioned above then shouted "arrest him - he was

holding me". When he heard this, he says, he tried to run away,

whereupon five more policemen went for him, dragged him around,

hit and kicked him. He claims that he was then pushed into the

police van (...). He says that it is not true that he grabbed

police officer Eg. from behind and tried to drag him in the

direction of Metzgergasse (...). In another place, he says that

considerable confusion broke out, so that he can no longer

remember details. He is still sure that the police officer

shoved him away with a gun. Somehow, he says, he fell - he does

not know how or whose fault it was. As he was getting up, he was

grabbed by the above-mentioned police officer and another one,

whom he had not seen come up. Then, as he remembers it, both

policemen hit him (...). He says that he was very surprised,

especially as neither of the police officers had said anything

to him (...). He claims that Eg. grabbed him from behind and

shouted "hold on to him" (...). In another place he says that

it is not true that he attacked police officer St. It is true

that he fell once; he can no longer say why (...). In another

statement, the plaintiff says that police officer Eg. then

allegedly forced people back with the rubber bullet gun. He says

that this caused a brawl. He says that he then thought that he

should go home since he had no particular interest in the matter.

He says that then, in the course of the brawl, the police officer

shouted, "hold on to him". Thereupon, other policemen allegedly

appeared from under the arcades. He says he walked away in the

direction of Metzgergasse and then fell over, he does not know

why. He does not know whether someone tripped him up or whether

he was grabbed. As he was lying on the ground, he says, all hell

broke loose. He states that he was beaten as he lay on the

ground, following which they tried to take him to the police van

(...).

In this evidence, the plaintiff seeks to portray himself as

a mere passer-by who was arrested by the police for no reason at

all. He called three witnesses to support his version of

events."

The Court first examined the statements of witness R.S., in

respect of which it drew the following conclusions:

"It emerges from these statements that the witness S. was

dazed at the time that he was in the police van, and therefore

that his mental faculties of perception were impaired. Further,

his ability to see out of the van was considerably limited, so

that he could see only a small area outside the police van

because the rear doors were only half open. The witness himself

had the impression that something must have already happened to

the plaintiff before he first saw him. The witness also failed

to mention that the plaintiff fell down before his arrest,

something which he would have been bound to have seen. However,

it appears from the plaintiff's own evidence that he was

arrested, not right next to the police van, but a certain

distance away - according to the plaintiff's evidence, in

Metzgergasse (...), which the witness S. could not see from where

he was in the police van. Therefore the plaintiff cannot derive

any benefit, as far as his arrest is concerned, from this

witness's evidence.

In respect of the witness H.W. the Court found: "the witness saw

the plaintiff for the first time by the police van and consequently

cannot have seen the plaintiff's actual arrest, so that the plaintiff

cannot derive any support for his claim that his arrest was wrongful

from this witness's evidence either".

In respect of the third witness Sci., the Court found: "This

witness's evidence cannot be relied upon, as it diverges so sharply

from that of the plaintiff. As set out above, the plaintiff himself

states that he fell over before his arrest, as he was trying to move

away from the group of people, and that while he was still lying on the

ground, people started to beat him up. The witness, however, depicts

none of this. Therefore his evidence cannot advance the plaintiff's

case in any way."

The Court also examined in detail the statements of various

police officers, but again it found that they did not confirm the

applicant's allegations:

"As regards the statements of the various police officers

referred to above, it should be noted that these arose, partly

in their individual police reports, partly in their witness

evidence and partly when they were being questioned as

defendants. When the various statements are put together, it can

be seen that not all the officers described the relevant events

in exactly the same way and that different statements made by the

same policeman are not always entirely consistent. However these

circumstances cannot invalidate the police officers' statements.

It is noteworthy that each officer was observing the relevant

events from a different place and that the dates on which each

individual statement was made vary considerably in time.

What is more significant in the present case is rather that

the plaintiff could be precisely identified and that all the

statements agree as to the most essential point: that is, that

the plaintiff grasped Eg. around the body from behind, that the

plaintiff attempted to drag Eg. into an alley and that the

plaintiff put up a very strong resistance (a point which will be

dealt with in more detail below). It is extremely unlikely that

five policemen should have agreed on this version of events in

detail with each other, especially as their original reports had

to be drafted immediately after the events in question, that very

night. Such an agreement could only mean that there was a

conspiracy between the various police officers against the

plaintiff. There is absolutely no evidence of this, given that

the policemen had no previous knowledge of the plaintiff and that

they could not initially have guessed that they themselves would

face prosecution.

In the light of the different statements, we can,

therefore, regard it as established that, at midnight, in the

course of a demonstration during the youth unrest in Zurich, the

plaintiff grabbed a policeman from behind and tried to drag him

into an alley. This was sufficient cause for the plaintiff to

be arrested and taken in a police van to the relevant police

premises for the purposes of establishing his identity and

questioning him about the said occurrence. ...

3. However, the plaintiff also submitted that his arrest

had been carried out in an unlawful manner ...

a) The plaintiff's arrest and the process of putting him into

the police van

In this regard, the plaintiff stated that five more

policemen rushed up to him and dragged him around. He stated

that he was also struck and kicked. He was then pushed into the

police van. He says that he wanted to speak to the policemen

because he objected to the way in which they had acted, so he

jumped out of the police van again. He says that he was then

grabbed and beaten again (with a rubber truncheon on the head,

he thinks) and dragged by the hair. He was then allegedly picked

up by the hands and feet by four policemen and bundled into the

police van. When the question was put to him directly as to

whether he had resisted, he had to admit that he had balked,

although he stressed that it was impossible to talk about

"resisting" six police officers (...). In another place, he says

that while he was getting up, two policemen grabbed him and he

was then, as far as he remembers, beaten by both of them (either

with their fists, their hands or their truncheons - that is, he

is sure that he was beaten with truncheons, amongst other things)

(...). He was then taken to the police van, still being beaten.

He says he "balked" against being arrested by the police

officers. He was no longer sure whether he tried to pull himself

away. He said that, even as he was being taken to the police

van, more policemen came up to him and beat him too, including

with truncheons, and ("kicked") him. Thereupon, he says, he was

pushed in through the open doors of the police van. He

immediately jumped out of the police van again to speak to the

officers. He was then allegedly beaten again by several

officers, who grabbed him and pushed him back into the police van

(...). Elsewhere, he has stated that he did not resist being

arrested by police officer Eg.; he simply had not managed. The

other policemen came up too quickly. They started to hit him

immediately. He was hit after being grabbed by the policemen.

He says that they then tried to drag him into the police van.

While being dragged away, he was still being beaten up - in

particular, kicked. Before being put into the police van he was

also punched. At that point, he said he should amplify his

statement: he had certainly been punched several times (...).

He says that in Metzgergasse he was struck at least once with a

rubber truncheon on the head. He admits that he jumped out of

the police van again. He alleges that he was then beaten by the

policemen again (...). Elsewhere, he says that while he was

lying on the ground, he was struck. He was beaten on the head

and the back. He was punched and beaten with rubber truncheons.

He was also beaten on the way to the police van. He says he

asked to be told why he was being arrested and that he received

no answer; he was only beaten, not spoken to (...). As far as

he could tell, the blows were coming from all directions. He had

to assume that he was not being beaten by just one person (...).

He said that if you defined protecting yourself as "resisting",

then you could say that he had resisted. He claims that he was

beaten after being dragged up from the ground and taken to the

police van. He was then thrown into the police van by his hands

and feet. Because the doors of the police van were open, he

jumped out again to ask why he had been arrested. The only

answer he received was a blow. Then he was again thrown into the

police van (...). He also says that when he was lying on the

ground, he was still being kicked (...).

The plaintiff cannot derive any benefit from these

statements which he made as a witness in the criminal proceedings

since, for the purposes of the present civil proceedings, they

have merely the status of assertions made by a party to the case.

In relation to this aspect of the case, R.S. gave evidence

that the plaintiff was grabbed by police officers, wrestled to

the ground with a headlock and so put into the van with him

[R.S.] (...)."

After examining R.S.'s statements in detail, the Court concluded:

"With regard to these statements, which R.S. partly

repeated as a witness in the present case, it must be observed

that he himself is bringing civil proceedings against the

defendant because he was also allegedly treated unlawfully when

arrested. Further, at the time when S. first saw the plaintiff,

he was dazed. It is also significant that he could not confirm

that the plaintiff had jumped out of the police car again. He

also says that he did not see the plaintiff "jibbing" and balking

at his arrest, as the plaintiff himself admits he did. These

circumstances already considerably reduce his reliability as a

witness. But what is decisive is that S. in no way confirms the

plaintiff's description of a severe and excessive physical

assault. Rather, he describes the plaintiff's arrest simply as

rough and carried out with the use of force. He says the

plaintiff was grabbed, wrestled down with a headlock, dragged to

the police vehicle in a stranglehold as well as being held with

the officers' hands, pushed around, punched and thrown into the

police vehicle."

The Court next found that all the police officers denied having

committed the assaults against the applicant alleged by him. Thus, the

statements by the officers were on this aspect of the case very

consistent. They admitted that the applicant had been grabbed roughly

when he was arrested and that there had been a struggle on the ground.

It was also expressly admitted that they were not at all gentle about

putting the applicant into the police van. They made no attempt to

gloss over their conduct. However, the applicant could not derive any

benefit from these admissions since, according to the credible

statements of the police officers, he was vehemently resisting arrest

and made repeated attempts to escape from the police van. This

justified the strong measures resorted to by the police.

The Court considered that the applicant could not derive any

benefit from the statements of other witnesses either. The decision

continues:

"b) The point at which the plaintiff got out of the police van

and was taken into the police station

In this regard, the plaintiff stated that as he got out of

the police van he was insulted and beaten (...). He says that

in the few metres from the van to the door he was severely beaten

and also verbally abused (...). Elsewhere, he says that after

getting out of the van in front of the police station, he was

kicked and punched (...). Then, again, he says that as they went

through the police cordon they were beaten with rubber truncheons

and punched. He was beaten, but not as badly as the man who was

with him. Then he was held in an arm lock and dragged into the

police station by his hair (...). In another place, he says that

he was the second person out of the police van, that he was

beaten too, that he was beaten with rubber truncheons and

punched, that a policeman held him under the arms and dragged him

by the hair (...).

As set out above, the plaintiff cannot rely on his own

statements, even those made when he was being questioned as a

witness in previous proceedings.

R.S. was with the plaintiff at the time. His evidence was

that he climbed out of the vehicle first. ...

The plaintiff can derive no benefit from these statements

by S., since the witness S. did not see the plaintiff getting out

of the vehicle and immediately lost consciousness. Admittedly,

what he heard and sensed suggested blows being struck, but this

evidence is not sufficient to prove that the plaintiff was

unlawfully treated. As the relevant police officers testified,

the plaintiff was just as uncooperative when he got out of the

vehicle as he was at the time of his arrest, so that force had

again to be used against him. ... In the light of these

considerations, we find that the plaintiff cannot establish any

claim for damages or compensation against the defendant on the

basis of this aspect of the police officers' conduct either.

c) The period spent by the plaintiff at the police station

The plaintiff claims that while at the police station he

repeatedly - but in vain - asked for the names of the police

officers involved. He says he repeated this request after he had

been in the cell for a few moments and three men, including Eg.,

took away his personal effects. Shortly afterwards, he says, a

fat police officer whose first name appeared to be Hugo appeared

and punched him for no reason. The plaintiff also asked him for

his name but in vain. He states that he was forced to undress.

He again asked for names. He says he was then ordered to remove

his glasses and was again repeatedly punched. He claims to have

suffered a heavy blow to the right kidney, which felled him. His

glasses were taken away from him. He again asked for names.

Thereupon one of them grabbed him, pushed him up against the wall

and started to throttle him with both hands, saying, "Now you're

nice and quiet". Again, he asked for the man's name, but the

only response he got was a punch in the face, with the words,

"That's my name". He says he was asked for his address, which

he gave. He was called a "dirty swine" in response. After he

had been out of the cell again for half an hour, he asked for his

glasses back (...). He says he is very short-sighted, needing

lenses of 5.5 and 6 dioptres. His request was allegedly refused

(with the words) "dirty swine, filthy pig, go back where you come

from" (...). In another place, he says that, when he was in the

police station, he again asked for the names of the police

officers and the reason for his arrest. He says he was punched

in the face by a policeman whose first name was Hugo; moreover,

he had to undress in the cell, was again repeatedly punched and

kicked in the kidneys and punched in the face while being

verbally abused (...). In another statement, he says that as he

got out of the van he was kicked and punched. This treatment

continued in the police station and his glasses were taken away

(...). In another place, he says that on his way to the cell he

was verbally abused by the police officers (...). He says that

when he asked for the names of the police officers, he was

beaten. He says that a police officer punched him or boxed his

ears. When he refused to take off his glasses, the policeman

frequently hit him. The policeman seemed to be aiming at his

glasses. He was mainly punched. Suddenly, the fat policeman

thumped him in the kidneys (...). He says that as a result of

the blow to the kidneys, he fell to the ground. He again asked

this policeman for his name and the policeman continued to beat

him. As he was lying on the ground, this policeman grasped him

by the neck, pulled him up by the neck and pushed him up against

the wall, starting to throttle him. After letting him go, the

policeman again punched him and remarked that that was his name.

The other policemen did not intervene physically, but simply

looked on and abused him verbally (...). In another place, he

says that he was then dragged past the entrance to the police

station and taken to a cell. He says he was verbally abused,

with fairly crude language. He says he is no longer able to

remember in detail what was said (...).

It has already been explained that the plaintiff cannot

derive any benefit from these statements. However, solely on the

question of the plaintiff's credibility, we would point out that

he also asserted that the same police officers were present at

the offices of the Criminal Investigations Police as had been at

Limmatquai. However, that is correct only in relation to the two

policemen who went with the police van, since the other police

officers had to wait on Limmatquai because the keys to one of the

cars had gone missing.

The plaintiff's version of events was disputed by all the

police officers. R.S., who was taken to the police station with

the plaintiff, did not see the latter any more once they got to

the police station; he did not see what happened there (...).

Hence it is established that the plaintiff has been unable

to provide any proof of the alleged events in the police station,

so that he cannot claim any damages or compensation from the

defendant in relation to them.

d) The period spent by the plaintiff at the offices of the

Criminal Investigations Police

In this regard, the plaintiff gave evidence that he was

taken into a room where there was a camera tripod and told to

take off his windcheater so as to be photographed. He says that

he refused and repeated his request for names. He says he was

threatened with beating if he did not let himself be

photographed. The next morning he was processed by the Criminal

Identification Division. He says he refused to be processed.

He says he finally agreed, under threat, to have his fingerprints

taken and to be photographed (...). In another place, he says

that he was forced, by threats, to let himself be photographed

and to allow himself to be processed by the Criminal

Identification Division (...). In another place, he says that

he refused to be photographed. He says that he was told that he

could always refuse but then they would have to force him. He

says that he also refused to be processed by the Criminal

Identification Division. He says he was told that it was not for

him to say anything, he had no right to refuse. He says they

explained to him that he already knew what could happen (...).

In another place, he says that he said that he would not let

himself be photographed, nor would he go into the room. He says

that Ha. told him, either you go into the room or you'll be

forced to go into the room. He states that he was still afraid,

because of the preceding events. He feared that he would be

beaten up again (...). He says that Ha. pointed out that he had

already been beaten in the police station and that the same thing

could happen to him again if he didn't submit to being

photographed (...). In another place, he said that Ha. coerced

him, in a way which he could no longer remember, to be

photographed. When he refused to be photographed, police officer

Ha. allegedly threatened him in some way, saying that he (the

plaintiff) had to do it or else something would happen to him.

He said that he could no longer remember the exact terms of the

threat (...).

The plaintiff's own statements are - as has already been

explained on several occasions - not probative.

The police officers in question dispute the plaintiff's

version of events.

R.S., who was taken with the plaintiff to the offices of

the Criminal Investigations Police, did not observe what happened

to the plaintiff there. He says that in the Criminal

Investigations Police offices they were taken to a sort of

reception area, where red forms had to be filled out. After that

he had no further contact with the plaintiff (...). In oral

evidence, he stated that once inside the offices of the Criminal

Investigations Police, he did not see the plaintiff again and

could not say what had happened to him there (...).

The plaintiff cannot, therefore, for lack of evidence,

claim damages or compensation from the defendant in relation to

these events either.

e) Medical evidence

The plaintiff has also sought to prove that he was

unlawfully treated by the police by means of two medical reports

by Thomas Walser, a practising doctor.

On 11 July 1981, the doctor noted the following physical

injuries to the plaintiff:

1. minor haematoma and pressure-sensitivity over the right

ear;

2. minor haematomas under the left eye and on the nose;

3. haematomas and contusions on the upper third of the outer

left upper arm;

4. minor haematoma on the right side of the torso, above the

lowest rib; rib very sensitive when pressed; and

5. long abrasion and considerable haematoma in the hollow of

the left knee.

The report goes on to note: "According to the patient,

these injuries were caused on 10-11.7.81 by the police (truncheon

blows, punches and kicks). In my view, this account of the

causes of the injuries is perfectly plausible (...)."

In his medical report of 7 May 1982, Thomas Walser

describes the injuries which he found in exactly the same way,

adding that it was unlikely that there would be any lasting

injury, that the plaintiff was treated as an out-patient and was

given a medical certificate for two days' absence from work

(...).

Admittedly, the doctor considers it possible that the

plaintiff's injuries were caused by the police in the way he

described. However, it must be noted that - as has already been

established - the plaintiff put up an unjustified, and very

strong, resistance to his arrest - so strong indeed, that it led

to a brawl and a struggle on the ground. The plaintiff could

simply have injured himself in the manner found by the doctor

through his refractory behaviour, for which he himself is

responsible. In the circumstances, the plaintiff cannot derive

any benefit from the two medical reports.

4. In the light of all the above considerations, all the

plaintiff's claims are dismissed."

IV.

The applicant's appeal was dismissed on 5 September 1989 by the

Court of Appeal (Obergericht) of the Canton of Zurich. In its decision

the Court regarded it as established that the applicant had attempted

to grab a policeman, who was undertaking an arrest, from behind; the

policeman then had forcibly to be freed. As a result, the applicant's

arrest was justified as he was suspected of having committed inter alia

the criminal offence of obstructing police officers in the exercise of

their duties; as the applicant himself had admitted, there was also a

danger of fleeing.

The decision continued:

"Correctly, the burden of proof in relation to the excesses

allegedly committed by the police officers was placed on the

plaintiff (...). In examining the evidence, the court below

helpfully divided the events into four sections according to time

and place, namely:

a) the plaintiff's arrest and the process of putting him into

the police van;

b) the point at which the plaintiff got out of the police van

and was taken into the police station;

c) the period spent by the plaintiff at the police station;

and

d) the period spent by the plaintiff at the offices of the

Criminal Investigations Police.

a) The plaintiff asserts that the police committed

serious excesses in the course of arresting him and putting him

into the police van (dragging him around, kicking him, beating

him with their hands, fists and a truncheon on the head, back and

torso, pushing/throwing him into the police van (...)).

In order to assess the value of these assertions, we must

refer to the relevant deliberations of the court below (...).

In summary, the following emerges: S., who was one of the

witnesses, did not see fundamentally important aspects of the

plaintiff's arrest, aspects admitted by the plaintiff himself

(his jumping out of the police van and his "jibbing"/balking at

being arrested), so that his [S.'s] observations appear

unreliable. Moreover, he does not in any way confirm the serious

excesses allegedly committed by the police. On the contrary, he

describes an arrest which was, certainly, rough and forceful -

as the police officers admitted - but which was reasonable in the

light of the plaintiff's proven, extremely refractory, conduct.

The witness W. also appears unreliable because he claimed not to

have seen certain of the plaintiff's actions at the time of his

arrest, actions which are of fundamental importance and which are

admitted by the plaintiff. The witness Sci. comes over as

entirely unreliable, since he portrays the plaintiff's arrest in

a way diametrically opposed to the plaintiff's own description

(Sci. saying that a policeman held the plaintiff from behind,

whereupon two other policemen came up, one of whom hit the

plaintiff on the head with a truncheon, whereas the plaintiff

speaks of his attempt to run away and his fall). Further, Sci.

claims that he did not see the plaintiff doing the things which

he [the plaintiff] has admitted doing.

The plaintiff has not succeeded in proving that the police

officers acted unlawfully in relation to this phase of the

incident.

b) The plaintiff also alleged that the police had

committed serious excesses at the time when he got out of the

police van and was taken into the police station. Summarising

the deliberations of the lower court (...), we find that,

according to the credible police statements, when the plaintiff

was taken out of the van, he behaved just as uncooperatively as

he had at the time of his arrest (hitting out wildly, struggling

with his hands and feet, he practically had to be carried).

Therefore, it was necessary for the police to resort to severe

measures. S., who raises similar allegations against the police

in relation to the time when he himself got out of the van (...),

did not see any violence being used against the plaintiff, as he

had already been taken around the corner of the building. If he

felt and heard someone being beaten behind him, as he alleges,

this could perfectly well have been due to the plaintiff's

refractory behaviour and wild hitting out.

The plaintiff has not succeeded in establishing that the

police acted unlawfully in relation to this phase of the incident

either.

c) The plaintiff's allegations of ill-treatment in the

police station were not supported by any evidence (...).

The same applies in relation to the alleged attacks in the

offices of the Criminal Investigations Police (...).

d) In relation to the two medical reports (...) produced

by the plaintiff in evidence of his alleged wrongful treatment,

we have nothing to add to the findings of the court below (...).

e) To summarise, the plaintiff has not succeeded in

proving that he was wrongfully and unlawfully treated in the

context of the arrest in question, so that the defendant has no

liability to pay him compensation or damages under this head.

5. a) On appeal, the plaintiff's representative offered

himself as a witness of the fact that, as early as the moment

when the plaintiff signed the form appointing him as his

representative, on 14 July 1981, the plaintiff described the

material events in exactly the same way as he did when he filed

his crime report on 3 August 1981 (...) and as he had in the

statement made immediately after his arrest (...). Firstly, it

must be pointed out that the plaintiff's representative can

testify only as to what the plaintiff told him; this, however,

will not render the plaintiff's story more credible when compared

with the evidence adduced by the other side in the form of

several eye-witnesses. In particular, it is also noteworthy that

the plaintiff, when he was originally questioned (...), stated

that the subsequent incident and disturbance were caused (apart

from the discussion about the injured "girl") by the above-

mentioned policeman pushing the doctor's wife back with a rubber

bullet gun. The plaintiff said that, since he was standing

behind the doctor's wife, he was also pushed away (...).

However, Ms. Ey., an independent witness and the person directly

affected, does not confirm this story about being pushed with the

weapon (...).

b) In the course of the appeal proceedings, the plaintiff

renewed his application for the above-mentioned doctor and his

wife, Dr. M. and Ms. A. Ey., to be called as witnesses (...).

This court granted his application in a decision of 13 April 1989

(...). However, only Annamarie Ey. responded to the witness

summons (...). Whereas the plaintiff insisted that evidence

should be taken from M. Ey. (...), the defendant submitted that

this was not necessary for the case.

Ms. Ey., who was never separated from her husband on the

evening in question (...), saw nothing germane to the essential

issues in the case - thus she did not see anyone being threatened

with a rubber bullet gun, nor falling over, nor being arrested;

and in particular, she did not see the plaintiff at any time on

the evening in question (...). The plaintiff's submissions

regarding what the witness saw (...) are mere surmise.

Nothing different can be expected to emerge if Dr. M. Ey.

is examined. For one thing, he was always next to his wife, so

that he must have seen the same things as she, and for another

thing, he "was concentrating all his attention on the injured

person" (...), so that he would have been unable to observe

anything, or hardly anything, of what was going on around him;

in which context it must be remarked that the unmarked police car

and the police van were not parked next to each other (...). In

addition, there is also the following consideration. It has been

established that the doctor was busy examining the injured

person, so that his other observations could only be fragmentary.

Even if he could confirm, in whole or in part, the plaintiff's

assertions under argument I, this would not undermine the

corroborated evidence adduced by the defendant in relation to

argument I/1, since - as has already been mentioned - the two

accounts are not mutually exclusive, but could easily complement

each other in time. Therefore, it can be stated with certainty

that evidence from Dr. Ey. could not alter the thrust of the

evidence (set out above) relating to argument I, and the court

can justifiably dispense with further descriptions of the

incident as a whole since these cannot be decisive. Therefore,

we hereby review our interlocutory decision of 13 April 1989 and

decide not to call Dr. Ey. as a witness (...).

6. The plaintiff's remaining grounds of appeal are not

significant and could not be decisive for the outcome of the

case, so that no examination of them is required. This is

particularly true of:

(i) the very odd distinction drawn by the plaintiff between an

"unauthorised demonstration" on the one hand and, on the

other, provocation involving criminal damage and assemblies

of persons, not constituting a demonstration (...);

(ii) the plaintiff's original, fallacious representation of the

object of the judicial investigation into his behaviour

(...);

(iii) the repetition of the plaintiff's version of events (...);

(iv) the plaintiff's alleged connection with the well-known

television personality "Frau Müller" (...);

(v) the plaintiff's sweeping declaration to the effect that it

is completely incomprehensible "that the police should

chase down anybody they like, batter them with truncheons

and arrest them ..." (...); and

(vi) details of the course of the investigation (...)."

V.

The applicant's plea of nullity (Nichtigkeitsbeschwerde) against

this decision was dismissed by the Court of Cassation of the Canton of

Zurich (Kassationsgericht) on 10 October 1990.

VI.

Against the decision of the Court of Cassation the applicant, who

was represented by a lawyer, filed a public law appeal (staatsrecht-

liche Beschwerde) with the Federal Court (Bundesgericht).

He invoked the Convention and complained in particular of ill-

treatment upon his arrest and subsequently at the U. police station in

Zurich. He stated that there were issues, first in respect of the

arrest, "later beating and taking away of the glasses in the cell"

("später Schläge und Wegnahme der Brille in der Zelle"), and then the

occurrences in the police building. He noted that the Zurich Court of

Appeal and the Court of Cassation had mainly concentrated on the arrest

and the incidents at the entrance of the U. police station. The

applicant also pointed out that often the victim did not even know who

had attacked him: "for instance the example of the unknown fat officer

with the first name Hugo who very severely attacked the applicant in

the cell at the U. police station and took away his glasses" ("im

vorliegenden Beispiel etwa der unbekannte dicke Beamte mit dem Vornamen

Hugo, welcher den Kläger in der Zelle in der Hauptwache ganz massiv

angriff und ihm die Brille wegnahm").

The public law appeal was dismissed by the Federal Court on

20 August 1991, the decision being served on 23 October 1991.

In its decision the Court found that the applicant had

insufficiently substantiated his complaints under Articles 3 and 5 of

the Convention. He had in particular not demonstrated how the cantonal

courts had breached these provisions. In this respect the public law

appeal was inadmissible.

Nevertheless, the Court found that in any event the public law

appeal was also unfounded. The decision states, inter alia:

"cc) The complaint that the Court of Cassation breached the

right to a fair trial and the prohibition on arbitrariness is

unfounded, for the following reasons:

It is true that the District Public Prosecutor stated, on

page 7 of his suspension order of 6 March 1984, that despite

certain doubts, "the complainant's description of the alleged

incidents in front of U. police station can be presumed to be

accurate". However, the courts hearing the appellant's civil

liability action against Zurich City were not bound by the

District Public Prosecutor's opinion (...). Rather, these courts

had to weigh the existing evidence independently and freely

(...). Therefore, when the cantonal courts did not examine the

above-mentioned suspension order, this did not amount to a denial

of a fair hearing; the Court of Cassation's decision on this

point is in no way untenable.

Moreover, the cantonal courts explained in detail why the

statements of the appellant's witnesses S., Sci. and W. were of

no assistance or could only be considered with caution. Thus,

according to his own statement, R.S., who was arrested on the

same occasion [as the appellant], did not or could not observe

precisely the key aspects of what happened to the appellant;

furthermore, he himself states that his faculties of perception

had been impaired by his injuries. The courts did not believe

the witness Sci. because his description of events differed, not

only diametrically from that of the police officers but even

substantially from that of the appellant himself. Similar

observations were made regarding the weight to be accorded to

W.'s testimony (...). As regards the appellant's view that the

cantonal courts erred in law in not basing their decision on

R.S.'s account, the grounds of appeal merely repeat the

submissions made in the grounds of appeal to the Court of

Cassation, without analysing the relevant portions of the Court

of Cassation judgment. Therefore, we cannot deal with this part

of the appeal (...). Nor did the appellant's witness A. Ey.

personally observe what happened to the appellant himself;

moreover, certain parts of this witness's evidence are in

striking contrast to the appellant's version of events. The

latter stated, in his first police interview, that immediately

before his arrest Ms. Ey. was pushed away by a policeman with a

rubber bullet gun, so that he himself was pushed backwards and,

after a struggle, arrested (...). However, when questioned by

the court, the witness expressly denied having been pushed away

by a policeman with a rubber bullet gun.

There is no arbitrariness to be discerned in the relevant

findings of the cantonal courts as to the probative value of the

witness evidence called by the appellants. The corresponding

complaint is therefore unfounded. The appellant's other

submissions on this point merely amount to a rhetorical criticism

of the assessment of the evidence reached by the cantonal courts.

The appellant does not set out the concrete findings of fact

which are alleged to be obviously incorrect. Therefore, this

Court cannot deal with this part of the complaint either, for

lack of evidence.

b) As regards the facts of the case, the Court of Appeal

regarded it as established that the appellant had grasped

P.C. Eg. (who was engaged in making another arrest) from behind

and tried to pull him into an alley; that Eg. had to use force

to free himself, assisted by other police officers; and that

together they succeeded in taking the appellant, who was

resisting violently, into police custody (...).

aa) On page 6 of his grounds of appeal to the Court of

Cassation, the appellant described these findings as "entirely

arbitrary, indeed, perverse". The Court of Cassation,

nevertheless, dismissed this complaint, referring to the

statements of police officers Eg., St., Wo. and B. and observing

that, in order to succeed in a claim of arbitrariness, the

appellant would have had to analyse the relevant sections of the

Court of Appeal judgment.

In his grounds of appeal, the appellant criticises these

sections of the Court of Cassation judgment, quoting at length

from his grounds of appeal to the Court of Appeal in which he

claims to point out contradictions in the statements made by the

police officers. He comes to the conclusion that it was never

demonstrated that there were any grounds for his arrest. Again,

these arguments do not fulfil the criteria enabling this Court

to examine a complaint of arbitrariness in the form of a public

law appeal; they fail to set out in detail what manifestly

untenable findings of fact were allegedly made (...). In

addition, the complaint appears to be unfounded in any event.

It is certainly not absolutely untenable to regard the -

essentially consistent - depiction of events contained in the

different police reports as proven despite a few, rather

unimportant, discrepancies between the statements. The fact that

these were unimportant discrepancies and not serious

contradictions was already explored in detail in the judgment of

the single judge sitting as Zurich District Criminal Court of

7 October 1982.

bb) The appellant's claim that the Court of Cassation

acted arbitrarily in finding that differences between the police

officers' statements were explained by the fact that they were

standing in different places is unfounded. No such finding is

made in the impugned judgment; rather, in the relevant passage,

the Court of Cassation is criticising the appellant for failing

to devote so much as one word to explaining why the differences

between the police officers' statements could not be explained

by the fact that they were standing in different places (...).

The assertion that the Court of Cassation did not deal with the

question of the admissibility of the police officers' testimony

is also incorrect. Remarks on this point are to be found on page

13 ff. of the Court of Cassation judgment, with particular

reference to the principle of the courts' freedom to assess the

evidence.

cc) Before the Court of Appeal, the appellant applied for

Dr. M. Ey. and Ms. A. Ey., who had been present during some of

the events of the evening of 10 July 1981 on Limmatquai, to be

called as witnesses. Only Ms. Ey. responded to the summons, and

she was examined as a witness. The Court of Appeal summoned Dr.

Ey. once more and then abandoned the attempt, having found that

it was certain that his testimony would not be able to change the

thrust of the evidence, a conclusion which was explained in more

detail in the reasoning of the judgment.

In the cassation proceedings, the appellant claimed that

the fact that Dr. Ey.'s testimony had not been taken by the Court

of Appeal constituted a refusal of justice. The Court of

Cassation did not consider this complaint, because the appellant

failed to provide a detailed criticism of the presumptions

reached by the Court of Appeal as to [Dr. Ey.'s} evidence. The

appellant claims that the Court of Cassation acted arbitrarily

in this respect. The complaint is unfounded, in so far as this

Court can deal with it at all. The fact that the Court of

Cassation will deal only with substantiated complaints certainly

does not breach the provisions of Clause 4 of the Federal

Constitution, and the appellant does not explain how the Court

of Cassation's view that his complaint of refusal to examine an

issue was insufficiently substantiated can be called untenable.

The appellant merely claims that, before the Court of Appeal, he

made out grounds for Dr. Ey. to be called as a witness; on the

other hand, he does not assert, nor could he do so, that he made

out grounds before the Court of Cassation to show that the early

assessment of the evidence carried out by the Court of Appeal was

unlawful.

dd) In summary, we find that the Court of Cassation

judgment under appeal complies with Article 4 of the Federal

Constitution.

4. - In the light of the above considerations, the appeal

must be dismissed in so far as it has been possible to deal with

it substantively."

COMPLAINTS

The applicant raises the following complaints under Articles 3

and 5 of the Convention:

He complains that he was ill-treated by the Zurich police upon

his arrest and later in police custody, i.e. when leaving the police

van and at the police station, in particular in a police cell.

Although he was short-sighted, his glasses were taken away and not

returned, despite his request.

The applicant submits that it might still be acceptable that he

and R.S. were groundlessly and unlawfully arrested and ill-treated.

However, on their way to the U. police station both were subjected to

the same treatment; they were welcomed at the police station with a

beating whereupon R.S. became unconscious. The District Attorney then

artificially separated the proceedings against R.S. and the applicant.

In the case of R.S. the Zurich courts accepted on the basis of his

statements that there had been ill-treatment, whereas his statements

had not sufficed as evidence in his own case. Either both stories were

true, or both persons were liars and the Zurich municipality was right,

that nobody had been ill-treated. Either the police officers lied, or

the witnesses R.S., Ey., W. and Sci.

Under Article 6 of the Convention the applicant complains that

the evidence which he adduced was not considered, in particular that

the witness Dr. Ey. was not heard, and that the proceedings were

unfair.

Under Article 13 of the Convention the applicant complains that

he did not have an effective remedy at his disposal.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 23 April 1992 and registered

on 11 May 1992.

On 17 January 1995 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on 4 April

1995. The applicant replied on 12 July 1995.