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.