FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 2293/03 
by Ewald WIESER 
against Austria

The European Court of Human Rights (First Section), sitting on 11 April 2006 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mr L. Loucaides
 Mr A. Kovler
 Mrs E. Steiner
 Mr K. Hajiyev
 Mr D. Spielmann, 
 Mr S.E. Jebens, judges
and Mr S. Nielsen, Section Registrar,

  Having regard to the above application lodged on 14 July 2001,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

 

THE FACTS 

The applicant, Mr Ewald Wieser, is an Austrian national, who was born in 1958 and lives in Dornbirn. He is represented before the Court by Mrs Julia Hagen and Mr Martin Künz, lawyers practising in Dornbirn. The respondent Government are represented by their Agent, Mr F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

A.  The circumstances of the case

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

Upon criminal information laid by the applicant’s wife, the Feldkirch Regional Court, on 9 February 1998, issued an arrest warrant against the applicant and a search warrant of his house. The applicant was suspected of having bodily assaulted and raped his wife, of having threatened her with a firearm, of having sexually assaulted his minor stepdaughter and of being in possession of child pornographic videos. The arrest warrant pointed out that there were reasons to assume that the applicant would react with “massive resistance” upon his arrest and would “try to escape prosecution”.

On 9 February 1998 at around 23.45 hours six police officers of the special task force (Sondereinsatzgruppe) of the Altach gendarmerie entered the applicant’s house. The officers were equipped with bullet-proof vests and shields. Further, they wore masks.

The applicant submits that before the police entered his house, he had observed two suspicious persons, namely two of the officers, lingering around his parking. He had, therefore, armed himself with a kitchen knife However, when the police entered his house he immediately dropped the knife and held his hands up.

The police officers forced the applicant to the ground and handcuffed him.

The applicant submits that he had recognised the police officers on their emblems and had at once declared that he would not do anything and collaborate with the police. An officer allegedly replied to him that he would better do so otherwise he would be “picked off”.

The applicant was subsequently laid on a table where he was stripped naked, searched for arms and dressed again. According to the applicant he was blindfolded during this time. Upon the shock of his arrest the applicant had urinated in his clothes. The police officers, despite the applicant’s repeated requests, refused to let him change his clothes.

The applicant submits that he was then again forced to the ground where he remained for about 15 minutes while some of the police officers searched his house. According to the applicant he was lying face down while a police officer pressed his knee on the back of his neck. This police officer allegedly told the applicant: “Don’t move, otherwise you are dead.”

The applicant submits that it was only when he was lifted up that, without giving any further reasons, he was told that he was arrested.

The applicant was subsequently taken to the Altach police station where he was questioned until about 3.40 a.m. when he was released and taken back to his house.

During all of the time of his arrest and detention the applicant remained handcuffed, upon his request, however, the handcuffs were covered with a garment when leaving the house and were later attached in his front instead behind his back.

On 10 February 1998 the applicant was again heard by the gendarmerie.

On 11 February 1998 the applicant prepared a note for the file in which he described the events at issue. He made, however, no reference to the fact that he had been blindfolded while stripped.

The criminal proceedings against the applicant were discontinued on 25 June 1998.

Meanwhile, on 3 March 1998, the applicant complained to the Vorarlberg Independent Administrative Panel (Unabhängiger Verwaltungssenat) that the treatment he had suffered during his arrest and at the police station amounted to inhuman and degrading treatment contrary to Article 3 of the Convention. He referred to his stripping by the police officers, the forcing to the ground while an officer pressed his knee against the back of his neck, the threats by the officers and the refusal to let him change his wet clothes. He finally complained that his handcuffing had not been necessary as during all of the time he had been cooperative and had not shown any sign of resistance.

The Independent Administrative Panel held two hearings on 8 and 28 July 1998. It questioned the applicant, the director of the Vorarlberg Public Security Authority (Sicherheitsdirektor), the police officer who had headed the mission, another police officer who had assisted the applicant’s arrest and the police officer who had questioned the applicant at the Altach police station. The police officers submitted that the applicant’s wife had informed them that the applicant was violent, regularly consumed alcohol, was in possession of a fire-arm and had attended training for hand-to-hand combat for several years. He had allegedly received his wife several times with a weapon in his hand when she was entering the house. The applicant’s wife had warned the police that the applicant “was up to do anything”.

The two officers who had participated in the applicant’s arrest confirmed that the applicant had been strip-searched. One officer explained that this had been done for their and the applicant’s safety and in order to find the weapon. The applicant had been informed about the arrest and search warrant before being undressed. After the strip search the applicant had been seated on a sofa. The other officer stated that after the strip search the applicant had been laid on the floor where he was fixed. He denied however that somebody had approached the applicant’s neck with his knee. Both officers confirmed that the applicant had not shown any sign of resistance and denied that the applicant had been threatened to “be picked off”.

The officer who had heard the applicant at the police station submitted that he had not lessened the applicant’s handcuffs because during some of the time he had been alone with the applicant at the police station.

On 6 November 1998 the Independent Administrative Panel rejected the applicant’s complaints. It found that the police officers had acted on the basis of an arrest warrant and had not exceeded the instructions of the investigating judge. The handcuffing of the applicant had been a necessary accompanying measure to the applicant’s arrest because of the applicant’s assumed resistance and escape. Against this background also the stripping of the applicant could not be regarded as excessive, especially as the applicant was suspected to be in the possession of weapons. The applicant’s further complaints about the threatening, the holding down by pressing a knee against the back of his neck and the refusal to let him change his wet clothes were, even assuming that the applicant’s allegations were true, of no relevance for the proceedings at issue as they concerned merely the way of proceeding during an authorised arrest and were attributable to the court. A review of lawfulness did not fall within the Independent Administrative Panel’s competence.

On 22 February 1999 the Constitutional Court declined to deal with the applicant’s complaint.

The applicant filed a complaint with the Administrative Court in which he repeated his submissions made before the Independent Administrative Panel. He further complained about the fact that the intervening officers had been masked.

On 21 December 2000 the Administrative Court partly granted the applicant’s complaint. It quashed the Independent Administrative Panel’s decision insofar as the refusal of the police officers to let the applicant change his clothes was concerned and remitted the case back to the Panel for further examination.

The Administrative Court dismissed the remainder of the applicant’s complaint. It noted that the police officers had been confronted with a person suspected of severe crimes who was allegedly in possession of a firearm and was trained in hand-to-hand combat and who, furthermore, was holding a knife when meeting them. The handcuffing and complete stripping of the applicant and the alleged fixation and threatening by the police officers did not, therefore, exceed the instructions of the investigating judge. The court did not consider the applicant’s detention for some four hours and his handcuffing during this period of time as excessive either. It noted in the latter regard that, despite the applicant’s calm and cooperative behaviour, there was reason to believe that the applicant once liberated from his handcuffs would try to escape or use force. The Administrative Court finally noted that the applicant had not raised the complaint that the officers had been masked before the Independent Administrative Panel. This complaint was, however, inadmissible in any way as it did not concern an act of direct administrative authority and coercion (Ausübung unmittelbarer verwaltungsbehördlicher Befehls- und Zwangsgewalt).

On 3 May 2001 the Vorarlberg Independent Administrative Panel found that the police officers’ refusal to let the applicant change his wet clothes had not been covered by the instructions of the investigating judge who had ordered the applicant’s arrest and constituted inhuman or degrading treatment in breach of Article 3 of the Convention. The applicant subsequently received compensation in the amount of approximately 2,400 euros.

B.  Relevant domestic law and practice

Articles 139 to 149 of the Code of Criminal Procedure (Strafprozeß-ordnung) concern the search of premises and persons and the seizure of objects.

Article 139 § 2 stipulates that a search of a person and his clothes is inter alia admissible when this person is suspected of a crime.

According to Article 140 §§ 1 and 2, a search should in general only be carried out after the person concerned has been heard, and only if the person or objects searched are not voluntarily rendered and if the reasons leading to the search have not been eliminated. It is not required to hear persons of bad reputation, or to have such a hearing where there is danger in delay.

Article 140 § 3 states, as a rule, that a search may only be carried out on the basis of a reasoned search warrant issued by a judge.

Article 142 §1 stipulates that when searches of premises and persons are carried out any disturbance and harassment of the person concerned which is not strictly necessary has to be avoided. Searches have to be carried out in respect of the rules of decency. Article 113 of the Code of Criminal Procedure provides a remedy against a decision or delay caused by the investigating judge during the preliminary proceedings through an appeal to the Review Chamber (Ratskammer). In principle, there is no further appeal against a decision by the Review Chamber. By virtue of Section 67a § 1 of the General Administrative Procedure Act (Allgemeines Verwaltungs-verfahrensgesetz), Independent Administrative Panels have jurisdiction, inter alia, to examine complaints from persons alleging a violation of their rights resulting from act of direct administrative compulsion (Ausübung unmittelbarer verwaltungsbehördlicher Befehls- und Zwangsgewalt). According to relevant jurisprudence and doctrine acts of administrative organs which are based on a court order are not attributable to the administrative authorities, but to the courts. Such an act is, however, attributable to the administrative authorities when the judicial order has been manifestly exceeded.

COMPLAINTS

The applicant complained that the treatment he had suffered during his arrest and detention amounted to inhuman and degrading treatment contrary to Article 3 of the Convention. He complained that his arrest had been carried out by six police officers who entered his house with firearms pulled out. The police officers had been masked so that the individual police officer could not be identified as author of a particular action. The applicant further complained that a police officer had threatened him to “pick him off”. He complained that he had been laid on a table and stripped, and then forced to the ground where he remained for some 15 minutes while one of the officers pressed his knee on the back of his neck and some other officers searched his house. The applicant finally complained that despite his calm and cooperative attitude he had remained handcuffed during all the time of his arrest and subsequent detention.

THE LAW

The applicant complained that the treatment he had suffered during his arrest and detention amounted to inhuman and degrading treatment contrary to Article 3 of the Convention. Article 3 provides as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

1. Exhaustion of domestic remedies

The Government argued that the arrest warrant against the applicant had pointed out that there was reason to assume that the applicant would react with massive resistance upon his arrest and try to escape prosecution. The domestic authorities had found that the police’s acting had been covered by the arrest warrant and was not excessive. Therefore, the applicant could and can still file a complaint against the underlying arrest warrant with the Review Chamber under Article 113 of the Code of Criminal Procedure and contest that there had been a reason for his arrest or to assume that he was dangerous. The Government therefore concluded that the applicant had not exhausted domestic remedies.

The applicant contested this argument. He submitted in particular that a complaint about the exercise of direct administrative authority and coercion serves the same purpose as a complaint under Article 113 of the Criminal Procedure Act, namely to challenge an unlawful act by an authority. In the present case, his complaint had been examined exhaustively by the Independent Administrative Panel which had held oral hearings and had taken evidence, and subsequently by the highest instances, the Constitutional and the Administrative Court. He had therefore exhausted domestic remedies.

The Court recalls that the only remedies which an applicant is required to exhaust are those that relate to the breaches alleged and which are at the same time available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied. Moreover, an applicant who has exhausted a remedy that is apparently effective and sufficient cannot be required also to have tried others that were available but probably no more likely to be successful (see Aquilina v. Malta [GC], no. 25642/94, § 39, ECHR 1999-III with further references). Turning to the circumstances of the present case, the Court notes that the applicant does not challenge the arrest warrant itself. His complaint before the Court concerns the police intervention based on this warrant and he alleges that this intervention had been excessive and was carried out in breach of his rights under Article 3 of the Convention. The applicant’s respective complaint was examined and dismissed by the competent domestic authorities which found that the police action had not been excessive. The applicant has accordingly exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention.

2. The merits of the applicant’s complaint

The Government endorsed the domestic authorities’ findings that in the light of the specific circumstances of the case the impugned measures were proportionate. They stressed that ex ante there was reason to assume that the applicant was a very dangerous person who was furthermore experienced in hand-to-hand combat. Moreover, the applicant had confronted the intervening police officers while holding a knife. The statement of a participating officer before the Independent Administrative Panel indicated that the applicant had been informed about the reasons of the police intervention at its very beginning. As regards the alleged blindfolding during the strip search, the Government pointed out that the applicant had alluded to his blindfolding for the first time in his complaint with the Independent Administrative Panel but had not mentioned it as a reason for his complaint. Therefore neither the Independent Administrative Panel nor the Administrative Court had to dwell on this issue. In any event, the strip search had lasted only for some minutes so that an eventual blindfolding happened during a very short time. Nor could it be established that a police officer had actually pressed his knee against the applicant while he was lying on the ground. Furthermore, the applicant had admitted that he could – albeit with difficulty – watch the police officers during the search of his house which indicates that no pressure had been placed on his neck. In the view of the background of the intervention and it’s relatively short duration it could be assumed that the police officers proceeded with utmost care until they could be sure that the applicant would not attempt an act of violence or try to escape. They made efforts not to tear the applicant’s clothes during the strip search, did not cause any disorder in the applicant’s flat and brought him back home after his release. As regards the applicant’s complaint about the handcuffing, the Government pointed out that the handcuffs were covered when he was taken to the police car. In the light of the massive reproaches against the applicant, his interrogation lasting three hours did not appear excessive either. The Government concluded that the intervention did not reach the minimum threshold of Article 3 of the Convention.

The applicant contested the Government’s submissions. He argued that the fact that he was blindfolded while being strip-searched was part of his complaint before the Independent Administrative Panel which, in any event, had to establish the relevant facts ex officio. The applicant further contested that the police intervention could be regarded as proportionate. He pointed out that he had remained calm and cooperative since the very beginning of the police intervention and had not offered any resistance. Even if the intervening officers had to assume in the beginning that they had to face a dangerous and violent person, they could convince themselves swiftly of the contrary as he was overwhelmed without any difficulties. In the view of his calm behaviour, the quantitative superiority of the police officers and the fact that he was obviously unarmed his being handcuffed during four hours was excessive. This was even more humiliating for him as during all this time he had to remain in his stained clothes. Furthermore, it is not discernable why it was necessary to undress him completely: in order to search for firearms simple patting would have been sufficient. Stripping by six police officers after being laid on a table was clearly humiliating. The applicant finally complains about the fact that the Austrian authorities did not even deal with his allegations that he had been threatened to be “picked off”.

The Court considers, in the light of the parties’ submissions, that the case raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. Consequently, the Court concludes that the application cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Søren Nielsen Christos Rozakis 
 
Registrar President

WIESER v. AUSTRIA DECISION


WIESER v. AUSTRIA DECISION