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FIRST
SECTION
CASE OF
WIESER v. AUSTRIA
(Application
no. 2293/03)
JUDGMENT
STRASBOURG
22
February 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Wieser v. Austria,
The
European Court of Human Rights (First Section), sitting 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
deliberated in private on 1 February 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 2293/03) against the Republic
of Austria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Austrian national, Mr Ewald Wieser (“the
applicant”), on 14 July 2001.
- The
applicant was represented by Mrs Julia Hagen and Mr Martin Künz,
lawyers practising in Dornbirn. The Austrian Government (“the
Government”) were represented by their Agent,
Mr F. Trauttmansdorff, Head of the International Law
Department at the Federal Ministry for Foreign Affairs.
- The
applicant alleged that he had been subjected to treatment contrary to
Article 3 of the Convention.
- By
a decision of 11 April 2006 the Court declared the application
admissible.
- Neither
the applicant nor the Government each filed further written
observations (Rule 59 § 1)
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1958 and lives in Dornbirn.
- 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 declared at once 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.” He further 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 he 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
Verwaltungs-senat) 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 he
had been cooperative and had not shown any sign of resistance during
all of the time.
- 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 and
held on the floor. 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.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Sections
139 to 149 of the Code of Criminal Procedure (Strafprozeß-ordnung)
concern the search of premises and persons and the seizure of
objects.
- Section
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 section 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.
- Section
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.
- Section
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.
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.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant 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.
Furthermore, a police officer had threatened him to “pick him
off”. 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. Finally, he had remained handcuffed
during all the time of his arrest and subsequent detention despite
his calm and cooperative attitude. He submitted that this treatment
amounted to inhuman and degrading treatment contrary to Article 3 of
the Convention which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The parties' submissions
- 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's neck 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 its
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”.
B. The Court's assessment
- The
Court reiterates that ill-treatment must attain a minimum level of
severity if it is to fall within the scope of Article 3 of the
Convention. The assessment of the minimum level of severity is
relative; it depends on all the circumstances of the case, such as
the duration of the treatment, its physical and mental effects and,
in some cases, the sex, age and health of the victim (see as a recent
authority Wainwright v. the United Kingdom, no. 12350/04,
§ 41, 26 September 2006, with further references).
- Treatment
has been held by the Court to be “inhuman” because, inter
alia, it was premeditated, was applied for hours at a stretch and
caused either actual bodily injury or intense physical and mental
suffering (see Labita v. Italy [GC], no. 26772/95, §
120, ECHR 2000-IV). Treatment has been considered “degrading”
when it was such as to arouse in its victims feelings of fear,
anguish and inferiority capable of humiliating and debasing them and
possibly breaking their physical or moral resistance (see Hurtado
v. Switzerland, Commission's report of 8 July 1993, Series A
no. 280, p. 14, § 67), or when it was such as to drive the
victim to act against his will or conscience (see, for example,
Denmark, Norway, Sweden and the Netherlands v. Greece
(“the Greek case”), nos. 3321/67 et al.,
Commission's report of 5 November 1969, Yearbook 12, p. 186; Keenan
v. the United Kingdom, no. 27229/95, § 110, ECHR 2001-III).
Furthermore, in considering whether treatment is “degrading”
within the meaning of Article 3, one of the factors which the Court
will take into account is the question whether its object was to
humiliate and debase the person concerned, although the absence of
any such purpose cannot conclusively rule out a finding of violation
of Article 3 (see Raninen v. Finland, judgment of 16 December
1997, Reports of Judgments and Decisions 1997-VIII, pp.
2821-22, § 55; Peers v. Greece, no. 28524/95, §§ 68
and 74, ECHR 2001-III; Price, cited above, § 24). In
order for a punishment or treatment associated with it to be
“inhuman” or “degrading”, the suffering or
humiliation involved must in any event go beyond that inevitable
element of suffering or humiliation connected with a given form of
legitimate treatment or punishment (see Labita, cited above, §
120).
- Turning
to the particular circumstances of the present case, the Court
observes that the police, as a result of the suspicion against the
applicant and further information given by his wife, had reason to
believe that they were preparing the arrest of a person who was
violent, dangerous, and, furthermore, in possession of a firearm and
trained in hand-to-hand combat. In this context, the Court finds that
the intervention of six specially equipped, masked, police officers
does not in itself raise an issue under Article 3 of the
Convention. Furthermore, the Court does not find that in the light of
these circumstances the applicant's handcuffing during all the time
of his arrest – some four hours –which did not entail
public exposure and had not caused any physical injuries or long-term
effects on the applicant's mental state attained the threshold of
Article 3 (see mutatis mutandis Raninen v. Finland,
cited above, §§ 56-59).
- The
Court notes that the applicant further submitted that in the course
of the intervention he was threatened to be “picked off”
and forced to the ground where he remained lying face down while a
police officer pressed his knee on the back during some 15 minutes.
However, these facts were disputed by the police officers in the
domestic proceedings and neither the domestic courts nor the
Government made any conclusive statement on that issue. There being
no further information before the Court, the question of whether the
applicant had in fact been subjected to the described treatment
remains a matter for speculation and assumption. Accordingly, the
Court cannot establish, beyond reasonable doubt, that the impugned
treatment allegedly contrary to Article 3 of the Convention had
actually taken place (see mutatis mutandis Ireland v. the
United Kingdom, judgment of 18 January 1978, Series A no. 25, pp.
64-65, § 161). Furthermore, the Court finds that the domestic
authorities by questioning the police officers in the domestic
proceedings carried out sufficient investigation in this matter and,
therefore, no issue arises under the procedural aspect of Article 3
either (see mutatis mutandis Boicenco v.
Moldova, no. 41088/05, §§ 120 27,
11 July 2006)
- The applicant next complained about the fact that he
was strip searched. The Court notes that it has already had occasion
to apply the principles of Article 3 of the Convention set out above
in the context of strip and intimate body searches. A search carried
out in an appropriate manner with due respect for human dignity and
for a legitimate purpose (see mutatis mutandis, Yankov v.
Bulgaria, no. 39084/97, §§166-67, ECHR 2003-XII where
there was no valid reason established for the shaving of the
applicant prisoner's head) may be compatible with Article 3. However,
where the manner in which a search is carried out has debasing
elements which significantly aggravate the inevitable humiliation of
the procedure, Article 3 has been engaged: for example, where a
prisoner was obliged to strip in the presence of a female officer,
his sexual organs and food touched with bare hands (Valašinas
v. Lithuania, no. 44558/98, § 117, ECHR 2001 VIII) and
where a search was conducted before four guards who derided and
verbally abused the prisoner (Iwańczuk v. Poland, no.
25196/94, § 59, 15 November 2001). Similarly, where the
search has no established connection with the preservation of prison
security and prevention of crime or disorder, issues may arise (see,
for example, Iwańczuk, cited above, §§ 58-59
where the search of the applicant, a remand prisoner detained on
charges of non-violent crimes, was conducted on him when he wished to
exercise his right to vote; Van der Ven v. the Netherlands,
no. 50901/99, §§ 61-62, ECHR 2003-II, where the
strip-searching was systematic and long term without convincing
security needs). Finally, in a case concerning the strip search of
visitors to a prisoner which had a legitimate aim but had been
carried out in breach of the relevant regulations, the Court found
that this treatment did not reach the minimum level of severity
prohibited by Article 3 but was in breach of the requirements under
Article 8 § 2 of the Convention (see Wainwright v. the United
Kingdom, no. 12350/04, 20 September 2006).
- In
the present case, the Court notes first that the applicant in the
present case was not simply ordered to undress, but was undressed by
the police officers while being in a particular helpless situation.
Even disregarding the applicant's further allegation that he was
blindfolded during this time which was not established by the
domestic courts, the Court finds that this procedure amounted to such
an invasive and potentially debasing measure that it should not have
been applied without a compelling reason. However, no such argument
has been adduced to show that the strip search was necessary and
justified for security reasons. The Court notes in this regard that
the applicant, who was already handcuffed was searched for arms and
not for drugs or other small objects which might not be discerned by
a simple body search and without undressing the applicant completely.
- Having
regard to the foregoing, the Court considers that in the particular
circumstances of the present case the strip search of the applicant
during the police intervention at his home constituted an unjustified
treatment of sufficient severity to be characterised as “degrading”
within the meaning of Article 3 of the Convention.
- It
follows that there has been a violation of Article 3 of the
Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 3,600 euros (EUR) under the head of non-pecuniary
damage.
- The
Government argued that when assessing the amount of compensation the
Court should have regard to the facts that strip searches may be
necessary to prevent crime and that the police officers' refusal to
let the applicant change his wet clothes had already been taken into
account by the Administrative Court.
- The
Court considers that the applicant must have suffered feelings of
distress which cannot be compensated solely by the finding of a
violation. Having regard to the awards made in other strip search
cases, the Court awards 3,000 EUR, including any tax chargeable, to
the applicant.
B. Costs and expenses
- The
applicant claimed reimbursement of the costs of the domestic
proceedings in the amount of 96,698 Austrian Schillings (ATS, i.e.
7,027.38 EUR) and of the costs of the Convention proceedings in
the amount of 2,985.26 EUR. Both amounts include value-added tax
(VAT).
- The
Government argued that the amount claimed for the Convention
proceedings was excessive according to the Austrian Autonomous
Remuneration Guidelines for Lawyers. They did not comment on the
costs of the domestic proceedings.
- As
to the costs of the domestic proceedings, the Court finds that they
were actually and necessarily incurred and reasonable as to the
quantum. It, therefore, awards the full amount claimed namely
7,027.38 EUR. This amount includes VAT. The costs of the Convention
proceedings were also necessarily incurred. Having regard to the sums
awarded in comparable cases, the Court finds that they are also
reasonable as to the quantum. It therefore awards the full amount
claimed, namely 2,985.26 EUR inclusive VAT.
- Consequently
a total amount of 10,012.64 EUR, inclusive of VAT, is awarded under
the head of costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
- Holds by four votes to three that there has been
a violation of Article 3 of the Convention in respect of the
applicant's strip search;
- Holds by four votes to three
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts:
(i) EUR
3,000 (three thousand euros) in respect of non-pecuniary damage;
(ii) EUR
10,012.64 (ten thousand and twelve euros sixty-four cents) in respect
of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount[s] at a rate
equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
- Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 22 February 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren
Nielsen Christos Rozakis
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following dissenting opinions are
annexed to this judgment:
(a) dissenting
opinion of Mr Loucaides;
(b) dissenting
opinion of Mr Jebens joined by Mr Hajiyev.
C.L.R.
S.N.
DISSENTING OPINION OF JUDGE LOUCAIDES
I
disagree with the majority as regards their finding that Article 3 of
the Convention was violated in the present case.
The
majority concluded that the applicant's strip search constituted
unjustified treatment of sufficient severity to be characterised as
“degrading” within the meaning of Article 3 of the
Convention. The majority found that this search amounted “to
such an invasive and potentially debasing measure that it should not
have been applied without a compelling reason.” They went on to
state that no argument was adduced to show that the strip search was
necessary and justified for security reasons. In this regard they
noted that “the applicant was searched for arms and not for
drugs or other small objects which might not be discerned by a simple
body search and without undressing the applicant completely”.
In my
opinion the strip search in the circumstances of the present case did
not amount to a degrading or debasing measure, taking into account
the context in which it was carried out and especially in light of
the following:
a) The
criminal information against the applicant showed that he was a
violent person who had used a firearm in threatening his wife. There
was also evidence that he regularly consumed alcohol and had attended
training for hand-to-hand combat for several years and that he “was
up to do anything”. The competent court issued an arrest
warrant against the applicant and a search warrant of his house. In
these circumstances the police were justified in handcuffing the
applicant upon their entry into his house. Only male policemen were
present in carrying out the strip search of the applicant and none
of them behaved in any improper way.
b) The
aim of the strip search was not to humiliate or debase the applicant
but to carry out a thorough search for security reasons. The majority
assessed the situation and found that “the strip search was
[not] necessary and justified for security reasons”. I do not
think that the Court can substitute its own judgment for that of the
police in a situation like the present one, in order to judge whether
a particular manner of search was or was not an appropriate way of
implementing a search warrant. The police are entitled to exercise
their own discretion and apply their own judgement as to the best way
of carrying out such search, guided by their knowledge and experience
and in the light of the particular circumstances before them. The
Court should only interfere in cases where the police have acted
illegally or arbitrarily. To accept the contrary would, in my
opinion, amount to an unnecessary obstruction to the performance of
the duties and responsibilities of the police in protecting the
rights of others. I do not think that there is any element of
illegality or arbitrariness in this case. The police
were entitled to handcuff the
applicant and carry out a thorough search. After
handcuffing he could not undress himself. The strip search was not
carried out for any motive or purpose other than security reasons on
the basis of the available information concerning the applicant and,
in particular, his criminal behaviour.
On
the basis of the above, I cannot agree with the majority that the
applicant was subjected to any inhuman or degrading treatment
contrary to Article 3 of the Convention.
DISSENTING OPINION OF JUDGE JEBENS
JOINED BY JUDGE
HAJIYEV
I
disagree with the majority in their finding of a violation of Article
3 in the present case. In my view, the police officers' treatment of
the applicant did at no point amount to torture or inhuman or
degrading treatment or punishment.
It is
important to notice the background of the case: The Feldkirch
Regional Court issued an arrest warrant against the applicant and a
search warrant of his house because he was suspected of bodily
assault, rape and threats with a firearm, all of it directed against
his wife. The arrest warrant pointed out that there was reason to
expect “massive resistance” upon arrest and attempts to
“escape prosecution”. According to information given by
his wife, the applicant was trained in hand-to-hand combat, and “up
to anything”. The latter characterization was probably based on
the fact that he had on several occasions approached his wife with
weapon in hand. Last, but not least, the applicant was, according to
his wife, in possession of a firearm.
In my
opinion, there was nothing that could give reason for the police to
question the truth of the information provided by the applicant's
wife. On the contrary, the fact that the police officers were met by
the applicant with a knife in his hand when they entered his house,
must have had the effect of strengthening the veracity of his wife's
information, in addition to being a reminder of the seriousness of
the situation.
The
majority have deemed it unnecessary by the police to strip the
applicant naked in order to search for a weapon, and have argued that
frisking him would have been sufficient. I disagree to this view,
because it is, in my opinion, not based on a realistic assessment of
the risks involved in police actions like the present one.
First
of all, having been informed that the applicant was in possession of
a firearm, it was necessary for the police officers to make a bodily
search of him. Even without such information, this would have been
necessary, in order to check for other objects, like for instance a
knife. Second, the search had to be carried out in an effective and
secure way, in addition to causing as little harm as possible.
Bearing in mind that the applicant was reported to be trained in
hand-to-hand combat and “up to anything”, he might easily
have acted violently, even though he was handcuffed. Thus, frisking
him would have been a clearly inadequate measure. A strip search
therefore remained as the only realistic option. However, being
handcuffed, which was obviously necessary in the present
circumstances, it is hard to imagine how the applicant could have
been able to undress himself. The strip search therefore had to be
carried out by the police.
One of the police officers stated before the Independent
Administrative Panel that the strip search was applied “for
their and the applicant's safety and in order to find the weapon”.
I see no reason to question the truth of this statement. However, in
addition to explaining why this method was used, it clearly indicates
that using the ordinary method of body search might have caused the
applicant (and the police) injuries, if he had resisted the search.
This was a possibility that could in my opinion by no means be
excluded.
It is
furthermore important to note that the strip search was carried out
by police officers who were all male persons. No physical or verbal
abuse of the applicant was applied. Finally, the strip search seems
to have been carried out within few minutes. The applicant's human
dignity and bodily integrity was therefore, in my opinion, respected,
as far as possible in the circumstances.
Bearing
in mind that the threshold of Article 3 in cases involving police
treatment depends on the circumstances of the case, see Wainwright
v. the United Kingdom, cited above; that a strip search which
serves a legitimate purpose and is carried out with respect for human
dignity is not in itself incompatible with the Convention, see Yankow
v. Bulgaria, cited above, and that the effects of a legitimate
treatment must exceed the inevitable element of suffering or
humiliation if it is to create a violation of Article 3, see Labita
v. Italy, cited above, I must conclude, on the basis of the
factual elements which I have explained above, that there has been no
violation in this case.
I
would like to add that in cases like this, it is important to examine
whether the police have acted without having had the necessary
reasons for it, or performed in a way that has shown lack of respect
of the arrested person's human dignity or caused him bodily harm.
However, when deciding in such cases, one must also keep in mind the
difficult role of the police in cases like this, and make a balanced
evaluation. Protecting victims and taking care of people's security
should not be unnecessarily hampered by the Court. In my opinion, the
judgment in the present case might have just that effect.
