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You are here: BAILII >> Databases >> European Court of Human Rights >> KLAAS v. GERMANY - 15473/89 [1993] ECHR 45 (22 September 1993)
URL: http://www.bailii.org/eu/cases/ECHR/1993/45.html
Cite as: (1994) 18 EHRR 305, 18 EHRR 305, [1993] ECHR 45
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In the case of Klaas v. Germany*,
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 the Rules of Court, as a Chamber composed of
the following judges:
Mr R. Ryssdal, President,
Mr R. Bernhardt,
Mr Thór Vilhjálmsson,
Mr L.-E. Pettiti,
Mr B. Walsh,
Mr A. Spielmann,
Mr I. Foighel,
Mr J.M. Morenilla,
Mr A.B. Baka,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 26 March and
24 August 1993,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 27/1992/372/446. 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.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came
into force on 1 January 1990.
_______________
PROCEDURE
1. The case was referred to the Court by the German Government
("the Government") on 10 August 1992 and by the European Commission
of Human Rights ("the Commission") on 11 September 1992, within the
three-month period laid down in Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 15473/89) against Germany lodged with the
Commission under Article 25 (art. 25) on 11 July 1989 by two German
citizens, Mrs Hildegard Klaas and her daughter Monika Klaas,
hereinafter referred to as the first and second applicant
respectively.
The Government's request referred to Articles 32 and 48
(art. 32, art. 48); the Commission's request referred to Articles 44
and 48 (art. 44, art. 48) and to the declaration whereby Germany
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46). The object of the request and the application was to
obtain a decision as to whether the facts of the case disclosed a
breach by the respondent State of its obligations under Articles 3
and 8 (art. 3, art. 8) of the Convention.
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicants stated
that they wished to take part in the proceedings and designated the
lawyer who would represent them (Rule 30). The President gave the
lawyer leave to use the German language (Rule 27 para. 3).
3. The Chamber to be constituted included ex officio
Mr R. Bernhardt, the elected judge of German nationality (Article 43
of the Convention) (art. 43), and Mr R. Ryssdal, the President of
the Court (Rule 21 para. 3 (b)). On 26 September 1992 the President
drew by lot, in the presence of the Registrar, the names of the
other seven members, namely Mr Thór Vilhjálmsson, Mr L.-E. Pettiti,
Mr B. Walsh, Mr A. Spielmann, Mr I. Foighel, Mr J.M. Morenilla and
Mr A.B. Baka (Article 43 in fine of the Convention and
Rule 21 para. 4) (art. 43).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Deputy Registrar, consulted the
applicants' lawyer, the Agent of the Government and the Delegate of
the Commission on the organisation of the proceedings
(Rules 37 para. 1 and 38). Pursuant to the order made in
consequence, the Registrar received, on 7 December 1992, the
Government's memorial and, on 19 January 1993, the applicants'
observations.
Various documents were produced by the Commission on
4 February 1993 and by the Government on 24 March 1993, at the
request of the Registrar. On 9 February 1993 the Registrar was
informed that the Delegate would submit his observations at the
hearing.
5. In accordance with the decision of the President - who had
also given the Agent of the Government leave to plead in German
(Rule 27 para. 2) - the hearing took place in public in the Human
Rights Building, Strasbourg, on 24 March 1993. The Court had held a
preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr J. Meyer-Ladewig, Ministerialdirigent,
Federal Ministry of Justice, Agent;
(b) for the Commission
Mr J. Frowein, Delegate;
(c) for the applicants
Mr M. Stüben, Rechtsanwalt, Counsel.
The Court heard addresses by Mr Meyer-Ladewig for the
Government, by Mr Frowein for the Commission and by Mr Stüben for
the applicants, as well as replies to its questions and by two of
its members individually.
AS TO THE FACTS
6. At about 7.30 p.m. on 28 January 1986, the first applicant,
a social worker, drew up outside the back entrance to the block of
flats in Lemgo where she lived. She was accompanied by her daughter
Monika, who, at the time of the incident that gave rise to the
complaint, was eight years old. After she had opened the gate she
was stopped by two police officers who had followed her and were
standing in the gateway. They accused her of having driven through
a red traffic light and of having tried to get away - an allegation
denied by the applicant. The police officers claimed to have
detected a strong smell of alcohol on her breath when they checked
her driving licence. She agreed to be breathalysed. Despite having
been shown what to do, she proved unable to provide a specimen of
breath satisfactorily and was therefore told that she would have to
accompany the police officers to the local hospital in order to have
a blood test.
An altercation followed during which Mrs Klaas was arrested.
The precise course of the events is disputed by the applicants (see
paragraph 7 below) and the police officers (see paragraph 9 below).
She was then driven to the hospital for the blood test,
which showed the level of alcohol in her blood to be 0.82 per ml
(milligrammes per millilitre). She was subsequently released.
7. According to the applicants, Mrs Klaas agreed to have a
blood sample taken, but explained that she wished first to accompany
her daughter to a neighbour. One of the police officers refused to
allow this and dragged her to the police car. She was warned that
she could be charged with obstructing a public officer in the
execution of his duties (Widerstand gegen die Staatsgewalt). When
she called her daughter, the police officers said that they would
look after the child. Thereupon she took her daughter by the hand,
went to the back door, rang her neighbour's doorbell and opened the
door. At that moment one of the police officers grabbed her,
twisted her left arm behind her back and her head knocked against
the corner of the window- ledge. The police officers then
handcuffed her. She lost consciousness for a short while. When she
came round, she found herself by the police car and noticed severe
pain in her left shoulder, which was being pressed towards her back
by one of the police officers. She was subsequently able to get
into the police car and was driven to the hospital.
8. The first applicant underwent two medical examinations. On
11 February 1986, Dr Schwering certified that he had examined the
applicant on 29 January and noticed bruises which were about 10cm
long on her right arm, considerable problems in moving her left
shoulder, and bruises on that shoulder. He also stated that she
would suffer long-term problems, in particular with her left
shoulder. She was put on sick-leave until 8 February 1986.
Furthermore, on 10 February 1986, Dr Krauspe, the chief surgeon at
the local hospital, certified that he had examined the first
applicant on 30 January 1986 and had reached an almost identical
diagnosis.
I. The criminal proceedings instituted against the first
applicant
9. On 29 January 1986, Police Constable (Polizeimeister) Bolte
laid an information against the first applicant. She was charged
with obstructing a public officer in the execution of his duties
contrary to Article 113 of the German Criminal Code
(Strafgesetzbuch), and of driving while under the influence of
alcohol contrary to Article 316 of the said code.
Police Constable Bolte stated in his report that after
Mrs Klaas had been informed that she had to undergo a blood test,
she had attempted to escape into the darkness of the back-yard,
whereupon he had grabbed her arm and stopped her.
The applicant had been very aggressive. When informed that
she was to be arrested, she had suddenly calmed down and declared
that she would come along when she had taken her daughter, whom he
had assumed to be about twelve years old, to a neighbour. The
police officers had agreed in order to avoid a further escalation of
the events. They had followed the applicants to the back door of
the house.
The first applicant had been about to follow her daughter
into the house. She tried to close the door behind her but Police
Constable Wildschut blocked the door open and Police Constable Bolte
grabbed the first applicant's right arm and pulled her outside. The
child went upstairs.
According to the report, Mrs Klaas struggled, struck out and
tried to free herself from the police officer's grip. Police
Constable Wildschut took her left arm and twisted it behind her
back, whilst Police Constable Bolte kept a tight grip on her right
arm.
With great difficulty the officers managed to control the
applicant, who was putting up a fight. They handcuffed her in order
to avoid further criminal offences being committed, in particular
injury to the person. On their way to the police car she had
attempted to throw herself to the ground, and he and his colleague
had had to hold her arms. At that point another police car arrived.
However, by that time, the applicant's neighbour had already offered
to take care of the child.
The officers noted on arrival at Lemgo Hospital that
Mrs Klaas had a graze on her right temple.
10. On 22 April 1986 the criminal proceedings against the first
applicant were discontinued by the public prosecutor's office
(Staatsanwaltschaft) at the Detmold Regional Court (Landgericht) for
two different reasons, namely that the offence of driving while
under the influence of alcohol was not proven and that the
applicant's guilt in resisting the police officers had been minimal
(gering) and there was no public interest in prosecuting.
In November 1986 the competent administrative authority
imposed an administrative fine of DM 500 for having committed the
"regulatory offence" (Ordnungswidrigkeit) of driving with a blood
alcohol content level of 0.82 per ml when 0.80 per ml was the legal
limit. A driving ban of one month was also imposed.
The Lemgo District Court (Amtsgericht) confirmed this
decision. The first applicant's subsequent appeal to the Hamm Court
of Appeal (Oberlandesgericht) and to the Federal Constitutional
Court (Bundesverfassungsgericht) were dismissed.
II. Proceedings brought by the first applicant against
the police officers
11. On 24 April 1986 the first applicant laid an information
against the police officers concerned. She alleged that they had
assaulted her contrary to Articles 223 and 230 of the Criminal Code.
In her pleadings of 24 April and 13 May 1986, Mrs Klaas claimed that
the police officers had used a disproportionate amount of force,
causing injuries to her head, left shoulder and upper right arm.
On 10 July 1986, following a telephone conversation between
her lawyer and an official of the public prosecutor's office in
which Mrs Klaas' allegations were withdrawn - allegedly after a
warning that criminal proceedings against her would otherwise be
continued - the proceedings against the police officers were
discontinued.
12. On 18 July 1986, the first applicant filed a complaint
(Dienstaufsichtsbeschwerde) with the Head of the Detmold District
Administration (Oberkreisdirektor) against the police officers
involved in the arrest. She stated that she had wanted to wait for
her neighbour to come to the door but that she had not been able to
as the bearded police officer had twisted her arm behind her back
and her head knocked against the brick window-ledge. Subsequently
she was forcibly taken to the police car where she was held with her
back up against the rear of the car. The bearded man continued to
pull her left shoulder back at regular intervals. At some point she
was dazed.
She maintained that the blood test showed the level of
alcohol to be 0.80 per ml. It was argued that the degree of force
used against an unarmed woman was incomprehensible on an objective
or subjective analysis; the mildest means of achieving the objective
should have been employed.
13. On 18 September 1986, the Head of the Detmold District
Administration, acting as the Police Department authority
(Kreispolizeibehörde), dismissed her complaint. In the decision, it
was stated in particular that after she had been informed that she
would have to give a blood sample, she had attempted to run away.
However, one of the police officers seized her arm and told her that
she was under arrest. Her request to take her daughter to a
neighbour's first was granted. When the first applicant opened the
door and tried to enter with her daughter, one of the police
officers held her right arm fast, whereupon she started to kick and
to hit out with her left hand. When the police officers held her
tight she tried to escape. She had to be handcuffed. It was not
accepted that her head knocked against the window-ledge at any
moment in the course of the arrest. He concluded that the use of
force had been justified and was not disproportionate to the aim
pursued, namely the taking of a blood test.
III. The first applicant's proceedings for compensation under
civil law
14. The first applicant instituted civil proceedings
in April 1987 against the Land North-Rhine Westphalia and the police
officers concerned. She claimed compensation for the injuries
sustained on 28 January 1986.
15. On 10 July 1987 the Detmold Regional Court, in a partial
judgment, dismissed her complaint against the police officers on the
ground that an official acting in the exercise of his duties does
not incur personal liability.
16. On 9 October 1987 the Detmold Regional Court held a hearing
in the case.
The applicant's neighbour was the first to give evidence.
She said that she had noticed Mrs Klaas's very blotchy and
tear-stained face despite the dim light, had seen the blond police
officer holding her arms behind her back and had feared that she
would collapse at any moment as her knees had given way and she had
bent forward suddenly several times. The neighbour stated on
further questioning that, judging from the first applicant's
behaviour, she must have been in terrible pain. The first applicant
complained about the pain in her left shoulder and asked the police
officers to remove the handcuffs. This request was repeated by the
neighbour but refused by the police officers.
Police Constable Bolte confirmed the facts as set out in his
report of 29 January 1986 (see paragraph 9 above). He added that he
was not sure whether the first applicant had deliberately not blown
into the breathalyser for a sufficient time or whether she had had
genuine difficulties. He stated that she had not knocked her head
against the wall when she was pulled outside, however he remained
unable to account for the injury to her right cheek to which he had
referred in the aforementioned report. Upon further questioning he
corroborated the neighbour's evidence that Mrs Klaas had requested
that the handcuffs be removed and he explained that they had refused
this request as they had feared more trouble. He said that she had
not complained about any pains in her shoulder and that she had
certainly not knocked her head against the wall. However, he
acknowledged that she did not have the head injury before they spoke
to her and said that he did not know whether she had got the injury
to her right cheek during the scuffle when the handcuffs had been
put on. He could not remember who had kept hold of Mrs Klaas until
they had put her into the police car, or whether she had bent
forward suddenly owing, for instance, to a jerking on her handcuffs
and the resulting pain.
Police Constable Wildschut was the next to give evidence.
He confirmed the general circumstances of the first applicant's
arrest as described by Police Constable Bolte, although he was not
prepared to say that she had run away. After the applicant had
opened the front door she had attempted to close it behind her but
he had held on to it while his colleague kept a tight grip on her.
As it was completely dark just outside the door he could not exclude
the possibility that she could have knocked her head on the wall or
on something else. In any event he did not notice it happening and
it was only later that he became aware of her head injury. He
stated that Mrs Klaas had vehemently resisted arrest which was why
he had taken her left arm and twisted it behind her back and then
handcuffed her arms in that position. He could not remember whether
she had been handcuffed in the back-yard or whether they had first
taken her to the street. He confirmed that she had requested that
the handcuffs be removed but did not remember her complaining about
any pain - in particular pain in her left shoulder. She continued,
without success, to resist accompanying them, but he could not be
sure who had been holding on to her while they waited for the second
police car.
On further questioning Police Constable Wildschut stated
that he did not remember whether she had bent forward suddenly while
she was still handcuffed. She had resisted arrest and had been
lashing out when he had twisted her arm behind her back, but he
assumed that she had not intended to assault either him or his
colleague. He denied that he had pushed the first applicant's head
against the window-ledge.
Finally, the second applicant, Monika, gave evidence. She
stated that she remembered the incident with her mother and the
police officers in their back-yard. She said, in particular, that
her mother had rung the doorbell and opened the door using a key.
Monika had then gone into the house and closed the door behind her.
She was not aware that one of the police officers had forcibly kept
the door open. Having closed the door behind her, she said that she
had managed to see through the plain glass door panel that one of
the police officers had pushed her mother's head against the wall.
She emphasised that the police officer had repeatedly pushed her
mother's head against the wall next to the door using his hand. The
officer concerned had blond hair. Her mother and the police officer
had been close to the door, approximately one metre away from it.
She herself had not been right in front of the glass panel. She had
subsequently run upstairs to their neighbour. She further explained
that, when her mother had rung the doorbell and opened the door, she
had been standing to Monika's right. Her mother had opened the door
only a little bit, and she had just been able to get in. She had
then immediately closed the door behind her.
Whilst she did not recognise the police officers involved
she thought that the dark-haired police officer had a beard. She
confirmed that the light had been poor, but said that it had been
light in the staircase. She had not seen either of the police
officers twisting her mother's arm behind her back.
17. On 30 October 1987 the Detmold Regional Court dismissed the
first applicant's compensation claims against the Land North-Rhine
Westphalia. It held as follows:
"The plaintiff has no claim under Articles 839 and 847 of
the Civil Code (Bürgerliches Gesetzbuch) taken together with
Article 34 of the Basic Law for breach of official duty to
her on the part of Police Constables Bolte and Wildschut.
The Chamber is admittedly convinced that the plaintiff
incurred the injuries complained of when she was arrested by
the two police officers. In any event the plaintiff ended
up with a graze on her temple, contusion of the left
shoulder and probably also concussion, as was also confirmed
in part by witnesses Bolte and Wildschut and moreover does
not seem to be seriously contested by the defendant Land.
These injuries were probably sustained by the plaintiff in
the context of her arrest.
It does not follow, however, that the defendant Land is
liable in damages.
The arrest itself was not unlawful. Even if the plaintiff
had no intention whatsoever to abscond, the situation
nevertheless appeared otherwise to the police officers. The
plaintiff was under suspicion of having committed a criminal
offence, namely driving under the influence of alcohol in
road traffic contrary to Article 316 of the Criminal Code,
as the police officers had found that the plaintiff's breath
smelt of alcohol. On the basis of the credible statements
of witnesses Bolte and Wildschut, the Chamber also assumes
that the plaintiff's conduct, first after failing to blow
satisfactorily into the breathalyser and then later at the
front door, gave both witnesses the impression that she
intended to evade further investigation, namely the taking
of a blood sample, by absconding. The Chamber can
understand that the police officers could have foreseen very
considerable difficulties if the plaintiff managed to get
into the building without the two witnesses. First, the
police officers could not know whether the plaintiff would
have allowed them access to her flat at all. Secondly, the
plaintiff would have had an opportunity of consuming more
alcohol or at least claiming that she had done so, thereby
making ascertainment of her blood alcohol level impossible
or significantly more difficult to obtain.
In the light of these circumstances the arrest does not
appear to be disproportionate either, but a perfectly
reasonable means of ensuring that the further investigations
could be carried out.
It is for the plaintiff to prove that in this initially
lawful exercise of their duty the police officers went
further than was necessary, by handling the plaintiff too
roughly and in so doing injuring her or even by deliberately
inflicting the injuries on her. Just as an attacker must
prove that a person attacked by him, acting in self-defence,
exceeded the limits of necessary self-defence (see Federal
Court of Justice - Bundesgerichtshof -, Versicherungsrecht
1971, pp. 629 et seq.), so also, in the Chamber's opinion,
must this apply in a case such as the present one: a person
who puts forward claims in respect of injuries suffered
during a lawful arrest must prove that the police officers
went beyond what was necessary and thereby caused the
injuries.
The plaintiff, however, has not succeeded in providing such
proof. On the evidence which has been taken, the Chamber is
not convinced that the police officers caused the
plaintiff's injuries by exceeding what was necessary when
arresting her.
With respect to the origin of the graze, the evidence of
witness Monika Klaas, the plaintiff's daughter, conflicts
with that of witnesses Bolte and Wildschut. Whereas witness
Klaas claims to have seen one of the police officers
repeatedly knocking the plaintiff's head against the wall by
the door, the two police officers deny this. None of these
three witnesses can be regarded as not having an interest in
these proceedings; the two police officers could certainly
expect disciplinary proceedings and a resumption of the
criminal investigation if these proved to be the facts,
while witness Klaas has a natural interest in supporting her
mother's claim and account of the facts. It is not clear to
the Chamber which of the statements corresponds to what
really happened. Definite findings of fact can therefore
not be made in this respect.
The largely disinterested witness Krüger [the neighbour] was
unable in her testimony to confirm the plaintiff's assertion
that witness Wildschut had pulled her arms upwards while she
was handcuffed. Neither can such a conclusion be drawn
merely from the fact that according to witness Krüger's
statements the plaintiff leant forward jerkily several times
while witness Wildschut stood behind her.
Neither the balance of probability nor general experience
militate in favour of accepting the plaintiff's version of
events. The Chamber considers it by no means improbable
that the plaintiff sustained all her injuries when she
resisted being handcuffed. In the process her head could
easily have knocked against the wall; the shoulder contusion
could also have occurred when she struggled while being
restrained by the police and when the handcuffs were being
put on her.
For these reasons the claim must be dismissed."
18. On 21 September 1988 the Hamm Court of Appeal dismissed the
first applicant's appeal. It upheld the decision of the Detmold
Regional Court that Mrs Klaas had not proved that excessive force
had been used against her by the police officers.
19. On 8 February 1989 a panel of three judges of the Federal
Constitutional Court declined to accept for adjudication the first
applicant's constitutional complaint on the ground that it did not
offer sufficient prospects of success. It considered in particular
that the Court of Appeal's assessment of the evidence did not appear
arbitrary or otherwise in violation of constitutional law.
PROCEEDINGS BEFORE THE COMMISSION
20. In an application (no. 15473/89) lodged with the Commission
on 11 July 1989, Mrs Hildegard Klaas, the first applicant, submitted
that, in the presence of her daughter, Monika, she had been
subjected in the course of her arrest to inhuman and degrading
treatment by the police contrary to Article 3 (art. 3) and that this
treatment had violated her right guaranteed under Article 8 (art. 8)
to respect for her private and family life. Monika Klaas, the
second applicant, contended that the aforementioned treatment of her
mother in her presence had violated her right to respect for her
private and family life, contrary to Article 8 (art. 8), in addition
to subjecting her to inhuman and degrading treatment contrary to
Article 3 (art. 3).
21. On 9 July 1991 the Commission declared the applicants'
complaints admissible and in its report of 21 May 1992 (Article 31)
(art. 31), expressed the opinion:
(a) by ten votes to five that there had been a violation of
Article 3 (art. 3) in respect of the first applicant;
(b) by ten votes to five that no separate issue had arisen
under Article 8 (art. 8) in respect of the first applicant;
(c) by fourteen votes to one that there had been no
violation of Article 3 (art. 3) in respect of the second applicant;
(d) by eight votes to seven that there had been a violation
of Article 8 (art. 8) in respect of the second applicant.
The full text of the Commission's opinion and of the various
separate opinions contained in the report is reproduced as an annex
to this judgment*.
_______________
* Note by the Registrar: for practical reasons this annex will
appear only with the printed version of the judgment (volume 269 of
Series A of the Publications of the Court), but a copy of the
Commission's report is available from the registry.
_______________
FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT
22. The Government in their memorial of 12 November 1992 invited
the Court to find "that the applicants did not suffer violations of
their rights under Article 3 (art. 3) or Article 8 (art. 8) of the
Convention".
AS TO THE LAW
I. THE FIRST APPLICANT
A. ALLEGED VIOLATION OF ARTICLE 3 (art. 3)
23. The first applicant, Mrs Klaas, alleged that the treatment
to which she had been subjected by the police officers in the course
of her arrest constituted inhuman and degrading treatment contrary
to Article 3 (art. 3), according to which:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
She maintained that, as a result of the altercation with the
police, she had sustained, inter alia, injuries to her head and
shoulder. These were supported by medical evidence (see paragraph 8
above) and were also illustrated by the photographs submitted to the
Court by the Delegate of the Commission immediately prior to the
hearing.
24. The Commission accepted her allegation. In accordance with
the view expressed by the national courts, it was of the opinion
that her arrest had been lawful (see paragraphs 13, 16 and 18
above). However, even assuming that she had resisted arrest and had
been attempting to abscond, it considered that the use of force by
police officers resulting in serious injuries had to be seen as
inhuman and degrading treatment if it could not be shown by the
Government that the force used was necessary in order for the police
to accomplish their lawful duties.
According to the Commission, as the first applicant was
injured in the course of an arrest, while under police control, it
was incumbent on the Government to produce evidence showing facts
which cast doubt on the account given by the victim which was
supported by photographs and medical evidence. In the absence of
any convincing other explanation as to the cause of the injuries
suffered during her arrest, her allegations of a disproportionate
use of force seemed plausible.
25. The Government argued that the first applicant's left
shoulder had been damaged prior to the arrest, but otherwise
accepted the fact that as a result she had suffered bruising to her
shoulders as well as grazes on her face and her arm. They
disagreed, however, with the applicant's account of how the injuries
came about and maintained that the injuries were accidental and
regrettable consequences of a lawful arrest.
26. The Court notes that the parties to the national proceedings
did not dispute the fact that the injuries as shown by medical
evidence and illustrated by the photographs actually arose in the
course of the arrest. Indeed, this was not denied by the police
officers when they gave evidence before the Detmold Regional Court.
However, differing versions of how those injuries actually
came about have been put forward by the applicants and the
Government.
Mrs Klaas claimed that she had voluntarily agreed to provide
a specimen of breath and that when that had failed she had only
asked that her eight year-old daughter could go and stay with her
neighbour in order that she could accompany the police officers to
the hospital for a blood test. She denied the police officers'
allegation that there was any danger of her absconding. She
insisted that the police officers were responsible for her head
getting knocked against the wall, a fact corroborated by her
daughter who claimed to have observed the scene through the plain
glass window panel. Furthermore, she argued that the force used by
the police officers was disproportionate to the aim of securing the
evidence for the offence of driving under the influence of alcohol.
It was not necessary for two male police officers, well-trained in
dealing with situations of this kind, to have assaulted a woman in
this way.
The Government, on the other hand, contested the allegation
that the injuries were the result of a greater degree of force being
used by the police officers than was necessary in the circumstances.
They contended that she had inflicted the injuries upon herself as
by resisting arrest and attempting to escape she had provoked the
firm and rapid use of physical force against her.
27. The Court recalls that various proceedings have arisen out
of this incident, some of which have been abandoned.
First, criminal proceedings were instituted against
Mrs Klaas on 29 January 1986 for two separate offences of driving
under the influence of drink and resisting arrest, but these were
discontinued on 22 April 1986 by the public prosecutor's office at
the Detmold Regional Court; she was none the less fined for the
regulatory offence of driving with excess alcohol in her blood (see
paragraphs 9-10 above).
Secondly, on 24 April 1986, Mrs Klaas laid an information
against the police officers alleging that they had assaulted her and
caused her injuries. This, however, was withdrawn some weeks later
(see paragraph 11 above).
Thirdly, on 18 September 1986 her further complaint
of 18 July was dismissed by the Head of the Detmold District
Administration, who did not consider it necessary to take
disciplinary action (see paragraphs 12-13 above).
28. Exclusively civil proceedings were brought by Mrs Klaas for
compensation from the State in April 1987:
(a) the Detmold Regional Court accepted that the said
injuries occurred as a result of the incident with the police, but
held that they did not give rise to a compensation claim as
Mrs Klaas had failed to prove that the police officers had injured
her by a use of force disproportionate to the aim of pursuing the
investigations against her. After having heard various witnesses,
it found that her version of the events was not very probable and
that it did not seem unlikely that she had injured herself while
resisting the attempts to handcuff her (see paragraph 17 above);
(b) the Hamm Court of Appeal confirmed this decision (see
paragraph 18 above);
(c) a panel of three judges of the Federal Constitutional
Court declined to accept for adjudication her constitional
complaint. It noted in particular that the Court of Appeal's
assessment of the evidence did not appear arbitrary or otherwise in
violation of constitutional law (see paragraph 19 above).
29. The Court recalls that under the Convention system, the
establishment and verification of the facts is primarily a matter
for the Commission (Articles 28 para. 1 and 31) (art. 28-1,
art. 31). The Court 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 the Stocké v. Germany
judgment of 19 March 1991, Series A no. 199, p. 18, para. 53, and
the Cruz Varas and Others v. Sweden judgment of 20 March 1991,
Series A no. 201, p. 29, para. 74).
It is further recalled that it is not normally within the
province of the European Court to substitute its own assessment of
the facts for that of the domestic courts and, as a general rule, it
is for these courts to assess the evidence before them (see, inter
alia, the Edwards v. the United Kingdom judgment of
16 December 1992, Series A no. 247-B, p. 12, para. 34, and the Vidal
v. Belgium judgment of 22 April 1992, Series A no. 235-B, pp. 32-33,
paras. 33-34).
30. The admitted injuries sustained by the first applicant were
consistent with either her or the police officers' version of
events. The national courts, however, found against her. In
reaching the conclusion that she could have injured herself while
resisting arrest and that the arresting officers had not used
excessive force, the Regional Court, in particular, had the benefit
of seeing the various witnesses give their evidence and of
evaluating their credibility. No material has been adduced in the
course of the Strasbourg proceedings which could call into question
the findings of the national courts and add weight to the
applicant's allegations either before the Commission or the Court.
The Court would distinguish the present case from that of
Tomasi v. France (see the judgment of 27 August 1992, Series A
no. 241-A, pp. 40-42, paras. 108-115) where certain inferences could
be made from the fact that Mr Tomasi had sustained unexplained
injuries during forty-eight hours spent in police custody.
No cogent elements have been provided which could lead the
Court to depart from the findings of fact of the national courts.
31. Accordingly no violation of Article 3 (art. 3) can be found
to have occurred.
B. ALLEGED VIOLATION OF ARTICLE 8 (art. 8)
32. The first applicant complained that as the aforementioned
treatment took place on private property in the presence of her
eight year-old daughter, it had also given rise to a breach of her
right to respect for her private and family life under Article 8
(art. 8).
This claim was contested by the Government. The Commission
did not consider it necessary to examine this complaint in view of
its conclusion that there had been a violation of Article 3
(art. 3).
33. The first applicant's complaint under Article 8 (art. 8) is
essentially based on the same disputed facts which have already been
considered in connection with Article 3 (art. 3) and found not to
have been established (see paragraphs 29-31 above). This being so,
the said complaint does not call for separate examination.
II. THE SECOND APPLICANT
34. The second applicant alleged that, having regard to the
police officers' excessive use of force against her mother in her
presence, she suffered inhuman and degrading treatment contrary to
Article 3 (art. 3) as well as a violation of her right to respect
for her private and family life under Article 8 (art. 8).
35. Both the Government and the Commission contested the former
claim. The Commission accepted the latter allegation as it took the
view that Monika Klaas, a minor, had suffered considerable damage to
her physical and moral integrity as a result of watching her
mother's forcible arrest. This was denied by the Government.
36. It follows from paragraph 31 that the facts on which the
second applicant relies are not established. Accordingly the Court
considers that her complaints are likewise unfounded.
FOR THESE REASONS, THE COURT
1. Holds by six votes to three that there has been no violation
of Article 3 (art. 3) in respect of the first applicant;
2. Holds by six votes to three that the first applicant's
complaint under Article 8 (art. 8) does not call for separate
examination;
3. Holds unanimously that there has been no violation of
Article 3 (art. 3) in respect of the second applicant;
4. Holds by six votes to three that there has been no violation
of Article 8 (art. 8) in respect of the second applicant.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 22 September
1993.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of the Rules of Court, the dissenting
opinions of Mr Pettiti, Mr Walsh and Mr Spielmann are annexed to
this judgment.
Initialled: R. R.
Initialled: M.-A. E
DISSENTING OPINION OF JUDGE PETTITI
(Translation)
I voted with the minority of the Chamber in support of the
view that there had been a breach of Articles 3 and 8 (art. 3,
art. 8) of the European Convention on Human Rights.
The reasoning adopted by the majority of the Chamber, on
both Article 3 and Article 8 (art. 3, art. 8), seems to me to be
based on an inaccurate interpretation of the issues raised and an
erroneous application of the Convention.
As regards police violence, which is a serious problem
throughout Europe, the key issue raised by the Klaas case was that
of the burden of proof. The majority did not recognise this.
In my view, which I think is supported by several European
codes of criminal procedure, the major acknowledged principle is
that the role of the police is to ensure the safety and protection
of the public.
While the police must intervene to provide the necessary
protection and law enforcement, they have to respect fundamental
rights when doing so. The basic rule is that the police must
protect the individual from any violence and ensure people's
physical safety. When called upon to act in regard to serious
criminal offences, they are not entitled to use violence other than
in circumstances of self-defence (légitime défense) or forceful
resistance, and then the response must be proportionate to the
danger.
In such a case, the burden of proving the need for self-
defence or the fact of forceful resistance must be on the police,
since otherwise police officers could commit violence and then
maintain that there had been forceful resistance, thus throwing on
the victims the onus of proof, which would be almost impossible to
discharge in the face of statements made by sworn officials.
The issue before the Court was a particularly serious one
and wholly analogous to the one dealt with in the Tomasi v. France*
judgment, contrary to the majority's opinion. It was an established
fact that violence had occurred during the period of arrest, when
police violence is prohibited as it is during police custody. The
violence could clearly be imputed to police officers as in the
Tomasi case, in which the European Court seems to have indicated
that Article 3 (art. 3) applied notwithstanding the physical level
of severity of the violence.
_______________
* Judgment of 27 August 1992, Series A no. 241-A.
_______________
The reasoning used by the Court in order to reject the
Commission's opinion that there had been a breach does not seem to
me to be adequate. The majority appear to take the view that the
contrary decision is justified by the Court's assessing the facts
differently from the Commission.
But the Commission, like the Court, based its opinion on the
facts as set out at the time the application was lodged and there
was no new evidence produced before the Commission and the Court.
In not substantively answering the main question and not, in
my view, providing sufficient reasoning for its decision, in that
the decision went contrary to the Commission's opinion founded on
the burden of proof, the majority left unanswered the vital
questions that have arisen in Europe in the sphere of police
violence. At a time when police authorities are making a
considerable effort to improve the teaching of professional ethics
in police colleges, the Klaas case provided the opportunity to set
out within the context of Article 3 (art. 3) of the Convention the
issue of the burden of proof and the ingredients of forceful
resistance and self-defence.
The majority's decision seems to me to be out of step with
the findings of the European Committee for the Prevention of Torture
which has noted the seriousness of police violence in the countries
it has visited. In particular, the report on Germany mentioned the
Committee's concerns in this connection (see pages 18-19, 63 and 86
of doc. CPT/Inf (93) 13).
The decision also seems to be contrary to the teaching in
European police colleges and to police forces' codes of professional
ethics in Europe. There can be no doubt that senior police officers
in Europe wish to be able to prevent any "blunders" being committed
by junior police officers, sometimes owing to insufficient training
and education in this sphere.
The majority did not, in my view, take sufficient account of
a number of data that are, however, of great assistance when
assessing the facts:
1. German legislative provisions;
2. German police regulations; and
3. the reports of the European Committee for the Prevention
of Torture.
o
o o
In traditional national criminal law and according to the
general principles of criminal law in Europe, police violence cannot
be dealt with in the same way as other violence between individuals.
The prohibition on such violence is a requirement of the role of the
police, which is primarily to protect people.
Justifying circumstances and the defence of provocation in
respect of ordinary assaults by private individuals and by police
officers are not analysed in the same way in criminal law.
Policemen are never authorised to assault people, other than
in cases of forceful resistance to them in the execution of their
duties or in self-defence, and then it is for the police to prove
such forceful resistance or that an act was in self-defence.
Even in these cases, the police must prove that their
reaction was proportionate. In the instant case, however, certain
assaults have been established and are not disputed. The police did
not prove forceful resistance and their reaction was certainly
disproportionate.
The circumstances of the case in comparison with the Tomasi
case (murder suspect) are proportionately more to be regretted
although the violence was nearly of the same intensity in both
cases. At all events, the criterion of the degree of seriousness
was not dealt with in the Tomasi case.
The reports of the European Committee for the Prevention of
Torture, which are fairly damning of several police forces, are all
pleas for help to lawyers in the context of the European Convention
on Human Rights and the Council of Europe's Parliamentary Assembly
Resolution 690 (1979) on the Declaration on the Police.
In the instant case, even if the policeman's responsibility
for the shoulder injury is ruled out, the existence of the marks of
other blows are not in dispute. They cannot be attributed to
forceful resistance by the person arrested and were certainly due to
police violence. This is all the more regrettable as the conduct of
the police officers from the moment that they decided to take the
applicant to the police station cannot be separated from what gave
rise to the incident. The offence complained of was moreover a
minor one, a regulatory offence.
In its judgment the Detmold Regional Court said:
"The Chamber is admittedly convinced that the plaintiff
incurred the injuries complained of when she was arrested by
the two police officers. In any event the plaintiff ended
up with a graze on her temple, contusion of the left
shoulder and probably also concussion, as was also confirmed
in part by witnesses Bolte and Wildschut and moreover does
not seem to be seriously contested by the defendant Land.
These injuries were probably sustained by the plaintiff in
the context of her arrest. ... It is not clear to the
Chamber which of the statements corresponds to what really
happened. Definite findings of fact can therefore not be
made in this respect."
The police cannot deal with peaceful law-abiding citizens
and dangerous criminals in the same way - that would be a negation
of the role of the police. The public have a claim on the police
for protection, and the police have a corresponding duty to provide
it.
Similarly, in the case of a citizen's arrest of an offender
caught red-handed (which is authorised, inter alia, in Great
Britain), the issue of liability is looked at differently from
police intervention in similar circumstances.
A dispute between private persons that leads to violence
cannot be compared to police intervention. The bases of
consideration in criminal law are different. The concepts of
self-defence, justification and provocation are governed by
different legal rules in the case of assaults by the police.
These distinctions are observed in most national codes of
ethics for the police. The major consideration is that a police
officer is, above all, there to guarantee the protection of the
citizen's physical inviolability.
The behaviour of the two policemen was contrary to their own
police code of ethics as recognised in German police colleges. Yet
there were not even any administrative or disciplinary penalties
- another point in common with the Tomasi case. Out of deference to
their police forces, State authorities show little zeal in
proceedings relating to police blunders. The European Committee for
the Prevention of Torture deplores this attitude, which runs
contrary to Article 3 (art. 3) of the Convention.
On the other hand, at a time when the number of attacks on
the police by subversive elements is increasing and the police after
find themselves actually or potentially outnumbered, the State and
the courts must support the police, who are essential for the
maintenance of public order and the upholding of democracy.
The question that arises on a charge of forceful resistance
is whether it is for the prosecution or the defence (at the trial or
pre-trial stage) to show, firstly, that the assault actually took
place and was unjustified and, secondly, that the response was
necessary and measured. Logically, on account both of the
presumption of innocence and of the general principles concerning
the onus of proof it is for the prosecution to prove that the legal
requirement of forceful resistance was satisfied and that the
violence was justified.
Nor must it be forgotten that police officers and public
servants who, without any legitimate cause, commit violence on
people are punishable under the criminal law. This is so that
officials or officers cannot, if they commit physical violence,
always plead that their assault was justified.
Did not Hegel write: "An attack is a negation of the law;
defence is a negation of that negation and is therefore the
application of the law"? It is no doubt for this reason that a
right of self-defence (légitime défense) occasionally arises, as the
code itself specifies, in defence of others as well as of oneself*,
and also that self-defence can only be pleaded if the attack was
unjustified, in other words if it breached the peace, and if the
defensive police response was a measured one and restored the peace
without otherwise disturbing it.
_______________
* See, for example, as regards French Criminal Law: Lyons tribunal
de grande instance, 16 October 1973, Juris-Classeur périodique
(JCP), 1974, II, 17812, note by Bouzat, comment by Larguier, Revue
de science criminelle et de droit comparé sc. crim., 1975, p. 406.
See also, on the protection of the property of others, Blois
Criminal Court, 11 January 1978, and Orléans Court of Appeal,
17 September 1979, cited by A. Romerio, "La violence légitime",
J.C.P., 1980, I, 2974.
_______________
If a policeman relies on self-defence against the person
arrested or on forceful resistance by that person, the resistance of
the person arrested must have been impossible to overcome.
German legislation is in line with this. The following are
quoted by the European Committee for the Prevention of Torture:
1. Under the terms of Article 1, paragraph 1, of the Basic Law:
"The dignity of man shall be inviolable. To respect and protect it
shall be the duty of all state authority". Article 2, paragraph 2,
states: "Everyone shall have the right to life and to inviolability
of his person ...". The Federal Constitutional Court has ruled that
the latter provision also applies to any harm caused by
psychological or mental torture and by equivalent methods of
questioning.
In addition, Article 104, paragraph 1, of the Basic Law
states: " ... Detained persons may not be subjected to mental nor to
physical ill-treatment."
2. Many of the Penal Code's provisions make acts of torture and
other forms of ill-treatment an offence. Among the most important
are sections 340 and 343.
Section 340 states:
"(1) A public official who commits, or permits to be
committed, bodily harm during the exercise of his duties or
in connection therewith, shall be punished by imprisonment
from three months to five years. In less serious cases
imprisonment of up to three years or a fine shall be
imposed.
(2) If serious bodily harm (section 224) is committed, not
less than two years' imprisonment shall be imposed and, in
less serious cases, imprisonment from three months to five
years."
Section 343 provides that:
"(1) Whoever, in his capacity as public official, whose
duties involve acting in:
1. a criminal proceeding, or a proceeding to
order authorised custody;
2. an administrative fine proceeding; or
3. a disciplinary proceeding or an honour court
or professional court proceeding;
physically abuses another, or makes use of violence against
him, or threatens him with violence, or mentally torments
him, in order to coerce him to give testimony, or not to do
so, in the proceeding, shall be punished by imprisonment
from one to ten years."
By way of comparison, as regards police-custody measures
applicable to anybody and the behaviour required of police officers,
the new Article 10 of the French Code of Criminal Procedure
provides:
"The police shall be responsible for any person arrested;
such a person must not be subjected to any violence or any
inhuman or degrading treatment by police officers or
others."
Similarly, Article 9 of the Code of Criminal Procedure
provides:
"Where a police officer is empowered by law to use force
..., he shall only use such force as is strictly necessary
and proportionate to the purpose to be achieved."
On a point which the Court did not have to deal with
directly but which throws extra light on the impugned police
behaviour, namely the arrangements for testing blood alcohol level,
some principles of general police regulations on the subject should
be remembered.
Taking to the police station for a blood alcohol level test
The fact of a person's being unable or unwilling to be
breathalysed means that his blood alcohol level must be tested but
does not in itself entail any sanction.
In the instant case the applicant was merely unable to be
breathalysed; furthermore, this fact was established in the
applicant's private back-yard and not in connection with any
judicially authorised house search.
As regards handcuffs, police codes of ethics generally
provide as follows:
Use of handcuffs
As an example, Article 803 of the French Code of Criminal
Procedure, as amended by the Act of 4 January 1993, provides that a
person shall not be handcuffed unless he can be regarded as a danger
to others or to himself or as being likely to try to abscond. The
German rule is similar. Other than in one of these situations, the
use of handcuffs is therefore prohibited. Where it is allowed, it
is for the officers whose duty it is to accompany the person
concerned to assess the best way of putting on the handcuffs, having
regard to the danger to others or to the person himself or to the
risk that the person concerned may escape. Coercion by handcuffing
is justified only in such cases.
Forceful resistance to police action
There is forceful resistance when a person resists the
action of a police officer by a violent act (and not merely
passively).
o
o o
In their reasoning in paragraph 30 of the judgment the
majority seem to want to invalidate the Commission's opinion on the
basis of a different assessment of the facts and in the absence of
any fresh evidence relating to that assessment subsequent to the
Commission's opinion.
But the discrepancy really concerns the primordial issue of
the burden of proof, which the Commission took as its basis.
I accordingly consider that, as the evidence stood, the
Commission's observations remained apposite, in particular the
following paragraphs of its report.
"82. The Commission recalls that ill-treatment must
attain a certain level of severity if it is to fall within
the scope of Article 3 (art. 3). The assessment of this
minimum is, in the nature of things, relative; it depends on
all the circumstances of the case, such as the duration of
the treatment, its physical or mental effects and, in some
cases, the sex, age and state of health of the victim, etc.
(Eur. Court H. R., Ireland v. the United Kingdom judgment of
18 January 1978, Series A no. 25, pp. 65-67,
paras. 162-167; Tyrer v. the United Kingdom judgment of
25 April 1978, Series A no. 26, pp. 14-15, paras. 29-30;
Soering v. the United Kingdom judgment of 7 July 1989,
Series A no. 161, p. 39, para. 100).
83. Such treatment causing, if not actual bodily injury,
at least intense physical and mental suffering falls into
the category of inhuman treatment within the meaning of
Article 3 (art. 3). It is degrading if it arouses in the
person subjected thereto feelings of fear, anguish and
inferiority capable of humiliating and debasing this person
and possibly breaking his or her physical or moral
resistance (Eur. Court H. R., Ireland v. the United Kingdom
judgment, loc. cit., p. 68, para. 174; Guzzardi v. Italy
judgment of 6 November 1980, Series A no. 39, p. 40,
para. 107; Abdulaziz, Cabales and Balkandali v. the United
Kingdom judgment of 28 May 1985, Series A no. 94, p. 42,
paras. 90-91; Soering judgment, loc. cit.).
...
98. As regards the question whether the force used by
Police Constables Bolte and Wildschut against the first
applicant for the purpose of her arrest was strictly
proportionate, the Commission attaches particular weight to
the injuries suffered by the first applicant in the course
of her arrest (Eur. Court H. R., Tomasi v. France judgment
of 27 August 1992, Series A no. 241-A, opinion of the
Commission, pp. 51-52, paras. 92-100, 105).
...
100. The respondent Government have not explained that
the first applicant's injuries resulted from a use of force
proportionate in the circumstances of her arrest. They
regarded these injuries as accidental and regrettable
consequences of an arrest which had as such been lawful.
Their submissions in this respect were based upon the
findings of the Detmold Regional Court in its judgment of
30 October 1987 and upon the statements of Police Constables
Bolte and Wildschut, heard as witnesses in these
proceedings.
...
102. The Commission, in examining whether there has been
a violation of Article 3 (art. 3), cannot share the approach
to the question of proof and assessment of evidence, as
expressed by the respondent Government on the basis of the
Regional Court's judgment.
103. The Commission recalls that in cases where injuries
occurred in the course of police custody, it is not
sufficient for the Government to point at other possible
causes of injuries, but it is incumbent on the Government to
produce evidence showing facts which cast doubt on the
account given by the victim and supported by medical
evidence (see Eur. Court H. R., Ireland v. the United
Kingdom, Series B no. 23-I, p. 413; see also, mutatis
mutandis, Tomasi judgment, loc. cit., opinion of the
Commission, p. 52, para. 99; Bozano v. France judgment of
18 December 1986, Series A no. 111, p. 26, para. 59).
104. Such considerations likewise apply in cases where a
person is arrested by police authorities and thereby
subjected to their power. In the present case, having
regard to the injuries suffered by the first applicant in
the course of her arrest, her allegations of a
disproportionate use of force seem plausible in the absence
of any evidence or convincing other explanation."
o
o o
In its decision the German civil court, which did not
consider the matter from the point of view of the European
Convention, gave no relevant ground, in my view, for concluding that
there has been no breach. That court was dealing with a different
legal issue (an action for damages). The European Court was not
bound by its decision.
Furthermore, that court did not choose between the two
versions of the facts and did not rule out violence. The police
version therefore cannot be accepted as the only accurate,
established one. Police violence must be punished, because the
police play a major role in safeguarding public order and democracy.
The police are all the more effective and respected when the public
know that if there are "blunders", there will be administrative or
judicial sanctions.
o
o o
As to Article 8 (art. 8), the majority have not, in my view,
provided valid reasons for their decision or dealt with the problem
that arose. This was the following.
In the circumstances of the case, even on the assumption
that there had been no breach of Article 3 (art. 3), had there been
a breach of Article 8 (art. 8) in respect of the first applicant
(the mother)?. The circumstances of the case - possible venial
traffic offence, no refusal by the applicant to be breathalysed,
police intervention within the inner courtyard, private residence,
disproportion between the strength of the two young policemen and
that of the victim, humiliation of the latter - were sufficient to
warrant finding a breach of Article 8 (art. 8).
As regards the second applicant, even on the assumption that
the police violence would have been justified in another similar
case in respect of the mother, the assessment of proportionality had
to be different in the case of a mother arrested on the pretext of
an offence - and a trifling one at that - in the presence of one or
more of her children. The policemen were under a duty to weigh up
the impact on the child and the resulting humiliation both for the
mother and for the child, in particular on account of the use of
handcuffs. The majority did not really take these two aspects into
account.
Conclusion
The scope of the judgment is open to question, since the
issue of the burden of proof has not been expressly decided.
On the whole, the Court's finding that there has been no
breach seems to me an inadequate response to the problem raised.
For all the foregoing reasons, I therefore voted for finding
that there had been a breach of both Article 3 and Article 8
(art. 3, art. 8) of the European Convention.
DISSENTING OPINION OF JUDGE WALSH
1. This case has arisen from an encounter between the first
applicant Hildegard Klaas, then accompanied by her eight year-old
daughter Monika, on 28 January 1986, with two male police officers.
At the time of the encounter the applicant Hildegard Klaas was
48 years old and the police officers were respectively 26 years old
and 33 years old. On that date the applicant had apparently driven
her motor car, in which her daughter was a passenger, through a red
traffic light. That incident did not result in any damage to person
or property, but had apparently been observed by the two police
officers who followed her to the back entrance to the block of flats
where she lived to which she had driven her motor car. Because the
police detected a smell of alcohol on her breath she was requested
to take a breathalyser test. The applicant apparently failed to do
this satisfactorily in the sense that there appeared to be some
breathing difficulty on her part and when requested she agreed to
undergo a blood test. As that test would involve her going to the
police station she was formally arrested by one of the police
officers who physically restrained her. There is no doubt that, as
from that moment, she was in the custody of the police. All the
subsequent injuries sustained by the applicant accordingly took
place during that period of custody. I cannot therefore accept as a
valid distinction the fact that in the case of Tomasi v. France (see
the judgment of 27 August 1992, Series A no. 241-A), the applicant
had been in custody for many hours. Whether one is in the custody
of the police for but a few minutes or for a few days makes no
difference to the principle involved. When the police take a person
into custody they have automatically assumed the duty and obligation
to save such person from harm whether from members of the police or
from any other party. Once a person's liberty has been restrained
by the police, she or he is in police custody, whether or not formal
words of arrest have been pronounced. Once it has been established
that physical injury has been sustained by such person while in
police custody, the burden falls upon the police or their State to
show that such injuries were not caused or brought about by the
actions of the police or their want of care.
2. The evidence clearly established that the injuries sustained
by the applicant were serious injuries and amount to infringements
of her bodily integrity. Mrs Klaas's injuries were examined by a
doctor on the day following the incident and she was ill from
28 January to 8 February. The findings of the first doctor were
subsequently confirmed by other doctors and photographs were taken
on 29 January which showed what her then condition was. The
distinguished Delegate of the Commission, Professor Frowein, was
justified in urging upon the Court that the present case was of
considerable importance for laying down the standard to be applied
under Article 3 (art. 3) of the Convention by police officers when
dealing with a normal, non-dangerous citizen in the performance of
their duties. He submitted that the use of force by police officers
resulting in important injuries must be seen as inhuman and
degrading treatment in violation of Article 3 (art. 3) of the
Convention if it cannot be shown that the force used was necessary
to accomplish the lawful duties of the police officers. I think he
was correct in this submission. It is already well established in
the jurisprudence of both the Commission and the Court that people
who are clearly injured while in police custody must be presumed to
have been treated in violation of Article 3 (art. 3) when no
explanation to the contrary is given by the State which, as
Professor Frowein submitted, is the only institution which can
submit a proof to the contrary.
3. The incident in question occurred at a point 60 to
100 metres from where she had been arrested. The parties had gone
to that point so that the applicant could hand the care of her eight
year-old daughter over to a neighbour. The police appeared to form
the opinion then that she intended to seek refuge in the neighbour's
house and thereupon proceeded to handcuff her and the injuries were
incurred during that episode. In subsequent investigation and court
hearings the police could offer no greater explanation than that the
applicant had caused the injuries herself and that they, the police,
did not do anything which could have caused them. The German
Regional Court which dealt with the civil proceedings felt that it
could not rely upon the direct evidence of either the applicant or
her daughter or of the two policemen on the grounds that each had an
interest in telling a particular story. In effect the court then
appears to have speculated on how the matter had arisen and
ultimately it came to the conclusion that the applicant, on whom was
the burden of proof in those proceedings, had not established her
case.
4. While the Court will always pay respectful attention to the
findings of a national court, it is of course in no way bound by the
findings of fact in national courts when an alleged breach of the
Convention is being investigated by the Court. When a case comes
before this Court it has already been through the Commission and the
establishment and verification of the facts is primarily a matter
for the Commission. While the Court would not lightly discard the
Commission's findings of primary facts it is free to draw its own
inferences from the facts and is ultimately free to make its own
appreciation of the whole case in the light of the materials before
it. In the present case the Commission unanimously held that the
police, and therefore the State, was answerable for the injuries
suffered by the applicant. A minority of the Commission found that
they were not sufficiently substantial to amount to a breach of
Article 3 (art. 3) but the majority of the Commission held that
there had been a breach of Article 3 (art. 3). All the Commission
were unanimous on the point that there had been a breach of
Article 8 (art. 8) so far as the first applicant was concerned.
Unlike the German courts in the civil proceedings, the Commission
took the view that the burden of proof fell upon the police and upon
the State. This clearly had not been discharged. The German
Regional Court appears to have in effect made no finding whatsoever
of primary facts save that the injuries had been sustained by the
applicant.
5. In view of the unanimous findings on the fact by the
Commission and the absence of a positive finding by the German court
on the primary facts, there does not appear to me to be any
reasonable justification for taking a completely opposing view of
the facts. It is not in dispute that a considerable amount of
violence had occurred, which included twisting the applicant's arm
behind her back and handcuffing both her arms behind her back and
physically pulling her along with them. This had been sought to be
justified by the police on the grounds that she was resisting
arrest, but she had already been arrested after having failed the
breathalyser test (see paragraph 1 above). The police could not,
however, offer any explanation as to how the injuries which were
evidenced by the photographs came about, nor as to whether she was
caused pain by jerking upon her handcuffed arms. It was admitted by
the police that she did not have the head injury when they first met
her. The explanation was that "she might have got this injury"
during the altercation which was alleged to have ensued when she was
placed in handcuffs. In view of the fact that this lady had no
police record of any description and no reputation of violence or
association with any persons who might be thought to indulge in
violent activities, the police approach to her was one which could
be fairly described as being heavy-handed. There was no question of
her being drunk though the police approach to her on this subject is
revealing. The analysis of her blood shows that her blood alcohol
exceeded 0.8 per ml by 0.02 per ml, notwithstanding which the police
charged her with the criminal offence of driving while under the
influence of alcohol (drunken driving), a charge which was
subsequently dropped by the public prosecutor's office on the ground
that there was no evidence upon which such an opinion could
reasonably be formed. In fact, the applicant was never brought
before any criminal court.
6. In my view a breach of Article 3 (art. 3) has occurred in
that she was subjected to inhuman and degrading treatment which has
not been justified. I regard inhuman treatment as being distinct
from degrading treatment but I am satisfied that they are both
established in the present case. I am also of the opinion that
there was a breach of Article 8 (art. 8) in her case and a breach of
Article 8 (art. 8) in the case of her daughter Monika who had been
wrongly and unwillingly exposed to the incident which brought about
the injuries to her mother. In Monika's case I am not satisfied
that there was any breach of Article 3 (art. 3).
DISSENTING OPINION OF JUDGE SPIELMANN
(Translation)
I am unable to agree with the decision of the majority of
the Chamber of the Court for the reasons set out below, which I have
divided into two parts, namely:
I. The specific case, II. The principle.
I. The specific case
A. The reasoning of the judgment
In the specific case I can accept neither the reasoning of
the judgment, nor, accordingly, its conclusions, except as regards
the finding of no violation of Article 3 (art. 3) in respect of the
second applicant.
(a) The first applicant
1. Alleged violation of Article 3 (art. 3)
I wish to dissociate myself from what is said in the second
sub-paragraph of paragraph 29 and the second and third
sub-paragraphs of paragraph 30 of the judgment.
- second sub-paragraph of paragraph 29
According to the second sub-paragraph of paragraph 29 of the
decision of the majority of the Chamber:
"... it is not normally within the province of the
European Court to substitute its own assessment of the facts
for that of the domestic courts and, as a general rule, it
is for these courts to assess the evidence before them (see,
inter alia, the Edwards v. the United Kingdom judgment of
16 December 1992, Series A no. 247-B, p. 12, para. 34, and
the Vidal v. B778elgium judgment of 22 April 1992, Series A
no. 235-B, pp. 32-33, paras. 33-34)."
If that is the case in principle for the application of
Article 6 (art. 6) of the Convention, the same is not true, in my
view, when the Court has to apply Article 3 (art. 3) (see under II).
- second sub-paragraph of paragraph 30
According to the second sub-paragraph of paragraph 30 of the
decision of the majority of the Chamber:
"The Court would distinguish the present case from that of
Tomasi v. France ... where certain inferences could be made
from the fact that Mr Tomasi had sustained unexplained
injuries during forty-eight hours spent in police custody."
Observations
1. I can see no difference from the point of view of Article 3
(art. 3) of the Convention according to whether the ill-treatment
was meted out during police custody or in the course of an arrest
(see paragraph 103 of the Commission's report). In both cases the
person concerned is in the hands of the police.
2. On the other hand, I can see a major difference between the
two cases (but not that identified by the majority of the Chamber):
The Tomasi case was set against a background of
quasi-terrorism. The applicant had been suspected of having
participated in an attack carried out at Sorbo-Occagnano (Upper
Corsica) in the evening of 11 February 1982 against the Foreign
Legion rest centre, which was unoccupied at that time of the year.
Senior Corporal Rossi and Private Steinte, who, unarmed, were
responsible for maintaining and guarding the centre, had been shot
and wounded, the former fatally and the latter very severely.
The climate was such that, for the territory concerned,
France could have made the declaration provided for in Article 15
(art. 15) of the Convention.
In the Klaas case the first applicant was suspected of
having failed to stop at a red light and driving while under the
influence of drink. The blood test showed her to have an alcohol
level of 0.82 milligrams per millilitre.
Therein lies the real difference between the two cases.
- third sub-paragraph of paragraph 30
According to the third sub-paragraph of paragraph 30:
"No cogent elements have been provided which could lead
the Court to depart from the findings of fact of the
national courts."
This is an erroneous line of reasoning.
It is not incumbent on the applicant to provide convincing
evidence, it falls to the Government, where injuries are evidenced
by medical certificates, to prove that the police intervention was
not disproportionate in relation to the "offences" committed. The
Government did not do this; indeed they could not have done so.
2. Alleged violation of Article 8 (art. 8)
According to paragraph 33 of the judgment:
"The first applicant's complaint under Article 8 (art. 8)
is essentially based on the same disputed facts which have
already been considered in connection with Article 3
(art. 3) and found not to have been established ... . This
being so, the said complaint does not call for separate
examination."
The majority of the Commission, having found a violation of
Article 3 (art. 3), decided in accordance with its case-law "that no
separate issue [arose] under Article 8 (art. 8) of the Convention in
respect of the first applicant".
The minority of the Commission was clearly in a different
position as it had not found a violation of Article 3 (art. 3),
taking the view that the treatment inflicted on the first applicant,
although serious, had not attained the level of severity necessary
to bring it within the ambit of Article 3 (art. 3) of the
Convention.
On the other hand the minority, in contrast to the majority
of the Court, considered that there had been a violation of
Article 8 (art. 8), on the following grounds:
"... the treatment was in our view an interference with
the first applicant's right to respect for her private life
for which there was no justification under Article 8 para. 2
(art. 8-2) of the Convention." (see the dissenting opinion
of Mr Nørgaard, Mr Trechsel, Mr Danelius and Mr Marxer)
If I, like the minority of the Commission, had reached the
conclusion that there had been no violation of Article 3 (art. 3)
- which I did not -, I would have had no hesitation whatsoever in
finding a violation of Article 8 (art. 8).
It is in any case interesting to note that all the members
of the Commission found at least one violation of the Convention as
regards the first applicant and they did so because, instead of
basing their decision on the assessment of evidence effected by the
Detmold Regional Court, they made their own assessment of the
evidence.
(b) The second applicant
1. Alleged violation of Article 3 (art. 3)
I agree with the almost unanimous opinion of the Commission
that the negative effects of the events on the second applicant were
not such as to constitute inhuman and degrading treatment within the
meaning of Article 3 (art. 3) of the Convention (see, however, the
dissenting opinion of Mr Loucaides).
2. Alleged violation of Article 8 (art. 8)
Having found that there had been a violation of Article 8
(art. 8) in respect of the first applicant, logically I had to
consider that there had also been one in respect of the second
applicant. I would have done so even if I had not found a violation
of Article 3 (art. 3) in respect of the first applicant. For both
applicants the interference was in no way justified (Article 8
para. 2) (art. 8-2).
B. Conclusions
1. I conclude that there was a violation of Article 3 (art. 3)
of the Convention in relation to the first applicant.
2. I conclude that there was also a violation of Article 8
(art. 8) in respect of the first applicant.
3. I conclude that there was no violation of Article 3 (art. 3)
as regards the second applicant.
4. I conclude that there was a violation of Article 8 (art. 8)
in respect of the second applicant.
II. The principle
The questions of principle raised by the Klass case go far
beyond its specific facts. Police brutality is not a solely German
phenomenon; it is a European problem.
If anyone is in any doubt about this, he should read the
reports of the European Committee for the Prevention of Torture.
What is the explanation?
In my opinion there are at least three, namely:
1. Because police ill-treatment most frequently occurs
without witnesses, except the victim, the facts are systematically
contested.
2. Injuries formally evidenced by medical certificates are
either self-inflicted, accidental or quite simply inexplicable
(suddenly for an incomprehensible reason the person concerned fell
knocking his head against a cupboard). The same sort of situation
arose in the Tomasi v. France case.
3. All too often this ill-treatment (usually referred to in
French as "bavures" or blunders) is tolerated by the national
courts.
In these circumstances, I take the view that it is for the
European Court to assess the evidence and not for instance the
Detmold Regional Court or a court of appeal.
Following the annulment of eight Articles of the Immigration
Law by the French Conseil constitutionnel, Mrs Béatrice Patrie,
President of the Syndicat de la magistrature has recently written in
particular as follows:
"We can therefore only welcome the fact that the French
Conseil constitutionnel, following the example of its European
counterparts, is devoting itself to its task as the guardian of
freedoms, because if it did not, human rights would become, just
like the 'fundamental principles recognised by the laws of the
Republic' as being 'particularly necessary to our time', mere
appendages serving only to embellish the civic education lessons
close to the heart of ..." (Le Monde, 19.8.1993, translated from the
French)
What is true for constitutional courts must a fortiori apply
to the European Court of Human Rights.