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Cite as: [2011] ECHR 410

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THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 1813/09
by Elisabeth SELDENRIJK-RAAT and Others
against the Netherlands

The European Court of Human Rights (Third Section), sitting on 22 February 2011 as a Chamber composed of:

Josep Casadevall, President,
Alvina Gyulumyan,
Egbert Myjer,
Ineta Ziemele,
Luis López Guerra,
Mihai Poalelungi,
Kristina Pardalos, judges,
and Marialena Tsirli, Deputy Section Registrar,

Having regard to the above application lodged on 15 December 2008,

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

Having deliberated, decides as follows:

THE FACTS

1. The applicants, Ms Elisabeth Seldenrijk-Raat,
Mr Alexander Seldenrijk and Mr Robert Vincent Seldenrijk, are Netherlands nationals who were born in 1944, 1970 and 1983 respectively. They live on a farm in Westergeest (municipality of Kollumerland, province of Fryslân).

The circumstances of the case

1. Background to the case

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

3. In late November 2004 two animal health inspectors, P. and H1, came to inspect a pony kept on the applicants’ farm and thought to be in a state of neglect. The applicants state that on that occasion they gave their full co-operation. The inspectors announced their intention to come back at a future date to take another look at the animal, accompanied by a veterinary surgeon if need be.

4. On 10 February 2005 the inspector P. returned, accompanied by two uniformed police officers, Officers H2 and R. According to the applicants, they had a police dog with them.

5. According to official documents, the first applicant refused to admit them onto the premises. The second applicant then ran towards the inspector and the police officers and tried to push Officer H2 away. Officer H2 then grabbed hold of the second applicant and told him that he was under arrest. The second applicant, however, refused to come quietly: he had to be wrestled to the ground by all three, Inspector P. and Officers H2 and R., and brought under control with pepper spray. While this was going on the first applicant tried to pull the officials off the second applicant. The third applicant appeared, waving his arms about and telling the officials to leave. Officer H2 then sprayed pepper spray into his face. At that, the third applicant left, only to come back with a spade which he brandished in a threatening manner.

6. For their part, the applicants deny that the pony was neglected in the first place. They state that the officers failed to identify themselves and that they searched the applicants’ dwelling without a warrant.

7. They further allege that the first applicant was struck by Officer H2; that after the second applicant had been subdued and handcuffed, the police officers grabbed him by the neck, closing off his jugular artery and causing him pain and bruising; that the second applicant was thrown onto the floor of a police van, where he was thrown about on the way to the police station; that the first and third applicants were driven to the police station without being allowed safety belts; and that the third applicant’s mobile telephone was checked for private telephone numbers without the third applicant’s permission.

8. They also allege that following their arrest they asked to see a lawyer but were met with a refusal.

2. The criminal proceedings

The applicants were tried before a single-judge chamber (politierechter) of the Regional Court (rechtbank) of Leeuwarden on 4 May 2006. Judgment was given the same day.

10. The first applicant was found guilty of deliberately obstructing an official charged with investigating criminal acts in the execution of a legal prescript. She was fined 190 Euros (EUR).

11. The second applicant was found guilty of resisting an official engaged in his lawful duties (wederspannigheid). He was also fined EUR 190.

12. The third applicant, like the first applicant, was found guilty of deliberately obstructing an official charged with investigating criminal acts in the execution of a legal prescript. He too was fined EUR 190.

13. In each case EUR 100 of the fine was suspended.

14. Animal health inspector P. joined the proceedings as a civil party. His claims were declared inadmissible and remitted to the civil courts.

15. The applicants appealed.

16. The cases were re-heard by a single-judge chamber of the Court of Appeal (gerechtshof) of Leeuwarden on 15 November 2006. Judgment was given the same day. The applicants were all convicted in the same terms used by the Regional Court.

17. The first applicant was fined EUR 150, EUR 100 of which was suspended. The second and third applicants were each fined EUR 190, EUR 100 of which was suspended.

18. All three applicants lodged appeals on points of law with the Supreme Court (Hoge Raad). In their statements of points of appeal on points of law (cassatieschriftuur) they complained that their conviction did not follow from the evidence. They inspected the case file after it had been transmitted to the Supreme Court by the Court of Appeal.

19. On 25 September 2007 the first applicant wrote to the Procurator General to the Supreme Court complaining about the disappearance of a number of documents from the file when it was transmitted to the Supreme Court by the registry of the Court of Appeal. Copies of the documents concerned were appended to the letter. It appears that these documents were copies of official police reports with the applicants’ critical remarks added in handwriting and statements by veterinary experts to the effect that the pony was very old but in good health for its age.

20. On 22 April 2008 the Acting Procurator General gave advisory opinions in all three cases recommending that the appeals be dismissed as unfounded since the evidence relied on by the Court of Appeal was quite sufficient and the convictions were sound.

21. On 9 May 2008 the applicants’ lawyer submitted a letter written by the applicants themselves by way of response to the Acting Procurator General’s advisory opinion. This letter reiterated the applicants’ complaints about the actions of the various officials and their protestations of innocence. It also mentioned the letter with appended documents which they had written to the Procurator General (paragraph 19 above) and stated that the Procurator General had forwarded it to a member of the registry of the Supreme Court for inclusion in the file.

22. On 24 June 2008 the Supreme Court gave judgment dismissing the appeals on summary reasoning.

COMPLAINTS

23. The applicants complained under Article 3 of the Convention about the force used to arrest the second applicant. They stated that his jugular artery had been closed off and that he had sustained scrapes, bruises and neck pain and that he had been needlessly sprayed with pepper spray. They also complained that the first applicant had suffered a blow.

24. The applicants complained under Article 5 of the Convention that animal health inspector D. and police officers H2 and R had turned up with a dog to examine a pony, the examination by a veterinary surgeon taking place after their arrest and further examinations being ordered at their expense.

25. The applicants complained under Article 6 of the Convention that the Leeuwarden Court of Appeal had convicted them in blatant disregard of the facts and had wilfully intercepted documents which it ought to have transmitted to the Supreme Court.

26. The applicants complained, without naming any Article, that they had been denied access to a lawyer at the time of their interrogation by the police.

27. The applicants complained under Article 8 of the Convention that their dwelling had been searched without a warrant, that the third applicant’s mobile telephone had not been returned immediately upon his release, and that his mobile telephone had been examined for private telephone numbers without his permission.

THE LAW

A. Complaint under Article 3 of the Convention

28. It was alleged that the first and second applicants had both suffered excessive violence as a result of the use of force by the officials. Article 3 of the Convention provides as follows:

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

29. The Court has stated the applicable principles as follows:

(a) Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim (see, among many authorities, Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25; Soering v. the United Kingdom, 7 July 1989, § 100, Series A no. 161; Raninen v. Finland, 16 December 1997, § 55, Reports of Judgments and Decisions 1997 VIII; Selmouni v. France [GC], no. 25803/94, § 100, ECHR 1999 V; Öcalan v. Turkey [GC], no. 46221/99, § 180, ECHR 2005 IV; and Kafkaris v. Cyprus [GC], no. 21906/04, § 95, ECHR 2008 ...).

(b) In respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (see, among many other authorities, Ribitsch v. Austria, 4 December 1995, § 38, Series A no. 336; Assenov and Others v. Bulgaria, 28 October 1998, § 94, Reports of Judgments and Decisions 1998 VIII; Keenan v. the United Kingdom, no. 27229/95, § 113, ECHR 2001 III; Toteva v. Bulgaria, no. 42027/98, § 55, 19 May 2004; and Mathew v. the Netherlands, no. 24919/03, § 177, ECHR 2005 IX).

(c) 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, among other authorities, Jalloh v. Germany [GC], no. 54810/00, § 68, ECHR 2006-IX, and Enea v. Italy [GC], no. 74912/01, § 56, ECHR 2009 ...).

(d) Allegations of ill-treatment must be supported by appropriate evidence (see, mutatis mutandis, Klaas v. Germany, 22 September 1993, § 30, Series A no. 269; Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 70, ECHR 2005 I).

(e) To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt” but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see, among other authorities, Ireland v. the United Kingdom, cited above, § 161 in fine; and Labita v. Italy [GC], no. 26772/95, § 121, ECHR 2000-IV).

30. The Court reiterates that it is not normally within its province to substitute its own assessment of the facts for that of the domestic courts and that, as a general rule, it is for these courts to assess the evidence before them (see, among other authorities, Klaas, cited above, § 29).

31. In the present case the Court notes the absence of any evidence, medical or otherwise, to prove the existence and extent of any injury which the applicants may have suffered. Nor, in the face of the official documents submitted, can the Court find it established that the force used was in fact excessive or unjustifiable in terms of the applicants’ own conduct.

32. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

B. Complaint under Article 5 of the Convention

33. The applicants complained under Article 5 of the Convention that animal health inspector D. and police officers H2 and R had turned up with a dog to examine their pony, the examination by a veterinary surgeon taking place after their arrest and further examinations being ordered at their expense.

Article 5 of the Convention provides as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

34. The Court will confine itself to noting that the matters complained of cannot be subsumed under this Article. Nor does the Court see any reason to consider them under any other provision of the Convention or its Protocols.

35. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

C. Complaint under Article 6 of the Convention

1. Denial of access to a lawyer during police interrogation

36. The applicants complained, without naming any Article, that they had been denied access to a lawyer at the time of their interrogation by the police.

The Court understands this complaint to be of the same nature as that in Salduz v. Turkey [GC], no. 36391/02, 27 November 2008. The pertinent Convention provision is therefore Article 6 § 3 (c) of the Convention, which reads as follows:

“3. Everyone charged with a criminal offence has the following minimum rights:

...

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.”

37. However, it is not apparent that the applicants ever raised this complaint before the domestic courts. What is more, they only presented it to the Court in a letter dated 24 September 2009, which is fifteen months after the final judgment of the Supreme Court.

38. Consequently it must be rejected under Article 35 §§ 1 and 4 of the Convention both for non-exhaustion of domestic remedies and for being out of time.

2. Fairness of the proceedings

39. The applicants complained under Article 6 of the Convention that the Court of Appeal had ignored important defence arguments and that they had been wrongly convicted as a result. They also claimed that the Court of Appeal had sabotaged their appeals on points of law by deliberately failing to forward certain documents from the case file to the Supreme Court.

Article 6 § 1, as relevant to the applicants’ complaints, provides as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

40. The Court observes that the applicants were convicted on the evidence available by a domestic criminal court, the Court of Appeal, before which the applicants appeared in person and which heard directly whatever arguments they saw fit to make.

41. The Court cannot find it established that the Court of Appeal deliberately removed documents from the case file when transmitting it to the Supreme Court as the applicants appear to suggest. Moreover, the applicants themselves examined the case file before the Supreme Court; having noted the absence of the documents in question, they sent copies to the Procurator General of the Supreme Court, who forwarded them to the registry of the Supreme Court for inclusion in the file (paragraph 21 above). There is therefore no reason to doubt that the copies, at least, were before the Acting Procurator General when he prepared his advisory opinion and before the Supreme Court when it considered the applicants’ cases.

42. More generally, the Court reiterates that it is not its function to deal with errors of fact or law allegedly committed by the national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I; and Cornelis v. the Netherlands (dec.), no. 994/03, ECHR 2004-V (extracts)), as it is not a court of appeal – or, as is sometimes said, a “fourth instance” – from these courts (see, among many other authorities, Kemmache v. France (no. 3), 24 November 1994, § 44, Series A no. 296 C; and Melnychuk v. Ukraine (dec), no. 28743/03, ECHR 2005-IX).

43. It follows that this part of the application too is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

D. Complaint under Article 8 of the Convention

44. The applicants complained under Article 8 of the Convention that their dwelling had been searched without a warrant, that the third applicant’s mobile telephone had not been returned immediately upon his release, and that his mobile telephone had been examined for private telephone numbers without his permission.

Article 8 of the Convention provides as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

45. The Court observes that the applicants have provided no evidence in support of these allegations.

46. At all events, it does not appear that these complaints were ever brought to the notice of the competent domestic authority, still less that proceedings were pursued to their normal conclusion. It follows that they must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court by a majority

Declares the application inadmissible.

Marialena Tsirli Josep Casadevall
Deputy Registrar President