CEDH · CASELAW;REPORTS;ENG — 21 mai 1992

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }      EUROPEAN COMMISSION OF HUMAN RIGHTS   Application No. 15473/89   Hildegard and Monika KLAAS   against   THE FEDERAL REPUBLIC OF GERMANY   REPORT OF THE COMMISSION   (adopted on 21 May 1992)   TABLE OF CONTENTS                                                                  PAGE   I.     INTRODUCTION       (paras. 1 - 20) . . . . . . . . . . . . . . . . . . . . . . . 1         A.    The application            (paras. 2 - 4) . . . . . . . . . . . . . . . . . . . . . 1         B.    The proceedings            (paras. 5 - 15). . . . . . . . . . . . . . . . . . . . . 1         C.    The present Report            (paras. 16 - 20) . . . . . . . . . . . . . . . . . . . . 2   II.    ESTABLISHMENT OF THE FACTS       (paras. 21 - 76). . . . . . . . . . . . . . . . . . . . . . . 4         A.    The particular circumstances of the case            (paras. 21 - 68) . . . . . . . . . . . . . . . . . . . . 4              a.     The first applicant's arrest                  (paras. 21 - 23) . . . . . . . . . . . . . . . . . 4              b.     Proceedings against the first applicant                  (paras. 24 - 29) . . . . . . . . . . . . . . . . . 4              c.     Proceedings against Police Officers B. and W.                  (paras. 30 - 33) . . . . . . . . . . . . . . . . . 6              d.     Compensation proceedings                  (paras. 34 - 68) . . . . . . . . . . . . . . . . . 6         B.    Relevant domestic law and practice            (paras. 69 - 76) . . . . . . . . . . . . . . . . . . . .12   III.   OPINION OF THE COMMISSION       (paras. 77 - 124) . . . . . . . . . . . . . . . . . . . . . .14         A.    Complaints declared admissible            (para. 77) . . . . . . . . . . . . . . . . . . . . . . .14         B.    Points at issue            (para. 78) . . . . . . . . . . . . . . . . . . . . . . .14         C.    The alleged violation of the first applicant's            Convention rights            (paras. 79 - 111). . . . . . . . . . . . . . . . . . . .14              I.     Article 3 of the Convention                  (paras. 79 - 107). . . . . . . . . . . . . . . . .14                    Conclusion                  (para. 108). . . . . . . . . . . . . . . . . . . .19              II.    Article 8 of the Convention                  (paras. 109 - 110) . . . . . . . . . . . . . . . .19                    Conclusion                  (para. 111). . . . . . . . . . . . . . . . . . . .19         D.    The alleged violation of the second applicant's            Convention rights            (paras.   112 - 120). . . . . . . . . . . . . . . . . . .19              I.     Article 3 of the Convention                  (paras. 112 - 113) . . . . . . . . . . . . . . . .19                    Conclusion                  (para. 114). . . . . . . . . . . . . . . . . . . .20              II.    Article 8 of the Convention                  (paras. 115 - 119) . . . . . . . . . . . . . . . .20                    Conclusion                  (para. 120). . . . . . . . . . . . . . . . . . . .20         E.    Recapitulation            (paras. 121 - 124) . . . . . . . . . . . . . . . . . . .21         DISSENTING OPINION BY MM. NØRGAARD, DANELIUS AND MARXER . . .22         DISSENTING OPINION BY MM. F. MARTINEZ AND J.-C. GEUS. . . . .22         DISSENTING OPINION BY Mr. L. LOUCAIDES. . . . . . . . . . . .23         DISSENTING OPINION BY Mr. M.P. PELLONPÄÄ. . . . . . . . . . .23         CONCURRING OPINION BY Mr. E. BUSUTTIL . . . . . . . . . . . .24   APPENDIX I        :     HISTORY OF THE PROCEEDINGS. . . . . . . . . .25   APPENDIX II       :     DECISION ON THE ADMISSIBILITY . . . . . . . .26   I.   INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.     The application   2.     The first applicant, born in 1937, is a German national and a social welfare officer by profession.   The second applicant is her daughter, born in 1977.   Both applicants are residing at Lemgo. Before the Commission they were represented by Mr. M. Stüben, a lawyer practising in Bad Salzuflen.   3.     The application is directed against the Federal Republic of Germany.   The Government were represented by their Agents, Mr. Meyer-Ladewig, Ministerialdirigent, and Mr. Stöcker, Ministerial- rat, of the Federal Ministry of Justice.   4.     The case relates to the first applicant's arrest on suspicion of drunken driving on 28 January 1986.   The first applicant was allegedly beaten up and seriously injured by two policemen in the presence of her then eight-year-old   daughter.   The applicants invoke Articles 3 and 8 of the Convention.   B.     The proceedings   5.     The application was introduced on 11 July 1989 and registered on 11 September 1989.   6.     On 14 February 1990 the Commission decided to give notice of the application to the respondent Government and to invite them to present their observations in writing on its admissibility and merits.   7.     Following the communication of the present application to the respondent Government, the Federal Ministry of Justice contacted the North-Rhine Westphalia Ministry of Justice.   The latter referred the matter to the President of the Detmold Regional Court (Landgericht) and informed the President of the Hamm Court of Appeal (Oberlandesgericht) of the application.   The President of the Hamm Court of Appeal sent the documents concerned to the President of the Hamm Bar Association for information and, if appropriate, for further action as regards disciplinary measures.   By letter of 4 April 1990 the Bar Association requested the applicants' representative to submit observations on the complaint directed against him.   The disciplinary proceedings were then suspended pending the outcome of the proceedings before the Commission.   8.     Following an extension of their time-limit, the Government's observations were submitted on 28 May and 22 August 1990.   The applicants submitted their observations in reply, also after an extension of the time-limit, on 28 August 1990.   9.     On 7 March 1991 the Commission decided to invite the parties to a hearing on the admissibility and merits of the application.   10.    The hearing took place on 9 July 1991.   The applicants and the first applicant's husband attended in person and were assisted by their lawyer Mr. Stüben, representative.   The respondent Government were represented by Mr. Stöcker, as Agent, and by Mrs. Chwolik-Lanfermann, Richterin am Oberlandesgericht, Federal Ministry of Justice, as Adviser.   11.    As regards the disciplinary proceedings against the applicants' counsel, the Government's representative, at the hearing, assured the Commission that the Bar Association would be informed about the "European Agreement relating to persons participating in proceedings of the European Commission and Court of Human Rights" granting immunity, inter alia, to parties and their representatives.   He was convinced that, as a result of this information, any disciplinary proceedings pending against the applicants' representative in respect of the present application would be discontinued or otherwise terminated.   12.    Following the hearing the Commission declared the application admissible.   13.    Furthermore, having regard to the above-mentioned declaration made by the Government's representative at the hearing, the Commission decided to take no further action in respect of the alleged interference with the effective exercise of the applicants' right of petition under Article 25 para. 1 in fine of the Convention.   14.    By letter of 10 September 1991 the respondent Government informed the Commission that the disciplinary proceedings against the applicant's representative had meanwhile been finally discontinued.   15.    After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   Active consultations with the parties took place between 18 July and 30 October 1991.   The Commission now finds that there is no basis on which such a settlement can be effected.   C.     The present Report   16.    The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:              MM.    C. A. NØRGAARD, President                  J. A. FROWEIN                  S. TRECHSEL                  E. BUSUTTIL                  A. S. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS            Mrs.   G. H. THUNE            MM.    F. MARTINEZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER   17.    The text of this Report was adopted on 21 May 1992 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   18.    The purpose of the Report, pursuant to Article 31 of the Convention, is:   i)     to establish the facts, and   ii)    to state an opinion as to whether the facts found disclose a       breach by the State concerned of its obligations under the       Convention.   19.    A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   20.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II. ESTABLISHMENT OF THE FACTS   A.     The particular circumstances of the case   a.     The first applicant's arrest   21.    On 28 January 1986, at about 7.30 p.m., the first applicant, accompanied by her then eight-year-old daughter, returned by car from a visit and stopped at the entrance to the back-yard of the house where she is living.   The Police Officers W. and B., who had followed her, charged her with having ignored a red traffic light and driven away. The first applicant denied this.   Upon further questioning, she admitted having consumed alcohol and agreed to a breathalyser test. As repeated tests failed, the police officers informed her that she would have to accompany them to carry out a blood test.   The first applicant was subsequently arrested, taken to the local hospital for the blood test, and then released.   22.    The circumstances of the arrest are disputed between the parties. The applicants give the following account:   The first applicant, having unintentionally failed the breathalyser test, agreed to the blood test, but explained that she wished first to take her daughter to a neighbour.   One police officer refused this and dragged her to the police car.   She was warned that she could be charged with having resisted a public officer in the execution of his duties (Widerstand gegen die Staatsgewalt).   When she called her daughter, the police officer said that they would take the child along.   Thereupon she nevertheless took her daughter by the hand, went to the back door, rang her neighbour's doorbell and opened the door.   At that moment one police officer grabbed her, twisted her left arm behind her back while she was turned around and hit her head on the corner of a window-sill. The police officers then hand-cuffed her.   She lost consciousness for a short while.   She recovered at the police car and noticed severe pain in her left shoulder which was pressed backwards by one of the police officers.   Eventually she was able to get into the police car and was driven to the hospital.   23.    The first applicant underwent two medical examinations on 29 and 30 January 1986.   On 11 February 1986, Dr. S., an internal specialist, certified that he had examined the applicant on 29 January and noticed abrasions, a bruise on her right cheek-bone of about 3 x 5 cm, large bruises of about 10 cm to 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 certified as ill until 8 February 1986. Furthermore, on 10 February 1986, Dr. K., the head surgeon at the local hospital, certified that he had examined the first applicant on 30 January 1986.   His diagnosis was identical to that of Dr. S.   In the proceedings before the Commission, the first applicant submitted photographs showing the above-mentioned bruises.   b.     Proceedings against the first applicant   24.    On 29 January 1986, Police Officer B. laid charges against the first applicant, stating in particular that he and his colleague had followed the first applicant's car after she had ignored a red traffic light.   They had intended to check her when she had stopped at the entrance to a back-yard.   Her attempt quickly to close the roll shutter of the entrance had failed as they had also parked the police car there.   25.    The above report continued that, in the course of the check, the Police Officers had noticed a strong smell of alcohol.   After thorough explanations, the first applicant had failed correctly to carry out the breathalyser test four times, and had therefore been informed that she had to undergo a blood test.   Thereupon she had attempted to escape into the back-yard.   However, Police Officer B. had been able to grab her arm and stop her.   The applicant had been very aggressive.   When informed she was to be arrested, the first applicant had suddenly calmed down and declared that she would come along after having first taken her daughter, whom Police Officer B. assumed to be 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.   As the first applicant had acted in a strange manner when opening the back door - the door opened to the right and she had placed her daughter to the left - the Police Officers had watched her carefully.   When the first applicant had prepared to enter the house after her daughter and to close the door, Police Officer W. had quickly opened the door and Police Officer B. had grabbed the first applicant's right arm and pulled her outside.   The child had gone upstairs.   26.    Police Officer B. further stated in his report that, at this stage, he and his colleague had asked by radio-phone for extra support to take care of the child.   The first applicant had then started to strike out in an attempt to free herself.   There had been an altercation.   Police Officer W. had taken the applicant's left arm and twisted it behind her back.   Police Officer B. had kept a tight hold on her right arm.   The first applicant had constantly offered resistance and further physical force had been necessary to hand-cuff her in order to avoid further criminal offences, in particular bodily injury.   On their way to the police car she had attempted to throw herself to the ground, and he and his colleague had had to take her arms.   Then, another police car had arrived.   The applicants' neighbour had offered to take care of the child.   27.    The report finally mentioned that the first applicant had then been taken to the local hospital, where the blood test had been carried out.   Furthermore, at the hospital, the Police Officers had noticed a lacerated wound at the first applicant's right temple.   28.    Upon the above request of Police Officer B., criminal proceedings were instituted against the first applicant who was suspected of having resisted a public officer in the execution of his duties, S. 113 of the German Criminal Code (Strafgesetzbuch), and of drunken driving, S. 316 of the Criminal Code.   29.    On 22 April 1986 the criminal proceedings against the first applicant were discontinued by the Detmold Public Prosecutor's Office (Staatsanwaltschaft).   The Office found that there was no reasonable suspicion concerning drunken driving.   As regards the offence of resisting a public officer, there was minor guilt and no public interest in prosecution.   Subsequently, the Lemgo District Court (Amtsgericht) fined the first applicant DM 500 for having committed the "regulatory offence" (Ordnungswidrigkeit) of driving with a blood alcohol content level of more than O.8 per mille, and a one month's prohibition on driving was imposed.   The District Court found that the result of the blood-test showed a blood alcohol content level of 0.82 per mille.   The first applicant's appeals were unsuccessful.   c.     Proceedings against Police Officers B. and W.   30.    By letter of 24 April 1986 the first applicant, represented by her lawyer Mr. Stüben, laid a charge against the Police Officers B. and W., alleging that they had caused bodily harm to her within the meaning of SS. 223 and 230 of the Criminal Code.   According to the statements in the above letter, the Police Officers had held the first applicant's arms tightly from behind without prior warning and twisted them around and behind her back, with the effect that she had hit her head on the stone ledge of the rear entrance to the house inhabited by her and others, thereby also dislocating her left shoulder and causing a haematoma on the right upper arm due to a disproportionate use of force.   31.    Subsequently, the first applicant, having consulted Mr. Stüben, withdrew her criminal charges.   The Public Prosecutor's Office had allegedly warned her that otherwise the criminal proceedings against her would be continued.   The investigations against the Police Officers were discontinued on 10 July 1986.   32.    On 18 July 1986 the first applicant, represented by Mr. Stüben, filed a hierarchical complaint (Dienstaufsichtsbeschwerde) with the Head of the Detmold County Administration (Oberkreisdirektor) concerning the Police Officers B. and W.   As regards the events in question it was stated in the above complaint that the first applicant had rung her neighbour's doorbell and waited for her to come downstairs when the bearded police officer twisted her arm backwards from behind. She had then hit her head against a stone window ledge.   With further physical force, she had been taken to the police car.   33.    On 18 September 1986 the Head of the Detmold County Administration, acting as Police Department (Kreispolizeibehörde), dismissed the first applicant's complaint.   In the decision, it is stated in particular that the police officers had stopped the first applicant after a traffic offence, noticed a smell of alcohol and proposed a breathalyser test.   As the test had failed four times, the first applicant had been informed that she would have to undergo a blood test. Thereupon she had attempted to run into the back-yard. However, one of the police officers had been able to seize her arm and explain that she was provisionally under arrest.   The request to take her daughter to a neighbour had first been granted.   When the first applicant had opened the door and tried to enter with her daughter, one of the police officers had held onto her right arm, whereupon she had started to kick and to hit with her left hand.   When the police officers had held onto her she had tried to escape by turning around. She had to be hand-cuffed.   In the course of the arrest she had not knocked her head against a window-sill.   The Department concluded that the use of force had been justified and not disproportionate to the aim pursued, i.e., the taking of a blood test.   d.     Compensation proceedings   34.    On 10 April 1987 the first applicant instituted proceedings before the Detmold Regional Court (Landgericht) against the Land North-Rhine Westphalia and the two Police Officers B. and W., claiming compensation for the injuries suffered at the time of her arrest.   35.    On 10 July 1987 the Detmold Regional Court, in a partial judgment, dismissed her action against the Police Officers on the ground that, in cases of official liability, any personal liability on the part of the officials concerned was excluded.   36.    On 9 October 1987 the Detmold Regional Court held a hearing in the case.   The applicants' neighbour, Police Officers B. and W. and the second applicant were heard as witnesses.   37.    The applicants' neighbour, thirty-five years old, stated that on 28 January 1986 the second applicant had made her come outside.   She had seen the first applicant, two police officers and a police car. The light had been poor, but the street lights were on.   She had noticed the first applicant's stained face, but no injuries.   She had only noticed later that the first applicant was hand-cuffed.   The first applicant had complained about pain in her shoulder and asked that the police officers should remove the hand-cuffs.   She had also put this question to the police officers who, however, refused the request.   The first applicant's knees had given way several times.   She had feared that the first applicant would collapse at any moment.   38.    The applicants' neighbour continued in her testimony that she did not remember the faces of the two police officers involved in the incident, but that one of them had been dark-haired and the other one blond.   She would not recognise Police Officers B. and W.   However, she remembered that the blond police officer had held the first applicant's arms from behind.   She had first thought that this police officer had twisted the first applicant's arm behind her back and held it tight there; however, this had to be wrong as the first applicant had been hand-cuffed.   The police officers had explained to her that they were waiting for colleagues in another police car to take care of the child. She had informed the police officers that the first applicant's car would have to be driven out of the entrance.   The police officers then started looking for the first applicant's keys.   The first applicant had indicated that the keys were in the corridor.   The applicant's neighbour then stated that she had found the keys still outdoors, about 1 to 2 m in front of the door.   39.    Upon further questioning, the applicants' neighbour stated that, judging from the first applicant's behaviour, she must have been in terrible pain.   The first applicant had complained about pain in her left shoulder.   While she went to look for the keys, the dark-haired police officer had asked her whether the first applicant was always so drunk.   She had not seen whether the blond police officer standing behind the first applicant had lifted her arms although, while the police officer was standing behind her, the first applicant had bent forward suddenly several times.   40.    In his testimony, Police Officer B., twenty-eight years old, referred in particular to his report of 29 January 1992.   He then gave the following account:   he and his colleague had noticed the first applicant's drive through a red traffic light, and, therefore, followed her in order to file a report.   They had found the first applicant at an entrance when she had been about to close a roll shutter.   41.    He then described that they had noticed a smell of alcohol, and how the attempts to carry out a breathalyser test failed.   He mentioned that he was not sure whether the first applicant had deliberately not blown for a sufficient time, or whether she had had difficulties. After having been informed about the necessity of a blood test, the first applicant had become irritated and had emphasised that she had her child with her.   Police Officer B. remembered that it was a girl of approximately twelve years of age.   The first applicant had then attempted to go away to the back-yard.   He had held her fast and told her that she was provisionally under arrest.   42.    Police Officer B. continued in his testimony that he and his colleague had intended to call for support to come and take care of the child.   The first applicant wanted her child to be taken to a neighbour.   They therefore accompanied the first applicant to the door at the end of the courtyard.   He was at that time not holding onto her. The first applicant had opened the door, pushed the child standing in front of her into the corridor and attempted to enter the house as well and to close the door behind her and to shut the two police officers out.   As he and his colleague had already had the feeling that the first applicant had this intention his colleague W. had managed to open the door again in time.   He, Police Officer B., had grabbed the first applicant's right arm.   The first applicant had not yet entered the house, but the door had been between her and his colleague W.   43.    According to Police Officer B., his colleague W. had to overcome the first applicant's resistance in opening the door and he had forcibly to keep a tight hold onto her and pull her outside.   He had grabbed the first applicant's right arm with his right hand and pulled her outside.   She had resisted and used both her arms and legs to hit out.   His colleague W. had then taken the first applicant's left arm and twisted it behind her back.   After some difficulties they managed to get the first applicant's arms hand-cuffed behind her back.   Taking her arms, they had found it difficult to get her back to the street, as she attempted to throw herself to the ground.   Since being pulled out of the corridor, the first applicant had shouted more or less hysterically, but she had made no complaints about pain.   44.    Furthermore, Police Officer B. stated that the first applicant had not knocked her head against a wall when she was pulled outside. Having been shown two photographs of the first applicant with injuries at her right cheek, he remembered having mentioned such an injury in his report of 29 January 1986.   He could not, however, explain the cause of this injury.   45.    Upon further questioning, Police Officer B. confirmed that the first applicant had not complained about any pains in her shoulder. She had requested that the hand-cuffs be removed, a request they had refused as they had feared further difficulties.   He could not remember whether he or his colleague W. had kept hold of the first applicant in the street until they had put her into the police car.   He further could not remember whether the first applicant had bent forward suddenly, e.g. as a result of a sudden jerking on her hand-cuffs and the resulting pain.   46.    Upon further questioning, Police Officer B. also confirmed being certain that the first applicant did not knock her head at a wall.   He said that she did not have this injury when they had first talked to her.   He assumed that the first applicant might have got this injury during the altercation when the hand-cuffs had been put on.   47.    The Regional Court then heard Police Officer W., thirty-five years old.   He stated that when he and his colleague B. had informed the first applicant that a blood test would be necessary, she intended getting away.   He would not say that she ran away; however, his colleague B. had then declared that the first applicant was under arrest.   As regards the first applicant's child, they had agreed that her child should be taken to the house.   They had accompanied her across the yard to the door.   He could not remember whether he was already holding the first applicant at that time.   He remembered that he had walked on her right side, and that, in front of the door, he had stood on her right side near to the wall.   The hinges of the door were at the right-hand side and it opened towards the outside.   The first applicant had then opened the door, let her child enter and attempted to follow while, at the same time, trying to close the door.   As he had suspected the first applicant might try to do something like that, he had held onto the door, and his colleague B. had held tightly onto the first applicant.   It had been completely dark beside the door.   He could not therefore exclude that the first applicant had knocked her head at the wall or elsewhere.   He had not noticed anything like this. He and his colleague had maintained eye-contact.   48.    Upon questioning, he could not remember whether there had been a lamp throwing any light onto the yard.   49.    Police Officer W. further stated that the first applicant had vehemently resisted her arrest.   He had taken her left arm and twisted it around behind her back and he had had to grab her tightly in order to do this.   They had then hand-cuffed her arms behind her back.   He could not remember whether they had done so in the yard or whether they had first taken her to the street and then hand-cuffed her.   It was only later that they noticed the first applicant's head injury and they had not noticed how she had obtained it.   50.    When questioned, Police Officer W. stated that the first applicant had requested the removal of her hand-cuffs.   However, he could not remember whether she had requested that the hand-cuffs should be removed because she could not bear to have them on as he did not remember her complaining about any pain, in particular about suffering any pain in her left shoulder.   After her arrest the first applicant had not calmed down, but had been noisy.   She also had repeatedly attempted to resist accompanying the police officers, without success however.   He could not remember when the applicants' neighbour had arrived.   Furthermore, he could not remember whether he or his colleague B. had been holding onto the first applicant while they had been waiting for the second police car.   51.    When questioned further, Police Officer W. stated that he did not remember either whether the first applicant had bent forward suddenly while she was still hand-cuffed.   He repeated that the first applicant had resisted her arrest and had been lashing out when he had twisted her arm around to her back.   He could not remember whether she had been lashing out with both arms.   He assumed that the first applicant had not intended hitting him or his colleague B.   The situation had   in any case been too turbulent.   He did not think that the first applicant had attempted to throw herself to the ground.   He could not remember whether the yard had been wet or covered with snow or icy.   He did not think that the yard had been icy.   52.    Police Officer B. intervened and stated that he remembered that it had been slippery, and he assumed that this had been due to ice.   53.    Upon further questioning, Police Officer W. denied that he had pushed the first applicant, in particular her head against the wall.   54.    Following a particular instruction about the meaning of a testimony and the role of a witness as well as the right to refuse testimony, the Regional Court then heard the second applicant.   55.    The second applicant stated that she remembered the incident with her mother and the police in their yard.   She had seen her mother blowing into an apparatus belonging to the police, and had then heard that her mother would have to go for a blood test.   She and her mother had then accompanied the police officers across the yard because she was supposed to go to their neighbour.   Her mother had rung the doorbell and opened the door using a key.   She had then gone into the house and closed the door behind her.   She did not know that one of the police officers had forcibly kept the door open.   After having closed the door she had looked through the glass-panels in the door into the yard.   She explained that one of the glass-panels was simple glass, as it had been once replaced by her father.   She had therefore been able to see 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, the distance having been approximately one metre.   She herself had not been right in front of the glass-panel.   She subsequently had run upstairs to their neighbour.   56.    The second applicant further explained that when her mother had rung the doorbell and opened the door, she had been standing to her right.   Her mother had opened the door only a little bit, and she had just been able to get in.   She then had immediately closed the door behind her.   57.    The second applicant also stated that she did not recognise Police Officers B. and W.   It had been quite dark in the yard. However, there had been light in the staircase.   She could not remember whether there had also been a lamp in the yard.   58.    When questioned, the second applicant confirmed that she had immediately closed the door.   Her mother had looked into the corner next to the door when the police officer pushed her.   The second applicant added that she seemed to remember that the dark-haired police officer had a beard.   She had not seen that one of the police officers had twisted her mother's arm around and behind her back.   59.    On 30 October 1987 the Detmold Regional Court dismissed the first applicant's compensation claims against the Land of North-Rhine Westphalia.   60.   In its judgment, the Regional Court first summarised the established facts.   It stated in particular that Police Officers B. and W. had noticed the first applicant after she had ignored a red traffic light, and that the breathalyser test had failed several times.   When informing the first applicant that she had to accompany them for a blood test, the Police Officers had gained the impression that the first applicant had intended to leave the entrance and move towards the adjacent back-yard.   Thereupon the Police Officer B. had taken hold of the first applicant and informed her that she was provisionally arrested.   The first applicant had then asked to take her daughter, at that time eight years old, to their neighbour.   The Police Officers had agreed and accompanied the applicants to the back-door at the end of the yard which was more than 60 m long.   The first applicant had rung her neighbour's doorbell and at the same time opened the door using a key.   Her daughter had slipped through the door into the house, whereas the first applicant was held fast by the Police Officers who twisted her arm behind her back, and hand-cuffed her arms on her back.   The first applicant had then been taken to the police car.   61.    The Regional Court noted that the first applicant had thereby suffered a bruise to her right temple, a concussion and a contusion of the left shoulder-joint.   62.    The Regional Court then summarised the submissions of the first applicant and the defendant.   The first applicant had in particular alleged that she had never attempted to escape; that she had not attempted to enter the house after her daughter; that the Police Officer W. had grabbed her arm, pulled her around and repeatedly knocked her head against a wall and repeatedly pulled her hand-cuffed hands upwards, thereby causing a terrible pain.   63.    The Regional Court found that the injuries suffered by the first applicant in the course of her arrest by Police Officers B. and W. did not give rise to a compensation claim.   64.    The Regional Court considered that the first applicant's provisional arrest had in itself not been unlawful.   The Police Officers, in the circumstances concerned, could reasonably have assumed that the first applicant intended to abscond.   Had the first applicant succeeded in entering the house without the Police Officers, considerable difficulties could conceivably have arisen, either by her refusing them entry into her apartment, or by her consuming or claiming to have consumed more alcohol, thereby rendering the determination of her blood alcohol content level impossible or appreciably more difficult.   65.    The Regional Court further considered that the first applicant, as plaintiff, had failed to prove that the police officers had injured her by a use of force disproportionate to the aim pursued, namely to secure the ensuing investigations.   As regards her bruise, the testimonies of the first applicant's daughter and of Police Officers B. and W. were contradictory, and all three witnesses had an interest in the outcome of the proceedings.   The applicants' neighbour had not been able to confirm that one of the police officers had pulled upwards the first applicant's arms behind her back;   the statement of the witness that the first applicant had repeatedly bent forward would not necessarily lead to such a conclusion.   66.    The Regional Court further found that it could not accept the first applicant's version as very probable.   It did not seem unlikely that the first applicant had injured herself while resisting the attempts to hand-cuff her.   She could have thereby hit her head against the wall, and the contusion of her shoulder could have occurred when her arm was twisted behind her back and the hand-cuffs put on.   67.    On 12 September 1988 the Hamm Court of Appeal (Oberlandes- gericht) dismissed the first applicant's appeal (Berufung).   It confirmed in particular the Regional Court's taking and evaluation of evidence.   68.    On 8 February 1989 the Federal Constitutional Court (Bundes- verfassungsgericht) refused to admit the first applicant's constitutional complaint (Verfassungsbeschwerde) on the ground that it offered no prospect of success.   The Constitutional Court considered in particular that the Court of Appeal's evaluation of the evidence did not appear arbitrary or otherwise in violation of constitutional law.   B.     Relevant Domestic Law and Practice   69.    According to S. 113 para. 1 of the German Criminal Code (Straf- gesetzbuch), anybody who resists, by force or threat of violence, or who physically attacks a public officer or a soldier of the Federal Armed Forces authorised to enforce laws, regulations, judgments, court decisions or orders, in the execution of such official acts, shall be punished by imprisonment for a term not to exceed two years or by a fine.   According to S. 113 para. 3 the offence shall not be punished if the official act concerned was unlawful, even if the offender mistakenly believed the act to be lawful.   70.    Under S. 223 para. 1 of the Penal Code deliberate bodily harm is rendered punishable by imprisonment for a term not to exceed three years or by a fine, as is negligent bodily harm under S. 230.   71.    S. 316 of the Criminal Code provides in particular that anybody driving a   vehicle in public traffic who, due to his consumption of alcoholic beverages or other intoxicants, is not capable of driving his vehicle safely, shall be punished by imprisonment for a term not to exceed one year or by a fine.   Anybody having negligently committed the said offence shall be punished in the same way.   72.    S. 24 a of the Road Traffic Act (Straßenverkehrsgesetz) provides that anybody driving a motor vehicle in road traffic commits a "regulatory offence" (Ordnungswidrigkeit), if he has a blood alcohol content level equal to or above 0.8 per mille or has in his body a quantity of alcohol resulting in such a blood alcohol content level, and shall be punished by a fine not to exceed DM 3,000.   Anybody committing this offence negligently shall also be punished.   73.    With regard to official liability, S. 839 para. 1 of the Civil Code (Bürgerliches Gesetzbuch) provides that, if an official, with wilful intent or negligently, commits a breach of his official duties towards a third party, he shall compensate the third party any damage resulting therefrom.   S. 34 of the Basic Law (Grundgesetz) provides that, if any person, in the exercise of a public office entrusted to him, violates his official obligations towards a third party, liability shall rest in principle with the state or the public body which employs him.   74.    The order of a blood test is regulated in S. 81 a of the Code of Criminal Procedure (Strafprozeßordnung) according to which a physical examination of any person charged with having committed an offence may be ordered for the establishment of facts relevant to the proceedings concerned.   For this purpose, without consent of the person concerned, blood samples may be taken and other physical interventions be conducted by a physician according to the rules of medical science for the purposes of examination, if there is no risk of detriment to the person's health.   Such examinations are ordered by a judge, in case of danger in delay, also by the public prosecutor's office or its assistant civil servants, inter alia police officers of a particular higher rank.   75.    S. 127 para. 1, first sentence, of the Code of Criminal Procedure provides that anybody, without court order, may provisionally arrest an offender apprehended in the criminal act or tracked immediately afterwards, if the offender is susceptible to abscond or if it is not possible to identify him or her immediately.   Under S. 127 para. 2   the Public Prosecutor's Office or their assistant servants, in case of danger in delay, may effect a provisional arrest also under the conditions of an arrest warrant or an order of detention in a psychiatric hospital.   76.    SS. 35 et seq. of the North-Rhine Westphalia Police Act (Polizei- gesetz) of 1980 governed the use of compulsory measures by police authorities in the Land North-Rhine Westphalia at the time in question in the present case (reform of the Police Act in 1990).   S. 40 of the Police Act 1980 (corresponding to S. 62 of the Act 1990) provided that a person could be hand-cuffed, if this person would presumably resist an instruction by the police officers concerned or escape.   III.   OPINION OF THE COMMISSION   A.     Complaints declared admissible   77.    The following complaints were declared admissible:   -      the first applicant's complaint that, in the presence of the second applicant, she was subjected to inhuman and degrading treatment by the police upon her arrest;   -      the first applicant's complaint that the above treatment violated her right to respect for her private and family life;   -      the second applicant's complaint that the above treatment of her mother in her presence also subject