CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 22 septembre 1993

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margin-bottom:6pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s1913A4C6 { margin-top:6pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .s8F4EE4B8 { margin-top:6pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt }       COURT (CHAMBER)             CASE OF KLAAS v. GERMANY   (Application no. 15473/89)             JUDGMENT       STRASBOURG   22 September 1993 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: 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: - for the Government   Mr J. Meyer-Ladewig , Ministerialdirigent,     Federal Ministry of Justice,   Agent ; - for the Commission   Mr J. Frowein ,   Delegate ; - 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 [] . 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.   Rolv RYSSDAL President   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.   R. R. 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. 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. * *    * 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