CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 23 mai 1996

.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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 19959/92                       by Samir Riadh JAMAL-ALDIN                       against Switzerland         The European Commission of Human Rights sitting in private on 23 May 1996, the following members being present:              MM.    H. DANELIUS, Acting President                  S. TRECHSEL                  C.L. ROZAKIS                  E. BUSUTTIL                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS              Mr.    M. de SALVIA, Deputy Secretary to the Commission         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 23 April 1992 by Samir Riadh Jamal-Aldin against Switzerland and registered on 11 May 1992 under file No. 19959/92;         Having regard to :   -      the reports provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the observations submitted by the respondent Government on       4 April 1995 and the observations in reply submitted by the       applicant on 12 July 1995;         Having deliberated;         Decides as follows:   THE FACTS         The applicant, a Swiss national born in 1955, resides in Zurich. Before the Commission he is represented by Mr F. Schumacher, a lawyer practising in Zurich.   A.     Particular circumstances of the case         The facts of the case, as submitted by the parties, may be summarised as follows.                                     I.         In the course of 1981 numerous street demonstrations and riots took place in Zurich.         In the evening of 10 July 1981 a car was overturned in a street in Zurich.   When minutes later two police cars arrived at the scene, a large crowd of people gathered.   The police attempted to arrest two persons.   According to the applicant, one of them had suffered a head injury, whereupon onlookers, among them the applicant, suggested bringing the person to hospital rather than to arrest him.   The police officers declined, whereupon the applicant protested.   According to the subsequent decisions of the Swiss authorities, the applicant grabbed a policeman from the back and tried to pull him into a side street.         The applicant and another person unknown to him, R.S., were arrested.   They were then brought by police car to the U. police station, where police officers awaited them.   Subsequently, R.S. and the applicant were allegedly ill-treated; R.S. was apparently beaten unconscious, though the applicant could protect his face.   Later in a cell a policeman allegedly hit the applicant with his fist, and the applicant had to undress.   Whenever he asked for the name of the policeman, he was beaten.         The applicant was remanded in custody for one night.   In the afternoon of 11 July 1981, after having been brought before the District Attorney, he was released from detention.   Upon his release he went to a doctor who noted various injuries.         Criminal proceedings were instituted against the applicant inter alia on the ground of having obstructed police officers in the exercise of their duties.   On 7 October 1982 the Zurich District Court (Bezirksgericht) acquitted the applicant of the charges, though he had to bear the costs of the proceedings.         R.S., who instituted compensation proceedings, eventually obtained damages of 10,500 SFr for the ill-treatment suffered at the police station.   The courts concerned relied inter alia on the applicant's evidence.                                     II.         On 3 August 1981 the applicant requested the institution of criminal proceedings against seven police officers on the ground of ill-treatment on 10 July 1981.   He claimed that upon his arrest and at the police station he had been severely beaten (massiv geschlagen) and insulted (beschimpft).   Threats had been used to obtain his photographs and fingerprints.         The criminal proceedings were discontinued on 6 March 1984.                                    III.         On 20 November 1985 the applicant filed an action against the Zurich municipality, claiming compensation of 10,000 SFr for the ill- treatment and 3,400 SFr for costs arising from the proceedings which he had attempted to institute against the police officers.         The Zurich District Court dismissed the action on 4 September 1987.   The decision stated, inter alia:         "2.   The plaintiff claimed that he had been arrested unlawfully       and without reasonable grounds (...).   According to him, at about       10.45 p.m. (22.45 hours) he noticed a group of people on       Limmatquai, slightly to the north of the City Hall.   When he       reached the group he witnessed a married couple, a doctor and his       wife, asking police officers to take a girl with a forehead       injury to hospital (...).   He stated that he saw a nervous police       officer, allegedly called Eg., threatening these passers-by with       a rubber bullet gun.   Another officer, allegedly called St.,       intervened.   The doctor was allegedly pushed aside, as was the       plaintiff, who says he fell.   As he got up again, he states that       he was overpowered by, in all, six policemen - as a spectacle-       wearer, he was pretty defenceless.   He was then taken to the       police station with another person who had been arrested (...).       The plaintiff adhered to this version of his arrest in all his       interviews with the police and the investigating judge.   He       states that as he was pushed away, a brawl broke out and he no       longer had an overall view of the situation.   He says that the       policeman mentioned above then shouted "arrest him - he was       holding me".   When he heard this, he says, he tried to run away,       whereupon five more policemen went for him, dragged him around,       hit and kicked him.   He claims that he was then pushed into the       police van (...).   He says that it is not true that he grabbed       police officer Eg. from behind and tried to drag him in the       direction of Metzgergasse (...).   In another place, he says that       considerable confusion broke out, so that he can no longer       remember details.   He is still sure that the police officer       shoved him away with a gun.   Somehow, he says, he fell - he does       not know how or whose fault it was.   As he was getting up, he was       grabbed by the above-mentioned police officer and another one,       whom he had not seen come up.   Then, as he remembers it, both       policemen hit him (...).   He says that he was very surprised,       especially as neither of the police officers had said anything       to him (...).   He claims that Eg. grabbed him from behind and       shouted "hold on to him" (...).   In another place he says that       it is not true that he attacked police officer St.   It is true       that he fell once; he can no longer say why (...).   In another       statement, the plaintiff says that police officer Eg. then       allegedly forced people back with the rubber bullet gun.   He says       that this caused a brawl.   He says that he then thought that he       should go home since he had no particular interest in the matter.       He says that then, in the course of the brawl, the police officer       shouted, "hold on to him".   Thereupon, other policemen allegedly       appeared from under the arcades.   He says he walked away in the       direction of Metzgergasse and then fell over, he does not know       why.   He does not know whether someone tripped him up or whether       he was grabbed.   As he was lying on the ground, he says, all hell       broke loose.   He states that he was beaten as he lay on the       ground, following which they tried to take him to the police van       (...).              In this evidence, the plaintiff seeks to portray himself as       a mere passer-by who was arrested by the police for no reason at       all.   He called three witnesses to support his version of       events."         The Court first examined the statements of witness R.S., in respect of which it drew the following conclusions:              "It emerges from these statements that the witness S. was       dazed at the time that he was in the police van, and therefore       that his mental faculties of perception were impaired.   Further,       his ability to see out of the van was considerably limited, so       that he could see only a small area outside the police van       because the rear doors were only half open.   The witness himself       had the impression that something must have already happened to       the plaintiff before he first saw him.   The witness also failed       to mention that the plaintiff fell down before his arrest,       something which he would have been bound to have seen.   However,       it appears from the plaintiff's own evidence that he was       arrested, not right next to the police van, but a certain       distance away - according to the plaintiff's evidence, in       Metzgergasse (...), which the witness S. could not see from where       he was in the police van.   Therefore the plaintiff cannot derive       any benefit, as far as his arrest is concerned, from this       witness's evidence.         In respect of the witness H.W. the Court found: "the witness saw the plaintiff for the first time by the police van and consequently cannot have seen the plaintiff's actual arrest, so that the plaintiff cannot derive any support for his claim that his arrest was wrongful from this witness's evidence either".         In respect of the third witness Sci., the Court found: "This witness's evidence cannot be relied upon, as it diverges so sharply from that of the plaintiff.   As set out above, the plaintiff himself states that he fell over before his arrest, as he was trying to move away from the group of people, and that while he was still lying on the ground, people started to beat him up.   The witness, however, depicts none of this.   Therefore his evidence cannot advance the plaintiff's case in any way."         The Court also examined in detail the statements of various police officers, but again it found that they did not confirm the applicant's allegations:              "As regards the statements of the various police officers       referred to above, it should be noted that these arose, partly       in their individual police reports, partly in their witness       evidence and partly when they were being questioned as       defendants.   When the various statements are put together, it can       be seen that not all the officers described the relevant events       in exactly the same way and that different statements made by the       same policeman are not always entirely consistent.   However these       circumstances cannot invalidate the police officers' statements.       It is noteworthy that each officer was observing the relevant       events from a different place and that the dates on which each       individual statement was made vary considerably in time.              What is more significant in the present case is rather that       the plaintiff could be precisely identified and that all the       statements agree as to the most essential point: that is, that       the plaintiff grasped Eg. around the body from behind, that the       plaintiff attempted to drag Eg. into an alley and that the       plaintiff put up a very strong resistance (a point which will be       dealt with in more detail below).   It is extremely unlikely that       five policemen should have agreed on this version of events in       detail with each other, especially as their original reports had       to be drafted immediately after the events in question, that very       night. Such an agreement could only mean that there was a       conspiracy between the various police officers against the       plaintiff.   There is absolutely no evidence of this, given that       the policemen had no previous knowledge of the plaintiff and that       they could not initially have guessed that they themselves would       face prosecution.              In the light of the different statements, we can,       therefore, regard it as established that, at midnight, in the       course of a demonstration during the youth unrest in Zurich, the       plaintiff grabbed a policeman from behind and tried to drag him       into an alley.   This was sufficient cause for the plaintiff to       be arrested and taken in a police van to the relevant police       premises for the purposes of establishing his identity and       questioning him about the said occurrence.   ...              3.     However, the plaintiff also submitted that his arrest       had been carried out in an unlawful manner ...         a)    The plaintiff's arrest and the process of putting him into            the police van              In this regard, the plaintiff stated that five more       policemen rushed up to him and dragged him around.   He stated       that he was also struck and kicked.   He was then pushed into the       police van.   He says that he wanted to speak to the policemen       because he objected to the way in which they had acted, so he       jumped out of the police van again.   He says that he was then       grabbed and beaten again (with a rubber truncheon on the head,       he thinks) and dragged by the hair.   He was then allegedly picked       up by the hands and feet by four policemen and bundled into the       police van.   When the question was put to him directly as to       whether he had resisted, he had to admit that he had balked,       although he stressed that it was impossible to talk about       "resisting" six police officers (...).   In another place, he says       that while he was getting up, two policemen grabbed him and he       was then, as far as he remembers, beaten by both of them (either       with their fists, their hands or their truncheons - that is, he       is sure that he was beaten with truncheons, amongst other things)       (...).   He was then taken to the police van, still being beaten.       He says he "balked" against being arrested by the police       officers.   He was no longer sure whether he tried to pull himself       away.   He said that, even as he was being taken to the police       van, more policemen came up to him and beat him too, including       with truncheons, and ("kicked") him.   Thereupon, he says, he was       pushed in through the open doors of the police van.   He       immediately jumped out of the police van again to speak to the       officers.   He was then allegedly beaten again by several       officers, who grabbed him and pushed him back into the police van       (...).   Elsewhere, he has stated that he did not resist being       arrested by police officer Eg.; he simply had not managed.   The       other policemen came up too quickly.   They started to hit him       immediately.   He was hit after being grabbed by the policemen.       He says that they then tried to drag him into the police van.       While being dragged away, he was still being beaten up - in       particular, kicked.   Before being put into the police van he was       also punched.   At that point, he said he should amplify his       statement: he had certainly been punched several times (...).       He says that in Metzgergasse he was struck at least once with a       rubber truncheon on the head.   He admits that he jumped out of       the police van again.   He alleges that he was then beaten by the       policemen again (...).   Elsewhere, he says that while he was       lying on the ground, he was struck.   He was beaten on the head       and the back.   He was punched and beaten with rubber truncheons.       He was also beaten on the way to the police van.   He says he       asked to be told why he was being arrested and that he received       no answer; he was only beaten, not spoken to (...).   As far as       he could tell, the blows were coming from all directions.   He had       to assume that he was not being beaten by just one person (...).       He said that if you defined protecting yourself as "resisting",       then you could say that he had resisted.   He claims that he was       beaten after being dragged up from the ground and taken to the       police van.   He was then thrown into the police van by his hands       and feet.   Because the doors of the police van were open, he       jumped out again to ask why he had been arrested.   The only       answer he received was a blow.   Then he was again thrown into the       police van (...).   He also says that when he was lying on the       ground, he was still being kicked (...).              The plaintiff cannot derive any benefit from these       statements which he made as a witness in the criminal proceedings       since, for the purposes of the present civil proceedings, they       have merely the status of assertions made by a party to the case.              In relation to this aspect of the case, R.S. gave evidence       that the plaintiff was grabbed by police officers, wrestled to       the ground with a headlock and so put into the van with him       [R.S.] (...)."         After examining R.S.'s statements in detail, the Court concluded:              "With regard to these statements, which R.S. partly       repeated as a witness in the present case, it must be observed       that he himself is bringing civil proceedings against the       defendant because he was also allegedly treated unlawfully when       arrested.   Further, at the time when S. first saw the plaintiff,       he was dazed.   It is also significant that he could not confirm       that the plaintiff had jumped out of the police car again.   He       also says that he did not see the plaintiff "jibbing" and balking       at his arrest, as the plaintiff himself admits he did.   These       circumstances already considerably reduce his reliability as a       witness.   But what is decisive is that S. in no way confirms the       plaintiff's description of a severe and excessive physical       assault.   Rather, he describes the plaintiff's arrest simply as       rough and carried out with the use of force. He says the       plaintiff was grabbed, wrestled down with a headlock, dragged to       the police vehicle in a stranglehold as well as being held with       the officers' hands, pushed around, punched and thrown into the       police vehicle."         The Court next found that all the police officers denied having committed the assaults against the applicant alleged by him.   Thus, the statements by the officers were on this aspect of the case very consistent.   They admitted that the applicant had been grabbed roughly when he was arrested and that there had been a struggle on the ground. It was also expressly admitted that they were not at all gentle about putting the applicant into the police van.   They made no attempt to gloss over their conduct.   However, the applicant could not derive any benefit from these admissions since, according to the credible statements of the police officers, he was vehemently resisting arrest and made repeated attempts to escape from the police van.   This justified the strong measures resorted to by the police.         The Court considered that the applicant could not derive any benefit from the statements of other witnesses either.   The decision continues:         "b)   The point at which the plaintiff got out of the police van            and was taken into the police station              In this regard, the plaintiff stated that as he got out of       the police van he was insulted and beaten (...).   He says that       in the few metres from the van to the door he was severely beaten       and also verbally abused (...).   Elsewhere, he says that after       getting out of the van in front of the police station, he was       kicked and punched (...).   Then, again, he says that as they went       through the police cordon they were beaten with rubber truncheons       and punched.   He was beaten, but not as badly as the man who was       with him.   Then he was held in an arm lock and dragged into the       police station by his hair (...).   In another place, he says that       he was the second person out of the police van, that he was       beaten too, that he was beaten with rubber truncheons and       punched, that a policeman held him under the arms and dragged him       by the hair (...).              As set out above, the plaintiff cannot rely on his own       statements, even those made when he was being questioned as a       witness in previous proceedings.              R.S. was with the plaintiff at the time.   His evidence was       that he climbed out of the vehicle first.   ...              The plaintiff can derive no benefit from these statements       by S., since the witness S. did not see the plaintiff getting out       of the vehicle and immediately lost consciousness.   Admittedly,       what he heard and sensed suggested blows being struck, but this       evidence is not sufficient to prove that the plaintiff was       unlawfully treated.   As the relevant police officers testified,       the plaintiff was just as uncooperative when he got out of the       vehicle as he was at the time of his arrest, so that force had       again to be used against him. ...   In the light of these       considerations, we find that the plaintiff cannot establish any       claim for damages or compensation against the defendant on the       basis of this aspect of the police officers' conduct either.         c)    The period spent by the plaintiff at the police station              The plaintiff claims that while at the police station he       repeatedly - but in vain - asked for the names of the police       officers involved.   He says he repeated this request after he had       been in the cell for a few moments and three men, including Eg.,       took away his personal effects.   Shortly afterwards, he says, a       fat police officer whose first name appeared to be Hugo appeared       and punched him for no reason.   The plaintiff also asked him for       his name but in vain.   He states that he was forced to undress.       He again asked for names.   He says he was then ordered to remove       his glasses and was again repeatedly punched.   He claims to have       suffered a heavy blow to the right kidney, which felled him.   His       glasses were taken away from him.   He again asked for names.       Thereupon one of them grabbed him, pushed him up against the wall       and started to throttle him with both hands, saying, "Now you're       nice and quiet".   Again, he asked for the man's name, but the       only response he got was a punch in the face, with the words,       "That's my name".   He says he was asked for his address, which       he gave.   He was called a "dirty swine" in response.   After he       had been out of the cell again for half an hour, he asked for his       glasses back (...).   He says he is very short-sighted, needing       lenses of 5.5 and 6 dioptres.   His request was allegedly refused       (with the words) "dirty swine, filthy pig, go back where you come       from" (...).   In another place, he says that, when he was in the       police station, he again asked for the names of the police       officers and the reason for his arrest.   He says he was punched       in the face by a policeman whose first name was Hugo; moreover,       he had to undress in the cell, was again repeatedly punched and       kicked in the kidneys and punched in the face while being       verbally abused (...).   In another statement, he says that as he       got out of the van he was kicked and punched.   This treatment       continued in the police station and his glasses were taken away       (...).   In another place, he says that on his way to the cell he       was verbally abused by the police officers (...).   He says that       when he asked for the names of the police officers, he was       beaten.   He says that a police officer punched him or boxed his       ears.   When he refused to take off his glasses, the policeman       frequently hit him.   The policeman seemed to be aiming at his       glasses.   He was mainly punched.   Suddenly, the fat policeman       thumped him in the kidneys (...).   He says that as a result of       the blow to the kidneys, he fell to the ground.   He again asked       this policeman for his name and the policeman continued to beat       him.   As he was lying on the ground, this policeman grasped him       by the neck, pulled him up by the neck and pushed him up against       the wall, starting to throttle him.   After letting him go, the       policeman again punched him and remarked that that was his name.       The other policemen did not intervene physically, but simply       looked on and abused him verbally (...).   In another place, he       says that he was then dragged past the entrance to the police       station and taken to a cell.   He says he was verbally abused,       with fairly crude language.   He says he is no longer able to       remember in detail what was said (...).              It has already been explained that the plaintiff cannot       derive any benefit from these statements.   However, solely on the       question of the plaintiff's credibility, we would point out that       he also asserted that the same police officers were present at       the offices of the Criminal Investigations Police as had been at       Limmatquai.   However, that is correct only in relation to the two       policemen who went with the police van, since the other police       officers had to wait on Limmatquai because the keys to one of the       cars had gone missing.              The plaintiff's version of events was disputed by all the       police officers.   R.S., who was taken to the police station with       the plaintiff, did not see the latter any more once they got to       the police station; he did not see what happened there (...).              Hence it is established that the plaintiff has been unable       to provide any proof of the alleged events in the police station,       so that he cannot claim any damages or compensation from the       defendant in relation to them.         d)    The period spent by the plaintiff at the offices of the            Criminal Investigations Police              In this regard, the plaintiff gave evidence that he was       taken into a room where there was a camera tripod and told to       take off his windcheater so as to be photographed.   He says that       he refused and repeated his request for names.   He says he was       threatened with beating if he did not let himself be       photographed.   The next morning he was processed by the Criminal       Identification Division.   He says he refused to be processed.       He says he finally agreed, under threat, to have his fingerprints       taken and to be photographed (...).   In another place, he says       that he was forced, by threats, to let himself be photographed       and to allow himself to be processed by the Criminal       Identification Division (...).   In another place, he says that       he refused to be photographed.   He says that he was told that he       could always refuse but then they would have to force him.   He       says that he also refused to be processed by the Criminal       Identification Division.   He says he was told that it was not for       him to say anything, he had no right to refuse.   He says they       explained to him that he already knew what could happen (...).       In another place, he says that he said that he would not let       himself be photographed, nor would he go into the room.   He says       that Ha. told him, either you go into the room or you'll be       forced to go into the room.   He states that he was still afraid,       because of the preceding events.   He feared that he would be       beaten up again (...).   He says that Ha. pointed out that he had       already been beaten in the police station and that the same thing       could happen to him again if he didn't submit to being       photographed (...).   In another place, he said that Ha. coerced       him, in a way which he could no longer remember, to be       photographed.   When he refused to be photographed, police officer       Ha. allegedly threatened him in some way, saying that he (the       plaintiff) had to do it or else something would happen to him.       He said that he could no longer remember the exact terms of the       threat (...).              The plaintiff's own statements are - as has already been       explained on several occasions - not probative.              The police officers in question dispute the plaintiff's       version of events.              R.S., who was taken with the plaintiff to the offices of       the Criminal Investigations Police, did not observe what happened       to the plaintiff there.   He says that in the Criminal       Investigations Police offices they were taken to a sort of       reception area, where red forms had to be filled out.   After that       he had no further contact with the plaintiff (...).   In oral       evidence, he stated that once inside the offices of the Criminal       Investigations Police, he did not see the plaintiff again and       could not say what had happened to him there (...).              The plaintiff cannot, therefore, for lack of evidence,       claim damages or compensation from the defendant in relation to       these events either.         e)    Medical evidence              The plaintiff has also sought to prove that he was       unlawfully treated by the police by means of two medical reports       by Thomas Walser, a practising doctor.              On 11 July 1981, the doctor noted the following physical       injuries to the plaintiff:         1.    minor haematoma and pressure-sensitivity over the right            ear;         2.    minor haematomas under the left eye and on the nose;         3.    haematomas and contusions on the upper third of the outer            left upper arm;         4.    minor haematoma on the right side of the torso, above the            lowest rib; rib very sensitive when pressed; and         5.    long abrasion and considerable haematoma in the hollow of            the left knee.              The report goes on to note: "According to the patient,       these injuries were caused on 10-11.7.81 by the police (truncheon       blows, punches and kicks).   In my view, this account of the       causes of the injuries is perfectly plausible (...)."              In his medical report of 7 May 1982, Thomas Walser       describes the injuries which he found in exactly the same way,       adding that it was unlikely that there would be any lasting       injury, that the plaintiff was treated as an out-patient and was       given a medical certificate for two days' absence from work       (...).              Admittedly, the doctor considers it possible that the       plaintiff's injuries were caused by the police in the way he       described.   However, it must be noted that - as has already been       established - the plaintiff put up an unjustified, and very       strong, resistance to his arrest - so strong indeed, that it led       to a brawl and a struggle on the ground.   The plaintiff could       simply have injured himself in the manner found by the doctor       through his refractory behaviour, for which he himself is       responsible. In the circumstances, the plaintiff cannot derive       any benefit from the two medical reports.              4.     In the light of all the above considerations, all the       plaintiff's claims are dismissed."                                     IV.         The applicant's appeal was dismissed on 5 September 1989 by the Court of Appeal (Obergericht) of the Canton of Zurich.   In its decision the Court regarded it as established that the applicant had attempted to grab a policeman, who was undertaking an arrest, from behind; the policeman then had forcibly to be freed.   As a result, the applicant's arrest was justified as he was suspected of having committed inter alia the criminal offence of obstructing police officers in the exercise of their duties; as the applicant himself had admitted, there was also a danger of fleeing.         The decision continued:              "Correctly, the burden of proof in relation to the excesses       allegedly committed by the police officers was placed on the       plaintiff (...).   In examining the evidence, the court below       helpfully divided the events into four sections according to time       and place, namely:         a)    the plaintiff's arrest and the process of putting him into            the po