CEDH · CASELAW;REPORTS;ENG — 24 octobre 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 } .s76CF415B { page-break-before:always; clear:both }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                      Application No. 20972/92                             Kaj Raninen                               against                               Finland                      REPORT OF THE COMMISSION                    (adopted on 24 October 1996)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-11) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 12-16). . . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 17-43) . . . . . . . . . . . . . . . . . . . . .4        A.    The particular circumstances of the case           (paras. 17-40). . . . . . . . . . . . . . . . . . .4        B.    Relevant domestic law           (paras. 41-43). . . . . . . . . . . . . . . . . . .7   III. OPINION OF THE COMMISSION      (paras. 44-78) . . . . . . . . . . . . . . . . . . . . .8        A.    Complaints declared admissible           (para. 44). . . . . . . . . . . . . . . . . . . . .8        B.    Points at issue           (para. 45). . . . . . . . . . . . . . . . . . . . .8        C.    As regards Articles 3 and 8 of the Convention           (paras. 46-62). . . . . . . . . . . . . . . . . . .8             (i)   The allegedly degrading treatment                (paras. 57-59) . . . . . . . . . . . . . . . 10             CONCLUSION           (para. 60). . . . . . . . . . . . . . . . . . . . 11             (ii) The alleged interference with the applicant's                right to respect for his private life                (para. 61) . . . . . . . . . . . . . . . . . 11             CONCLUSION           (para. 62). . . . . . . . . . . . . . . . . . . . 11                          TABLE OF CONTENTS                                                             Page        D.    As regards Article 5 of the Convention           (paras. 63-74). . . . . . . . . . . . . . . . . . 11             (i)   Article 5 para. 1                (paras. 63-69) . . . . . . . . . . . . . . . 11             CONCLUSION           (para. 70). . . . . . . . . . . . . . . . . . . . 12             (ii) Article 5 para. 2                (paras. 71-73) . . . . . . . . . . . . . . . 13             CONCLUSION           (para. 74). . . . . . . . . . . . . . . . . . . . 13        E.    Recapitulation           (paras. 75-78). . . . . . . . . . . . . . . . . . 13   PARTIALLY DISSENTING OPINION OF MRS. G.H. THUNE . . . . . . 14   PARTIALLY DISSENTING OPINION OF MM. G. JÖRUNDSSON and I. CABRAL BARRETO . . . . . . . . . . . . . . . . . . . 16   PARTIALLY DISSENTING OPINION OF MR. N. BRATZA, JOINED BY MRS. J. LIDDY and MM. H.G. SCHERMERS, J.-C. GEUS, G. RESS, P. LORENZEN and K. HERNDL   . . . . . . . . . . . . 17   APPENDIX I:     PARTIAL DECISION OF THE COMMISSION AS TO                THE ADMISSIBILITY OF THE APPLICATION . . . . 19   APPENDIX II:    FINAL DECISION OF THE COMMISSION AS TO                THE ADMISSIBILITY OF THE APPLICATION . . . . 33   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 applicant is a Finnish citizen, born in 1967 and resident in Helsinki. He was represented before the Commission by Ms. Marjaana Laine and Mr. Juha Keltti, lawyers of the Union of Conscientious Objectors ("Aseistakieltäytyjäliitto").   3.    The application is directed against Finland. The respondent Government were represented by their Agent Mr. Holger Rotkirch, Director-General for Legal Affairs, Ministry for Foreign Affairs, and by Mr. Arto Kosonen, Co-Agent, of the same Ministry.   4.    The case, insofar as declared admissible, concerns the applicant's handcuffing and the lawfulness of the deprivation of his liberty. He invokes Articles 3, 5 and 8 of the Convention.   B.    The proceedings   5.    The application was introduced on 11 November 1992 and registered on 19 November 1992.   6.    On 30 November 1994 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of part of the applicant's complaints under Articles 3, 5, 8, 9, 14 and 17 of the Convention as well as Article 4 of Protocol No. 7. It declared the remainder of the application inadmissible.   7.    The Government's observations were submitted on 14 March 1995 after an extension of the time-limit fixed for this purpose. The applicant replied on 31 May 1995 after an extension of the time-limit. On 11 April 1995 the Commission granted the applicant legal aid for the representation of his case.   8.    On 27 February 1996 the case was transferred from the First Chamber to the Plenary Commission, by decision of the latter.   9.    On 7 March 1996 the Commission declared admissible part of the applicant's complaints under Articles 3, 5 and 8 of the Convention. It declared inadmissible the remainder of the application.   10.   The text of the Commission's decision on admissibility was sent to the parties on 13 March 1996 and they were invited to submit such further information or observations on the merits as they wished. The Government submitted observations on 25 April 1996.   11.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   12.   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:             Mr.   S. TRECHSEL, President           Mrs. G.H. THUNE           Mrs. J. LIDDY           MM.   E. BUSUTTIL                G. JÖRUNDSSON                A.S. GÖZÜBÜYÜK                A. WEITZEL                J.-C. SOYER                H.G. SCHERMERS                H. DANELIUS                F. MARTINEZ                L. LOUCAIDES                J.-C. GEUS                M.P. PELLONPÄÄ                B. MARXER                G.B. REFFI                M.A. NOWICKI                I. CABRAL BARRETO                B. CONFORTI                N. BRATZA                I. BÉKÉS                J. MUCHA                D. SVÁBY                G. RESS                A. PERENIC                C. BÎRSAN                P. LORENZEN                K. HERNDL                E. BIELIUNAS                M. VILA AMIGÓ   13.   The text of this Report was adopted on 24 October 1996 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   14.   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.   15.   The Commission's decisions on the admissibility of the application are annexed hereto as Appendices I and II.   16.   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   17.   In 1986 the applicant was called up for military service. On account of his studies his duty to report for service was nevertheless suspended until 20 March 1992. Prior to this date he objected in writing to performing any kind of military or substitute civilian service.   18.   On 7 April 1992 the applicant presented himself at the Army Headquarters (pääesikunta, huvudstaben), submitting a petition against military service. This he repeated the next day, following which he was arrested on suspicion of having evaded service. He was eventually brought to the Pori Brigade (Porin Prikaati) at Säkylä. On his renewed objection to carrying out any military duties his arrest was prolonged on 9 April.   19.   On 11 April 1992 the District Court (kihlakunnanoikeus, häradsrätten) of Eura ordered the applicant's detention on remand in the County Prison of Turku. On 24 April he was convicted of evasion from military service from 20 March to 8 April and of an offence in service (i.e. his refusal on 9 April). He was given a suspended sentence.   20.   Immediately upon his release from the County Prison on the same day military staff brought him back to the Pori Brigade, where he again objected to carrying out any military duties and was again arrested. On 28 April 1992 the District Court again ordered his detention on remand in the County Prison. On 12 May it convicted him of a further offence in service and sentenced him to imprisonment. The sentence was to be served later.   21.   Immediately upon his release from the County Prison on the same day the applicant was again accompanied by military staff back to the Pori Brigade, where he again objected to carrying out any military duties and was again arrested.   22.   On 15 May 1992 the District Court again ordered the applicant's detention on remand in the County Prison. On 29 May it convicted him of a further offence in service and sentenced him to imprisonment. The sentence was to be served later.   23.   Immediately upon his release from the County Prison on the same day the applicant was returned by military police to the Pori Brigade. Having been questioned there, he again objected to carrying out any military duties and was again arrested.   24.   On 2 June 1992 the applicant was transported back to the County Prison in order to serve his sentence. On 9 June he was released on parole. Immediately upon his release from the prison, he was again accompanied by military police back to the Pori Brigade, where he again objected to carrying out any military duties and was again arrested.   25.   On 11 June 1992 the District Court of Eura again ordered the applicant's detention on remand in the County Prison. On 18 June it convicted him of two offences in service and sentenced him to further imprisonment. The sentence was to be served later. His release on parole was also revoked.   26.   After the court hearing the applicant was, as on previous occasions, transported back to the County Prison in order to be released. A military police squad headed by R, an enlisted corporal, and consisting of conscripts waited for him in the prisoners' check-out room inside the prison. In the prison courtyard he was handcuffed and informed of his apprehension. Outside the prison gate, where his support group was waiting, he entered the conscripts' police vehicle. Members of his support group were photographing and videofilming the incident. He was then transported back to the Pori Brigade at Säkylä.   27.   Säkylä is situated some 100-150 kilometres from Turku and normally transportation by car lasts some two hours. On his arrival at the Brigade the applicant did not explicitly object to being transported to the military hospital. He was released from his handcuffs in the hospital's entry hall.   28.   According to the applicant, the measures taken by the military police were all carried out against his will. According to the Government, he consented to being transported to the military hospital.   29.   In the military hospital the applicant did not undergo any medical examinations. Having again been questioned by military staff on 19 June 1992, he renewed his objection to carrying out any military duties. Thereupon he was formally arrested at 8.05 hrs.   30.   On 22 June 1992 the District Court again ordered his detention on remand in the County Prison, where, on 26 June, he started serving his aggregated prison sentence. On 29 June he was convicted of a further offence in service and sentenced to further imprisonment. In its judgment the District Court considered that he had been deprived of his liberty as from 19 June.   31.   On 20 August 1992 the applicant was released from prison on parole. He again objected to carrying out any military duties; his detention on remand was twice ordered in August and September; he was convicted of further offences in service and sentenced to further imprisonment. On 5 October 1992 he was discharged from his military service for one year.   32.   On 16 February 1993 the applicant lodged a petition with the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman; "the Ombudsman"), in particular concerning the deprivation of his liberty from 18 to 19 June 1992 and the related handcuffing. He underlined that at no moment had he attempted to escape from the military police squad or otherwise shown any tendency to do so. He also stated having been handcuffed already on 11 April and 2 June 1992 while being transported to the County Prison after the District Court's hearings.   33.   In his petition the applicant also submitted that, on his arrival at the Pori Brigade on 18 June 1992, R had asked him whether he would agree to go to the hospital. The applicant had then voiced his objection to performing any kind of service. The fact that he had been handcuffed up to his arrival at the hospital showed that he had not consented to going there. At any rate, he had not acted in a way which could have led anyone to believe that he had wished to receive hospital care.   34.   Heard as a suspect at the Ombudsman's request, R stated that he had been instructed by the Legal Officer of the Pori Brigade to bring the applicant back to the compound. After the applicant had been released in the prison courtyard R had ordered the military police to apprehend him. According to the training provided to members of military police squads, a person who was to be apprehended was to be informed thereof and was also to be handcuffed. On the applicant's return to the Brigade R had been instructed by the Duty Officer to ask the applicant whether he would accept to take up his military service. Having objected thereto, he had, with his own consent, been brought to the military hospital. As far as R could remember, the applicant had been released from his manacles in the hospital yard.   35.   The Pori Brigade stated to the Ombudsman that the purpose of the applicant's apprehension had been to ensure that he would remain in the hands of the military authorities, given that he had been issued with an order to take up his service at that compound. The military police had not been given any instructions concerning his transportation in handcuffs. Nor did the situation as a whole seem to have required such a measure, considering that his arrest had not been ordered and he was thus only to be returned to the Brigade, as on previous occasions. In order to carry out the return R had nevertheless considered the applicant's handcuffing necessary, given his repeated convictions of military offences.   36.   In its submissions to the Ombudsman the Army Headquarters recalled that under section 16 of the 1983 Act on Military Disciplinary Measures (sotilaskurinpitolaki, militär disciplinlag 331/83) a person caught committing a military offence or on likely grounds suspected of having committed such an offence could be apprehended and arrested provided this was necessary in order to maintain or restore discipline, order or safety. The applicant's apprehension had taken place immediately on his release by the prison authorities. There was no evidence that he had already at that moment objected anew to performing military service or to returning to his military compound with the military police. The measures ordered by R appeared to have been based on the applicant's repeated previous objections to performing any kind of service. He had therefore been likely to voice such an objection again. Moreover, his support group had been disturbing R during the incident.   37.   The Army Headquarters nevertheless conceded that on the basis of the evidence available there had been no acceptable grounds for apprehending the applicant. This measure had resulted from R's incorrect assessment of the situation in combination with the surrounding circumstances. Also the applicant's handcuffing had been groundless. According to the relevant permanent instructions, manacles could be used temporarily in order to calm down a person behaving violently who was to remain in the hands of the authorities or if there was a specific reason for suspecting that he would escape. Although the applicant had, on several occasions, committed punishable acts and although his support group had attended his release from the County Prison, he had not been likely to escape on that occasion.   38.   In his decision of 20 May 1994 the Ombudsman noted that the military authorities had had no reason to fear that the applicant would attempt to evade them. Previously he had in fact presented himself voluntarily to them. The Ombudsman considered that the applicant's apprehension on 18 June 1992 had not been legally grounded, since prior to that he had not been asked whether he would persist in his refusal to perform his service. The Ombudsman furthermore found no justification for the applicant's handcuffing. He noted, however, that the orders given by professional military personnel to R had been summary and that, being inexperienced, R had himself believed that he was acting in compliance with the relevant orders and the military education which he had received.   39.   Summing up, the Ombudsman found that more experienced personnel should have been ordered to fetch the applicant on his release from the County Prison. He did not order criminal charges to be brought; instead he urged the Army Headquarters and the Commander of the Pori Brigade to see to it that situations arising, on the one hand, in war time and, on the other, in peace time, be clearly distinguished from each other both in the training of members of the military police force and in the activities of this force.   40.   On 1 June 1994 an amendment to section 39 of the 1950 Military Service Act (asevelvollisuuslaki, värnpliktslag 452/50) entered into force. On 20 February 1995 the District Court (käräjäoikeus, tings-rätten) of Kokemäki convicted the applicant of refusal to carry out military service in pursuance of section 39 of the amended 1950 Act and sentenced him to 194 days' imprisonment. The Court observed that he had previously been convicted of offences which corresponded to the description in section 39. Since he had already served 212 days in prison for those offences, the Court considered that he had fully served his sentence.   B.    Relevant domestic law   41.   According to the 1983 Act on Military Disciplinary Measures, a person caught committing a military offence or on likely grounds suspected of having committed such an offence may be apprehended and arrested provided this is necessary in order to maintain or restore discipline, order or safety (section 16).   42.   According to the 1889 Penal Code (rikoslaki, strafflag 39/1889), a soldier carrying out police duties is, if he encounters resistance, entitled to use the necessary force justified by the circumstances (chapter 3, section 8a, as added by Act no. 321/83).   43.   According to the 1990 Educational Guide intended for the members of the military police force, a person who is to be transported shall be handcuffed. Its preface states that it is principally intended for use in war time or when there is a threat of war. It underlines that in peacetime the military police shall not use more violence than the situation calls for when, for instance, transporting an arrested person.   III. OPINION OF THE COMMISSION   A.    Complaints declared admissible   44.   The Commission has declared admissible the complaints relating to the applicant's handcuffing on 18 June 1992 as well as to the lawfulness of his arrest from 18 to 19 June 1992.   B.    Points at issue   45.   The issues to be determined are:        - whether there has been any violation of Article 3 (Art. 3) of the Convention;        - whether there has been any violation of Article 8 (Art. 8) of the Convention; and        - whether there has been any violation of Article 5 (Art. 5) of the Convention.   C.    As regards Articles 3 and 8 (Art. 3, 8) of the Convention   46.   Article 3 (Art. 3) of the Convention reads as follows:        "No one shall be subjected to torture or to inhuman or      degrading treatment or punishment."        Article 8 (Art. 8) reads, in so far as relevant, as follows:        "1.   Everyone has the right to respect for his private ...      life, ...        2.    There shall be no interference by a public authority      with the exercise of this right except such as is in      accordance with the law and is necessary in a democratic      society in the interests of national security, public      safety or the economic well-being of the country, for the      prevention of disorder or crime, for the protection of      health or morals, or for the protection of the rights and      freedoms of others."   47.   The applicant complains that he was subjected to degrading treatment and a disproportionate interference with his right to privacy on account of being handcuffed during his transportation from the Turku County Prison to the Pori Brigade's military hospital. Allegedly, the only purpose of the handcuffing was to degrade and frighten him so as to influence his personal convictions in respect of military and substitute service. It was, at any rate, disproportionate for the purposes of Article 8 para. 2 (Art. 8-2), since he in no way resisted the deprivation of his liberty. Nor was there any reason to expect any such resistance in view of his behaviour during the previous similar incidents.   48.   The Government submit that there has been no violation either of Article 3 (Art. 3) or Article 8 (Art. 8). In the particular circumstances at hand the applicant's handcuffing was part and parcel of his apprehension which is to be examined exclusively under Article 5 (Art. 5). Subsidiarily, the Government submit that the threshold of treatment proscribed by Article 3 (Art. 3) was not reached. When applying general instructions, the commander of the conscripts' police squad found the circumstances to require that the applicant be handcuffed in connection with his apprehension. The handcuffing was only intended as a security measure during his transportation which, the Government assert, did not take place in public. They nevertheless concede that the handcuffing was "probably unnecessary", since the applicant had been "calm" and his own behaviour had thus not required the use of manacles.   49.   The Commission recalls that the assessment of the minimum level of severity of treatment contrary to Article 3 (Art. 3) is relative and must take account of all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim, etc. (see, e.g., Eur. Court HR, Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, para. 162). A treatment is degrading if it is such as to arouse in the person subjected thereto feelings of fear, anguish and inferiority capable of humiliating and debasing this person and possibly breaking his or her physical or moral resistance (see, e.g., ibid., p. 66, para. 167; Hurtado v. Switzerland, Comm. Report 8.7.93, para. 67, Eur. Court HR, Series A no. 280-A, p. 14).   50.   A treatment may also be said to be degrading if it grossly humiliates a person in front of others or drives him to act against his will or conscience (see the Greek case, Comm. Report 5.11.69, Yearbook 12 p. 186). A measure which does not involve physical ill-treatment but lowers a person in rank, position, reputation or character may also constitute degrading treatment, but again provided it attains a minimum level of severity, thereby interfering with human dignity (see East African Asians v. the United Kingdom, Comm. Report 14.12.73, D.R. 78-A pp. 5 et seq., paras. 195 and 208 at pp. 57 and 62).   51.   The Commission has held, on the one hand, that the handcuffing in public of a prisoner is clearly not so serious a measure as to amount to degrading treatment within the meaning of Article 3 (Art. 3) (see, e.g., No. 12323/86, Dec. 6.3.87, not published). On the other hand, although the publicity surrounding a particular treatment may be of relevance for the assessment under Article 3 (Art. 3), the absence of publicity does not necessarily prevent the treatment from attaining the proscribed level of severity. It may suffice that the victim is humiliated in his own eyes (cf., mutatis mutandis, Eur. Court HR, Tyrer v. the United Kingdom judgment of 25 April 1978, Series A no. 26, pp. 15-17, paras. 30-35).   52.   In addition to the objective nature of the treatment and its effects on the person subjected to it, also the purpose of the authority which resorted to the measure may be of relevance in determining whether it fulfils the essential elements of treatment prohibited by Article 3 (Art. 3). It is essential whether or not the treatment in question denotes contempt or lack of respect for the personality of the person subjected to it and whether it was designed to humiliate or debase him instead of, or in addition to, achieving other aims (cf. Eur. Court HR, Albert and Le Compte v. Belgium, judgment of 10 February 1983, Series A no. 58, p. 13, para. 22; Abdulaziz, Cabales and Balkandali v. the United Kingdom judgment of 28 May 1985, Series A no. 94, p. 42, para. 91).   53.   Most recently, the Court has emphasised that in respect of a person deprived of his liberty, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (Art. 3) (see, e.g., Eur. Court HR, Ribitsch v. Austria judgment of 4 December 1995, Series A no. 336, p. 26, para. 38).   54.   The notion of "private life" within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention is a broad one and not susceptible to exhaustive definition (see, e.g., Eur. Court HR, Costello-Roberts v. the United Kingdom judgment of 25 March 1993, Series A no. 247-C, pp. 60-61, para. 36). It covers both the physical and moral integrity of a person (see, e.g., Eur. Court HR, X and Y v. the Netherlands judgment of 26 March 1985, Series A no. 91, p. 11, para. 22). The protection afforded by Article 8 (Art. 8) to an individual's physical integrity may be wider than that contemplated by Article 3 (Art. 3), depending on the facts of the particular case (cf. the above-mentioned Costello-Roberts judgment, loc. cit., and Comm. Report 8.10.91, para. 49, Eur. Court HR, Series A no. 247-C, p. 71). However, not every act or measure which may be said to affect adversely the physical or moral integrity of a person necessarily gives rise to an interference with the right to respect for private life (see, e.g., the above- mentioned Costello-Roberts judgment, loc. cit.).   55.   An interference with a right guaranteed by Article 8 para. 1 (Art. 8-1) must satisfy three conditions: it must be "in accordance with the law", it must pursue one or more of the legitimate aims enumerated in Article 8 para. 2 (Art. 8-2) and it must be "necessary in a democratic society" for that or those legitimate aims. The reasons adduced to justify the interference at issue must be "relevant and sufficient". The notion of necessity implies, moreover, that the interference corresponds to a pressing social need and, in particular, requires that it be proportionate to the legitimate aim pursued. Regard must nevertheless be had to the margin of appreciation left to the Contracting States (see, e.g., Eur. Court HR, Olsson v. Sweden judgment of 24 March 1988, Series A no. 130, pp. 31-32, paras. 67-68).   56.   The Commission considers that the applicant's handcuffing on 18 June 1992 is clearly distinguishable from the issue arising under Article 5 (Art. 5) in regard to the deprivation of his liberty on the same day.        (i)   The allegedly degrading treatment   57.   It is undisputed that the applicant's handcuffing took place following his release from the County Prison on 18 June 1992. The handcuffs were removed later the same day on his arrival at the military hospital of the Pori Brigade. Considering the distance between the prison and the hospital, the handcuffing must have lasted some two hours.   58.   The Commission notes that the military offences of which the applicant had been convicted prior to 18 June 1992 were all similar in nature, namely his refusal as a pacifist to perform any kind of military service despite his being considered a conscript. Previously he had, on several occasions, been transported back and forth between his military compound, the Eura District Court and the County Prison in Turku. It has not been alleged that he at any time attempted to escape from those transporting him or that violent behaviour on his part could not be excluded. Nor is there any indication that his handcuffing on 11 April and 2 June 1992 was warranted by any violent or evasive behaviour on his part. Furthermore, there is no indication that, on his release from the County Prison on 18 June 1992, he behaved in a manner which the military police could reasonably consider to warrant the use of manacles. Finally, the Commission finds no indication that the activities of his support group would have justified his handcuffing on that day.   59.   In the particular circumstances of this case the Commission cannot find that the recourse to physical force by placing the applicant in handcuffs for some two hours in connection with the deprivation of his liberty had been made strictly necessary by his own conduct or any other legitimate consideration. It is furthermore noteworthy that he appeared handcuffed in public, including in front of his support group. In sum, the Commission considers that his handcuffing diminished his human dignity and amounted to "degrading treatment" within the meaning of Article 3 (Art. 3) of the Convention. Accordingly, this provision has been violated.        CONCLUSION   60.   The Commission concludes, by 20 votes to 10, that in the present case there has been a violation of Article 3 (Art. 3) of the Convention on account of the applicant's handcuffing on 18 June 1992.        (ii) The alleged interference with the applicant's right           to respect for his private life   61.   Having regard to its above conclusion in respect of Article 3 (Art. 3),   the Commission considers that no separate issue arises under Article 8 (Art. 8).        CONCLUSION   62.   The Commission concludes, by 23 votes to 7, that no separate issue arises under Article 8 (Art. 8) of the Convention.   D.    As regards Article 5 (Art. 5) of the Convention        (i) Article 5 para. 1 (Art. 5-1)   63.   In so far as relevant, Article 5 para. 1 (Art. 5-1) reads as follows:        "Everyone has the right to liberty and security of person.      No one shall be deprived of his liberty save in the      following cases and in accordance with a procedure      prescribed by law:      ..."   64.   The applicant complains that the deprivation of his liberty following his release from the County Prison on 18 June 1992 until the issuing of the arrest order on 19 June 1992 was in violation of Article 5 para. 1 (Art. 5-1).   65.   The Government submit that for the purpose of continuing his military service the applicant was obliged to report at the Pori Brigade as soon as he had been released from the County Prison on 18 June 1992. The military police was, however, not entitled under domestic law to arrest him on his release but could only offer him transportation to the compound. The Government consider that he effectively consented to being transported to the military hospital. The deprivation of his liberty was at any rate very brief and lenient in character.   66.   The Commission notes the dispute between the parties as to whether or not the applicant consented to being transported to the military hospital of the Pori Brigade. It is clear, however, from the statements made by R and the military authorities in the course of the Ombudsman's investigation that any such consent was given only on his arrival at the compound. For the reasons below, the Commission need not examine the alleged deprivation of his liberty after that moment.   67.   Article 5 para. 1 (Art. 5-1) refers back essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. It furthermore requires that any deprivation of liberty should be consistent with the overall purpose of Article 5 (Art. 5), namely to protect individuals from arbitrariness (see, e.g., Eur. Court HR, van der Leer v. the Netherlands judgment of 21 February 1990, Series A no. 170-A, p. 12, para. 22). If detention is to be "lawful", including the observance of a procedure prescribed by law, it must essentially comply with national law and the substantive and procedural rules thereof (cf., e.g., Eur. Court HR, Herczegfalvy v. Austria judgment of 24 September 1992, Series A no. 244, p. 21, para. 63).   68.   The Commission finds it appropriate first to examine the applicant's detention up to his arrival at the Pori Brigade. It finds it established that, in the absence of any question to this end prior to the deprivation of his liberty on his release from the County Prison on 18 June 1992, he had not yet objected anew to performing military service. It is undisputed that in those circumstances domestic law did not entitle the military police to deprive him of his liberty.   69.   It follows that at least in so far as the applicant was deprived of his liberty during his transportation from the Turku County Prison to the Pori Brigade his detention was not "lawful" within the meaning of Article 5 para. 1 (Art. 5-1) which has therefore been violated in this respect. Consequently, it is unnecessary to examine whether this detention served any of the purposes set out in subparas. (a)-(f). It is also unnecessary to examine whether the applicant's alleged detention within the military compound until 19 June 1992 at 8.05 hrs violated Article 5 (Art. 5).        CONCLUSION   70.   The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 1 (Art. 5-1) of the Convention.        (ii) Article 5 para. 2 (Art. 5-2)   71.   Article 5 para. 2 (Art. 5-2) of the Convention reads, in so far as relevant, as follows:        "Everyone who is arrested shall be informed promptly, ...,      of the reasons for his arrest and of any charge against      him."   72.   The applicant complains that he was not informed of the reasons for the deprivation of his liberty on 18 June 1992. The Government concede that he could not be informed of any reasons for his apprehension nor of any charge against him, since he had not committed any crime on account of which he could have been deprived of his liberty immediately on his release from the County Prison on that day.   73.   The Commission has just found a violation of Article 5 para. 1 (Art. 5-1) of the Convention in respect of the applicant's detention on 18 June 1992. It is evident that in the prevailing circumstances he could not be informed of any lawful reasons for his apprehension, nor of any charge against him. His complaint under Article 5 para. 2 (Art. 5-2) therefore amounts to no more than one aspect of the complaint considered under Article 5 para. 1 (Art. 5-1) (cf., mutatis mutandis, Eur. Court HR, X. v. the United Kingdom of 5 November 1981, Series A no. 46, p. 28, para. 66). This complaint therefore does not require separate examination.        CONCLUSION   74.   The Commission concludes, unanimously, that no separate issue arises under Article 5 para. 2 (Art. 5-2) of the Convention.   E.    Recapitulation   75.   The Commission concludes, by 20 votes to 10, that in the present case there has been a violation of Article 3 (Art. 3) of the Convention on account of the applicant's handcuffing on 18 June 1992 (para. 60).   76.   The Commission concludes, by 23 votes to 7, that no separate issue arises under Article 8 (Art. 8) of the Convention (para. 62).   77.   The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 1 (Art. 5-1) of the Convention (para. 70).   78.   The Commission concludes, unanimously, that no separate issue arises under Article 5 para. 2 (Art. 5-2) of the Convention (para. 74).             H.C. KRÜGER                       S. TRECHSEL             Secretary                        President         to the Commission                 of the Commission                                                     (Or. English)           PARTIALLY DISSENTING OPINION OF MRS. G.H. THUNE        I agree with the majority that there has been a breach of Article 5 para. 1 of the Convention.        As regards Article 3 of the Convention I have voted against finding a violation for the reasons expressed by Mr. Bratza in his partially dissenting opinion which I share.        I also agree with Mr. Bratza that there has been no violation of Article 8 of the Convention. My reasons, however, are slightly different:        In the case of X and Y against the Netherlands the Court expressed the view that the notion of "private life" is a broad one covering the physical as well as the moral integrity of a person (Series A no. 91, p. 11, para. 22). This notion cannot, however, be so construed that any interference with physical integrity which does not attain the level of severity required for a finding of a violation of Article 3 more or less automatically is considered to be an interference with a right guaranteed by Article 8 which would need to be justified under para. 2 of that provision. This interpretation of the Convention is supported by the Court's judgement in the Costello- Roberts case, where Article 3 was found to be "the first point of reference for examining a case concerning disiplinary measures in a school" (Series A no. 247-C, pp. 60-61, para. 36). The punishment of the small boy in question was not considered to have such adverse effects on his physical or moral integrity as to bring it within the scope of the protection afforded by Article 8.        Following this approach, it seems to me that the answer to the question whether or not an allegation of interference with physical or moral integrity comes within the ambit of Article 8 must depend on the circumstances in casu.        In the present case the applicant's allegation under Article 8 refers to handcuffing during his transportation in a military police vehicle. The Government have admitted that this measure was unnecessary due to the applicant's peaceful behaviour and understandably he himself considers that the handcuffing was an   excessively severe measure. The question still remains, however, whether this suffices for concluding that the applicant's private life within the meaning of Article 8 para. 1 was affected. In my view this question must be answered in the negative.        When the handcuffing took place, the applicant was already in the hands of the military police. His unlawful arrest had in itself repercussions on his private life and is also the basis for the Commission's finding of a violation of Article 5 para. 1 of the Convention.        I find it difficult to see that the particular circumstances of the applicant's arrest could, in addition to being examined under Article 5, be considered as an interference with his private life which calls for justification under Article 8 para. 2. Accordingly, I conclude that there has been no separate violation of Article 8.                                                     (Or. English)         PARTIALLY DISSENTING OPINION OF MM. G. JÖRUNDSSON                     and I. CABRAL BARRETO          We regret that we are unable to agree with the Commission's majority that Article 3 of the Convention has been violated. In our view it is Article 8 of the Convention that has been violated. Our reasons are the following.