CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 16 décembre 1997

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display:inline-block } .sEAE7E486 { margin-top:0pt; margin-bottom:12pt; text-align:justify; font-size:12pt } .sA0D91B4B { margin-top:12pt; margin-bottom:0pt; text-indent:14.4pt; text-align:justify; font-size:12pt } .s9DA7C5FE { width:34.55pt; display:inline-block } .sF1D05512 { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-after:avoid; font-size:14pt } .s944BDE53 { margin-top:0pt; margin-bottom:0pt; text-indent:36pt } .sF6A12959 { width:33%; height:1px; text-align:left } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s3133A7C8 { font-family:Arial; color:#0069d6 } .sB90861A5 { font-family:Arial; font-style:italic; letter-spacing:-0.1pt } .s13F94BDE { font-family:Arial; letter-spacing:-0.1pt }         CASE OF RANINEN v. FINLAND   ( 152/1996/771/972 )                       JUDGMENT   STRASBOURG     16 December 1997     The present judgment is subject to editorial revision before its reproduction in final form in Reports of Judgments and Decisions 1997. These reports are obtainable from the publisher Carl Heymanns Verlag KG (Luxemburger Straße 449, D-50939 Köln), who will also arrange for their distribution in association with the agents for certain countries as listed overleaf.   List of Agents     Belgium : Etablissements Emile Bruylant (rue de la Régence 67,   B-1000 Bruxelles)   Luxembourg : Librairie Promoculture (14, rue Duchscher   (place de Paris), B.P. 1142, L-1011 Luxembourg-Gare)   The Netherlands : B.V. Juridische Boekhandel & Antiquariaat   A. Jongbloed & Zoon (Noordeinde 39, NL-2514 GC ‘s-Gravenhage) SUMMARY [1] Judgment delivered by a Chamber Finland – arrest, detention and handcuffing of military conscript objecting to military and substitute service I.   GOVERNMENT’S PRELIMINARY OBJECTION ( non-exhaustion of domestic remedies ) Government had not demonstrated that either a criminal prosecution or an action for damages would in specific circumstances have offered reasonable prospects of success. Conclusion : objection (six votes to three). II.   ARTICLE 5 OF THE CONVENTION A.   Article 5 § 1 Having regard to Ombudsman’s findings, applicant’s arrest and detention during his transportation by military police from prison to the barracks were to be considered contrary to national law and, accordingly, were not “lawful” under Article 5 § 1 – not established that he was unlawfully deprived of his liberty following his arrival at the barracks in breach of that provision. Conclusion : violation (unanimously). B.   Article 5 § 2 Having regard to above finding that applicant’s arrest failed to comply with Finnish law and thus gave rise to a breach of paragraph 1 of Article 5, not necessary to consider complaint under paragraph 2. Conclusion : not necessary to consider complaint (unanimously). III.   ARTICLE 3 OF THE CONVENTION Principles in Court’s case-law restated – as regards kind of treatment in question, handcuffing did not normally give rise to an issue under Article 3 where measure imposed in connection with lawful arrest or detention and did not entail use of force, or public exposure, exceeding what was reasonably considered necessary in circumstances – in this regard, it was of importance for instance whether reason to believe that person concerned would resist arrest or abscond, cause injury or damage or suppress evidence. Handcuffing of the applicant had not been made necessary by his conduct – apart from fact that measure had itself been unjustified, it had been imposed in context of unlawful arrest and detention – in addition, he had, albeit only briefly, been visible to the public on entering military police vehicle outside prison gate and had felt humiliated by appearing handcuffed in front of members of his support group – these considerations were no doubt relevant for the purposes of determining whether the contested treatment was “degrading” within meaning of Article 3. However, Court not convinced that incident had adversely affected applicant’s mental state – nothing in the evidence suggested that causal link existed between impugned treatment and his “undefined psychosocial problem” – allegation that the handcuffing aimed at debasing or humiliating him not made out – finally, not contended that handcuffing had affected him physically – not established that treatment in issue attained minimum level of severity required by Article 3. Conclusion : no violation (unanimously). IV.   ARTICLE 8 OF THE CONVENTION According to Court’s case-law, notion of “private life” was broad and not susceptible to exhaustive definition; it could, depending on the circumstances, cover the moral and physical integrity of the person – these aspects of the concept extended to situations of deprivation of liberty – not excluded that there might be circumstances in which Article 8 could be regarded as affording a protection in relation to conditions during detention which did not attain level of severity required by Article 3. Applicant’s complaint under Article 8 based on same facts as that under Article 3, which the Court had considered and found not established in essential aspects – insufficient elements to find that treatment complained of entailed such adverse effects on his physical or moral integrity as to constitute interference with respect for private life as guaranteed by Article 8. Conclusion : no violation (seven votes to two). V.   ARTICLE 50 OF THE CONVENTION A.   Non-pecuniary damage Compensation awarded on equitable basis (unanimously). B.   Costs and expenses Awarded in part (unanimously). COURT’S CASE-LAW REFERRED TO 18.1.1978, Ireland v. the United Kingdom; 25.4.1978, Tyrer v. the United Kingdom; 10.2.1983, Albert and Le Compte v. Belgium; 26.3.1985, X and Y v. the Netherlands; 16.12.1992, Niemietz v. Germany; 25.3.1993, Costello-Roberts v. the United Kingdom; 25.2.1997, Z v. Finland; 9.10.1997, Andronicou and Constantinou v. Cyprus   In the case of Raninen v. Finland [2] , The European Court of Human Rights, sitting, in accordance with Article   43 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and the relevant provisions of Rules   of Court B [3] , as a Chamber composed of the following judges:   Mr   R. Bernhardt , President ,   Mr   T hór Vilhjálmsson ,   Mr   I. Foighel ,   Mr   R. Pekkanen ,   Mr   A.N. Loizou ,   Mr   J.M.   Morenilla ,   Mr   M.A. Lopes Rocha ,   Mr   J. Makarczyk ,   Mr   K. Jungwiert , and also of Mr   H. Petzold , Registrar , and Mr   P.J. Mahoney , Deputy Registrar , Having deliberated in private on 30 August and 26 November 1997, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case was referred to the Court by the European Commission of Human Rights (“the Commission”) and by the Government of the Republic of Finland (“the Government”) on 4   December 1996 and 25   February 1997 respectively, within the three-month period laid down by Article   32 §   1 and Article   47 of the Convention. It originated in an application (no.   20972/92) against Finland lodged with the Commission under Article   25 by a Finnish citizen, Mr   Kaj Raninen, on 11   November 1992. The Commission’s request referred to Articles   44 and 48 and to the declaration whereby Finland recognised the compulsory jurisdiction of the Court (Article   46). The Government’s application referred to Articles   44 and 48. The object of the request and of 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, 5 and 8 of the Convention. 2.     In response to the enquiry made in accordance with Rule   35 §   3 (d) of Rules   of Court B, the applicant designated the lawyers who would represent him (Rule   31). 3.     The Chamber to be constituted included ex officio Mr   R. Pekkanen, the elected judge of Finnish nationality (Article   43 of the Convention), and Mr   R. Bernhardt, the Vice-President of the Court (Rule   21 §   4 (b)). On 20   January 1997, in the presence of the Registrar, the President of the Court, Mr   R. Ryssdal drew by lot the names of the other seven members, namely Mr   Thór Vilhjálmsson, Mr   I. Foighel, Mr   A.N. Loizou, Mr   J.M.   Morenilla, Mr   M.A. Lopes Rocha, Mr   J. Makarczyk and Mr   K. Jungwiert (Article   43 in fine of the Convention and Rule   21 §   5). 4.     As President of the Chamber (Rule   21 §   6), Mr   Bernhardt, acting through the Registrar, consulted the Agent of the Government, the applicant’s lawyers and the Delegate of the Commission on the organisation of the proceedings (Rules   39 §   1 and 40). Pursuant to the order made in consequence on 10   March 1997, the Registrar received the applicant’s memorial on 9   June 1997 and the Government’s memorial on 10   June 1997. In a letter of 15   July 1997, the Secretary to the Commission informed the Registrar that the Delegate did not wish to reply in writing. 5.     On 25 June 1997 the Commission produced a document, as requested by the Registrar on the President’s instructions. 6.     In accordance with the President’s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 27   August 1997. The Court had held a preparatory meeting beforehand. There appeared before the Court: (a)   for the Government Mr   H. Rotkirch , Ambassador, Director General for Legal       Affairs, Ministry for Foreign Affairs,   Agent , Mr   A. Kosonen , Head of Unit, Legal Department,       Ministry for Foreign Affairs,   co-Agent , Mr   S. Kipinoinen , Senior Governmental Secretary,       Ministry of Defence,   Adviser ; (b)   for the Commission Mr   M.A. Nowicki ,   Delegate ; (c)   for the applicant Mr   J. Kortteinen, Assistant Professor of Constitutional Law,       University of Helsinki, Mrs   M.   Laine , former lawyer of the Union of       Conscientious Objectors,   Counsel . The Court heard addresses by Mr Rotkirch, Mr Nowicki and Mr   Kortteinen. AS TO THE FACTS I.   Particular circumstances of the case A.   Background to the case 7.     The applicant is a Finnish national who was born in 1967 and resides in Helsinki. In 1986 he was called up for military service but his duty to report for service was suspended until 20   March 1992 because of his studies. Prior to this date he declared in writing to the army that he objected to performing any kind of military or substitute civilian service. On 7   April 1992 he presented himself at the Army Headquarters ( pääesikunta, huvudstaben ) and submitted a petition against military service. After having reiterated his petition the following day he was arrested on suspicion of having avoided service. He was eventually brought to the barracks of the Pori Brigade ( Porin Prikaati – “Pori barracks”) at Säkylä, where he had been due to report on 20   March 1992. On his renewed objection to carrying out military duties his arrest was prolonged on 9 April. 8.     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 the District Court convicted and sentenced him to imprisonment (suspended) for having avoided military service from 20   March to 8 April and for having committed an offence in service on 9   April (Chapter   45, Articles   4 and 15, of the 1889 Penal Code ( rikoslaki, strafflag 39/1889 as amended by Act no.   792/89)). The above offences applied to conscripts like the applicant who refused to perform either military or substitute civilian service. Punishment imposed for such refusal did not relieve the conscript from his duty to serve, which applied until the end of the year of his thirtieth birthday (section   23, subsection   2 (3) and section   15 of the 1950 Military Service Act). 9.     Immediately upon his release on 24   April 1992, military staff brought the applicant back to the Pori barracks. Subsequently, as he persisted in objecting to military service, he was re-arrested and placed in detention on remand. On 12 May the District Court convicted him of a further offence in service and sentenced him to imprisonment. The sentence was to be served at a later date. 10.     On his release the same day, military personnel brought the applicant back to the Pori barracks. As he continued to object to carrying out military service he was re-arrested and detained on remand. On 29   May 1992 the District Court convicted the applicant of a further offence in service and sentenced him to imprisonment. The sentence was to be served at a later date. 11.     After his release on the same date he was again brought back to the Pori barracks by the military police, where he was re-arrested as he persisted in objecting to military service. 12.     On 2   June 1992 the applicant started to serve his sentences at the County Prison. When released on parole on 9 June he was again taken to the Pori barracks by the military police, but since he continued to refuse military service he was re-arrested and placed in detention on remand. 13.     On 18 June the District Court convicted the applicant of two offences in service and sentenced him to further imprisonment. The sentence was to be served at a later date. The District Court in addition revoked the order to release the applicant on parole. B.     Transportation of the applicant to the Pori barracks on 18   June 1992 14.     After the court hearing on 18   June 1992, the applicant was, as had occurred on previous occasions, taken back to the County Prison before being released. In the prisoners’ check-out room, a military police squad consisting of conscripts and headed by R., a corporal, waited for the applicant. In the prison courtyard he was handcuffed and informed of his arrest. He was subsequently taken to the military police vehicle outside the prison gate. Members of his support group, who had been waiting for him outside the gate, were photographing and videotaping the incident. He was then taken back to the Pori barracks at Säkylä, situated 100–150 kilometres from Turku, a journey which normally takes approximately two hours by car. Following his arrival at the Pori barracks, the applicant was taken to the military hospital at the compound. He was released from his handcuffs in the hospital’s entry hall. 15.     According to the applicant, the measures taken by the military police had all been against his will. In the Government’s submission, he had consented to being transported to the military hospital. 16.     The applicant did not undergo any medical examination at the military hospital but was subjected to further questioning by army personnel on 19   June 1992, during which he renewed his objection to military service. As a result he was re-arrested at 8.05 a.m. on the same date. C.   Further convictions and detention of the applicant and discharge 17.     On 22   June 1992 the District Court again ordered his detention on remand in the County Prison. On 26 June he started serving the aggregated prison sentence imposed by the District Court on 18 June (see paragraph   13 above). On 29 June the applicant was convicted of an offence committed in service on 19   June 1992 and sentenced to further imprisonment. In its judgment the District Court stated that he had been deprived of his liberty as from 19   June. 18.     On 20   August 1992 the applicant was released from prison on parole. As he continued to object to military service he was twice detained on remand, in August and September, and was convicted of further offences in service and sentenced to further imprisonment. On 5   October 1992 the applicant was discharged from his military service for one year. D.   The applicant’s petition to the Parliamentary Ombudsman and the ensuing proceedings 19.     On 16 February 1993 the applicant lodged a petition with the Parliamentary Ombudsman ( eduskunnan oikeusasiamies, riksdagens justitieombudsman ; “the Ombudsman”), complaining in particular about the deprivation of his liberty from 18 to 19 June 1992 and the related handcuffing. He emphasised that at no moment had he attempted to escape from the military police or otherwise shown any intention of doing so. He had also been handcuffed on 11 April and 2   June 1992 while being transported to the County Prison after the District Court’s hearings. In his petition the applicant also submitted that, on his arrival at the Brigade on 18   June 1992, R. had asked him whether he would agree to go to the military hospital. The applicant had then restated his objection to performing any kind of service but he had not consented to going to the hospital, as was shown by the fact that he had been handcuffed until his arrival there. At any rate, he had not acted in a way which could lead anyone to believe that he had wished to receive hospital care. 20.     Heard as a suspect at the Ombudsman’s request, R. stated that he had been instructed by the Legal Officer of the Pori barracks 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 arrested was to be informed thereof and was also to be handcuffed. On the applicant’s return to the Pori barracks, R. had been instructed by the Duty Officer to ask the applicant whether he would agree to take up his military service. As he objected 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. 21.     The army authority in the Pori Brigade told 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 ordered 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, as on previous occasions, he was only to be returned to the Pori barracks. In view of his repeated convictions for military offences, R. had nevertheless considered that the applicant’s handcuffing was necessary in order to ensure his return to the Pori barracks. 22.     The Army Headquarters made the following observations to the Ombudsman. The applicant’s arrest had taken place immediately on his release by the prison authorities. There was no evidence at that time that he continued to object 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 earlier repeated objections to performing any kind of service and the likelihood that this would continue. Moreover, his support group had been disturbing R. during the incident. The Army Headquarters nevertheless conceded that, on the basis of the evidence available, there had been no acceptable grounds for arresting the applicant, which measure had stemmed from the fact that R. had made an incorrect assessment of the situation in combination with the surrounding circumstances. Nor had there been any justification for handcuffing the applicant. 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 his support group had attended his release from the County Prison, it had not been likely that he would escape on that occasion. 23.     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 escape. On previous occasions the latter had in fact presented himself voluntarily to them. The Ombudsman considered that the applicant’s arrest on 18   June 1992 had lacked a legal basis since, prior to the measure, he had not been asked whether he would persist in his refusal to perform military or substitute service. The Ombudsman furthermore stated: “There were no objectively justifiable grounds for putting Raninen in handcuffs. Apparently R. proceeded in this situation as he had been trained to do. When evaluating the actions of R., one must take into consideration his inexperience and the rather general nature of the directions which he had received from his brigade. R. himself believed that he acted in accordance with orders. A more experienced military person should have been assigned to fetch Raninen from the County Prison. It is not even claimed that R.’s behaviour was inappropriate in any other respect. In my opinion, and taking into consideration the circumstances, this action does not call for measures to be taken against R. by the Ombudsman.” In addition, he urged the Army Headquarters and the Pori barracks’ Commander to see to it that in both the training and activities of the military police a clear distinction was made between situations arising in times of peace and of war. The Ombudsman did not order that criminal charges be brought. E.     Subsequent developments 24.     On 20 February 1995 the District Court ( käräjäoikeus, tingsrätten ) of Kokemäki convicted the applicant of refusal to carry out military service under section   39 of the 1950 Military Service Act ( asevelvollisuuslaki, värnpliktslag 452/50, as amended with effect from 1   June 1994). This provision authorised the punishment of a conscript who categorically objected to performing military service, who did not opt for substitute civilian service and whose behaviour would not change as a result of punishment imposed under Chapter   45 of the Penal Code. The District Court sentenced him to 194 days’ imprisonment. Since he had already served 212 days of his previous sentences, this was considered sufficient. II.   Relevant domestic law and practice A.   Provisions concerning arrest and transportation 25.     According to the Military Discipline Act 1983 ( sotilaskurinpitolaki, militär disciplinlag 331/83), a person caught committing a military offence or suspected on likely grounds of having committed such an offence may be arrested provided this is necessary in order to maintain or restore discipline, order or safety (section   16). 26.     According to the 1889 Penal Code ( rikoslaki, strafflag 39/1889), a soldier carrying out police duties is entitled, if he encounters resistance, to use the necessary force justified by the circumstances (Chapter   3, section   8a, as added by Act no.   321/83). 27.     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 wartime 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. B.     Legal remedies 28.     Article 93 §§ 2 and 3 of the Constitution ( Suomen hallitusmuoto, Regeringsform för Finland 94/19) provides: “Anyone whose rights have been infringed or who has suffered damage as a result of an illegal act or negligence by a civil servant, is entitled to claim that the civil servant be punished and ordered to pay compensation for damages or to demand that he or she be prosecuted in accordance with the rules provided for by law. Whether and to what extent the State is liable to pay damages caused by civil servants, is to be governed by specific provisions.” 29.     A civil servant who, by intent or neglect or carelessness, acts or omits to act in breach of his or her professional duties as provided for in statute or regulation is liable to punishment, if the act or omission is not insignificant, having regard to the damage caused and other circumstances (Chapter 40, Articles 10 and 11 of the Penal Code). Article 12 of Chapter 40 provides that the failure to observe military duties may also be considered under the particular offences laid down in Chapter 45. According to Article 15 of Chapter 45, a member of the armed forces who, by intent or neglect or negligence, fails to comply with the relevant military rules and regulations is liable to disciplinary sanctions or to imprisonment of up to one year. Specific provisions on disciplinary measures are contained in the Military Discipline Act 1983 ( sotilaskurinpitolaki , militär disciplinlag 25.3.1983/331). 30.     If the Parliamentary Ombudsman receives a petition against a public official or authority concerning a matter falling within his area of competence, he or she is to carry out an investigation. If the Ombudsman suspects that the person or authority concerned has committed an unlawful act or a fault calling for his intervention, he or she must inform and hear that person or authority. If the matter cannot rest by the Ombudsman expressing criticism, he or she must prosecute, or have prosecuted, the person who is suspected of being guilty of the unlawful conduct or order that disciplinary proceedings be instituted against the latter (Rule 7 of the Parliament’s Instruction to the Parliamentary Ombudsman, Eduskunnan oikeusasiamiehen johtosääntö , Instruktion för riksdagens justitieombudsman 10.1.1920/2 ) . 31.     A person who has been deprived of his or her liberty for twenty-four hours or more may claim compensation from the State under section   1 (4) of the 1974 Act on Compensation by the State for the Deprivation of the Liberty of Detained or Convicted Innocent Persons ( laki 422/74 syyttömästi vangitulle tai tuomitulle valtion varoista vapauden menetyksen johdosta maksettavasta korvauksesta, lag 422/74 om ersättning av statens medel som till följd av frihetsberövande skall betalas till oskyldigt häktad eller dömd, hereinafter referred to as “the Compensation for Deprivation of Liberty Act”). 32.     Under the Damage Compensation Act 1974 ( vahingonkorvauslaki, skadeståndslag 412/74) proceedings may also be brought against the State in respect of damage resulting from fault or neglect by its employees in the performance of their duties (Chapters   3 and 4). In a decision of 31 October 1985, Turku Court of Appeal ordered the State to pay compensation under the Damage Compensation Act 1974 to a person who, after causing disturbance at the emergency unit of a hospital, had been arrested and left by the police at a forest road nine kilometres from the town centre. Although it had been lawful to arrest him, the Court of Appeal considered that the measure had been carried out in a manner which constituted a breach of the police officers’ professional duties and which had caused suffering deserving of compensation to the person concerned. In addition it ordered the police officers to pay fines. PROCEEDINGS BEFORE THE COMMISSION 33.     In his application of 11 November 1992 to the Commission (no.   20972/92), Mr   Raninen alleged that he had been subjected to degrading treatment in violation of Article   3 of the Convention. In this connection he invoked a series   of matters: the number of times he had been interrogated, detained on remand and convicted in relation to one single circumstance, namely his objection to military or substitute service; his handcuffing on 18   June 1992; his isolation during custody; and the fact that he had been classified as temporarily unfit for service on account of an “undefined psychosocial problem”. The applicant further alleged that the deprivation of his liberty following his release on 18   June 1992 until his arrest on 19   June gave rise to a violation of Article   5 §   1. Moreover, there had been a breach of Article   5 §   2 as he had not been informed of the reasons for his arrest on 18 June or his placement in the military hospital. In addition, the applicant alleged that the criminal proceedings against him had given rise to various breaches of the fair hearing guarantees in Article 6 of the Convention and of the prohibition of double jeopardy in Article 4 of Protocol No.   7. Finally, when compared with the more lenient sentencing of conscientious objectors who carried out substitute service, the sentences imposed upon him as a total objector had constituted discrimination in violation of Article   14 of the Convention in conjunction with Article   4 of Protocol No.   7. 34.     On 7 March 1996 the Commission declared admissible the applicant’s complaints relating to his handcuffing on 18   June 1992 and the lawfulness of his deprivation of liberty from 18 to 19 June 1992. It had declared parts of the application inadmissible on 30 November 1994 and declared the remainder inadmissible on 7 March 1996. 35.     In its report of 24   October 1996 (Article   31), the Commission expressed the opinion that there had been a violation of Article   3 of the Convention (by twenty votes to ten); that no separate issue arose under Article   8 of the Convention (by twenty-three votes to seven); that there had been a violation of Article   5 §   1 of the Convention (unanimously) and that no separate issue arose under Article 5 § 2 of the Convention (unanimously). The full text of the Commission’s opinion and of the three partly dissenting opinions contained in the report is reproduced as an annex to this judgment [4] . final submissions to the court 36.     At the hearing on 27 August 1997 the Government, as they had done in their memorial, requested the Court to uphold their preliminary objection that the applicant had failed to exhaust domestic remedies (Article   26). In the alternative, they invited the Court to hold that there had been no violation of Articles   3 and 8 of the Convention in the present case but left to the Court’s discretion whether there had been a violation of Article   5 of the Convention. 37.     On the same occasion the applicant requested the Court to find that there had been violations of the above-mentioned provisions and to award him just satisfaction under Article   50 of the Convention. as to the law I.   THE GOVERNMENT’S PReLIMINARY OBJECTION 38.     The Government, as they had done at the admissibility stage before the Commission, maintained that the applicant had failed to fulfil the condition of exhaustion of domestic remedies under Article 26 of the Convention. Therefore the Court had no jurisdiction to entertain his Convention complaints. They stressed that the applicant could have brought charges, or requested that charges be brought, against the responsible military personnel and could have claimed damages from the latter or from the State (see paragraphs   28–29 above). As an example to show the effectiveness of domestic remedies the Government referred to a case concerning irregular detention imposed in circumstances which in their view were comparable to those of the applicant’s transportation from the prison to the Pori barracks. In that case the Turku Court of Appeal had imposed fines on the responsible police officers and had ordered the State to pay compensation under the Damage Compensation Act (see paragraph   32 above). Furthermore, the Government maintained that, apart from the fact that the Ombudsman was not a remedy for the purposes of the exhaustion rule   in Article   26, it could not be inferred from his findings of 20   May 1994 (see paragraph 23 above) that the applicant had no reasonable prospects of success were he to exercise any of the remedies available to him under national law. In fact, it was only in exceptional cases that the Ombudsman would bring charges. In those two hundred or so cases per year where the Ombudsman had established fault, he would as a rule   take less drastic measures, by imposing disciplinary sanctions or making a statement or a recommendation. 39.     The applicant argued that, as was evident from Article   93, of the Finnish Constitution, in order to establish liability of a civil servant to pay damages it was necessary to show that he or she had committed an offence in office or had acted negligently. This was the situation for cases, like the present one, concerning compensation claims in respect of deprivation of liberty lasting less than twenty-four hours, falling outside the strict liability rule   in the Compensation for Deprivation of Liberty Act (see paragraph   31 above). Among those cases, there was not a single example of compensation being awarded in the absence of a finding that the responsible public official had committed an offence while exercising official duties. In the applicant’s submission, he would have had no prospects of success were he to bring charges or institute civil proceedings for damages, bearing in mind the fact that the Ombudsman, as the applicant understood it, did not find any negligence on the part of the military officials involved in the measures at stake. 40.     The Commission interpreted the Ombudsman’s findings as entailing that the treatment to which the applicant had been subjected, although reprehensible, did not require that charges be brought against any public official (see paragraph   23 above). Moreover, whilst compensation could be sought under the Compensation for Deprivation of Liberty Act in respect of deprivation of liberty which had lasted at least twenty-four hours (see paragraph   31 above), the applicant’s detention had been of shorter duration. Therefore, the remedies referred to by the Government (see paragraphs   28–32 above) did not provide reasonable prospects of success and could not be considered as effective and adequate for the purposes of Article   26 of the Convention in relation to the complaints at issue. The Commission’s Delegate in addition emphasised the special role of the Ombudsman in supervising the service conditions in the army and the fact that no criminal proceedings had been instigated by the Brigade Commander following the Ombudsman’s findings of 20 May 1994 (see paragraph 23 above). Against this background, it was clear that the applicant stood little or no chance of success had he himself sought to bring charges against the relevant military personnel. As regards the possibility of bringing an action for damages the Delegate noted the Ombudsman’s finding that Corporal R. had acted in good faith. Already on this basis the present case was distinguishable from the one decided by the Turku Court of Appeal in 1985, the only case cited by the Government, where negligence was proved. In the circumstances the Commission found that a civil action would not have provided reasonable prospects of success either (see paragraphs   31–32 above). 41.     The Court reiterates that the rule   of exhaustion of domestic remedies in Article   26 of the Convention requires an applicant to have normal recourse to remedies within the national legal system which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness. There is no obligation to have recourse to remedies which are inadequate or ineffective (see, for instance, the Andronicou and Constantinou v. Cyprus judgment of 9 October 1997, Reports   of Judgments and Decisions 1997-VI , pp.   2094–95, §   159). 42.     Whilst it is true that the Ombudsman found on 20 May 1994 that the applicant’s arrest on 18 June 1992 was unlawful and his handcuffing unjustified, it was a condition for both individual and State liability under the relevant Finnish law that the measures should have been caused by fault or neglect (see paragraphs   23, 29 and 32 above). On the basis of evidence taken from Corporal R. and from the military authorities, the Ombudsman found that R. had acted in good faith and implicitly that it was not appropriate to impose disciplinary sanctions on him or any other army official, or to bring charges (see paragraphs   20–23 above). Against this background the Government have not demonstrated that either a criminal prosecution or an action for damages would in the specific circumstances of the case have offered reasonable prospects of success. Accordingly, the Court concludes that the Government’s preliminary objection of non-exhaustion must be dismissed. II.   ALLEGED VIOLATION OF ARTICLE   5 OF THE CONVENTION A.   Article   5 §   1 of the Convention 43.       The applicant alleged that the deprivation of his liberty following his release on 18 June 1992 until he was formally arrested in the morning on 19   June 1992 gave rise to a breach of Article   5 §   1 of the Convention, which reads: “1.     Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a)   the lawful detention of a person after conviction by a competent court; (b)   the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c)   the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d)   the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e)   the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f)   the lawful arrest or detention of a person to prevent his effecting