CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 28 novembre 2000

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s94935B0F { width:389.85pt; display:inline-block } .sBB9EE52A { font-family:Arial } .s6B505E72 { margin:0pt; padding-left:0pt } .s4060989B { margin-left:10.52pt; text-align:justify; padding-left:7.48pt; font-family:serif } .s7ED160F0 { text-decoration:none } .s48F8B750 { font-size:8pt; display:none } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sCB27B9E { width:16.66pt; display:inline-block } .sC5412BEF { width:51.05pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s3133A7C8 { font-family:Arial; color:#0069d6 } .s23A41E03 { width:36pt; display:inline-block } EUROPEAN COURT OF HUMAN RIGHTS     852   28.11.2000   Press release issued by the Registrar   JUDGMENT IN THE CASE OF REHBOCK v. SLOVENIA   In a judgment delivered at Strasbourg on 28 November 2000 in the case of Rehbock v.   Slovenia, the European Court of Human Rights held:   by 6 votes to 1, that there had been a violation of Article 3 (prohibition of inhuman treatment) of the European Convention on Human Rights on account of the treatment to which the applicant had been subjected during his arrest; unanimously, that there had been no violation of Article 3 of the Convention on account of the treatment to which the applicant had been subjected during his detention; unanimously, that there had been a violation of Article 5 §§ 4 and 5 (right to liberty and security); unanimously, that there had been a violation of Article 8 (right to respect for private and family life).   Under Article 41 (just satisfaction), the Court awarded the applicant 25,000 German marks (DEM) for non-pecuniary damage and DEM 7,000 for legal costs and expenses, less the sum the applicant received as legal aid from the Council of Europe.   1.     Principal facts   The applicant, Ernst Rehbock, a German national, was born in 1959 and lives in Landshut (Germany).   On 8 September 1995 he was arrested by the Slovenian police in Dolič. The circumstances of the arrest, in the course of which he suffered injuries, were disputed between the parties. A doctor examined Mr Rehbock on 9   September 1995 and diagnosed a double fracture of the jaw and facial contusions. The applicant refused to undergo surgery.   The applicant was accused of dealing with narcotics and smuggling and detained on remand. His request for release of 3 October 1995 was dismissed on 26 October 1995. Another request for release lodged by the applicant on 29 November 1995 was dismissed on 22 December 1995. On 29 April 1996 the Maribor Higher Court upheld the first instance judgment convicting the applicant of drug-related offences and sentencing him to 17 months’ imprisonment.   During his detention in Slovenia, the applicant’s correspondence with the European Commission of Human Rights was monitored. He contended that, during this time, he was also subjected to inhuman and degrading treatment in that, in particular, he had not been provided with adequate medical care.       2.     Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 17   September 1995. Having declared the application partly admissible, the Commission adopted a report on 23 April 1999 in which it expressed the opinion that there had been (unanimously) a violation of Article 3 of the Convention; (by 24 votes to 3) a violation of Article 5 § 4, in that the applicant had not been able to have the lawfulness of his detention reviewed speedily by a court; (unanimously) that there had been a violation of the applicant’s right to compensation under Article 5 § 5; and (unanimously) that there had been a violation of Article 8 as a result of the screening of the applicant’s correspondence with the Commission, but no violation of Article   8 regarding the screening of his other correspondence.     The Commission referred [Note1] the case to the Court on 11   September 1999 and a hearing was held on 16 May 2000.   Judgment was given by a Chamber of [Note2] seven judges, composed as follows:   Elisabeth Palm (Swedish), President , Luigi Ferrari Bravo [1] (Italian), Gaukur Jörundsson (Icelandic), Riza Türmen (Turkish), Boštjan Zupančič (Slovenian), Tudor Panţîru (Moldovan), Rait Maruste (Estonian), Judges ,   and also Michael O’Boyle , Section Registrar .     3.     Summary of the judgment [2]   Complaints   The applicant complained that the treatment to which he had been subjected during his arrest and subsequent detention in Slovenia had been in violation of Article 3, that he had not been able to take proceedings by which the lawfulness of his detention would be determined speedily as required by Article 5 § 4 and that his right to compensation in this respect as guaranteed by Article 5 § 5 had been breached. He also alleged a violation of Article 8 in that his correspondence with the Commission had been monitored during his detention in Slovenia.   Decision of the Court   Government’s preliminary objections   The Government objected that the applicant had not exhausted domestic remedies as required by Article 35 § 1 (former Article 26) of the Convention as he had not lodged a constitutional complaint. The Court unanimously dismissed this objection, as it had not been raised prior to the Commission’s decision on the admissibility of the application.   The Government further objected that the Commission had examined the facts of the case under Article 5 §§ 4 and 5, despite the fact that the applicant had not invoked these provisions in his application. The Court unanimously dismissed this objection with reference to its established case-law according to which it is free to attribute to the facts of the case, as   established on the evidence before it, a characterisation in law different from that given by the applicant or to view the facts in a different manner.   Article 3 of the Convention   Given the particularly serious nature of the injury sustained by the applicant during his arrest and seeing that the facts of the dispute had not been determined by a national court, the Court found that it was for the Government to demonstrate convincingly that the use of force had not been excessive. Notwithstanding the conclusions set out in a police authority report on the conduct of the police during the applicant’s arrest of 8 March 1996, which the Government submitted to the Court on 23 May 2000, the Court found that the Government had not furnished convincing or credible arguments which would provide a basis to explain or justify the degree of force used during the arrest. It concluded that the force used had been excessive and unjustified in the circumstances. Such use of force had had as a consequence injuries which had undoubtedly caused serious suffering to the applicant of a nature amounting to inhuman treatment.   As to the alleged ill-treatment of the applicant during his detention, the Court found that the applicant had been regularly examined by doctors and that he himself had refused to undergo surgery recommended by specialists. It held that no issue under Article 3 arose in this respect.   The Court further considered that the treatment to which the applicant had been subjected in prison, namely the prison staff’s failure to provide him with pain-killing medication on several occasions, had not attained a degree of gravity warranting the conclusion that his right under Article 3 had been infringed.   Article 5 § 4 of the Convention   The Court found that the period of 23 days, which the competent court took to examine the applications for release introduced by the applicant on 3 October 1995 and 29   November 1995, was incompatible with the requirement of a speedy review laid down in Article 5 § 4.   Article 5 § 5 of the Convention   The Court found a violation of Article 5 § 5 in that the applicant’s right to compensation in respect of the violation of Article 5 § 4 of the Convention found by the Court was not ensured with a sufficient degree of certainty in Slovenian law.   Article 8 of the Convention   The Court saw no compelling reasons for the monitoring of the applicant’s correspondence with the Commission. It concluded that this interference had not been necessary in a democratic society within the meaning of Article 8 § 2 and that, accordingly, there had been a violation of Article 8. The Government’s argument that, following the enactment of an amendment to the Code of Criminal Procedure in 1998, correspondence between detained persons and the Court had ceased to be monitored, could not affect the case under consideration.   Article 41 of the Convention   In assessing the non-pecuniary damage suffered by the applicant the Court took into account the fact that the applicant had not been willing to undergo the appropriate treatment for his injury in Slovenia despite the view of medical specialists that surgery had been necessary. It awarded the applicant DEM 25,000.   As to the applicant’s claims for reimbursement of his costs and expenses, the Court considered it reasonable to award DEM 7,000, together with any value-added tax that may be chargeable, less 17,098.12 French francs received as legal aid from the Council of Europe.   The Court dismissed the remainder of the applicant’s claims for just satisfaction.     Judge Zupančič expressed a partly dissenting opinion, which is annexed to the judgment.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: (0)3 88 41 24 92)   Emma Hellyer (telephone: (0)3 90 21 42 15) Fax: (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [1] Judge elected in respect of San Marino. [2] .     This summary by the Registry does not bind the Court. [Note1]   If the Commission referred the case to the Court, followed possibly by the Government and/or the applicant(s). [Note2]   Seventeen judges for the Grand Chamber, seven for a Chamber; substitute judges are not included.