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ПОСТАНОВЛЕНИЕ ЕВРОПЕЙСКОГО СУДА ПО ПРАВАМ ЧЕЛОВЕКА ОТ 04.12.1995 РИБИЧ (RIBITSCH) ПРОТИВ АВСТРИИ [РУС. (ИЗВЛЕЧЕНИЕ), АНГЛ.]

(по состоянию на 20 октября 2006 года)

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                                               [неофициальный перевод]
   
                  ЕВРОПЕЙСКИЙ СУД ПО ПРАВАМ ЧЕЛОВЕКА
                                   
                           СУДЕБНОЕ РЕШЕНИЕ
                    РИБИЧ (RIBITSCH) ПРОТИВ АВСТРИИ
                                   
                   (Страсбург, 4 декабря 1995 года)
   
                             (Извлечение)
   
          КРАТКОЕ НЕОФИЦИАЛЬНОЕ ИЗЛОЖЕНИЕ ОБСТОЯТЕЛЬСТВ ДЕЛА
   
                           A. Основные факты
   
       Г-н  Рибич,  1958  г.  рождения, гражданин  Австрии,  проживает
   совместно  с  женой  в  Вене.  21 мая 1988  г.  его  квартира  была
   подвергнута  обыску  сотрудниками  полиции  в  связи  с  уголовными
   расследованиями  фактов  и обстоятельств  смерти  двух  человек  от
   повышенной    дозы   героина.   В   последующие   дни   проводились
   дополнительные обыски и допросы заявителя и его жены.
       В  полдень  31 мая 1988 г. заявитель и его жена были арестованы
   по  подозрению  в  незаконном обороте наркотиков и содержались  под
   стражей  в  полиции  до  утра  2 июня 1988  г.  После  освобождения
   заявитель  сообщил нескольким лицам, включая одного  журналиста,  о
   плохом  обращении, которому он якобы подвергся, находясь в полиции.
   2  июня заявитель был обследован в больнице города Мейдлинга,  а  3
   июня  его  осмотрел  врач  -  терапевт.  В  медицинском  заключении
   больницы  было  зафиксировано наличие нескольких  кровоподтеков  на
   правой  руке г-на Рибича, что было подтверждено врачом - терапевтом
   во  время  судебного  разбирательства.  Коллега  журналиста  сделал
   фотографии  этих травм. После освещения инцидента по  радио  против
   полицейских,   замешанных  в  этом  деле,  было  начато   уголовное
   расследование.  Заявитель  принимал  в  нем  участие   в   качестве
   гражданской стороны.
       Во  время судебного разбирательства 13 октября 1989 г. районный
   уголовный  суд г. Вены заслушал обвиняемых полицейских, свидетелей,
   заявителя,  его  жену  и  врача  -  терапевта,  который  обследовал
   заявителя  ранее.  В результате судебного разбирательства  один  из
   полицейских  был  приговорен за нанесение  телесных  повреждений  к
   двум   месяцам   тюремного  заключения,  отстранен  от   выполнения
   служебных   обязанностей  и  получил  предписание  суда   выплатить
   заявителю  одну  тысячу австрийских шиллингов.  Суд  принял  версию
   событий,  представленную  г-ном  Рибичем,  и  исключил  возможность
   того,   что   его  телесные  повреждения  могли  носить   случайный
   характер. Двое других полицейских были оправданы.
       14  сентября  1990  г. Земельный суд отменил Решение  районного
   суда  и  оправдал полицейского. Тщательно рассмотрев обстоятельства
   дела,  суд  пришел к выводу, что представленная полицейским  версия
   событий,  согласно  которой заявитель ударился о дверь  полицейской
   автомашины,  не  была опровергнута и что по крайней мере  некоторые
   утверждения  заявителя  не  могут  быть  доказаны  с  уверенностью,
   необходимой  для  осуждения в уголовном порядке.  Кроме  того,  суд
   напомнил,  что  г-н  Рибич  ранее, в 1988  г.,  уже  привлекался  к
   ответственности за незаконный оборот наркотиков.
       26 ноября 1990 г. Конституционный суд по жалобе заявителя вынес
   Решение, что арест и заключение под стражу заявителя, равно  как  и
   обыск  без ордера в его доме, были незаконными и нарушили его право
   на  свободу и неприкосновенность жилища; однако Суд отклонил жалобу
   заявителя относительно ненадлежащего обращения.
   
           B. Разбирательство в Комиссии по правам человека
   
       В  жалобе,  поданной  в Комиссию 5 августа 1991  г.,  заявитель
   утверждал,  что происшедшее с ним в полиции подпадает под  действие
   статьи  3  Конвенции и положений других ее статей. 20 октября  1993
   г.  Комиссия  признала  приемлемой  жалобу  о  нарушении  статьи  3
   Конвенции, остальную часть жалобы она отклонила.
       Предприняв  безуспешную попытку добиться  мирового  соглашения,
   Комиссия  представила  4 июля 1994 г. доклад,  в  котором  изложила
   факты  по  делу  и  выразила мнение, что статья  3  Конвенции  была
   нарушена (десятью голосами против шести).
       Комиссия передала дело в Суд 9 сентября 1994 г.
   
                    ИЗВЛЕЧЕНИЕ ИЗ СУДЕБНОГО РЕШЕНИЯ
   
                             ВОПРОСЫ ПРАВА
   
           I. О предполагаемом нарушении статьи 3 Конвенции
   
       27.  Г-н Рибич утверждал, что, находясь под стражей в отделении
   безопасности  федеральной  полиции г. Вены,  он  подвергся  плохому
   обращению, несовместимому со статьей 3 Конвенции, которая гласит:
       "Никто  не  должен  подвергаться пыткам  и  бесчеловечному  или
   унижающему достоинство обращению или наказанию".
       28.  Правительство оспорило это утверждение. Комиссия  признала
   его достаточно обоснованным.
       29.   Заявитель   утверждал,  что   ряд   свидетелей,   включая
   журналиста,  психолога  и врачей (см. п.  13  и  16  выше),  видели
   телесные  повреждения,  имевшиеся  у  него  после  освобождения  из
   полицейского  участка,  в частности кровоподтеки  на  внутренней  и
   внешней  сторонах  предплечья правой руки.  Эти  повреждения  могли
   иметь только одно объяснение, а именно: действия допрашивавших  его
   полицейских,  которые  до  этого грубо оскорбляли  его  и  угрозами
   принуждали сделать признание (см. п. 15 и 16 выше).
       30.  Правительство не оспаривало того, что телесные повреждения
   были  получены  г-ном  Рибичем во время его нахождения  в  полиции,
   однако   отметило,   что   внутреннее  расследование   не   выявило
   незаконных   действий  со  стороны  полицейских.   Вместе   с   тем
   Правительство  сослалось  на выводы районного  суда  г.  Вены,  его
   оценку  доказательств,  в частности путем дополнительного  судебно-
   медицинского  заключения,  а  также  показаний  г-на  Рибича  и  их
   достоверности.   Правительство  заявило,  что  для   доказательства
   нарушения  Конвенции необходимо, чтобы факт плохого  обращения  был
   доказан "вне всяких сомнений".
       31.  Комиссия выразила мнение, что государство несет  моральную
   ответственность за любое лицо, содержащееся под арестом,  поскольку
   оно  полностью  находится  во власти полиции.  В  случае  получения
   телесных  повреждений  в  этот период именно  Правительство  должно
   предоставить   доказательства,  ставящие  под   сомнение   описание
   событий, сделанное пострадавшим, особенно в тех случаях, когда  его
   показания  подтверждены  медицинскими документами.  В  данном  деле
   объяснения  Правительства недостаточны для того, чтобы  обоснованно
   усомниться   в   показаниях  заявителя  относительно  ненадлежащего
   обращения, которому он подвергся, находясь под стражей в полиции.
       32.   Суд   напоминает,  что,  согласно  положениям  Конвенции,
   установление  и  проверка фактов являются в  основном  прерогативой
   Комиссии   (статья   28  п.  1  и  статья  31).   Однако   Суд   не
   ограничивается фактами, установленными Комиссией; он свободен в  их
   оценке  в свете всех представленных ему материалов (см. Решение  по
   делу  Класса от 22 сентября 1993 г. Серия A, т. 269, с. 17, п. 29).
   Суд  указал  далее,  что в принципе он не должен  противопоставлять
   свое видение фактов позиции внутренних судов, но тем не менее и  он
   связан выводами внутренних судов не больше, чем выводами Комиссии.
       Рассмотрение  обстоятельств  дела Судом  должно  быть  особенно
   тщательным  в  тех  случаях, когда выводы  Комиссии  отличаются  от
   выводов  внутренних  судов.  Суд должен быть  особенно  внимателен,
   когда  речь  идет  о  правах, содержащихся в  статье  3  Конвенции,
   которая  категорически  запрещает  пытки  и  унижающее  достоинство
   обращение  или  наказание, независимо от поведения потерпевшего.  В
   отличие  от большинства статей Конвенции и Протоколов N  1  и  4  в
   статье  3 не предусмотрены никакие исключения, и в соответствии  со
   статьей  15  п.  2  не может быть отступлений от статьи  3  даже  в
   случае  чрезвычайного  положения, угрожающего  существованию  нации
   (см.  Решение  по делу Ирландия против Соединенного Королевства  от
   18 января 1978 г. Серия A, т. 25, с. 65, п. 163).
       33. В данном деле Суд отмечает следующие факты:
       1)  Наличие телесных повреждений у г-на Рибича было установлено
   еще  2  июня 1988 г. в медицинском заключении, выданном в  больнице
   Мейдлинга,  и было подтверждено 3 июня 1988 г. врачом - терапевтом,
   д-ром  Шейдлбауэром, и рядом других свидетелей. Во  время  слушания
   дела  в  первой  инстанции д-р Шейдлбауэр заявил,  что  он  считает
   весьма  маловероятным,  чтобы эти травмы были  получены  заявителем
   при  ударе  о  дверь  легковой автомашины; во время  апелляционного
   разбирательства    специалист   в   области   судебной    медицины,
   назначенный  Земельным  уголовным судом,  заявил,  что  такой  удар
   может   объяснить  "только  одну  из  нескольких  травм,   которые,
   возможно, были нанесены". Не оспаривается, что заявитель  имел  ряд
   кровоподтеков  на  внешней и внутренней сторонах предплечья  правой
   руки (см. п. 13, 16, 17 и 20 выше).
       2)   В   объяснениях,  представленных  полицейским  инспектором
   Марклем,  имеются противоречия. Его отчет, ошибочно датированный  1
   июня  1988  г.,  был  якобы составлен по рекомендации  вышестоящего
   начальника,  г-на Гросса, хотя последний заявил, что  ему  не  было
   известно о каких-либо телесных повреждениях (см. п. 15 и 17  выше).
   Показания  г-на  Маркля относительно того, когда заявитель  впервые
   показал   ему  ушибы  на  правой  руке,  являются  противоречивыми.
   Наконец,   он  не  предпринял  каких-либо  действий  по  заявлениям
   свидетелей  о  том,  что  г-н  Рибич продавал  стиральный  порошок,
   который выдавал за героин (см. п. 17 выше).
       3)  Водитель автомашины, полицейский Фролих, заявил, что он  не
   видел, чтобы г-н Рибич падал (см. п. 15 выше).
       4)  После тщательного изучения доказательств районный уголовный
   суд  г.  Вены  признал  полицейского Маркля  виновным  в  нанесении
   телесных  повреждений.  Суд посчитал заслуживающей  доверия  версию
   событий,  представленную г-ном Рибичем, опираясь, в  частности,  на
   ее  совпадение  с  показаниями врача - терапевта. И  наоборот,  суд
   охарактеризовал как "вызывающую сомнения" линию защиты, принятую г-
   ном   Марклем,   показания  которого  казались  противоречивыми   и
   сбивчивыми (см. п. 17 выше).
       5) В свою очередь Земельный уголовный суд г. Вены оправдал г-на
   Маркля,  поскольку  он  не имел достаточных  оснований  "отвергнуть
   показания  обвиняемого  или  принять  хотя  бы  частично  показания
   гражданской  стороны - г-на Рибича - с уверенностью, которая  могла
   бы   послужить  основанием  для  осуждения  в  уголовном  порядке".
   Излагая   мотивы   своего   решения,   суд   выразил   сомнение   в
   достоверности  показаний  заявителя на основании,  не  связанном  с
   рассматриваемым  им  делом, что в октябре 1988  г.  г-н  Рибич  был
   осужден  за  преступление,  связанное с  наркотиками,  что  он  был
   безработным,  что он жил не по средствам и что вместо  того,  чтобы
   подать  жалобу, "предпочел выступить с обвинениями по  австрийскому
   радио". Обосновывая свое расхождение с оценкой доказательств  судом
   первой инстанции, Земельный уголовный суд высказал предположение  о
   том,  что  вряд  ли  полицейский, у которого были веские  основания
   знать  о  повышенном  внимании к делу средств массовой  информации,
   позволил бы себе вопреки логике совершить преступные действия  (см.
   п. 22 выше).
       6)  Конституционный  суд не рассматривал существо  жалобы  г-на
   Рибича  на  плохое  обращение. Он отметил  незаконность  обысков  и
   ареста заявителя и его жены (см. п. 23 выше).
       34.  Не  вызывает  сомнений,  что г-н  Рибич  получил  телесные
   повреждения,  находясь под стражей в полиции, что  в  любом  случае
   являлось  противозаконным,  поскольку он  полностью  находился  под
   контролем  полиции. Оправдание полицейского Маркля судом, связанным
   принципом  презумпции  невиновности,  не  освобождает  Австрию   от
   ответственности  по Конвенции. Поэтому Правительство  было  обязано
   представить   правдоподобное   объяснение   того,   каким   образом
   заявитель получил телесные повреждения. Однако Правительство  всего
   лишь     сослалось    на    результаты    внутреннего    уголовного
   разбирательства,  при котором, как выяснилось,  не  были  соблюдены
   строгие  требования,  предъявляемые к доказательствам,  необходимым
   для  того,  чтобы  добиться  осуждения в уголовном  порядке.  Также
   очевидно,  что  в  этом контексте важную роль сыграло  утверждение,
   что  телесные повреждения у заявителя были вызваны ударом  о  дверь
   автомашины.    Подобно   Комиссии,   Суд   считает   такой    довод
   неубедительным; он полагает, что даже если г-н Рибич  падал,  когда
   его  перевозили  под  охраной,  такое  объяснение  было  бы  весьма
   неполным   и   поэтому  недостаточным  для  объяснения   полученных
   повреждений.
       На  основании всех имеющихся в его распоряжении материалов  Суд
   пришел  к  выводу,  что  Правительство не представило  убедительных
   доказательств   того,  что  телесные  повреждения  заявителя   были
   получены  каким-либо иным образом, чем - полностью, в основном  или
   частично  -  вследствие  того  обращения,  которому  он  подвергся,
   находясь под стражей.
       35. Г-н Рибич утверждал, что то, что он претерпел, находясь под
   стражей  в  полиции, является бесчеловечным и унижающим достоинство
   обращением.  Полученные  им удары, а также  оскорбления  и  угрозы,
   которым  подверглись  он  и  его жена,  находившаяся  в  заключении
   одновременно  с  ним,  причинили  сильные  физические  и  моральные
   страдания.  Более того, ряд свидетелей подтвердили,  что  заявителю
   были   нанесены   телесные  повреждения  и  он  перенес   серьезную
   психологическую травму (см. п. 16 выше).
       36.   Принимая   во   внимание  исключительную   незащищенность
   заявителя  во время незаконного содержания под стражей  в  полиции,
   Комиссия  заявила,  что у нее не вызывает сомнений,  что  заявитель
   подвергся   физическому   насилию,   которое   представляет   собой
   бесчеловечное и унижающее достоинство обращение.
       37.  Правительство  не  оспаривало,  что  телесные  повреждения
   заявителя,  если предполагать установленным, что они  действительно
   были  нанесены во время его нахождения под стражей в полиции,  были
   достаточно  тяжелыми и тем самым подпадающими под  действие  статьи
   3.
       38.  Суд подчеркивает, что в отношении лица, лишенного свободы,
   любое   применение  физической  силы,  которое   не   было   крайне
   необходимо   из-за   его   собственного  поведения,   унижает   его
   человеческое достоинство и является в принципе нарушением статьи  3
   Конвенции.   Суд   вновь   напоминает,  что  сложность   проведения
   расследований  и  неоспоримые трудности борьбы с  преступностью  не
   должны  вести  к  ограничениям защиты физической неприкосновенности
   лица (см. Решение по делу Томази от 27 августа 1992 г. Серия A,  т.
   241-A, с. 42, п. 115).
       39.  В  данном  деле  телесные  повреждения,  полученные  г-ном
   Рибичем,   свидетельствуют  о  том,  что  он  претерпел  обращение,
   которое    может    быть   охарактеризовано    как    ненадлежащее,
   бесчеловечное и унижающее достоинство.
       40. Соответственно, имело место нарушение статьи 3.
   
                  II. Применение статьи 50 Конвенции
   
       41. Статья 50 Конвенции предусматривает:
       "Если  Суд  установит, что решение или мера, принятые судебными
   или  иными властями Высокой Договаривающейся Стороны, полностью или
   частично   противоречат  обязательствам,  вытекающим  из  настоящей
   Конвенции,  а  также  если  внутреннее  право  упомянутой   Стороны
   допускает лишь частичное возмещение последствий такого решения  или
   такой  меры,  то  решением  Суда, если в этом  есть  необходимость,
   предусматривается справедливое возмещение потерпевшей стороне".
       42.   В   соответствии  с  положениями  этой  статьи  заявитель
   потребовал  выплатить компенсацию за моральный  вред  и  возместить
   судебные расходы и издержки.
   
                           A. Моральный вред
   
       43.  Г-н Рибич заявил, что он понес моральный вред, который  он
   оценил в 250000 (двести пятьдесят тысяч) австрийских шиллингов.
       44. Правительство не сделало никаких замечаний по этому поводу.
       45.  Представитель  Комиссии  заявил,  что  такая  сравнительно
   высокая  сумма  должна быть присуждена с тем, чтобы  способствовать
   обращению  в суд лиц, находящихся в таком же положении, что  и  г-н
   Рибич.
       46.  Суд  считает, что заявителю причинен неоспоримый моральный
   вред.   Принимая   во   внимание  различные  относящиеся   к   делу
   обстоятельства,  Суд,  действуя на  справедливой  основе,  как  это
   предписывает статья 50, обязывает выплатить заявителю  100000  (сто
   тысяч) австрийских шиллингов.
   
                    B. Судебные расходы и издержки
   
       47.  Г-н Рибич также потребовал оплатить понесенные им судебные
   расходы  и  издержки. За слушания дел в судах Австрии он потребовал
   выплаты   78780  (семидесяти  восьми  тысяч  семисот  восьмидесяти)
   австрийских  шиллингов. За рассмотрение дел в органах Конвенции  он
   потребовал  выплатить 385375 (триста восемьдесят пять тысяч  триста
   семьдесят  пять)  австрийских шиллингов за вычетом 20185  (двадцати
   тысяч  ста  восьмидесяти пяти) австрийских  шиллингов  за  судебную
   помощь, которую он получил в Комиссии.
       48.   Правительство  заявило,  что,  учитывая  нормы  гонораров
   Коллегии    адвокатов   Австрии,   большинство    требуемых    сумм
   представляются чрезмерно высокими.
       49. Представитель Комиссии не сделал никаких замечаний по этому
   вопросу.
       50.  На  справедливой основе в соответствии с  применяемыми  им
   критериями  Суд присуждает заявителю сумму в 200000 (двести  тысяч)
   австрийских шиллингов за вычетом 18576 (восемнадцати тысяч  пятисот
   семидесяти  шести) французских франков, которые уже были  выплачены
   Советом Европы в качестве судебной помощи.
   
                        ПО ЭТИМ ОСНОВАНИЯМ СУД
   
       1.  Постановил  шестью голосами против трех,  что  имело  место
   нарушение статьи 3 Конвенции;
       2.  Постановил  шестью голосами против трех, что государство  -
   ответчик  должно выплатить заявителю в течение трех месяцев  100000
   (сто тысяч) австрийских шиллингов за моральный ущерб;
       3.  Постановил  единогласно, что государство - ответчик  должно
   выплатить  заявителю в течение трех месяцев 200000  (двести  тысяч)
   австрийских  шиллингов в погашение издержек и расходов  за  вычетом
   18576  (восемнадцати  тысяч пятисот семидесяти  шести)  французских
   франков,  конвертированных  в  австрийские  шиллинги  по  валютному
   курсу на день вынесения настоящего Решения;
       4.   Отклонил   единогласно  оставшуюся  часть   требования   о
   справедливом возмещении.
   
       Совершено  на  английском и французском языках  и  оглашено  во
   Дворце прав человека в Страсбурге 4 декабря 1995 г.
   
                                                          Председатель
                                                         Рольф РИССДАЛ
   
                                                                Грефье
                                                      Герберт ПЕТЦОЛЬД
   
   
   
   
   
   
       В  соответствии со статьей 51 п. 2 Конвенции и статьей 53 п.  2
   Регламента  Суда  A  к  настоящему Решению  прилагается  совместное
   особое мнение судей.
   
               СОВМЕСТНОЕ ОСОБОЕ МНЕНИЕ СУДЕЙ РИССДАЛА,
                           МАТШЕРА И ЯМБРЕКА
   
       1.   В   данном  случае  мы  не  можем  согласиться  с  мнением
   большинства   членов   Палаты,  в   частности   из-за   того,   что
   придерживаемся отличного взгляда на обстоятельства дела.
       В  мае  1988  г.,  после  того как два человека  скончались  от
   повышенной  дозы  героина,  специальное  подразделение  федеральной
   полиции  г. Вены проводило расследования среди окружения наркоманов
   с  целью  выявить,  кто снабдил умерших наркотиками.  В  ходе  этих
   расследований  помимо других лиц был допрошен  г-н  Рибич,  который
   был  известен как наркоман, а также как лицо, подозреваемое в сбыте
   наркотиков.  Два  человека,  один из  которых  был  близким  другом
   одного  из  скончавшихся, опознали г-на Рибича как поставщика  дозы
   героина, вызвавшей смертельный исход.
       31  мая 1988 г. полиция арестовала заявителя и провела обыск  в
   его  квартире. После того как полицейские обнаружили там  некоторое
   количество  наркотиков, г-н Рибич был препровожден  в  полицию  для
   допроса  в  штаб-квартире  подразделения  безопасности  федеральной
   полиции  г.  Вены, где он находился в период с полудня  31  мая  до
   утра 2 июня 1988 г.
       Впоследствии  г-н Рибич заявил, что он подвергся  ненадлежащему
   обращению  во время содержания под стражей в полиции. Он  не  подал
   жалобу   в   компетентные  органы,  однако  сообщил  о  происшедшем
   нескольким  друзьям  и  родственникам, включая  одного  журналиста.
   Именно по совету этого журналиста г-н Рибич обратился в больницу  и
   проконсультировался  у  своего врача -  терапевта.  Несколько  дней
   спустя этот журналист организовал программу на австрийском радио  с
   освещением произошедших событий.
       В  отличие  от подобных случаев в других государствах  (см.,  в
   частности, Решение по делу Класса от 22 сентября 1993 г.  Серия  A,
   т.  269)  компетентные  органы  по  собственной  инициативе  начали
   расследование  произошедших событий, как  только  они  были  о  них
   информированы.
       Результаты расследования были направлены в прокуратуру, которая
   начала   судебное  разбирательство  против  трех   полицейских   за
   нанесение телесных повреждений.
       В Решении, вынесенном районным уголовным судом г. Вены, один из
   трех  полицейских был признан виновным, приговорен к  двум  месяцам
   тюремного  заключения и отстранен от выполнения своих обязанностей;
   двое  других  полицейских были оправданы. Мотивы Решения  районного
   суда  были  подробно  изложены.  В  основном  судья  полагался   на
   показания  свидетелей  - г-на Рибича и других  лиц,  которые  могут
   считаться  его  друзьями и родственниками, а  также  на  документы,
   выданные  сотрудниками  больницы и врачом - терапевтом,  в  которых
   говорилось  о травмах, нанесенных г-ну Рибичу, и других  симптомах,
   которые  он описал. Судья отказался удовлетворить просьбу защиты  о
   проведении  судебно-медицинской экспертизы  для  выяснения  причин,
   вызвавших эти травмы.
       При  апелляции,  которая  была подана  осужденным  полицейским,
   Земельный  уголовный суд прежде всего распорядился, чтобы  Институт
   судебной   медицины   университета  г.  Вены  представил   судебно-
   медицинское  заключение. Основная цель этого документа  заключалась
   в  установлении,  насколько это возможно, причин травм,  отмеченных
   врачами,  и  симптомов,  на  которые  жаловался  заявитель.  Выводы
   заключения  сводились к тому, что эти травмы и симптомы могли  быть
   вызваны самыми различными причинами; вполне возможно, что они  были
   вызваны  причинами, отличными от тех, которые принял районный  суд.
   Земельный уголовный суд, состоящий из трех профессиональных  судей,
   тщательно  рассмотрел  представленные ему доказательства,  подробно
   изучил   показания  заявителя  и  других  свидетелей   и   оправдал
   полицейского  на  основании  убедительных  фактов.  Кроме  того,  в
   Австрии  не  принято,  чтобы апелляционные  суды  отменяли  решения
   нижестоящего суда, если не имеется серьезных сомнений  в  том,  что
   эти решения достаточно обоснованны.
       Конституционный   суд  отклонил  апелляцию  заявителя,   сделав
   замечание,  что  он  не  нашел  оснований  поставить  под  сомнение
   процедуру,    которой   следовал   Земельный   суд,   его    оценку
   свидетельских показаний или принятое им Решение.
       Конституционный    суд   мог   бы   пересмотреть    весь    ход
   разбирательства  и  провести свою собственную оценку  обстоятельств
   дела.  Однако, как было указано в предыдущем абзаце, Суд  не  нашел
   для  этого  никаких  оснований и тем самым  поддержал  по  существу
   Решение Земельного суда.
       Наше  заключение:  государство - ответчик по своей  собственной
   инициативе   распорядилось   провести  расследование,   результатом
   которого  было тщательное рассмотрение дела независимыми судами  на
   трех  различных уровнях юрисдикции. В задачи Европейского  суда  не
   входит  заменять  своей оценкой оценку фактов  внутренними  судами,
   если  только они провели ее не должным образом, что не имело  места
   в данном деле.
       Мы не можем сделать вывод, что были нарушены положения статьи 3
   Конвенции,  поскольку  имелись обоснованные  сомнения  относительно
   утверждений заявителя о ненадлежащем обращении, вызвавшем  телесные
   повреждения  во  время  его  нахождения  под  стражей  в  отделении
   венской  федеральной полиции, хотя и оказалось невозможным получить
   неопровержимые  доказательства  того,  что  травмы  и  симптомы,  о
   которых   говорил  заявитель  после  освобождения  из  полицейского
   заключения,  были  вызваны какими-либо иными  причинами,  чем  теми
   действиями, о которых он заявил.
       2.  В свете сомнительного поведения заявителя, а также принимая
   во  внимание тот факт, что в районном суде он потребовал  выплатить
   всего  лишь 1000 (одну тысячу) австрийских шиллингов, которые  были
   ему  присуждены,  мы  не  считаем возможным голосовать  за  выплату
   какой-либо дополнительной компенсации за моральный ущерб.
   
   
   
   
   
   
                    EUROPEAN COURT OF HUMAN RIGHTS
                                   
                      CASE OF RIBITSCH v. AUSTRIA
                                   
                               JUDGMENT
                                   
                       (Strasbourg, 04.XII.1995)
   
       In the case of Ribitsch v. Austria <*>,
       The European Court of Human Rights, sitting, in accordance with
   Article 43 (art. 43) of the Convention for the Protection of  Human
   Rights   and  Fundamental  Freedoms  ("the  Convention")  and   the
   relevant  provisions  of  Rules of  Court  A  <**>,  as  a  Chamber
   composed of the following judges:
   --------------------------------
       Notes by the Registrar
       <*>  The case is numbered 42/1994/489/571. The first number  is
   the  case's position on the list of cases referred to the Court  in
   the  relevant  year (second number). The last two numbers  indicate
   the  case's  position on the list of cases referred  to  the  Court
   since   its   creation  and  on  the  list  of  the   corresponding
   originating applications to the Commission.
       <**>  Rules  A apply to all cases referred to the Court  before
   the entry into force of Protocol No. 9 (P9) and thereafter only  to
   cases  concerning  States  not bound by that  Protocol  (P9).  They
   correspond to the Rules that came into force on 1 January 1983,  as
   amended several times subsequently.
   
       Mr R. Ryssdal, President,
       Mr F. Matscher,
       Mr J. De Meyer,
       Mr I. Foighel,
       Mr J.M. Morenilla,
       Sir John Freeland,
       Mr B. Repik,
       Mr P. Jambrek,
       Mr P. Kuris,
       and also of Mr H. Petzold, Registrar,
       Having deliberated in private on 27 June and 21 November 1995,
       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") on 9 September  1994,
   within the three-month period laid down by Article 32 para.  1  and
   Article  47  (art. 32-1, art. 47) of the Convention. It  originated
   in  an  application (no. 18896/91) against the Republic of  Austria
   lodged  with the Commission under Article 25 (art. 25) by Mr Ronald
   Ribitsch, an Austrian national, on 5 August 1991.
       The  Commission's request referred to Articles 44 and 48  (art.
   44,  art. 48) and to the declaration whereby Austria recognised the
   compulsory  jurisdiction of the Court (Article 46) (art.  46).  The
   object  of  the request was to obtain a decision as to whether  the
   facts  of  the case disclosed a breach by the respondent  State  of
   its obligations under Article 3 (art. 3) of the Convention.
       2.  In response to the enquiry made in accordance with Rule  33
   para.  3  (d)  of  Rules of Court A, the applicant stated  that  he
   wished  to  take part in the proceedings and designated the  lawyer
   who  would represent him (Rule 30). The lawyer was given  leave  by
   the President to use the German language (Rule 27 para. 3).
       3.  The  Chamber to be constituted included ex  officio  Mr  F.
   Matscher,  the  elected judge of Austrian nationality  (Article  43
   (art.  43) of the Convention), and Mr R. Ryssdal, the President  of
   the  Court  (Rule  21 para. 3 (b)). On 24 September  1994,  in  the
   presence  of the Registrar, the President drew by lot the names  of
   the  other seven members, namely Mr {Thor Vilhjalmsson} <*>, Mr  I.
   Foighel, Mr J.M. Morenilla, Sir John Freeland, Mr B. Repik,  Mr  P.
   Jambrek  and Mr P. Kuris (Article 43 in fine of the Convention  and
   Rule  21  para.  4)  (art.  43).  Subsequently,  Mr  J.  De  Meyer,
   substitute  judge, replaced Mr {Thor Vilhjalmsson}, who was  unable
   to  take  part  in the further consideration of the case  (Rule  22
   paras. 1 and 2 and Rule 24 para. 1).
   --------------------------------
       <*> Здесь и далее по тексту слова на национальном языке набраны
   латинским шрифтом и выделены фигурными скобками.
   
       4.  As  President of the Chamber (Rule 21 para. 5), Mr Ryssdal,
   acting  through the Registrar, consulted the Agent of the  Austrian
   Government  ("the  Government"), the  applicant's  lawyer  and  the
   Delegate  of  the Commission on the organisation of the proceedings
   (Rules  37  para.  1  and  38). Pursuant  to  the  orders  made  in
   consequence  on  17  October 1994 and 6 March 1995,  the  Registrar
   received  the  Government's memorial on 28 February  1995  and  the
   applicant's  memorial on 14 March 1995. On 24 March  the  Secretary
   to  the  Commission informed the Registrar that the Delegate  would
   submit  his  observations at the hearing. On 21 April  he  produced
   certain  documents  requested by the Registrar on  the  President's
   instructions.
       5.  In  accordance with the President's decision,  the  hearing
   took  place in public in the Human Rights Building, Strasbourg,  on
   21 June 1995. The Court had held a preparatory meeting beforehand.
       There appeared before the Court:
       (a) for the Government
       Mr  W.  Okresek,  Head of the International  Affairs  Division,
   Constitutional Department, Federal Chancellery, Agent,
       Mr W. Szymanski, Head of the Legal Service, Federal Ministry of
   the Interior,
       Mr  {J.  Rohrbock}, Adviser, Federal Ministry of the  Interior,
   Advisers;
       (b) for the Commission
       Mr H.G. Schermers, Delegate;
       (c) for the applicant
       Mr H. Pochieser, Rechtsanwalt, Counsel.
       The Court heard addresses by Mr Schermers, Mr Pochieser and  Mr
   Okresek, and their replies to its question.
       On  3 July 1995 the Registrar received the Government's written
   reply  to  the applicant's claims under Article 50 (art.  50);  the
   applicant's  observations  relating thereto  were  received  on  27
   July.
   
                            AS TO THE FACTS
   
       6. Mr Ronald Ribitsch, an Austrian national born in 1958, lives
   with his wife in Vienna.
   
                       I. Background to the case
   
       7.  At  the  material time the Security Branch  of  the  Vienna
   Federal      Police      Authority      ({Sicherheitsburo}      der
   Bundespolizeidirektion)   included   three   units   assigned    to
   investigating  drug offences. One of these, led by Chief  Inspector
   {Pottinger},  had  particular responsibility  for  cases  involving
   fatalities.
       8.  On  21  May 1988, following the deaths of two  people  from
   heroin  overdoses, the girlfriend of one of the  deceased  went  to
   the  headquarters  of Mr {Pottinger's} unit and  made  a  statement
   alleging  that  her  boyfriend had told her  that  he  intended  to
   obtain drugs from the applicant.
       Acting  on  this  information several of  the  unit's  officers
   questioned  the  applicant on the same day and searched  his  home,
   although they had no warrant. The search revealed nothing  and  the
   applicant  and  his  wife were authorised to leave  for  Turkey  on
   holiday that very day.
       9.  On 22 May 1988 one of the deceased was recognised as a rock
   singer  who  was very well known in Austria. This led  to  pressure
   from the media to find the dealer who had sold the heroin that  had
   caused   the  deaths.  Mr  {Pottinger's}  unit  conducted  numerous
   inquiries between 22 and 31 May 1988.
       10.  On  the latter date another Security Branch unit,  led  by
   Chief  Inspector Gross, and including at the material  time  Police
   Officers   Markl,  Trnka  and  {Frohlich},  received  an  anonymous
   telephone  call accusing Mr Ribitsch of selling heroin  to  one  of
   the deceased.
       At about 12.30 p.m. a number of officers belonging to this unit
   arrested  the  applicant  and his wife  for  drug  trafficking  and
   searched  their  home, although they had neither a  search  warrant
   nor an arrest warrant. The search revealed 0.5 g of hashish.
   
            II. The applicant's detention in police custody
   
       11. Mr Ribitsch and his wife were held in police custody at the
   headquarters  of the Security Branch of the Vienna  Federal  Police
   Authority  from about 12.30 p.m. on 31 May 1988 to about 9.30  a.m.
   on 2 June 1988.
       12.  There are two conflicting versions of what occurred during
   the period of police custody.
       According  to  the  applicant,  the  officers  questioning  him
   grossly insulted him and then assaulted him repeatedly in order  to
   wring  a  confession  from him. He received  punches  to  the  head
   (Kopfnuss),  kidneys and right arm and kicks to the upper  leg  and
   kidneys.  He was pulled to the ground by the hair and his head  was
   banged  against  the floor. Ninety per cent of  his  injuries  were
   inflicted by blows from Police Officer Markl. When released he  had
   bruises  on  his right arm and one thigh and was suffering  from  a
   cervical syndrome, vomiting, diarrhoea and a violent headache.
       A  different version was given by Mr Markl in a report that was
   dated  1  June  1988  but purported to give an  account  of  events
   which, according to the report itself, had occurred on 1 June  from
   about  3.20 p.m. onwards, on 2 June at about 8 a.m. and on  2  June
   at  about  9.30 a.m. The report stated that in the afternoon  of  1
   June  the  applicant  was  taken from  police  headquarters  to  an
   acoustic  research  institute so that his voice could  be  compared
   with  that of a person who had made an anonymous phone call to  the
   Vienna  emergency  services. As he was getting out  of  the  police
   car,  and  while  he had handcuffs on his wrists, Mr  Ribitsch  had
   slipped and his right arm had banged into the rear door. Mr  Markl,
   who  had opened the door for him, managed to grab hold of his  left
   arm,  but  was  not able to prevent him from falling. However,  his
   fall  had  largely been broken and he had landed  "gently"  on  his
   behind.  It was only the next morning, when being questioned,  that
   the  applicant  informed  the police of  his  injury,  although  he
   refused medical attention.
       13.  On  being  released  from  police  custody  the  applicant
   informed  several  members  of his family,  a  psychologist  and  a
   journalist of the ill-treatment he had allegedly suffered.  On  the
   latter's advice he went to Meidling Hospital in the afternoon of  2
   June,  where  he was examined from 5.35 p.m. onwards,  and  to  his
   general  practitioner  the  following  day.  The  hospital   report
   recorded  bruises measuring 2 to 3 cm in the middle of the  outside
   of  the  right  arm, and an appended neurological  report  recorded
   bruises  on  the  outside and inside of the  right  arm.  No  other
   injury  to  his  limbs was found. An X-ray showed no broken  bones.
   The  doctor's report stated that the applicant had several  bruises
   on  his  right  arm  and  symptoms  characteristic  of  a  cervical
   syndrome,  that  he  was  suffering from  vomiting  and  a  violent
   headache  and  that he had a temperature of 37.5- C. A photographer
   took a photograph of Mr Ribitsch's injuries.
   
       III. The criminal proceedings brought against the police
            officers in the Vienna District Criminal Court
   
       14.  On  7  June 1988, following a programme on Austrian  radio
   about   the  methods  allegedly  used  by  the  police  when   they
   questioned   Mr  and  Mrs  Ribitsch,  the  Vienna  Federal   Police
   Authority  began  an inquiry into the officers concerned  and  sent
   the  results  to the public prosecutor's department on  25  October
   1988.
       On  22  November the applicant lodged a civil party  claim  for
   damages  under  Article  47  of  the  Code  of  Criminal  Procedure
   (Strafprozessordnung).
   
                     A. The preliminary inquiries
   
       15.  On  26 June 1989 the judge of the Vienna District Criminal
   Court  (Strafbezirksgericht) conducted  the  preliminary  inquiries
   (Vorermittlungen) and heard Mr and Mrs Ribitsch  as  witnesses  and
   Police  Officers  Trnka, Gross, {Frohlich}  and  Markl  as  accused
   (Beschuldigte).
       In  its report the Commission gave the following account of the
   statements they made:
       "23.  The  applicant stated that on 31 May  1988  he  had  been
   arrested  by  four  police officers, inter alia  Markl  and  Trnka.
   Following   the   taking  of  photographs  and  fingerprints,   the
   questioning had started in the afternoon and evening. At the  first
   questioning  five  police  officers  had  been  present,  who   had
   interrogated  him in turns. The applicant also indicated  that  the
   police  officers, with the exception of Police Officer  {Frohlich},
   were  drinking  wine.  In  the course  of  the  questioning,  their
   superior Mr Gross had started to pull his handle-bar moustache  and
   to  go  around the room with him, and then also slapped him in  the
   face.  As  he  still  had not confessed, Police Officer  Markl  had
   begun  to hit him. He knew about this officer's identity as he  had
   seen  him  signing the record. Police Officer {Frohlich}  had  been
   sitting  at  the typewriter. He had been the only officer  behaving
   correctly.  Police Officer Markl had continued to hit  him  in  the
   course  of  the  ensuing interrogations. Markl  had  been  the  one
   hitting  him most of the time, though, while he had been  lying  on
   the  floor, others had also kicked him. On the second day,  even  a
   legally qualified person had been present for a short time and  had
   seen  that  he  had been beaten. Police Officer Markl  further  had
   attempted to provoke him to hit back. 90% of his injuries had  been
   caused  by  Markl. The haematoma on his right upper  arm  had  been
   caused  by Markl's punches. Markl had further kicked him and caused
   a  haematoma on his right or left lower leg; the print of the  shoe
   had  later been seen on his trousers. Police Officer Markl had also
   grasped   his   hair  and  had  thrown  him  to  the  floor.   Upon
   questioning, the applicant stated that there had been  no  accident
   when he was taken by car to have his voice compared.
       24.  Police Officer Trnka stated that he had been working with,
   inter alia, the Police Officers Markl and {Frohlich}. He could  not
   remember  whether he had been present upon the applicant's  arrest.
   He  had  conducted  the  questioning of the applicant's  wife.  The
   applicant  had  been questioned in another room, he  had  sometimes
   been  there to put questions to the applicant. He had learnt  about
   the  injuries sustained by the applicant in the media.  He  himself
   had  not  beaten  or  kicked  the  applicant,  nor  seen  that  his
   colleagues  had done so. The police officers had not drunk  alcohol
   in  the  course  of  the interrogations. Moreover,  though  working
   hard,  they had always taken a break at least between midnight  and
   7 a.m.
       25. Police Officer Gross explained that he had been leading the
   particular work unit since 1983, Police Officer Markl had  been  in
   this  unit  for two years, Police Officer {Frohlich} for  one  year
   and  Police  Officer Trnka for five years. He had been  present  at
   times at the interrogations of both the applicant and his wife.  He
   had  not  touched the applicant or pulled his moustache, though  he
   remembered  that  the applicant had a peculiar  moustache.  At  the
   relevant  time, they had worked overtime, but there  had  not  been
   any  particular  pressure upon them. He had been informed  at  that
   time  that the applicant had stumbled in the course of getting  out
   of  a  police car, Police Officer Markl or {Frohlich} had  informed
   him  of  this.  He  had  not  known  about  any  injuries.  He  had
   instructed his colleagues to draft a report on the incident.  There
   had  been no alcohol in the room where the interrogations had taken
   place.
       26.  According to Police Officer {Frohlich}, who had joined the
   work  unit  in  April 1988, Police Officer Markl had conducted  the
   questioning  of  the applicant in the presence  of  always  two  or
   three  colleagues. Upon questioning, he confirmed  that  a  legally
   qualified person, namely a superior, had been present for  a  short
   time  at  one of the interrogations. No alcohol had been  drunk  in
   the  course of the questioning. They had worked overtime, but there
   had  been no particular pressure. {Frohlich}, stating that  he  had
   been  present at most of the questioning, denied that the applicant
   had  been  bodily assaulted. {Frohlich} continued that  on  1  June
   1988  he  had,  together  with  Police  Officer  Markl,  taken  the
   applicant  to  have his voice compared. {Frohlich} had  driven  and
   Markl  had  been  at  the  rear with the  applicant  who  had  been
   handcuffed  with his hands in front of his body. The applicant  had
   probably  stepped  out of the rear left door. {Frohlich}  indicated
   that  he  had  not seen the applicant stumble, but heard  something
   like  it.  When  he  had turned around, he had seen  Markl  already
   holding  the  applicant. The applicant had said  that  he  was  not
   hurt.  The next day the applicant had mentioned the bruise  on  his
   upper arm. One of them had informed Police Officer Gross about  the
   bruise,  and  Gross  had  advised them to draft  a  report  on  the
   incident.
       27.  Police  Officer Markl stated that he had joined  the  work
   unit  of  Police  Officer Gross in May 1988. He  had  at  the  time
   interrogated  the applicant, but he had certainly not  been  alone:
   in  order to avoid unfounded allegations, other colleagues had been
   present  for  at least part of the time. Markl denied  having  used
   violence  against  the applicant, and supposed that  the  applicant
   and  his wife, for unknown reasons, wanted to take revenge on them.
   As  to  the course of the interrogations, Markl specified  that  at
   the  beginning  the  applicant had denied any  involvement  in  the
   offences  at  issue; only in the further course of questioning  had
   he  given  the  decisive  hint as to the  identity  of  the  actual
   culprit. As regards the injuries sustained by the applicant,  Markl
   confirmed  his statements in his report of 1 June 1988. During  the
   drive,  he  had been sitting next to the applicant,  who  had  been
   handcuffed with his hands in front of his body, in the rear of  the
   police  car.  Markl continued that he had opened the  door  on  the
   applicant's  side  from  the outside. The  applicant  had  stumbled
   while  getting out and fallen, knocking his right arm  against  the
   doorframe.  Markl  had  only been able to  stop  him  falling.  The
   applicant had said that he was all right. Only the next day had  he
   mentioned  a  bruise  on  his  right upper  arm.  Markl  could  not
   remember  any  other  injuries or a footprint  on  the  applicant's
   trousers.   Markl  clarified  that  he  had  written   the   report
   concerning  the  accident on 2 June, but had put the  date  of  the
   incident.  Markl  further  confirmed  that  a  superior,   possibly
   presented  as a legally qualified person, had shortly been  present
   at  one  of the interrogations. Markl also indicated that he worked
   normally  60  to 70 hours overtime per month; at the relevant  time
   he  had  possibly done 80 to 90 hours overtime. Moreover, they  had
   not consumed any kind of alcohol during their work."
   
                             B. The trial
   
       16.  On  13  October 1989 the trial of Police  Officers  Trnka,
   Gross  and  Markl  on  charges of assault occasioning  bodily  harm
   opened  in the Vienna District Criminal Court, composed of a single
   judge.  During the trial the judge examined the accused and several
   witnesses,  namely Mr and Mrs Ribitsch, Police Officer  {Frohlich},
   Mr  Pretzner, the head of the three units of the Security Branch of
   the  Vienna  Federal Police Authority, and all those who  had  seen
   the  applicant's  injuries or been informed  by  him  of  the  ill-
   treatment  he  had  undergone. These included Dr Scheidlbauer,  the
   general  practitioner,  Dr Tripp, the psychologist,  Mr  Buchacher,
   the journalist, and Mr Lehner, the photographer.
       In  its  report  the Commission gave the following  account  of
   their statements:
       "30.  Police  Officer Markl referred to his earlier statements.
   Upon  questioning,  he explained that due to information  given  to
   him,  the  investigations concerning the case in question had  been
   transferred  from  another work unit at the Vienna  Federal  Police
   Authority. Following their arrest, the applicant and his  wife  had
   been  brought to the Police Authority. Questioned about the further
   development  of  matters  regarding the applicant,  Police  Officer
   Markl  stated  that the applicant's identity had  been  established
   and  he  had  been  questioned about the offences concerned.  Markl
   confirmed  that Police Officer {Frohlich} had been present  in  the
   course  of  the  interrogation.  However,  he  could  not  remember
   whether  Police Officers Gross and Trnka had been also  there.  The
   applicant had claimed to be innocent, and even claimed that he  had
   nothing  to  do  with  drugs  and  in  particular  opium.  He   had
   complained   that  the  police  was  again  creating  difficulties.
   Moreover,  the  applicant had repeatedly indicated  that  he  would
   cause  troubles  and  ridicule  them.  Police  Officer  Markl  then
   described the events when the applicant had been taken out  of  the
   building   of  the  Police  Authority:  The  applicant   had   been
   handcuffed  with  his  hands in front of  his  body,  he  had  been
   sitting  in  the  rear of the police car. Upon arrival,  Markl  had
   opened  the  door where the child lock had been in  position  as  a
   precautionary  measure. When getting out of the car, the  applicant
   had  lost his balance, had fallen and hit his right arm against the
   door  frame. He had shown his injury, a round bruise, but  had  not
   wanted  to  see  a doctor. Upon further questioning by  the  public
   prosecutor, Markl stated that, upon the arrest, a piece of  hashish
   had  been found upon the applicant, nothing upon his wife. However,
   police  informers had told them that the applicant had been dealing
   with  heroin  and had been selling washing powder to drug  addicts.
   This  information had not been recorded as the informers  were  not
   prepared  to  make  a  statement  for  the  record.  Upon   further
   questioning,  Markl  indicated  that,  having  first   denied   any
   relationship to one of the victims, the applicant and his wife  had
   later admitted a close relationship.
       31.  Police Officer Trnka first made some more general  remarks
   about  the organisation and distribution of work between the  three
   units  dealing with drug offences. He remembered that he  had  been
   present  at  the arrest of the applicant and his wife and  that  he
   had  interrogated the applicant's wife. Though he had not  assisted
   in  the  questioning of the applicant in the adjoining  office,  he
   had  occasionally come to put questions to the applicant. They  had
   mainly  inquired  about  discrepancies in the  spouses'  statements
   about their alibi. He had learnt about the injury sustained by  the
   applicant only after his release.
       32.  Police Officer Gross, the head of the work unit concerned,
   also  explained  that  following  information  obtained  by  Police
   Officer Markl on the particular case, it had been transferred  from
   another    work   unit   which   had   initially   conducted    the
   investigations.  He  had  seen the applicant  for  the  first  time
   during  the  interrogation in the afternoon. Together  with  Police
   Officer Trnka he had questioned the applicant's wife, but also  the
   applicant  in  order  to  verify their alibi,  as  there  had  been
   discrepancies  in  their  statements. As  regards  the  applicant's
   injury,  he remembered that either Police Officer Markl  or  Police
   Officer  {Frohlich}  had informed him about  the  incident  in  the
   course  of  the escorted visit. He had instructed them to  draft  a
   report. Being asked in detail about the applicant's allegations  of
   ill-treatment,   Gross   stated  that   it   appeared   practically
   impossible  to  pull the applicant around by his moustache  without
   leaving injuries to his face.
       33.  The  applicant, heard as a witness, stated that, following
   his  arrest  in  the late morning, he had first been questioned  in
   the  late  afternoon  by Police Officers Markl and  {Frohlich},  in
   particular  about  his  alibi. Violence had been  used,  Gross  had
   pulled  him  around  the room by his moustache,  and  he  had  been
   slightly  hit on his head. In the afternoon of the second  day,  he
   had  again been interrogated, and because he had refused  to  admit
   that  he  had  given drugs to the two persons who had  subsequently
   died,  he had been beaten every half-hour. He had also been  kicked
   while  lying  on the floor, and had therefore not seen the  persons
   who  had kicked him. Police Officer Markl had hit him on the  upper
   arm  and  kicked  him. On one occasion, a legally qualified  person
   had  been present who had not stopped the beatings. Police officers
   from  another group had also been present; there had been continual
   changes.  In  between,  he  had been escorted  to  have  his  voice
   compared.  Questioned  about  the  escorted  visit,  the  applicant
   denied  that he had stumbled while getting out of the car. He  also
   confirmed that Police Officer {Frohlich} had not hurt him.
       34. The applicant continued that he had been released on 2 June
   1988 at the same time as his wife; they had gone home where he  had
   met  his  brother and a psychologist, Dr Tripp, with  whom  he  was
   acquainted.  He  had  only later noticed that a  footprint  on  his
   trousers  was  consistent with an injury to his leg.  After  having
   taken  a  shower  and  changed clothes, he had met  the  journalist
   Buchacher.  Subsequently he had gone to the hospital.  Two  fingers
   of  his  right  hand had been numb. On the next day he  had  got  a
   stiff  neck, he had vomited. The applicant stated that he  had  not
   eaten  for  two days and that he had a nervous stomach. He  further
   stated  that he had health problems due to the fact that Markl  had
   pulled him by the hair off a chair and on to the floor.
       35. The applicant's wife stated that she had been questioned by
   Police  Officer Trnka, subsequently cross-examined by four  persons
   and  later  by Police Officers Markl and {Frohlich}. She  had  been
   released  at  the  same  time  as her  husband  who  had  told  her
   immediately  that  he had been hit and beaten  and  pulled  by  his
   moustache and hair. She had seen the bruises mentioned by him,  and
   also  the  shoe-print on his trousers. Her husband  had  said  that
   Police  Officer  Markl  had caused the injuries.  Her  husband  had
   complained  about pain in the neck, headache, and later  a  feeling
   of numbness in his right hand.
       36.  Police Officer {Frohlich} was next heard as a witness.  He
   stated  that  following a tip-off about who had given the  deceased
   the  drugs  the  case  had been transferred  to  their  work  unit.
   Because  of the rivalry existing between the units, information  of
   such  kind  would not be passed on. Upon his arrest, the  applicant
   had  said  that  he would cause difficulties. However,  during  his
   interrogation,  the  applicant  had  been  quite  calm.  {Frohlich}
   denied having seen that the applicant had been hit. As regards  the
   escorted drive, {Frohlich} indicated that he had parked the  police
   car  rather  close to another car. Police Officer Markl had  opened
   the  door  for  the applicant. According to {Frohlich},  there  had
   been  a  noise  and,  turning around, he had seen  that  Markl  was
   holding  the  applicant. {Frohlich} confirmed that  Police  Officer
   Gross had advised them to draft a report on the incident.
       37. The applicant's doctor, Dr Scheidlbauer, confirmed that  he
   had  examined  the applicant who had been undressed. The  applicant
   had  several  haematomas,  the largest  on  his  right  upper  arm.
   Scheidlbauer  had  the  impression that the  applicant  had  either
   bumped  against  something or had been hit.  Scheidlbauer  excluded
   that   a   fall  against  a  doorframe  could  have  caused   these
   haematomas.  The applicant had not indicated that he had  been  hit
   by  the  police. Scheidlbauer had not ascertained injuries  to  the
   legs,   but  there  were  other  bruises  and  the  applicant   had
   complained about vomiting and headache. The applicant had  not  had
   a  concussion  but,  as a consequence of a cervical  syndrome,  had
   been  unable  to  turn  his  head. Upon  questioning,  Scheidlbauer
   stated  that  such a cervical syndrome could have  several  causes,
   inter  alia,  a  cold or the fact that somebody  had  been  several
   times  pulled  by  his  hair.  However,  the  cause  could  not  be
   objectively established.
       38.  The  psychologist Tripp, who had seen the applicant  after
   his  release, confirmed that the applicant had told him  about  his
   arrest  and  detention and about having been hit and maltreated  by
   the  police,  in particular one police officer. Tripp further  said
   that  he  had not looked for any injuries. He also stated  that  he
   had  not  for  a  moment had the impression that the applicant  had
   made up his story.
       39. The court next heard Mr Pretzner, the head of the section -
   with  three  work  units - at the Vienna Federal  Police  Authority
   which  had  been responsible for the investigations  in  the  opium
   poisoning  cases.  Pretzner first explained  the  organisation  and
   distribution  of  work  between the units  and,  in  this  context,
   excluded rivalry between the units. Moreover, Pretzner stated  that
   he  had  been present at the questioning of the applicant by Police
   Officers  Markl  and  {Frohlich} for about  ten  minutes.  Pretzner
   remembered  that  he had advised the applicant  that  a  confession
   could  result  in the court passing a more lenient sentence.  Being
   confronted  with the applicant's allegations, Pretzner denied  that
   the  applicant had been tortured or beaten; rather, the  atmosphere
   had been friendly.
       40.  The  applicant's  sister-in-law, Mrs Hoke,  described  the
   state  of  the  applicant and his wife following the  release  from
   detention. Mrs Hoke confirmed in particular that she had  seen  the
   bruise  on his right upper arm and that the applicant had told  her
   that  he  had been pulled around by his hair, thrown to the  floor,
   punched  and  that  two or three police officers had  been  present
   most  of  the  time,  the most brutal one having  been  the  Police
   Officer  Markl. She could not remember having seen a shoe-print  on
   the applicant's trousers.
       41. [The applicant's brother] I. Ribitsch stated that when they
   had  met  at the applicant's apartment the applicant had  told  him
   that   he  had  been  subjected  to  physical  violence  while   in
   detention,  namely that he had been beaten, kicked  and  pulled  by
   the  hair  to the ground. I. Ribitsch had seen several  bruises  on
   the   applicant's  body,  and  a  shoe-print  on  the   applicant's
   trousers.  The  applicant had also told him that  he  had  problems
   with his stomach and had vomited.
       42. The applicant's sister-in-law, Mrs Hoke, and his brother I.
   Ribitsch  were subsequently questioned about whether the  applicant
   had  mentioned an accident in the course of an escorted visit.  Mrs
   Hoke  stated  that  the applicant had mentioned  that  one  of  the
   police  officers  had  told him that this  was  the  cause  of  his
   injuries. I. Ribitsch had not heard about this.
       43. The reporter Buchacher had been informed by the applicant's
   sister-in-law, Mrs Hoke, about the applicant's allegations of  ill-
   treatment  in  the  course of his police detention.  Buchacher  had
   thereupon   arranged  by  phone  a  meeting  with  the   applicant.
   Buchacher  had  been  shown  several injuries,  haematomas  on  the
   applicant's  right  arm, the largest on the  outside,  one  or  two
   smaller  on  the inside. Buchacher had photographed them  the  next
   day  for  the  purposes of a story in a magazine. Upon questioning,
   Buchacher indicated that the applicant had told him that his  voice
   had  been  compared, but not that he had fallen out of  the  police
   car.
       44.  Buchacher then turned to read from the notes which he  had
   made  in the course of the conversation with the applicant  at  the
   time  according  to  which the applicant had  given  the  following
   account: the head of the group had pulled him by the beard and  hit
   him  on  the  head  with  the flat of his hand;  during  the  first
   interrogations  he  had  been  insulted,  but  not  yet  been  hit.
   Following  the escorted visit to the Acoustics Research  Institute,
   the  police  officers  had shaken him by the  feet  and  hands  and
   beaten  him  for  about twenty minutes. There had been  bottles  of
   wine  in  the  office and the police officers had been smelling  of
   alcohol.  Police Officer {Frohlich} had behaved correctly  and  not
   hit  him, Police Officer Markl had hit him the most. They had  also
   threatened to place his children at a children's home. Only at  the
   last  interrogation in the morning before his release,  all  police
   officers, including Markl, had been friendly and polite.
       45.  Buchacher also indicated that he had seen a  footprint  on
   the  applicant's trousers which appeared to have been dragged  over
   the  floor. Buchacher continued that he had verified that the shoe-
   print  coincided with a haematoma on the applicant's leg below  his
   knee.  Upon questioning, Buchacher stated that he did not have  the
   impression that the applicant had been acting.
       46.  The  photographer Lehner, a colleague  of  the  journalist
   Buchacher,   confirmed  that  he  had  photographed  the   injuries
   suffered  by the applicant, namely a severe bruising on  his  right
   upper arm. He also remembered injuries to the applicant's legs.  He
   had  not  taken photographs of the smaller injuries as  they  would
   not have been visible."
   
                            C. The judgment
   
       17.  At the end of the trial the District Criminal Court  found
   Police  Officer  Markl guilty of assault occasioning  bodily  harm,
   within  the  meaning  of Article 83 para. 1 of  the  Criminal  Code
   (Strafgesetzbuch),  and sentenced him to two months'  imprisonment,
   suspended, and three years' probation. It also ordered him  to  pay
   Mr  Ribitsch the sum of 1,000 Austrian schillings (ATS). The  other
   two police officers, Mr Trnka and Mr Gross, were acquitted.
       In  its  judgment  of 13 October 1989 the court  gave  a  brief
   account  of  the criminal investigation, referring to the  pressure
   the  officers in Mr Gross's unit had been under to find the  guilty
   person  and  the  many hours of overtime they had put  in  on  that
   account.  It  then  described  the ill-treatment  suffered  by  the
   applicant  while  in  police custody and excluded  the  possibility
   that  his  injuries could have been caused accidentally. The  court
   based  its judgment on the evidence given by Mr Ribitsch,  who  had
   made  an  excellent  impression in the  witness  box,  and  by  the
   witnesses,  particularly the journalist who had seen the  applicant
   on  the day when he was released from police custody and had  taken
   notes. It went on to say:
       "In  summary,  the  court  therefore notes  that  the  injuries
   sustained by Ronald Ribitsch were seen by several people  who  were
   not  in  any  way involved in the events giving rise to  the  case.
   These  injuries  consisted  of  several  bruises  -  not  a  slight
   abrasion  or  a  small bruise - on the upper right arm.  The  claim
   that  a  cervical  syndrome was sustained is  credible,  given  the
   description  of  how it occurred, namely by the head  being  pulled
   violently  backwards by the hair. It is a fact  recognised  by  the
   courts  (gerichtsbekannt)  that  it  is  impossible  to  prove  the
   existence of a cervical syndrome by objective means, even using  X-
   rays.  To  have  consulted a medical expert for this purpose  would
   therefore  merely  have  led  to a  delay  in  the  proceedings.  A
   haematoma  about  as  big  as an egg,  many  other  bruises  and  a
   cervical  syndrome constitute bodily harm. This is not  a  question
   for  an  expert; it is a matter for the court, which  it  has  duly
   determined in accordance with the consistent case-law.
       It  is  not only the testimony that has so far been heard which
   is  persuasive  of  Ronald  Ribitsch's  credibility  but  also  his
   excellent memory of the persons concerned. In this connection,  the
   court  would refer to the identity parade on 26 June 1989, that  is
   more  than  one  year after the offence (file, item  10).  At  this
   identity  parade,  consisting of a total of  nine  persons,  Ronald
   Ribitsch  did  not  hesitate for one moment  in  recognising  those
   involved  in  the police interviews, and in particular the  accused
   Markl.
       Ranged against this evidence is the line of defence established
   by  the  accused, which can only be described as disquieting.  Both
   he  and  his  defence lawyer, as well as his superior  officer,  Mr
   Pretzner,  attempted at the trial (file, page 114 in  item  25)  to
   make  Ronald  Ribitsch out to be a despicable, work-shy individual.
   Apart  from  the fact that an officer of the Security  Branch  does
   not  have  the right to beat someone up in order to induce  him  to
   make  a  confession,  simply  because he  is  unemployed,  what  is
   noteworthy here is the obviously misguided attitude of the  accused
   to  his  legal obligations. In his efforts to portray  the  witness
   Ribitsch  as  a  depraved individual, he suddenly  claimed  at  the
   trial  that  the two anonymous callers had been Wilhelm Puschl  and
   Ursula  Hennemann. He had, he stated, in the meantime learned  from
   them  that  'Ribitsch  [was]  a  despicable  creature  (eine  miese
   {Krote})  because he [sold] washing powder to the  poorest  of  the
   poor,  the  drug  addicts' (file, page 128 in item  25).  When  the
   court  asked  him whether he had reported this, he  was  forced  to
   reply  that he had not. He subsequently went on to entangle himself
   in  more and more contradictions concerning the statements made  by
   these  two  witnesses (file, page 129 in item 25). If the accused's
   claim  were  really  true this would mean that an  officer  of  the
   Security Branch, who had good reason to suspect someone of, at  the
   very  least,  deliberately  inflicting  grievous  bodily  harm   by
   selling  washing powder he passed off as heroin, did  not  consider
   it  necessary  in any way at all to perform his duty under  Article
   84  of the Code of Criminal Procedure. The conclusion must be drawn
   that  the accused Markl would prefer to allow criminal acts  to  be
   committed with potentially fatal consequences than to run the  risk
   of  having  people  say  that  he now wants  to  pin  something  on
   Ribitsch - which he is obviously afraid of (see page 129).
       With  regard  to the application for a forensic  doctor  to  be
   appointed  with  a  view  to  showing that  the  injuries  and  the
   haematoma  could also have been caused by a fall against  the  edge
   of  the  car door and that the other bruises on the inside  of  the
   upper  right  arm  were caused when the former  suspect's  arm  was
   grabbed,  the  court  notes as follows: The accused  Markl  himself
   states  in  his (wrongly dated) report (file, page 419)  that  when
   Ronald Ribitsch was taken away for the voice comparison to be  made
   he  evidently  missed his footing getting out  of  the  car,  which
   caused  him to lose his balance and his right arm to bang into  the
   edge  of the car door, which had remained open. He, Markl, who  had
   been  standing  right next to him, had managed to  grab  his  upper
   left  arm  but  had  not  been able to prevent  him  from  falling.
   However,  due  to his intervention the fall had been rendered  much
   less  serious,  and  Ribitsch had only  fallen  gently  on  to  his
   behind. Markl therefore himself states that he grabbed Ribitsch  by
   the  left  arm,  so that he cannot have inflicted a bruise  on  the
   inside of the right arm by catching him in this way. However,  this
   version  of  events  in  the  report is also  contradicted  by  the
   witness  {Frohlich}  (file,  page 103 in  item  25).  This  witness
   stated  that there had been a big problem finding a place to  park.
   He  had  had to park very close to another vehicle, so that he  had
   had  a  great deal of trouble getting out of his own. It  is  "very
   strange"  (lebensfremd) that, although the driver  of  the  vehicle
   had  great  difficulty getting out of it on his side, and although,
   because  of  the  tight  squeeze,  the  suspect  at  the  time  (Mr
   Ribitsch) must obviously also have had trouble getting out -  Markl
   stated that Ronald Ribitsch sat directly behind the driver -  there
   was  yet  sufficient room for Ribitsch to fall against the edge  of
   the  door  and  then  on  to his bottom. If  one  considers  Ronald
   Ribitsch's  size,  that  is  impossible. Furthermore,  the  witness
   Scheidlbauer,  who is a general practitioner, made a  statement  as
   an  expert  witness that was both credible and "easy to understand"
   (nachvollziehbar), namely that whilst the largest bruise  had  been
   on  the  upper  right arm it had not been the only  one  there.  He
   continued  by  drawing attention to a phenomenon  that  the  courts
   have  recognised in many previous cases, namely that a  person  who
   falls  against  a hard edge normally has a graze or a  skin  wound,
   whereas  when  a  person falls against or is  struck  by  something
   without  sharp edges, whether it is something with a large  surface
   area  or  a  fist, it is not the surface that is affected  but  the
   soft  tissues  underneath the skin (file, page 107).  Similarly,  a
   cervical  syndrome  could be the result of  Ribitsch's  head  being
   violently shaken.
       In  law, both the objective and the subjective elements of  the
   offence  have been made out and Josef Markl is therefore guilty  of
   the  offence  of  assault occasioning bodily  harm  as  defined  in
   Article  83 para. 1 of the Criminal Code. The conditions laid  down
   in  Article  42 of the Criminal Code are not satisfied  since  this
   kind  of  behaviour  cannot be classified  as  a  trivial  offence.
   Moreover,  the  specific,  and above all general,  requirements  of
   deterrence  militate against the application of  this  rule.  Josef
   Markl  was  unable to prevent himself from committing the  acts  in
   issue  in  the  instant case, even though he must have  known  that
   similar  proceedings  (where  the  facts  were  more  serious)  had
   already  been  brought  against one of his  superior  officers,  Mr
   Gross.
       In  sentencing the accused, the court considers the  fact  that
   the  accused  has  no  previous  convictions  to  be  a  mitigating
   circumstance.  On the other hand, his particularly  brutal  conduct
   constitutes  an aggravating circumstance. Given a possible  maximum
   sentence  of  nine months, the sentence imposed of  two  months  is
   reasonable in view of the offender's personality and the degree  of
   culpability.  For general reasons of deterrence  -  more  and  more
   accusations  directed  against  the brutal  policemen  ({prugelnde}
   Polizisten)  of the Security Branch have been made in recent  years
   - a fine would not have been sufficient.
       In  view  of  the length of prison sentence imposed,  it  must,
   however,  be  assumed  that the threat of  its  execution  will  be
   sufficient   to  deter  Josef  Markl  and  others  from  committing
   criminal  acts. For this reason, the court has been able to  impose
   a suspended sentence."
   
                   IV. Police Officer Markl's appeal
                 to the Vienna Regional Criminal Court
   
       18.  Mr  Markl  appealed  against the judgment  to  the  Vienna
   Regional Criminal Court (Landesgericht {fur} Strafsachen).
   
                         A. The expert opinion
   
       19.  By  an  interlocutory decision of 2 March 1990  the  court
   ordered  an  expert  opinion to be produced by  the  University  of
   Vienna  Institute of Forensic Medicine concerning  the  probability
   of  there  being a causal connection between Mr Ribitsch's injuries
   and  the  accident which had allegedly occurred when he  was  taken
   out  under  police  escort, and the credibility  from  the  medical
   point  of  view  of the applicant's statements regarding  the  ill-
   treatment he had undergone.
       20.  After  interviewing  both Mr Ribitsch  and  Mr  Markl  and
   organising  a  reconstruction  of  the  applicant's  alleged   fall
   against  the  rear  door of the police car,  the  expert  from  the
   Institute of Forensic Medicine summarised his findings as follows:
       "Therefore,  judging  by Meidling Accident  Hospital's  medical
   records,  Ronald Ribitsch had a group of bruises on the outside  of
   his  upper  right arm covering an area of 2 by 3 cm. Moreover,  the
   findings   of   the  neurological  examination   also   contain   a
   description of bruising to the inside of the right arm.  Thus,  the
   only  injuries  established by doctors  were  the  bruises  on  the
   outside  and  inside of the upper right arm described above.  These
   bruises must be regarded as minor and are to be interpreted as  the
   result  of  dull  blows to these parts of the body (lokale  stumpfe
   Gewalteinwirkung). They are not likely to result in  more  than  24
   days' sickness or unfitness for work.
       Whether  there was further bruising in the area of  one  armpit
   and below the right knee must be left to the judge's assessment  of
   the  evidence, as no medical findings were available  to  form  the
   basis  for an opinion on this question. The decisive factor is  the
   credibility  of  the  witness evidence. Even if  one  assumes  that
   these  haematomas  existed  it would  make  no  difference  to  the
   assessment of the consequences of the injuries described above.
       The  general  practitioner  Dr Fritz Scheidlbauer  diagnosed  a
   cervical  syndrome and pointed to vomiting, headaches and a  raised
   body  temperature. However, the neurological examination  conducted
   at  Meidling Hospital did not reveal any evidence of a head  injury
   or   a   displaced  cervical  vertebra.  These  symptoms   can   be
   interpreted  in  this  case as non-specific complaints,  resulting,
   for  example,  from  a general infection (Allgemeininfekt)  (Ronald
   Ribitsch  stated  that  he was suffering from  diarrhoea).  On  the
   other  hand,  from  the  point of view  of  forensic  medicine,  no
   connection  can  be  proved  with any trauma  that  may  have  been
   suffered.
       The  results  of the test carried out with the  car  -  no  big
   differences  are  to be expected with a VW Golf - showed  that  the
   bruising  to  the  outside  of  the upper  right  arm  was  roughly
   consistent as far as its position was concerned with the bruise  on
   the  outside  of the upper arm described in the outpatient  records
   and  visible  in  the photograph. From the medical  point  of  view
   these  injuries  must  be described as non-specific  injuries,  and
   they  only  support the conclusion that this area of the  body  was
   violently  struck  by  a  blunt  'instrument',  without  it   being
   possible  to  conclude from the nature of the damage what  kind  of
   instrument  it  was. The possibility cannot therefore  be  excluded
   that the injury was caused by a bump against the car door.
       Even  if  one  proceeds upon the assumption that  the  injuries
   described by the witnesses existed, the general diagnosis must,  on
   the  whole,  be  described  as non-specific,  so  that  no  certain
   conclusion  can  be  drawn from the medical point  of  view  as  to
   whether  there  was maltreatment, although blows to the  upper  arm
   and,  perhaps, a kick in the knee area cannot be excluded. However,
   serious  ill-treatment lasting several hours cannot in any case  be
   deduced from the overall pattern of the injuries.
       However,  the  version submitted by Josef  Markl,  namely  that
   Ronald  Ribitsch fell against the car door can explain only one  of
   several injuries that may have been sustained."
   
                            B. The hearing
   
       21. At the hearing on 14 September 1990 the expert's report and
   a  statement  by the "police detention centre" to the  effect  that
   the  prison  doctor had seen Mr Ribitsch at 8 a.m. on 1  June  1988
   and  had  declared him fit for detention were read out.  The  court
   then  heard  Police Officer Markl, Mr Ribitsch and the expert  from
   the Institute of Forensic Medicine.
       In  its report, the Commission gave the following account of Mr
   Markl's and the applicant's declarations:
       "60.   Police  Officer  Markl  was  again  questioned  on   the
   accusations  against  him, brought both by the  applicant  and  his
   wife.  Markl  expressed  the view that  the  applicant's  wife  had
   suffered  from the fact of her detention as such and had,  together
   with  her  husband, concentrated upon Markl against whom  to  bring
   their  accusations.  Markl  remembered that  upon  his  arrest  the
   applicant  had threatened to cause difficulties. At a later  stage,
   when  his superior Pretzner had been present, there had, as  usual,
   been  a rather calm atmosphere. At the questioning on 2 June  1988,
   the  applicant had shown him the bruising on his right  upper  arm,
   but  had  not  wanted to see a physician. Markl also  repeated  his
   version of the incident upon the applicant's escorted visit.
       61.   The  applicant  was  questioned  about  his  professional
   training   and  his  past  occupations,  his  financial  situation,
   furthermore  about  his contacts with drugs. Questioned  about  the
   alleged escalation of the interrogation, the applicant stated  that
   the  police officers had wished to find a culprit by any means.  As
   regards  the  first  questioning on 31 May  1988,  he  stated  that
   Police  Officer  Gross  had  disliked  one  of  his  answers   and,
   therefore, pulled him by his moustache out of the chair  and  later
   put  him down again. As he had not resisted, his moustache had  not
   been  torn  off. Police Officer Markl had already hit him  at  that
   stage,  however not in the face; throughout the beating  Markl  had
   attempted to avoid marks as far as possible. The applicant  further
   stated  that he had not suffered any accidental incident  upon  his
   escorted  visit,  and  he insisted that at the  time  he  had  been
   driven in a two-door car, whereas the reconstruction had been  done
   with a four-door car. The applicant was subsequently questioned  in
   detail  about  the  course  of the maltreatment  to  which  he  had
   allegedly  been subjected. He repeated his earlier statements  that
   Markl  had mainly beaten and kicked him and pulled him by the hair,
   though,  when  lying on the floor, he had the impression  of  being
   kicked  by  more  than  one person. Questioned  about  the  varying
   statements  in the course of the proceedings as to the  shoe-print,
   the  applicant insisted that the haematoma had been  on  his  lower
   leg underneath his knee, as had the shoe-print on his trousers.  He
   could  not  say with certainty that Markl had kicked  him,  causing
   this  particular  haematoma. The applicant also said  that  he  had
   chosen  counsel to represent him in this matter only  after  having
   gathered  information.  The reporter of the  public  broadcast  had
   coincidentally  been  present in a pub where he  had  told  friends
   about the incidents."
   
                            C. The judgment
   
       22. At the end of the trial the Regional Criminal Court quashed
   the  District Court's judgment of 13 October 1989 and acquitted  Mr
   Markl.  Pursuant  to Article 366 para. 1 of the  Code  of  Criminal
   Procedure,  it  referred  the applicant  to  the  civil  courts  in
   respect of his claim for damages.
       In  its  judgment of 14 September 1990 the court  set  out  its
   reasons as follows:
       "However,   the   defence  lawyer's  written   appeal   against
   conviction  and his oral pleadings at the hearing on 2  March  1990
   cause  attention to be focused on the question whether on its  own,
   and  in context, the evidence incriminating the accused provides  a
   sufficient  degree of reliability to support a verdict  of  guilty,
   since  it  must  be  borne  in mind that  the  civil  party  Ronald
   Ribitsch has been involved, from time to time at any rate,  in  the
   drug scene.
       The  position confronting the appeal court as regards  evidence
   (Beweislage)  is as follows: while it is true that  the  statements
   made  by  all  the  witnesses informed by the  civil  party  Ronald
   Ribitsch  tallied perfectly with his own version of  events,  which
   always  remained the same, the objective accuracy of  this  version
   stands or falls solely on the reliability of the evidence given  by
   Ronald  Ribitsch. Moreover, like the court of first  instance,  the
   appeal  court  has no doubt as to the subjective  accuracy  of  the
   statements  made  by  the  witnesses  Dr  Scheidlbauer,  Dr  Tripp,
   Elisabeth  Hoke,  Robert  Buchacher  and  Peter  Lehner,  and   can
   therefore  base its decision on the record of their  testimony,  in
   accordance  with  Article  473 para. 2  of  the  Code  of  Criminal
   Procedure. Nevertheless, it considers it necessary to inquire  into
   Ronald  Ribitsch's credibility, to weigh up his story against  that
   of  the  accused  and  to supplement the evidence  adduced  in  the
   proceedings  at  first instance by consulting an  expert  from  the
   Institute of Forensic Medicine."
       With  regard to the applicant's credibility, the Regional Court
   pointed out that on 6 October 1988 the District Criminal Court  had
   found  him guilty of drug offences and ordered him to pay  a  fine.
   Moreover,  he had been unemployed for several years and  lived  off
   his  wife's  income and social security benefits.  These  resources
   were  not, however, sufficient to cover his expenses as a drug user
   who  was the father of two minor children at the material time,  or
   his   other  personal  expenses.  The  court  then  summarised  the
   versions given by Mr Ribitsch on the one hand and Mr Markl  on  the
   other  of the events which had occurred while the applicant was  in
   police custody, and went on to say:
       "Neither  Ronald  Ribitsch's account nor the testimony  of  his
   wife  Anita in the file have been able to satisfy the appeal  court
   conclusively  that  there  was a situation  which  could  logically
   explain   why  the  police  interviews  degenerated  into  criminal
   behaviour.  Moreover,  seeing that only four police  officers  were
   present  and asked questions during the interviews, and  were  busy
   for  part  of  the  time interviewing Anita Ribitsch,  that  Police
   Officers  Gerhard  Trnka and Helmut Gross,  who  were  subsequently
   acquitted,  were cleared of blame by Ronald Ribitsch himself  (vol.
   II,  pages 95 and 96) and that neither Ronald Ribitsch nor his wife
   Anita  accused  Police Officer {Mario Frohlich}, who  treated  them
   correctly,  of any offence (Ronald Ribitsch to Buchacher,  vol  II,
   pages  122  and 123; Anita Ribitsch, vol. I, page 47),  the  appeal
   court  considers that it remains a completely open  question  which
   other  Security  Branch  officers might  have  been  Josef  Markl's
   accomplices  (Mit - oder {Nebentater}). The view  of  the  evidence
   taken  by  the court of first instance, to the effect  that  public
   pressure  to  solve the crime, which was reflected in the  numerous
   hours of overtime (confirmed by the Chief of Police, Dr {Bogl},  in
   vol.  I, pages 37 and 43), constituted sufficient motivation,  does
   not  appear  to the appeal court to be capable of bearing  scrutiny
   ({tragfahig}),  since  one  cannot  simply  assume  that  a  police
   officer,  and one moreover who had good reason to be aware  of  the
   heightened vigilance of the media, would let himself be drawn  into
   criminal acts in a way that defies all logic.
       Ronald  Ribitsch's  version  of  events,  according  to  which,
   "between  3  p.m. and 10.45 p.m. on 1 June 1988 he  was  questioned
   for  periods of about three-quarters of an hour, each time by three
   police  officers,  after which two more officers  banged  his  head
   against  the  floor and kicked him for a quarter of an hour"  (vol.
   I,  page  27)  leads  one  to expect a large  number  of  injuries,
   especially  to  prominent parts of the face. Similarly,  Ribitsch's
   claim  (loc. cit.) that he was hit on the body in such a way  "that
   this  did  not leave many marks but was nevertheless very  painful"
   would  suggest  that the officers had gone about their  task  in  a
   methodical   way,  but  this  cannot  be  reconciled  with   Ronald
   Ribitsch's  account,  according to which  the  officers,  in  their
   efforts  to  force him to confess, had lost all control over  their
   actions.  This version of events does not tally with Mr  Ribitsch's
   assertion  that it was possible for him to distinguish between  the
   officers questioning him and those who were maltreating him,  given
   that,  according to other statements made by Ribitsch, Josef  Markl
   participated both in the interrogation and in the ill-treatment."
       The court then turned to the question of the injuries noted  on
   the applicant's person.
       (i) It referred to Mr Markl's statements to the effect that  Mr
   Ribitsch  had lost his balance when he bumped into the  car's  rear
   door  and had slid to the ground before he, Markl, could grab  hold
   of  his  left  arm  and break his fall. According to  the  forensic
   medical  report,  it  was not impossible for  the  bruises  on  the
   outside  of the applicant's right arm to have been caused  by  this
   fall,  even though the general practitioner questioned by the court
   of  first instance on this subject had stated that this was  rather
   unlikely.  Lastly,  the  expert  from  the  Institute  of  Forensic
   Medicine,  who had organised the reconstruction of the events,  had
   stated  that  the  more violent Mr Ribitsch's  collision  (Anprall)
   with  the car door had been, the more likely it was to have  caused
   the  injuries, but that the more it resembled a mere  slip  to  the
   ground  (Abgleiten), the more improbable was  the  version  of  the
   events given by the accused.
       (ii) The court added that only one of the witnesses, namely the
   journalist,  had noted the existence of a bruise on the  inside  of
   the  right arm, which in any case was not by itself proof  of  ill-
   treatment.  Moreover, Mr Markl had stated in that  connection  that
   he  could  not be sure he had not also grabbed Mr Ribitsch's  right
   arm to stop him falling.
       (iii)  As  for  the  applicant's  other  symptoms,  namely  the
   cervical  syndrome,  stiffness of the fingers  and  diarrhoea,  the
   court  pointed out that, according to the report from the Institute
   of  Forensic  Medicine,  these might also  have  been  signs  of  a
   general infection.
       The court refused the applicant's lawyer's request that further
   evidence  be  taken,  such  as  re-examination  of  the  witnesses,
   production  of the recording made by Austrian radio, reconstruction
   of  the  events  with  a two-door VW Golf and a psycho-neurological
   report;  it  also refused the prosecution's request for  production
   of  the  Security  Branch log-books so that  it  could  be  checked
   whether a two-door or four-door car had been used. It concluded  in
   these terms:
       "Finally, if one considers the fact that the civil party Ronald
   Ribitsch  did not see fit to report the offence, that he  has  been
   unable  in the course of these proceedings to state why he did  not
   do  so, that, for incomprehensible reasons, he chose the course  of
   making  a  public accusation on Austrian radio and that during  the
   proceedings  he  became entangled in contradictions concerning  the
   alibi  to  be  proven  by  the witness  Stranner,  then  there  are
   considerable   doubts   as   to   the  reliability   ({verlassliche
   Tragfahigkeit}) of his evidence.
       The  appeal  court  is therefore unable to reach  a  conclusive
   decision either to reject the accused's evidence or to accept  even
   in  part  the  evidence adduced by the civil party Ronald  Ribitsch
   with  the certainty which alone may be made the basis of a  verdict
   of guilty in criminal proceedings.
       ..."
   
                    V. The applicant's application
                      to the Constitutional Court
   
       23. Mr Ribitsch then applied to the Constitutional Court, which
   gave  judgment  on 26 November 1990. It held that  the  applicant's
   arrest,  his  detention in police custody and the searches  carried
   out  at  his home had been unlawful and had infringed his right  to
   liberty  of  person and respect for his home. The  police  had  not
   been  in possession of either an arrest warrant or a search warrant
   and  had  not  been  able to establish the  risk  of  collusion  or
   immediate danger. It ruled that it had no jurisdiction to  rule  on
   the  question of the insults allegedly uttered by the police to the
   applicant. As for the ill-treatment he had allegedly undergone,  it
   noted  that  the three defendants had been acquitted by  the  lower
   courts and concluded:
       "In  the  light  of  this outcome of the  criminal  proceedings
   (during  which  a  large  body  of  evidence  was  presented),  the
   Constitutional  Court  considers that  it  is  not  in  a  position
   (ausser  Stande)  to  uphold  the applicant's  allegations  and  to
   consider  the  claims of ill-treatment made in the  application  to
   this  court  to have been proved beyond doubt. In summary,  in  the
   proceedings  before  the  Constitutional Court  it  was  no  longer
   possible,  in the circumstances, to clarify the relevant facts  any
   further,  nor, consequently, to furnish proof of the alleged  human
   rights violation.
       On  this  point  also, therefore - in the absence  of  a  valid
   object   -   the   application   must  be   declared   inadmissible
   ({unzulassig})."
   
                   PROCEEDINGS BEFORE THE COMMISSION
   
       24.  Mr  Ribitsch applied to the Commission on 5  August  1991.
   Relying  on  Articles 3 and 6 para. 1 (art. 3,  art.  6-1)  of  the
   Convention  and  Article 13 in conjunction  with  Article  3  (art.
   13+3),  he  complained that he had undergone inhuman and  degrading
   treatment during his detention in police custody, that he had  been
   prevented  from effectively prosecuting his action for  damages  on
   account  of  his status as civil party in the criminal  proceedings
   and  that  he had not had an effective remedy in the Constitutional
   Court.
       25.  On 20 October 1993 the Commission declared admissible  the
   complaint  under  Article  3 (art. 3)  and  the  remainder  of  the
   application (no. 18896/91) inadmissible.
       In  its  report  of  4 July 1994 (Article  31)  (art.  31),  it
   expressed the opinion (by ten votes to six) that there had  been  a
   breach  of  Article 3 (art. 3). The full text of  the  Commission's
   opinion  and of the two separate opinions contained in  the  report
   is reproduced as an annex to this judgment <*>.
   --------------------------------
       <*>  Note  by the Registrar: for practical reasons  this  annex
   will  appear only with the printed version of the judgment  (volume
   336  of  Series A of the Publications of the Court), but a copy  of
   the Commission's report is obtainable from the registry.
   
           FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT
   
       26. In their memorial the Government asked the Court to hold
       "that  the applicant's rights under Article 3 (art. 3)  of  the
   Convention  were  not  infringed by  the  officers  of  the  Vienna
   Federal Police Authority".
   
                             AS TO THE LAW
   
              I. Alleged violation of Article 3 (art. 3)
                           of the Convention
   
       27.  Mr  Ribitsch claimed that while in police custody  at  the
   Security  Branch  of  the Vienna Federal Police  Authority  he  had
   undergone  ill-treatment incompatible with Article 3  (art.  3)  of
   the Convention, which provides:
       "No  one  shall  be  subjected to  torture  or  to  inhuman  or
   degrading treatment or punishment."
       28.  The  Government contested this allegation. The  Commission
   considered it well-founded.
       29.  The  applicant asserted that the injuries he  had  on  his
   release  from  police  custody, particularly  the  bruises  on  the
   inside  and outside of his right arm, had been seen by a number  of
   witnesses, including a journalist, a psychologist and doctors  (see
   paragraphs  13  and 16 above). These injuries had only  one  cause,
   namely  the  ill-treatment inflicted by  the  police  officers  who
   questioned  him,  who, after grossly insulting him,  had  assaulted
   him  repeatedly  in order to induce him to make a  confession  (see
   paragraphs 12, 15 and 16 above).
       30.  The Government did not dispute that Mr Ribitsch's injuries
   were  sustained  while he was in police custody,  but  pointed  out
   that  it  had  not  been  possible  during  the  domestic  criminal
   proceedings  to  establish culpable conduct  on  the  part  of  the
   policemen.  In that connection they referred to the conclusions  of
   the  Vienna  Regional Criminal Court, which had conducted  its  own
   assessment  of the evidence, in particular by ordering  a  forensic
   medical  report,  and  had  thoroughly  scrutinised  Mr  Ribitsch's
   statements  and  his  credibility.  They  submitted  that,  for   a
   violation of the Convention to be found, it was necessary for  ill-
   treatment to be proved "beyond reasonable doubt".
       31.  The Commission expressed the view that a State was morally
   responsible  for any person in detention, since he was entirely  in
   the  hands  of the police. In the event of injuries being sustained
   during  police  custody,  it  was for  the  Government  to  produce
   evidence  establishing facts which cast doubt  on  the  account  of
   events  given  by  the  victim, particularly if  this  account  was
   supported  by  medical  certificates.  In  the  instant  case,  the
   explanations  put forward by the Government were not sufficient  to
   cast  a  reasonable doubt on the applicant's allegations concerning
   the  ill-treatment  he  had  allegedly undergone  while  in  police
   custody.
       32. The Court reiterates that, under the Convention system, the
   establishment and verification of the facts is primarily  a  matter
   for  the Commission (Article 28 para. 1 and Article 31) (art. 28-1,
   art.  31).  It is not, however, bound by the Commission's  findings
   of  fact and remains free to make its own appreciation in the light
   of  all  the material before it (see, among other authorities,  the
   Klaas  v. Germany judgment of 22 September 1993, Series A no.  269,
   p.  17,  para. 29). The Court further points out that in  principle
   it  is  not its task to substitute its own assessment of the  facts
   for  that of the domestic courts, but that it is not bound  by  the
   domestic  courts'  findings any more than it is  by  those  of  the
   Commission.
       Its scrutiny must be particularly thorough where the Commission
   has  reached  conclusions  at variance with  those  of  the  courts
   concerned.  Its  vigilance  must be heightened  when  dealing  with
   rights  such  as  those set forth in Article  3  (art.  3)  of  the
   Convention,  which prohibits in absolute terms torture and  inhuman
   or  degrading treatment or punishment, irrespective of the victim's
   conduct.  Unlike most of the substantive clauses of the  Convention
   and  of  Protocols Nos. 1 and 4 (P1, P4), Article 3 (art. 3)  makes
   no provision for exceptions and, under Article 15 para. 2 (art. 15-
   2),  there  can be no derogation therefrom even in the event  of  a
   public  emergency  threatening the life  of  the  nation  (see  the
   Ireland  v. the United Kingdom judgment of 18 January 1978,  Series
   A no. 25, p. 65, para. 163).
       33. In the instant case the Court notes the following facts:
       (1)  The  existence  of  injuries to Mr Ribitsch's  person  was
   established  as  early  as  2 June 1988 in  a  report  by  Meidling
   Hospital  and  noted on 3 June 1988 by a general  practitioner,  Dr
   Scheidlbauer,  and  a  number  of  other  witnesses.   During   the
   proceedings  at  first  instance Dr  Scheidlbauer  stated  that  he
   considered  it rather unlikely that a fall against a car  door  had
   caused those injuries; during the appeal proceedings the expert  in
   forensic  medicine appointed by the Regional Criminal Court  stated
   that  such a fall could explain "only one of several injuries  that
   may  have  been  sustained". It is not disputed that the  applicant
   had  a number of bruises on the inside and the outside of his right
   arm (see paragraphs 13, 16, 17 and 20 above).
       (2)  The  explanations  given by Police Officer  Markl  contain
   discrepancies.  His  report, incorrectly dated  1  June  1988,  had
   allegedly  been drawn up on the advice of his superior officer,  Mr
   Gross,  although  the latter asserted that he had not  known  about
   any   injuries  (see  paragraphs  15  and  17  above).  Mr  Markl's
   statements  as to when the applicant first showed him the  injuries
   on  his  right arm are contradictory. Lastly, he took no action  on
   the  allegations  by witnesses that Mr Ribitsch  had  been  selling
   washing powder which he had passed off as heroin (see paragraph  17
   above).
       (3) Police Officer {Frohlich}, the driver of the car, said that
   he had not seen Mr Ribitsch fall (see paragraph 15 above).
       (4)  The  Vienna  District Criminal Court, after  conducting  a
   detailed  analysis  of the evidence and conduct of  Police  Officer
   Markl,  found  him guilty of assault occasioning  bodily  harm.  It
   considered  Mr  Ribitsch's version of events credible,  basing  its
   assessment  in particular on the consistent nature of  the  witness
   evidence  and  on  the general practitioner's  statements.  On  the
   other  hand,  it  described as "disquieting" the  line  of  defence
   adopted  by  Mr  Markl, whose statements seemed  contradictory  and
   confused (see paragraph 17 above).
       (5)  The  Vienna  Regional Criminal Court, on the  other  hand,
   acquitted  Mr  Markl, concluding that it was  "unable  to  reach  a
   conclusive decision either to reject the accused's evidence  or  to
   accept  even in part the evidence adduced by the civil party Ronald
   Ribitsch with the certainty which alone may be made the basis of  a
   verdict  of  guilty  in  criminal  proceedings".  In  stating   its
   reasons,  the Regional Criminal Court cast doubt on the applicant's
   credibility,  notably on the basis of considerations  unrelated  to
   the  course  of  events  while  he was  in  police  custody.  These
   included  his  conviction for a drug offence in October  1988,  the
   fact  that  he  was unemployed, the fact that he was living  beyond
   his  means  and  the  fact that he "chose the course  of  making  a
   public  accusation  on  Austrian  radio"  rather  than  lodging   a
   complaint.  In  justifying  its departure  from  the  view  of  the
   evidence  taken  by  the  court  of first  instance,  the  Regional
   Criminal  Court  also  included the observation  that  "one  cannot
   simply assume that a police officer, and one moreover who had  good
   reason to be aware of the heightened vigilance of the media,  would
   let  himself be drawn into criminal acts in a way that  defies  all
   logic" (see paragraph 22 above).
       (6)  The Constitutional Court did not examine the merits of  Mr
   Ribitsch's  complaint of ill-treatment. It noted  the  unlawfulness
   of  the searches and the arrest of the applicant and his wife  (see
   paragraph 23 above).
       34.  It  is  not  disputed  that Mr  Ribitsch's  injuries  were
   sustained during his detention in police custody, which was in  any
   case  unlawful, while he was entirely under the control  of  police
   officers.   Police  Officer  Markl's  acquittal  in  the   criminal
   proceedings  by  a court bound by the principle of  presumption  of
   innocence  does  not absolve Austria from its responsibility  under
   the   Convention.   The  Government  were  accordingly   under   an
   obligation   to  provide  a  plausible  explanation  of   how   the
   applicant's  injuries were caused. But the Government did  no  more
   than  refer  to  the outcome of the domestic criminal  proceedings,
   where  the  high standard of proof necessary to secure  a  criminal
   conviction  was not found to have been satisfied. It is also  clear
   that,  in  that  context,  significant  weight  was  given  to  the
   explanation that the injuries were caused by a fall against  a  car
   door.  Like  the  Commission,  the  Court  finds  this  explanation
   unconvincing;  it  considers that, even if Mr Ribitsch  had  fallen
   while  he  was  being  moved under escort,  this  could  only  have
   provided   a   very   incomplete,   and   therefore   insufficient,
   explanation of the injuries concerned.
       On  the  basis of all the material placed before it, the  Court
   concludes  that the Government have not satisfactorily  established
   that  the  applicant's  injuries  were  caused  otherwise  than   -
   entirely,  mainly, or partly - by the treatment he underwent  while
   in police custody.
       35.  Mr  Ribitsch maintained that the ill-treatment he suffered
   while   in   police  custody  constituted  inhuman  and   degrading
   treatment.  The  blows  he  received and the  insults  and  threats
   uttered  against  him and his wife, who was detained  at  the  same
   time,  had  caused  him  intense  physical  and  mental  suffering.
   Moreover,  a  number of witnesses had confirmed that the  applicant
   had   sustained   physical   injuries  and   was   suffering   from
   considerable psychological trauma (see paragraph 16 above).
       36.    Taking   into   account   the   applicant's   particular
   vulnerability while he was unlawfully held in police  custody,  the
   Commission  declared  itself  fully  satisfied  that  he  had  been
   subjected  to  physical  violence which  amounted  to  inhuman  and
   degrading treatment.
       37.  The  Government  did  not  dispute  that  the  applicant's
   injuries,  assuming  that  it  had  been  proved  that  they   were
   deliberately  inflicted  on him while he  was  in  police  custody,
   reached  a  level of severity sufficient to bring them  within  the
   scope of Article 3 (art. 3).
       38.  The Court emphasises 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) of the Convention. It reiterates  that  the
   requirements  of  an investigation and the undeniable  difficulties
   inherent  in the fight against crime cannot justify placing  limits
   on  the  protection  to  be  afforded in respect  of  the  physical
   integrity of individuals (see the Tomasi v. France judgment  of  27
   August 1992, Series A no. 241-A, p. 42, para. 115).
       39.  In  the instant case the injuries suffered by Mr  Ribitsch
   show  that  he  underwent  ill-treatment  which  amounted  to  both
   inhuman and degrading treatment.
       40. Accordingly, there has been a breach of Article 3 (art. 3).
   
                II. Application of Article 50 (art. 50)
                           of the Convention
   
       41. Article 50 (art. 50) of the Convention provides:
       "If  the  Court finds that a decision or a measure taken  by  a
   legal  authority or any other authority of a High Contracting Party
   is  completely  or  partially  in  conflict  with  the  obligations
   arising  from the ... Convention, and if the internal  law  of  the
   said  Party  allows  only partial reparation to  be  made  for  the
   consequences  of  this decision or measure,  the  decision  of  the
   Court  shall, if necessary, afford just satisfaction to the injured
   party."
       42.  Under  this  provision (art. 50) the  applicant  requested
   compensation  for  non-pecuniary damage and  reimbursement  of  his
   costs and expenses.
   
                        A. Non-pecuniary damage
   
       43.  Mr  Ribitsch maintained that he had suffered non-pecuniary
   damage on which he set the figure of ATS 250,000.
       44.  The  Government  did  not  make  any  observation  on  the
   question.
       45.  The  Delegate of the Commission argued that  a  relatively
   high  sum  should be awarded in order to encourage  people  in  the
   same position as Mr Ribitsch to bring court proceedings.
       46.  The Court considers that the applicant suffered undeniable
   non-pecuniary  damage.  Taking the various  relevant  factors  into
   account,  and  making  its assessment on  an  equitable  basis,  as
   required by Article 50 (art. 50), it awards him ATS 100,000.
   
                         B. Costs and expenses
   
       47.  Mr Ribitsch also requested reimbursement of his costs  and
   expenses.  For  the proceedings in the Austrian courts  he  claimed
   ATS  78,780. For the proceedings before the Convention institutions
   he  requested ATS 385,375, after deducting ATS 20,185 in respect of
   the legal aid he had received before the Commission.
       48.  The Government argued that, with reference to the Austrian
   Bar's  guidelines  on  fees,  most  of  the  amounts  claimed  were
   excessive.
       49. The Delegate of the Commission did not express any view  on
   the question.
       50.  Making  its assessment on an equitable basis  and  in  the
   light  of the criteria it applies in this matter, the Court  awards
   the  applicant ATS 200,000, from which should be deducted  the  sum
   of  18,576  French francs already paid by the Council of Europe  in
   respect of legal aid.
   
                     FOR THESE REASONS, THE COURT
   
       1.  Holds by six votes to three that there has been a breach of
   Article 3 (art. 3) of the Convention;
       2.  Holds by six votes to three that the respondent State is to
   pay  the  applicant,  within  three months,  100,000  (one  hundred
   thousand) Austrian schillings for non-pecuniary damage;
       3.  Holds unanimously that the respondent State is to  pay  the
   applicant,  within  three months, 200,000  (two  hundred  thousand)
   Austrian  schillings in respect of costs and expenses, less  18,576
   (eighteen  thousand five hundred and seventy-six) French francs  to
   be  converted  into  Austrian schillings at the  rate  of  exchange
   applicable on the date of delivery of the present judgment;
       4.  Dismisses unanimously the remainder of the claim  for  just
   satisfaction.
   
       Done  in  English  and  in French, and delivered  at  a  public
   hearing  in  the Human Rights Building, Strasbourg, on  4  December
   1995.
   
                                                  Signed: Rolv RYSSDAL
                                                             President
   
                                               Signed: Herbert PETZOLD
                                                             Registrar
   
   
   
   
   
   
       In  accordance  with  Article 51 para. 2  (art.  51-2)  of  the
   Convention  and  Rule 53 para. 2 of Rules of  Court  A,  the  joint
   dissenting  opinion of Mr Ryssdal, Mr Matscher and  Mr  Jambrek  is
   annexed to this judgment.
   
                                                     Initialled: R. R.
   
                                                     Initialled: H. P.
   
              JOINT DISSENTING OPINION OF JUDGES RYSSDAL,
                         MATSCHER AND JAMBREK
   
                             (Translation)
   
       1. In the present case we are unable to agree with the majority
   of  the Chamber, in particular because we attach a different weight
   to the facts.
       In  May  1988, following the deaths of two people  from  heroin
   overdoses, the special unit of the Vienna Federal Police  Authority
   conducted inquiries among people on the drug scene with the aim  of
   discovering  who  had  supplied the drug to the  deceased.  In  the
   course   of  these  inquiries  it  questioned,  among  others,   Mr
   Ribitsch,  who  was known to be a drug user and was also  suspected
   of  being a dealer. Two informants, one of whom was a close  friend
   of  one of the deceased, had identified Mr Ribitsch as the supplier
   of the fatal dose of heroin.
       On  31  May  1988  police officers arrested the  applicant  and
   searched his home. These officers having found a quantity of  drugs
   at  the  premises,  Mr Ribitsch was taken into police  custody  for
   questioning  at  the  headquarters of the Security  Branch  of  the
   Vienna  Federal  Police Authority from noon on  31  May  until  the
   morning of 2 June 1988.
       Mr  Ribitsch subsequently claimed that he had been subjected to
   ill-treatment  while  in  police  custody.  He  did  not  lodge   a
   complaint  with the competent authorities but informed a number  of
   his  friends and relatives, including a journalist. It was only  on
   the  journalist's advice that Mr Ribitsch went to  a  hospital  and
   consulted   his  general  practitioner.  A  few  days   later   the
   journalist  organised  a  programme on  Austrian  radio  about  the
   events in question.
       Unlike  what  happened in similar cases brought  against  other
   States  (see, in particular, the case of Klaas v. Germany, judgment
   of   22   September  1993,  Series  A  no.  269),   the   competent
   authorities,  of  their  own motion, opened  an  inquiry  into  the
   events in question as soon as they had been informed of them.
       The results of the inquiry were sent to the public prosecutor's
   department,  which  brought  criminal  proceedings  against   three
   police officers for assault occasioning bodily harm.
       In  a judgment given by the Vienna District Criminal Court  one
   of  the three police officers was found guilty and sentenced to two
   months'   imprisonment,  suspended,  while  the  other   two   were
   acquitted. The reasons for the District Court's judgment  were  set
   out  at  length. The judge mainly relied on the evidence  given  by
   the  witnesses - Mr Ribitsch and other persons who can be  numbered
   among his friends and relatives - and on the certificates made  out
   by  the  hospital staff and the general practitioner, in  which  an
   account  was  given  of  the injuries to Mr Ribitsch's  person  and
   other  symptoms  the  latter had described. The  judge  refused  to
   allow  a defence application for a forensic medical report  on  the
   cause of these injuries.
       On  an  appeal by the police officer convicted by the  District
   Court,  the Vienna Regional Criminal Court first of all  ordered  a
   forensic medical report from the University of Vienna Institute  of
   Forensic  Medicine. The main aim of this report was  to  establish,
   as  far as possible, the cause of the injuries noted by the doctors
   and  the  symptoms the applicant had complained of. Its  conclusion
   was that the injuries and symptoms concerned could be explained  in
   various  ways; it was quite possible that they had been  due  to  a
   cause  different  from  that accepted by the  District  Court.  The
   Regional   Criminal  Court,  composed  of  three   career   judges,
   carefully  evaluated  the evidence before it, examining  in  detail
   the  statements  of  the  applicant and the  other  witnesses,  and
   acquitted  the police officer, on cogent grounds. Moreover,  it  is
   the  practice  of appellate courts in Austria not to  overturn  the
   judgment  of a lower court unless they have serious doubts  whether
   it is well-founded.
       The  Constitutional Court dismissed an appeal by the applicant,
   having  observed  that  it  could see no reason  to  criticise  the
   procedure  followed in the Regional Court, its  assessment  of  the
   evidence or the decision it had reached.
       The  Constitutional Court could have reviewed the whole of  the
   proceedings  in  the case and conducted its own assessment  of  the
   facts.  However, as explained in the previous paragraph, it saw  no
   reason  to do so, thus endorsing in substance the Regional  Court's
   judgment on the appeal.
       Our  conclusion: The respondent Government ordered of their own
   motion  an  inquiry  which led to close scrutiny  of  the  case  by
   independent  courts at three different levels of  jurisdiction.  It
   is  not  the Court's task to substitute its own assessment  of  the
   facts for that conducted by the national courts, unless these  have
   proceeded  improperly, which was not the position  in  the  instant
   case.
       As  there  obviously was reasonable doubt as to the applicant's
   allegations of ill-treatment causing bodily injuries in the  course
   of  his  detention  at the Vienna Federal Police  Department,  even
   though  it was not possible to provide irrefutable proof  that  the
   injuries  and  symptoms complained of by the  applicant  after  his
   release from police custody were caused otherwise than by the  acts
   he  alleged,  we cannot conclude that there has been  a  breach  of
   Article 3 (art. 3) of the Convention.
       2.  In  view  of  the ambiguous behaviour of the applicant  and
   taking  into account that before the District Court he claimed  for
   damages only ATS 1,000, which were awarded to him, we did not  feel
   able  to  vote  for  any  further  compensation  for  non-pecuniary
   damages.
   
   

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