Part B: Human Rights News: I Council of Europe
| Author | Leo Zwaak |
| Published date | 01 March 1996 |
| Date | 01 March 1996 |
| DOI | http://doi.org/10.1177/092405199601400105 |
| Subject Matter | Article |
Part
B:
Human
Rights News
I COUNCIL OF EUROPE
Leo Zwaak
A. European
Court
of Human Rights
Article 3
ECHR:
Prohibition of inhuman treatment
or
punishment.
4December 1995, Ribitsch (Austria), A 336. The applicant claimed that while in police
custody he had undergone ill-treatment. The Government did not dispute that the
applicant'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 the applicant'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'. The European Court
of
Human Rights noted the following
facts in instant case. The existence of injuries to applicant's person had been established
by doctors and a number
of
other witnesses. The discrepancies in the explanations
of
a
police officer statements made by another officer, the driver of the car, to the effect that
he had not seen applicant fall. The first officer had been convicted of assault occasioning
bodily harm by Vienna District Criminal Court, which had conducted a detailed analysis
of the evidence and accused's conduct. The officer concerned had been acquitted, on the
other hand, by Vienna Regional Criminal Court, which had cast doubt on applicant's
credibility, notably on the basis of considerations which were unrelated to the course of
events while he was in police custody. The merits of complaint of ill-treatment had not
been examined by the Constitutional Court, which had noted the unlawfulness
of
the
searches and the arrest of applicant and his wife. It was not in dispute that the applicant's
injuries were sustained during his detention in police custody. The Court went on that the
acquittal
of
a police officer in criminal proceedings by a court bound by the principle of
presumption
of
innocence did not absolve Austria from its responsibility under the
Convention. The Government is under the obligation to provide plausible explanation of
how applicant's injuries were caused. There was no convincing explanation by the
Government, that the injuries were caused by a fall against a car door. Even if the
applicant had fallen while he was being moved under escort, this could only have provided
a very incomplete, and therefore an insufficient, explanation
of
the applicant's injuries. 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 a violation of Article 3. The requirements of an investigation and the undeniable
difficulties inherent in the fight against crime cannot justify placing limits on the
protection of physical integrity of individuals. The injuries in the instant case revealed
ill-treatment which amounted to both inhuman and degrading treatment.
Article 5(4)
ECHR:
Right to take proceedings in case of deprivation of liberty to
have the lawfulness speedily decided by a court.
24 October 1995, Iribarne Perez (France), A 325-C. On 26 November 1985 the Tribunal
de Corts in Andorra sentenced the applicant to twelve years' imprisonment for drug
trafficking and unlawful possession of a firearm. The court also ordered that he should be
Netherlands Quarterly
of
Human Rights. Vol. 14/1.47-95. 1996.
©The Netherlands Institute
of
Human Rights (SIM). Printed in the Netherlands. 47
NQHR 1
/1996
deported from Andorra. Having chosen to serve his sentence in France, the applicant was
taken into custody on 17 December 1985 in a prison in Toulouse. On 17 June 1987 he
was sentenced by the Toulouse Criminal Court to ten months' imprisonment for an
attempted escape. On 14 January 1993 he lodged a complaint, together with an application
to join the proceedings as a civil party, against the Toulouse Public Prosecutor alleging
a denial
of
justice and arbitrary detention. In a letter of 30 March 1993 the Ministry of
Justice refused his application. The applicant was released on 13 August 1994 and then
expelled from French territory. The Court first noted that its task was limited to
of
the applicant's detention
should have been reviewed in France. The review required by Article 5(4) was
incorporated in the decision depriving a person of his liberty when that decision had been
made by a court at the close of judicial proceedings. That was so, for example, where a
sentence
of
imprisonment had been pronounced after 'conviction by a competent court'
within the meaning
of
not
'an
ensuing period
of
detention in which new issues affecting the lawfulness
of
the
detention might subsequently arise'. However, Article 5(4) sometimes required the
possibility
of
subsequent review of the lawfulness of detention by a court. This usually
applied to the detention of persons of unsound mind within the meaning of paragraph 1(e),
where the reasons initially warranting a confinement might cease to exist. The same
principle applied to the detention 'after conviction by a competent court' mentioned in
paragraph l(a), but only in certain quite specific circumstances. The Court regarded the
Tribunal de Carts as the 'competent court'. The review required by Article 5(4) was,
therefore, incorporated in its judgment. In any event, the Court, like the Commission, did
not perceive in the instant case any flagrant denial of justice.
It
noted in particular that Mr.
Perez had not alleged any infringement of the essential rights of the defence. He had been
assisted by a lawyer, had had a public hearing and had been served with a copy
of
the
judgment. The Court concluded that there had been no breach of the Convention.
26 September 1995. Diennet (France), A 325-A. The applicant, a general practitioner, was
the object
of
proceedings for professional misconduct. The Regional Council ordered the
applicant to be struck
off
the register for professional misconduct. On an appeal by the
applicant, the disciplinary section
of
the National Council ordered that he should be
disqualified from practising medicine for three years instead of being struck off. Dr
Diennet challenged this decision in the Conseil d'Etat, which quashed the decision on the
ground that it had been reached after proceedings that had been irregular and remitted the
case to the disciplinary section of the National Council. The section, composed of seven
members, three of whom, including the rapporteur, had taken part in the decision, heard
the case in private. In a decision it again imposed on the applicant a three-year
disqualification from practising medicine. An appeal on points of law by the applicant was
dismissed by the Conseil d'Etat.
It
was clear from the Court's settled case-law that
disciplinary proceedings in which, as in the instant case, the right to continue to practise
medicine as a private practitioner was at stake gave rise to 'disputes over civil rights'
within the meaning
of
Article 6( 1). The applicability of this article to the circumstances
of
the case was therefore not in doubt. The Court considered it unnecessary to determine
whether there had been any 'criminal charge' against the applicant within the meaning of
Article 6(1). Those
of
the Article 6(1) rules which the applicant had alleged to have been
breached applied to both civil and criminal matters. The Court reiterated that the holding
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