Naser PALUSHI v Austria - 27900/04 [2008] ECHR 1753 (27 November 2008)

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The European Court of Human Rights (First Section), sitting on 27 November 2008 as a Chamber composed of:

Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

The applicant, Mr Naser Palushi, is an Austrian national who was born in 1972 and lives in Vienna. He was represented before the Court by Mr H. Pochieser, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Trauttmansdorff, Head of the Law Department at the Federal Ministry for European and International Affairs.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant, who is a Kosovo Albanian, was a national of the former Socialist Federal Republic of Yugoslavia at the time of the events. By the time of lodging the application he had obtained Austrian citizenship.

On 28 April 1994 the Vienna Federal Police Authority (Bundespolizeidirektion) ordered the applicant’s detention with a view to expulsion on account of his illegal stay in Austria. At that time a request by the applicant for asylum had been refused by the second-instance authority.

On the same day the applicant was taken to the Vienna East Police Prison (Polizeigefangenenhaus Wien Ost). On 31 April 1994 he went on hunger strike.

In the evening of 21 May 1994 the applicant’s cellmates called the police officers on duty and informed them that the applicant had slipped while going to the toilet and had sustained a bleeding injury to his head.

The applicant was subsequently taken to an individual cell and the injury to his head was bandaged by a paramedical officer.

On 24 May 1994 the applicant was taken to the prison doctor, who noticed and mentioned in his written diagnosis several skin abrasions in the lumbar region of the applicant’s backbone, one of which is described as being substantial. He treated these injuries with a spray and bandages. Moreover, he recorded the applicant’s weight and measured his blood pressure and blood-sugar level.

On the same day Mr Staub, a member of an NGO looking after the applicant, Mrs Pichler, a journalist, and Mr Horvath, a friend, visited the applicant in prison. Mrs Pichler subsequently published an article in the magazine News reporting that the applicant had told her that after his accident four officers had dragged him by the feet out of his cell and kicked him. They had also stabbed him behind the ears with ballpoint pens and hit him repeatedly in the face. He had shown the journalist abrasion marks on his back and hip and small round bruises behind his ears.

On 26 May 1994 the doctor changed the bandages and also examined the applicant’s head. In his written diagnosis of that date he mentioned, in addition to a small healed scratch on the middle of the applicant’s head, two small scabs such as would form after a superficial skin abrasion behind both ears. He further noted that the applicant did not raise any other specific health complaints. Again the doctor recorded the applicant’s weight, which was down to 53.5 kilograms, and his blood pressure and blood-sugar level.

On 28 May 1994 the applicant was released from prison on account of his poor health as a result of the hunger strike. Later on, his asylum request was granted.

On 17 June 1994 the applicant filed a complaint with the Vienna Independent Administrative Panel (Unabhängiger Verwaltungssenat). He submitted that on 21 May 1994 the four prison officers called by his cellmates had dragged him by his feet out of the cell. They had then beaten him, kicked him in his belly and kidneys and pressed a ballpoint pen behind his ear lobes. At that time he had lost consciousness. He had subsequently been dragged from the third floor along the steps down to the cellar, in the process suffering injuries and haematomas along his backbone and skin abrasions on his heels. Having been given a bandage that was insufficient, he had been locked in an individual cell in the cellar without daylight. Only upon a request by Mr Staub, who had visited him in prison on 24 May 1994, had a paramedic seen him and eventually, upon his insistence, taken him to the prison’s doctor. The treatment he had suffered at the hands of the police officers on 21 May 1994 and the fact that he had subsequently been kept until 24 May 1994 in solitary confinement without daylight and without medical care were, in the applicant’s submission, in violation of his rights under Articles 3 and 5 of the Convention.

In its submissions in reply the Vienna Federal Police Authority contested these allegations. It stated that during his hunger strike the applicant had regularly been weighed and his blood-sugar level had been checked. Because of conflicts with former inmates the applicant had already been transferred from another cell. The applicant had several times pretended to faint and had requested an inmate, Mr Stojanovic, to call the prison officers. On the day in question the applicant had banged continuously against the cell door, had rung the bell and had disregarded the ensuing admonitions of the prison officers. In the evening he had gone to the lavatory situated in the cell, had fallen down and had suffered a slightly bleeding injury on his head. The applicant’s inmates had subsequently dragged the applicant away from the toilet. The prison’s paramedical officer, Mr Zechmeister, established that the applicant was only pretending to be unconscious and such behaviour continued once the applicant was taken outside the cell. An officer, Mr Freithofer, then ordered that the applicant be placed in solitary confinement. Two other officers, Mr Mayerhuber and Mr Reichel, were present. None of them had mistreated the applicant. While Mr Zechmeister fetched bandage material, Mr Freithofer and Mr Mayerhuber carefully dragged the applicant down to the ground floor. The applicant was holding his head up while being carried, and was therefore only pretending to be unconscious. As he could not be made to walk on his own, inevitably his feet, and partly also his backside, dragged along the floor. After the applicant’s head injury had been cleaned and bandaged, he walked on his own to the individual cell situated on the first floor. This cell had a window. At that time the applicant did not allege that he had sustained any further injuries. As with every prisoner on hunger strike, the applicant’s state of health was examined daily by the prison’s paramedical officer. On 24 May 1994 the applicant showed the paramedic for the first time the abrasions on his back, which were subsequently treated by the prison doctor.

On 26 July 1994 and on 16 January 1995 the Independent Administrative Panel held two oral hearings at which it heard evidence from the applicant, two prison inmates, Mr Fadil and Mr Stojanovic, and two of the officers concerned, Mr Zechmeister and Mr Mayerhuber.

In addition to the allegations he had made in his complaint, the applicant submitted that after the incident he had noticed traces of blood behind his ears. The individual cell had had a window but no daylight had come through. There were only dirty bedclothes. There had also been a toilet which did not flush. He had suffered from severe pain in his back and on his head and had requested to see a doctor but his requests had been met only with insulting remarks. Only after three days had the paramedical officer come to his cell again. He had shown him the injuries on his back and subsequently, after Mr Staub had visited him, had been taken to a doctor. As well as the injuries on his back because of the way in which he had been carried, he had suffered injuries to his ribs as a result of being kicked by the police officers. Afterwards the doctor had visited the cell and the applicant had obtained a cushion and clean bedclothes.

The representative of the police authority submitted that according to the applicant’s submissions in criminal proceedings which he had brought against the four police officers concerned and which were later discontinued, he had seen the prison’s doctor on 24 May 1994 before Mr Staub’s visit.

Mr Fadil alleged that he remembered being in the same cell as the applicant in May 1994. The applicant, however, did not remember Mr Fadil. Mr Fadil submitted that the applicant had already lost consciousness several times. After his accident, the prison officers had grasped the applicant under his arms and neck and had pulled him out of the cell so that his back dragged along the floor. The cell door had then been closed but he had heard the applicant being beaten and crying. He had also learnt from other prisoners that the applicant had been injured while being dragged down the steps. Another prisoner who had meanwhile been deported had allegedly witnessed this incident and had also noticed traces of blood on the floor.

Mr Stojanovic, who was undisputedly a cellmate of the applicant at the time of the events, confirmed that the applicant had already lost consciousness several times before the incident in question. They had then called a doctor, who had come and measured the applicant’s blood pressure. On the evening in question the officers had pulled the applicant by his feet out of the bed and then, grasping the applicant’s neck, out of the cell while his back dragged along the floor. During this time the officers had punched the applicant two or three times on his chest. Then the door had been closed, and he had heard cries and something which sounded like beating. He had never noticed any injuries on the applicant’s back. Some three or four days after the incident and again one week later he had met the applicant, who had shown him blue marks on his back and on his leg. The applicant also told him that he had been beaten. Mr Stojanovic had also been interviewed by police officers in the course of the criminal proceedings concerning the case. According to the transcripts of the interview, he had stated on that occasion that the applicant had several times falsely claimed to be feeling weak and had requested him to call the prison officers. After his accident the applicant had been moved by his cellmates from the toilet to his bed and his back had dragged along the floor. The prison officers who had subsequently carried the applicant out of the cell had not mistreated him. When confronted with these statements at the hearing before the Independent Administrative Panel, Mr Stojanovic submitted that they were not true and had apparently been wrongly recorded because of his poor knowledge of the German language and misunderstandings with the interviewing police officers.

Mr Zechmeister submitted that on 21 May 1994 he had been called several times to the applicant’s cell as the applicant had pretended to faint. When called to the applicant’s cell in the evening, his impression that the applicant was again pretending was confirmed by an examination of the applicant’s reactions. He had then left in order to fetch dressing material for the applicant’s head injury and ordered that the applicant be placed in solitary confinement as a disciplinary measure and in order to keep the peace with the other inmates. He had seen the applicant again in the solitary confinement wing, where he had cleaned and bandaged the injury to his head. He had not noticed any further injuries and the applicant had not mentioned any. The applicant was subsequently taken to an individual cell on the first floor. The applicant had never told him that he had been beaten.

Replying to questions by the applicant’s counsel, Mr Zechmeister stated that in addition to hourly checks, the paramedic checked the cells between 6 and 9 p.m. He looked through the small window in the door without opening the door. Cells were equipped with an interphone allowing inmates to contact staff at any time. In reply to the question whether there was specific surveillance for inmates who risked losing consciousness while in solitary confinement, Mr Zechmeister replied that in his view the applicant did not present such a risk at the material time. Nor did he consider that the applicant required permanent surveillance. Inmates requiring permanent surveillance were placed in the other Vienna Police Prison (Roßauerlände). If they were unfit for detention, they were released. Mr Zechmeister could not remember when the applicant had first been examined by the prison doctor after the incident at issue. Hunger-strikers were examined by the prison doctor either daily or every second or third day, depending on their state of health (for example, where weight loss or blood pressure gave rise to concern).

Mr Mayerhuber submitted that when he had arrived on the evening in question, the applicant was already lying in front of his cell. At that time two other police officers and Mr Zechmeister, examining the applicant, had been present. Mr Stojanovic had told him that the applicant had cut himself on purpose with a razor blade in order to feign a collapse. Mr Mayerhuber and another police officer had taken the applicant to the solitary confinement wing by linking their arms with the applicant’s. The applicant’s face had been facing away from the direction in which he was being moved. While the upper part of the applicant’s body had been straight, his backside had partly dragged along the floor and his feet had constantly done so. The applicant had not been carried as there had been a risk that he might fall down if he bristled or reacted in a clumsy way. He did not know whether the applicant had been wearing shoes at that time. The applicant had been motionless but he had not been able to tell whether the applicant was unconscious or not.

On 31 March 1995 the Independent Administrative Panel dismissed the applicant’s complaint, noting that his transfer to an individual cell had constituted a disciplinary measure. The applicant should therefore have brought proceedings under the prison’s internal rules (Hausordnung) and there was no scope for a complaint to the Independent Administrative Panel.

On 12 March 1997 the Constitutional Court (Verfassungsgerichtshof) quashed that decision, on the ground that the Independent Administrative Panel had wrongly refused to rule on the merits of the applicant’s complaint, and remitted the case to it.

(b) The second set of proceedings before the Independent Administrative Panel

On 3 February and 18 June 1999 the Independent Administrative Panel held further hearings.

The representative of the police authority submitted that the injuries found on the applicant’s back had been caused by his fellow inmates, who had dragged him away from the toilet. The applicant submitted that he had been dragged out of his cell by the prison officers and had thereby suffered injuries to his back. The Independent Administrative Panel also heard evidence from Mr Staub, Mrs Pichler and Mr Horvath.

Mr Staub submitted that when he had visited the applicant, he had noticed two skin abrasions the size of a hand to the right and left along the applicant’s backbone. While these injuries had apparently been treated in a professional manner, he had considered the bandage on the applicant’s head to be an “impertinence”. He had thereupon called the paramedical officer, who had apparently changed the bandages afterwards. He had further noticed skin abrasions on the applicant’s heels and injuries behind his ears. The applicant had conveyed the impression to him that the conditions in the individual cell were very questionable and even catastrophic and that, despite his request, he had not been allowed to see a doctor.

Mrs Pichler submitted that she had noticed skin abrasions and blue marks on the applicant’s back and injuries behind his ears. The applicant had told her that the latter injuries had been caused by stabbing with ballpoint pens.

Mr Horvath submitted that he had noticed skin abrasions on the applicant’s back, on which scabs had formed. He had also noticed injuries behind the applicant’s ears and had remarked that that area was swollen. The applicant had told him that he had been stabbed with a pencil.

Following a request by the applicant, the Independent Administrative Panel ordered an expert medical opinion. The opinion referred to the applicant’s allegation that he was suffering from earaches and decreased auditory function and noted it was unlikely that the applicant’s eardrum had been injured during his detention as this would have caused bleeding. However, such bleeding had neither been documented nor established, nor had the applicant himself alleged that it had occurred. Until February 1998 the applicant had not undergone any otolaryngology treatment and now, four years later, it was impossible to establish whether the applicant’s ear problems and decreased auditory function in February and March 1998 were a consequence of his detention in 1994. As regards the applicant’s allegation that he had suffered from purulent effluence from the right ear after his release, the expert opinion noted that this could have been the consequence of an inflammation of the middle ear.

The Independent Administrative Panel eventually carried out an inspection of Vienna East Police Prison and took photos, which it submitted to the applicant for comment.

On 16 June 1999 the applicant requested that the Independent Administrative Panel carry out another inspection in his presence.

In written submissions dated 21 July 1999 the applicant disputed that the cells shown on the photos corresponded to the individual cell to which he had been taken. In the solitary cell in which he had been detained there had only been a wooden pallet without a mattress and bedclothes. A spout had served as a toilet. The only window had been nearly on the same level as the ground of the courtyard which it faced and only a little daylight had come through. There were no radiators. He had repeatedly unsuccessfully tried to contact police officers through the interphone. He repeated his request for another inspection to be carried out in his presence. The request was not granted.

On 3 September 1999 the Independent Administrative Panel dismissed the applicant’s complaint. It established the facts as follows:

“As a result of his hunger strike, the applicant lost eleven kilograms within a very short time and was further behaving in an uncooperative, refractory manner and did not miss an opportunity to attract attention, which – from the applicant’s point of view – is probably legitimate and comprehensible but also resulted in his not being treated in the most attentive and gentle way.

The applicant had repeatedly shouted and disturbed the peace in his cell, which he shared with several other inmates. On 21 May 1994 the applicant’s cellmates informed the police officers on guard in the prison that he had fallen from the toilet and had suffered an injury to his head. Since the police officers wanted to restore order in the cell shared by several inmates, the applicant was carried out from the cell and transferred to the individual cell situated in a separate part of the building – one floor below. Since he was carried – in particular because he made no voluntary effort to walk on his own – it happened that while being taken down the steps, his back dragged along the edges of the steps and in the process he suffered superficial skin irritations.

After being moved to individual cell no. E 184 and examined by a paramedic of the Police Prison, his slightly bleeding wound was cleaned and bandaged. After the applicant had informed the paramedic on 24 May 1994 that he also had an abrasion on his back, the latter notified the prison doctor, who treated the wound with a spray and bandage.

The applicant subsequently remained in detention awaiting his expulsion until 28 May 1994, 12 noon, staying in cell E 184, and at the above time he was released because he was unfit for further detention.

Evidence was taken through an inspection of the file of the Vienna Federal Police Authority, the file of the Vienna Regional Criminal Court, the Josefstadt District Court and the file of the proceedings conducted by the Vienna Independent Administrative Panel. In addition, the established facts were based on the transcripts of the oral hearing in the first round of proceedings, Zl. 02/31/57/94, which contain the statements of the police officers examined at that time. Moreover, the Independent Administrative Panel conducted a supplementary oral hearing during which the transcripts of the first round of proceedings were read out and the witnesses Horvath, Mag. Staub and Pichler were examined. Finally, the Panel taking this decision obtained a medical opinion from an ear, nose and throat specialist and indirectly carried out an inspection of the site to determine the local situation at the relevant time.

The witnesses examined both in the first round of proceedings and in the continued proceedings were highly credible. The witnesses in the continued proceedings were, however, unable to comment on the factual situation, in particular the cause of the injuries, firstly because they had only noticed the applicant’s injuries some time after they had been inflicted on him and were thus unable to comment first hand on the cause of these injuries. Secondly, the injuries were not such as to clearly indicate their origin, and on account of their lack of expert knowledge, the witnesses were not able to comment on the cause of these injuries. Lastly, it is doubtful to what extent statements by witnesses which are intended to reflect a direct perception can – after a period of almost four years – still be so unhampered and uninfluenced as to meet the requirements of fair proceedings.

The same must naturally hold true for the police officers, and it was not least for that reason that these officers were not examined afresh and the present decision is based on their examination in the course of the oral hearing in the first round of proceedings. The statements by the police officers were conclusive and in accord with one another; moreover, the statements made during the oral hearing in the first round of proceedings and the statements made during their questioning in the course of the preliminary investigations were consistent, without any serious contradictions relevant to the decision being discernible. Moreover, the statements of the police officers were in line with the contents of the first-instance administrative file, and on that account it could also be assumed that during his detention pending expulsion the applicant behaved in an extremely refractory manner, and the conduct of the police officers was thus the only suitable way to bring about a solution to these problems.

The applicant appeared extremely calm – not to say serene – to the Vienna Independent Administrative Panel, which is why from the present perspective, the idea that the applicant behaved as described in the facts seemed realistic only with a great deal of imagination. The Vienna Independent Administrative Panel must, however, also take into account the fact that at that time – unlike today – the applicant was in an exceptional state of mind, and such conduct must therefore be regarded as absolutely possible.

Finally, the authority determining the case also proceeds from the assumption that the applicant had been in a kind of emergency situation at the time, and his ‘civil disobedience’ was the only possible way for him to successfully avoid expulsion.

The expert medical opinion and the inspection of the site could not support the applicant’s submission that he had to await his expulsion in a cell without light in inhuman conditions. The cell referred to by the applicant is situated at least as high as half a floor above the elevated cell level so that there is no access to the cells through the open windows from outside. The statements made by the applicant about the route on which he had been carried from the cell shared with other inmates to the individual cell differed from the maps depicting the relevant section of the Police Prison that are included in the file. It is thus also to be assumed that the applicant’s emotional state in his surroundings in the Police Prison was so tense at the relevant time that it may well be that the circumstances as the applicant perceived them should be evaluated differently from his statements in his written submissions.

There is no indication that the statements by the head of Vienna Police Prison are untrue. Although he was not yet in his present position in the prison at the time, the head of Vienna Police Prison stated that as far as he knew and according to information from his colleagues, the prison had not been redesigned or renovated during the past few years.

Finally, basing itself on the expert medical opinion obtained, the Vienna Independent Administrative Panel found that the applicant had not been injured with a ballpoint pen at that time as he maintained. An injury would almost invariably have resulted in blood coming out from the wound, and the official expert in his opinion also arrived at the conclusion that such an injury did not occur.”

“Since the applicant – as can be deduced from the established facts set out above – is himself responsible for his injuries, and either inflicted those injuries on himself through his own conduct or sustained them as a result of his conduct – such as, for example, circulatory insufficiency while he was on the toilet, resulting from his hunger strike, no conduct contrary to Article 3 of the Convention could be observed. On account of both his refractory behaviour in his shared cell, causing unrest among the other inmates, and his passive resistance while being taken to the individual cell, the police officers carried the applicant down the staircase because of his circulatory insufficiency, and the intervening officers had no other possible way of taking him to the individual cell.

The applicant also described the situation and circumstances in the individual cell in such a manner that one cannot follow his submissions from the present perspective. The cell at issue has always been situated some five metres above the ground level of the courtyard, and in any event sufficient light comes into the cell. Moreover, the cell has a sufficiently large window, which thus also guarantees the inflow of natural light. Nor is it understandable why the applicant believes that he was taken to a cell in the cellar and was detained in virtual darkness. At no time was there any indication to that effect in the investigation proceedings.

If the applicant also submits that he was denied medical treatment, it must be said on the contrary that he regularly received medical treatment both during his hunger strike and during his detention in the individual cell, which means that he was repeatedly taken to a doctor and his state of health was under constant supervision by a qualified paramedic, who would at any time have been in a position to arrange for the intervention of a doctor.

Finally, in his submissions as a whole, the applicant gave an explanation of the entire sequence of events which was not very consistent or easy for the authority deciding his case to understand; it cannot be assumed that the applicant intentionally made untrue statements to the panel deciding his case, thus intending to obtain an unjustified advantage. It must rather be assumed that – as already outlined above – the applicant was in a state of mind lacking full mental orientation and thus actually perceived the situation faced by him in such a manner.

Since no further violations of the law emanated from the proceedings conducted by the authority, the complaint had to be rejected as being unfounded on all counts ...”

On 27 February 2001 the Constitutional Court declined to deal with the applicant’s complaint. Subsequently, on 28 May 2001 the applicant supplemented his complaint with the Administrative Court (Verwaltungsgerichtshof).

On 19 December 2003 the Administrative Court declined to deal with the applicant’s complaint. That decision was served on the applicant’s counsel on 19 January 2004.

B. Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”)

The relevant extracts of the CPT’s report on a visit to Austria from 26 September to 7 October 1994 read as follows (unofficial translation from French):

56. As already indicated (see paragraph 3), the CPT’s delegation carried out a follow-up visit to the Vienna Police Prison at Roßauer Lände. Since the end of 1990, there have been two police prisons in Vienna, with a total capacity of 450 places. At the time of the CPT’s second visit, the Police Prison at Roßauer Lände had a capacity of 220 and, on the day of the visit, 211 prisoners were being held there. The majority of them – 154 – were persons detained under the aliens legislation pending deportation (Schubhäftlinge). The rest were either being held at the disposal of the Security Bureau, serving an administrative sanction or awaiting transfer.

During the talks held at the end of the visit, the CPT delegation expressed its concern to the Austrian authorities about its findings in the police prison. Indeed, four years after the first visit, it found very few improvements in the conditions of detention.

57. The single and multi-occupancy cells in the prison were still in a dilapidated state and the conditions of hygiene were deplorable. In particular, most of the cells’ equipment (beds, mattresses, sheets and blankets) was dirty and shabby; further, in the multi-occupancy cells, the state of the toilets and their partitioning remained very poor.

80. The number of general practitioners assigned to the police prisons visited can be considered adequate, given the respective capacity of those establishments. Moreover, appointments with outside specialists could be arranged where necessary.

81. The situation regarding nursing staff levels in some of the prisons visited was less satisfactory.

At the Vienna Police Prison, health care was provided by a team of ten paramedical officers (Sanitäter), who were in charge of both this establishment and of the other police prison in Vienna (see paragraph 56). They had received six weeks’ basic training in the Army, followed by a period of practical training in a hospital. This training programme had begun a year earlier and it was envisaged that, in future, health care staff would follow a recognised training programme for nurses (Krankenpfleger). There was always a paramedic on duty on the establishment’s premises.

85. The delegation was also concerned by the absence of any psychological support for inmates in the Vienna Police Prison.

In one of the establishment’s single cells, the delegation saw an Asian woman who was patently in a state of extreme psychological distress, exacerbated by the language barrier, and for whom the necessary psychological support was not forthcoming. According to staff, the inmate in question had resisted while being escorted for deportation and had displayed violent behaviour when placed in a multi-occupancy cell.

Another inmate, on hunger strike, was observed to be in a similar state, but was not receiving the necessary psychological support either. Moreover, this inmate had started a thirst strike; he had evidently not been informed of the potential consequences of such conduct for his health.

86. It is plain from the CPT delegation’s observations that the medical care provided in the police prisons visited amounted to nothing more than a somewhat developed form of first aid. This finding is all the more serious given that periods of custody in these police establishments may last for up to six months.

The CPT considers that these establishments – particularly the larger ones, such as the Vienna Police Prison – should offer a level of medical care comparable to that which can be expected in a remand prison.

In this connection, the CPT has noted with interest the proposal to create a health care unit at the Vienna Police Prison.

87. Consequently, the CPT recommends that the Austrian authorities review the provision of medical care in the light of the foregoing remarks. More particularly, it recommends that immediate steps be taken to ensure that:

The CPT would also like to receive detailed information from the Austrian authorities on the approach adopted in police prisons as regards the treatment of persons on hunger or thirst strike, and further information on the planned creation of a health-care unit at the Vienna Police Prison.

90. As already mentioned (see in particular paragraphs 56, 65, 71 and 74), persons deprived of their liberty under the aliens legislation (FrG) represent the largest group of persons held in the police prisons visited.

It should be stressed that the detention of such persons gives rise to specific problems. Firstly, there will inevitably be communication difficulties caused by language barriers. Secondly, many foreign nationals will find it hard to accept being in custody when they are not suspected of any criminal offence. Thirdly, tensions may arise between detainees of different nationalities or ethnic groups.

Staff assigned to supervise such persons must therefore be very carefully selected and receive appropriate training. Supervisory staff should possess heightened interpersonal communications skills; they should also be familiar with the detainees’ different cultures and at least some of them should have appropriate language skills. Further, staff should be taught to recognise possible symptoms of stress displayed by detainees (whether post-traumatic or induced by sociocultural changes) and to take appropriate action.

91. It is clear from the delegation’s observations during the second visit that – despite commendable efforts by certain officers in the establishments visited – the staff of police prisons had not been trained to perform this particularly onerous task. The CPT therefore recommends that the Austrian authorities review the training of police officers responsible for the custody of foreign nationals in the light of the above remarks.

The CPT would also like to receive the comments of the Austrian authorities on the possibility of creating special centres for this category of persons, in which they could enjoy material conditions and a detention regime appropriate to their legal status.”

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Government referred solely to the Independent Administrative Panel’s decision of 3 September 1999. They underlined that it had held a number of hearings, some of which had been conducted shortly after the events at issue, and that it had carried out a visit on the spot. Assessing the applicant’s complaints in the light of Article 3 of the Convention, the Independent Administrative Panel had come to the conclusion that they were unfounded.

The applicant maintained that the Independent Administrative Panel’s conclusions were open to criticism in many respects. On the basis of the facts it had established, it should have come to different conclusions. For instance, the Panel had established that he had suffered skin abrasions on his back but, instead of concluding that the inappropriate way in which he had been carried, having caused these injuries, amounted to inhuman treatment, it insinuated that the applicant’s own recalcitrant and uncooperative behaviour was to blame. Similarly, the Independent Administrative Panel had accepted that owing to his hunger strike and his fear of impending expulsion, he had been in an exceptional state of mind but did not conclude that, in these circumstances, his solitary confinement amounted to inhuman or degrading treatment.

In addition, he asserted that the proceedings before the Independent Administrative Panel had been defective. Firstly, it had dismissed his complaint as being inadmissible on formal grounds. The Constitutional Court had set the decision aside in 1997 and the case had had to be heard anew in 1999. That delay had had a negative impact on the evidential value of the witnesses’ statements. Moreover, the applicant and his counsel had not been informed of the inspection of the site, in which only the police authority had participated.

In conclusion the applicant argued that the findings of the Independent Administrative Panel could not be accepted.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(f) the lawful arrest or detention of a person ... against whom action is being taken with a view to deportation or extradition.”

The Court notes at the outset that the applicant’s complaints concerning his detention in solitary confinement and his poor state of health fall to be examined under Article 3.

In so far as the applicant complains that his detention with a view to expulsion was unlawful, the Court notes that the applicant has already complained to the European Commission of Human Rights about the alleged unlawfulness of his detention (no. 30488/96, Commission decision of 3 December 1997).

The Court considers that the applicant’s present complaint is “substantially the same as a matter that has already been ... submitted to another procedure of international investigation or settlement” within the meaning of Article 35 § 2 (b) of the Convention.

The Court is therefore not competent to deal with that complaint, which has to be rejected in accordance with Article 35 §§ 2 (b) and 4 of the Convention.

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court reiterates that Article 13 guarantees the availability of a remedy at national level to enforce the substance of Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. Thus, its effect is to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant complaint and to grant appropriate relief (see, for instance, Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 135, ECHR 1999 VI). The applicant has not argued that the complaint to the Independent Administrative Panel did not fulfil these requirements. A positive outcome of the proceedings is not required under Article 13 (see Costello-Roberts v. the United Kingdom, 25 March 1993, § 40, Series A no. 247 C). The applicant complained solely that the Constitutional Court and the Administrative Court had declined to deal with his complaint. However, a right to appeal is not as such guaranteed by Article 13.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

Declares admissible, without prejudging the merits, the applicant’s complaint concerning his alleged ill-treatment;

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You are here: BAILII >> Databases >> European Court of Human Rights >> Naser PALUSHI v Austria - 27900/04 [2008] ECHR 1753 (27 November 2008) URL: http://www.bailii.org/eu/cases/ECHR/2008/1753.html Cite as: [2008] ECHR 1753