PROCEDURE

The case was referred to the Court by the German Government (“the Government“) on 10 August 1992 and by the European Commission of Human Rights (“the Commission“) on 11 September 1992, within the three-month period laid down in Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention. It originated in an application (no. 15473/89) against Germany lodged with the Commission under Article 25 (art. 25) on 11 July 1989 by two German citizens, Mrs Hildegard Klaas and her daughter Monika Klaas, hereinafter referred to as the first and second applicant respectively. The Government’s request referred to Articles 32 and 48 (art. 32, art. 48); the Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby Germany recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the request and the application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 3 and 8 (art. 3, art. 8) of the Convention.

In response to the enquiry made in accordance with Rule 33 para. 3 (d) of the Rules of Court, the applicants stated that they wished to take part in the proceedings and designated the lawyer who would represent them (Rule 30). The President gave the lawyer leave to use the German language (Rule 27 para. 3).

The Chamber to be constituted included ex officio Mr R. Bernhardt, the elected judge of German nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On 26 September 1992 the President drew by lot, in the presence of the Registrar, the names of the other seven members, namely Mr Thór Vilhjálmsson, Mr L.-E. Pettiti, Mr B. Walsh, Mr A. Spielmann, Mr I. Foighel, Mr J.M. Morenilla and Mr A.B. Baka (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).

Mr Ryssdal assumed the office of President of the Chamber (Rule 21 para. 5) and, through the Deputy Registrar, consulted the applicants’ lawyer, the Agent of the Government and the Delegate of the Commission on the organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant to the order made in consequence, the Registrar received, on 7 December 1992, the Government’s memorial and, on 19 January 1993, the applicants’ observations. Various documents were produced by the Commission on 4 February 1993 and by the Government on 24 March 1993, at the request of the Registrar. On 9 February 1993 the Registrar was informed that the Delegate would submit his observations at the hearing.

In accordance with the decision of the President - who had also given the Agent of the Government leave to plead in German (Rule 27 para. 2) - the hearing took place in public in the Human Rights Building, Strasbourg, on 24 March 1993. The Court had held a preparatory meeting beforehand. There appeared before the Court:

for the Government Mr J. Meyer-Ladewig, Ministerialdirigent, Federal Ministry of Justice, Agent;

for the Commission Mr J. Frowein, Delegate;

for the applicants Mr M. Stüben, Rechtsanwalt, Counsel. The Court heard addresses by Mr Meyer-Ladewig for the Government, by Mr Frowein for the Commission and by Mr Stüben for the applicants, as well as replies to its questions and by two of its members individually.

AS TO THE FACTS

At about 7.30 p.m. on 28 January 1986, the first applicant, a social worker, drew up outside the back entrance to the block of flats in Lemgo where she lived. She was accompanied by her daughter Monika, who, at the time of the incident that gave rise to the complaint, was eight years old. After she had opened the gate she was stopped by two police officers who had followed her and were standing in the gateway. They accused her of having driven through a red traffic light and of having tried to get away - an allegation denied by the applicant. The police officers claimed to have detected a strong smell of alcohol on her breath when they checked her driving licence. She agreed to be breathalysed. Despite having been shown what to do, she proved unable to provide a specimen of breath satisfactorily and was therefore told that she would have to accompany the police officers to the local hospital in order to have a blood test. An altercation followed during which Mrs Klaas was arrested. The precise course of the events is disputed by the applicants (see paragraph 7 below) and the police officers (see paragraph 9 below). She was then driven to the hospital for the blood test, which showed the level of alcohol in her blood to be 0.82 per ml (milligrammes per millilitre). She was subsequently released.

According to the applicants, Mrs Klaas agreed to have a blood sample taken, but explained that she wished first to accompany her daughter to a neighbour. One of the police officers refused to allow this and dragged her to the police car. She was warned that she could be charged with obstructing a public officer in the execution of his duties (Widerstand gegen die Staatsgewalt). When she called her daughter, the police officers said that they would look after the child. Thereupon she took her daughter by the hand, went to the back door, rang her neighbour’s doorbell and opened the door. At that moment one of the police officers grabbed her, twisted her left arm behind her back and her head knocked against the corner of the window- ledge. The police officers then handcuffed her. She lost consciousness for a short while. When she came round, she found herself by the police car and noticed severe pain in her left shoulder, which was being pressed towards her back by one of the police officers. She was subsequently able to get into the police car and was driven to the hospital.

The first applicant underwent two medical examinations. On 11 February 1986, Dr Schwering certified that he had examined the applicant on 29 January and noticed bruises which were about 10cm long on her right arm, considerable problems in moving her left shoulder, and bruises on that shoulder. He also stated that she would suffer long-term problems, in particular with her left shoulder. She was put on sick-leave until 8 February 1986. Furthermore, on 10 February 1986, Dr Krauspe, the chief surgeon at the local hospital, certified that he had examined the first applicant on 30 January 1986 and had reached an almost identical diagnosis.

I. THE CRIMINAL PROCEEDINGS INSTITUTED AGAINST THE FIRST APPLICANT

On 29 January 1986, Police Constable (Polizeimeister) Bolte laid an information against the first applicant. She was charged with obstructing a public officer in the execution of his duties contrary to Article 113 of the German Criminal Code (Strafgesetzbuch), and of driving while under the influence of alcohol contrary to Article 316 of the said code. Police Constable Bolte stated in his report that after Mrs Klaas had been informed that she had to undergo a blood test, she had attempted to escape into the darkness of the back-yard, whereupon he had grabbed her arm and stopped her. The applicant had been very aggressive. When informed that she was to be arrested, she had suddenly calmed down and declared that she would come along when she had taken her daughter, whom he had assumed to be about twelve years old, to a neighbour. The police officers had agreed in order to avoid a further escalation of the events. They had followed the applicants to the back door of the house. The first applicant had been about to follow her daughter into the house. She tried to close the door behind her but Police Constable Wildschut blocked the door open and Police Constable Bolte grabbed the first applicant’s right arm and pulled her outside. The child went upstairs. According to the report, Mrs Klaas struggled, struck out and tried to free herself from the police officer’s grip. Police Constable Wildschut took her left arm and twisted it behind her back, whilst Police Constable Bolte kept a tight grip on her right arm. With great difficulty the officers managed to control the applicant, who was putting up a fight. They handcuffed her in order to avoid further criminal offences being committed, in particular injury to the person. On their way to the police car she had attempted to throw herself to the ground, and he and his colleague had had to hold her arms. At that point another police car arrived. However, by that time, the applicant’s neighbour had already offered to take care of the child. The officers noted on arrival at Lemgo Hospital that Mrs Klaas had a graze on her right temple.

On 22 April 1986 the criminal proceedings against the first applicant were discontinued by the public prosecutor’s office (Staatsanwaltschaft) at the Detmold Regional Court (Landgericht) for two different reasons, namely that the offence of driving while under the influence of alcohol was not proven and that the applicant’s guilt in resisting the police officers had been minimal (gering) and there was no public interest in prosecuting. In November 1986 the competent administrative authority imposed an administrative fine of DM 500 for having committed the “regulatory offence“ (Ordnungswidrigkeit) of driving with a blood alcohol content level of 0.82 per ml when 0.80 per ml was the legal limit. A driving ban of one month was also imposed. The Lemgo District Court (Amtsgericht) confirmed this decision. The first applicant’s subsequent appeal to the Hamm Court of Appeal (Oberlandesgericht) and to the Federal Constitutional Court (Bundesverfassungsgericht) were dismissed.

II. PROCEEDINGS BROUGHT BY THE FIRST APPLICANT AGAINST THE POLICE OFFICERS

On 24 April 1986 the first applicant laid an information against the police officers concerned. She alleged that they had assaulted her contrary to Articles 223 and 230 of the Criminal Code. In her pleadings of 24 April and 13 May 1986, Mrs Klaas claimed that the police officers had used a disproportionate amount of force, causing injuries to her head, left shoulder and upper right arm. On 10 July 1986, following a telephone conversation between her lawyer and an official of the public prosecutor’s office in which Mrs Klaas’ allegations were withdrawn - allegedly after a warning that criminal proceedings against her would otherwise be continued - the proceedings against the police officers were discontinued.

On 18 July 1986, the first applicant filed a complaint (Dienstaufsichtsbeschwerde) with the Head of the Detmold District Administration (Oberkreisdirektor) against the police officers involved in the arrest. She stated that she had wanted to wait for her neighbour to come to the door but that she had not been able to as the bearded police officer had twisted her arm behind her back and her head knocked against the brick window-ledge. Subsequently she was forcibly taken to the police car where she was held with her back up against the rear of the car. The bearded man continued to pull her left shoulder back at regular intervals. At some point she was dazed. She maintained that the blood test showed the level of alcohol to be 0.80 per ml. It was argued that the degree of force used against an unarmed woman was incomprehensible on an objective or subjective analysis; the mildest means of achieving the objective should have been employed.

On 18 September 1986, the Head of the Detmold District Administration, acting as the Police Department authority (Kreispolizeibehörde), dismissed her complaint. In the decision, it was stated in particular that after she had been informed that she would have to give a blood sample, she had attempted to run away. However, one of the police officers seized her arm and told her that she was under arrest. Her request to take her daughter to a neighbour’s first was granted. When the first applicant opened the door and tried to enter with her daughter, one of the police officers held her right arm fast, whereupon she started to kick and to hit out with her left hand. When the police officers held her tight she tried to escape. She had to be handcuffed. It was not accepted that her head knocked against the window-ledge at any moment in the course of the arrest. He concluded that the use of force had been justified and was not disproportionate to the aim pursued, namely the taking of a blood test.

III. THE FIRST APPLICANT’S PROCEEDINGS FOR COMPENSATION UNDER CIVIL LAW

The first applicant instituted civil proceedings in April 1987 against the Land North-Rhine Westphalia and the police officers concerned. She claimed compensation for the injuries sustained on 28 January 1986.

On 10 July 1987 the Detmold Regional Court, in a partial judgment, dismissed her complaint against the police officers on the ground that an official acting in the exercise of his duties does not incur personal liability.

On 9 October 1987 the Detmold Regional Court held a hearing in the case. The applicant’s neighbour was the first to give evidence. She said that she had noticed Mrs Klaas’s very blotchy and tear-stained face despite the dim light, had seen the blond police officer holding her arms behind her back and had feared that she would collapse at any moment as her knees had given way and she had bent forward suddenly several times. The neighbour stated on further questioning that, judging from the first applicant’s behaviour, she must have been in terrible pain. The first applicant complained about the pain in her left shoulder and asked the police officers to remove the handcuffs. This request was repeated by the neighbour but refused by the police officers. Police Constable Bolte confirmed the facts as set out in his report of 29 January 1986 (see paragraph 9 above). He added that he was not sure whether the first applicant had deliberately not blown into the breathalyser for a sufficient time or whether she had had genuine difficulties. He stated that she had not knocked her head against the wall when she was pulled outside, however he remained unable to account for the injury to her right cheek to which he had referred in the aforementioned report. Upon further questioning he corroborated the neighbour’s evidence that Mrs Klaas had requested that the handcuffs be removed and he explained that they had refused this request as they had feared more trouble. He said that she had not complained about any pains in her shoulder and that she had certainly not knocked her head against the wall. However, he acknowledged that she did not have the head injury before they spoke to her and said that he did not know whether she had got the injury to her right cheek during the scuffle when the handcuffs had been put on. He could not remember who had kept hold of Mrs Klaas until they had put her into the police car, or whether she had bent forward suddenly owing, for instance, to a jerking on her handcuffs and the resulting pain. Police Constable Wildschut was the next to give evidence. He confirmed the general circumstances of the first applicant’s arrest as described by Police Constable Bolte, although he was not prepared to say that she had run away. After the applicant had opened the front door she had attempted to close it behind her but he had held on to it while his colleague kept a tight grip on her. As it was completely dark just outside the door he could not exclude the possibility that she could have knocked her head on the wall or on something else. In any event he did not notice it happening and it was only later that he became aware of her head injury. He stated that Mrs Klaas had vehemently resisted arrest which was why he had taken her left arm and twisted it behind her back and then handcuffed her arms in that position. He could not remember whether she had been handcuffed in the back-yard or whether they had first taken her to the street. He confirmed that she had requested that the handcuffs be removed but did not remember her complaining about any pain - in particular pain in her left shoulder. She continued, without success, to resist accompanying them, but he could not be sure who had been holding on to her while they waited for the second police car. On further questioning Police Constable Wildschut stated that he did not remember whether she had bent forward suddenly while she was still handcuffed. She had resisted arrest and had been lashing out when he had twisted her arm behind her back, but he assumed that she had not intended to assault either him or his colleague. He denied that he had pushed the first applicant’s head against the window-ledge. Finally, the second applicant, Monika, gave evidence. She stated that she remembered the incident with her mother and the police officers in their back-yard. She said, in particular, that her mother had rung the doorbell and opened the door using a key. Monika had then gone into the house and closed the door behind her. She was not aware that one of the police officers had forcibly kept the door open. Having closed the door behind her, she said that she had managed to see through the plain glass door panel that one of the police officers had pushed her mother’s head against the wall. She emphasised that the police officer had repeatedly pushed her mother’s head against the wall next to the door using his hand. The officer concerned had blond hair. Her mother and the police officer had been close to the door, approximately one metre away from it. She herself had not been right in front of the glass panel. She had subsequently run upstairs to their neighbour. She further explained that, when her mother had rung the doorbell and opened the door, she had been standing to Monika’s right. Her mother had opened the door only a little bit, and she had just been able to get in. She had then immediately closed the door behind her. Whilst she did not recognise the police officers involved she thought that the dark-haired police officer had a beard. She confirmed that the light had been poor, but said that it had been light in the staircase. She had not seen either of the police officers twisting her mother’s arm behind her back.

On 30 October 1987 the Detmold Regional Court dismissed the first applicant’s compensation claims against the Land North-Rhine Westphalia. It held as follows: “The plaintiff has no claim under Articles 839 and 847 of the Civil Code (Bürgerliches Gesetzbuch) taken together with Article 34 of the Basic Law for breach of official duty to her on the part of Police Constables Bolte and Wildschut. The Chamber is admittedly convinced that the plaintiff incurred the injuries complained of when she was arrested by the two police officers. In any event the plaintiff ended up with a graze on her temple, contusion of the left shoulder and probably also concussion, as was also confirmed in part by witnesses Bolte and Wildschut and moreover does not seem to be seriously contested by the defendant Land. These injuries were probably sustained by the plaintiff in the context of her arrest. It does not follow, however, that the defendant Land is liable in damages. The arrest itself was not unlawful. Even if the plaintiff had no intention whatsoever to abscond, the situation nevertheless appeared otherwise to the police officers. The plaintiff was under suspicion of having committed a criminal offence, namely driving under the influence of alcohol in road traffic contrary to Article 316 of the Criminal Code, as the police officers had found that the plaintiff’s breath smelt of alcohol. On the basis of the credible statements of witnesses Bolte and Wildschut, the Chamber also assumes that the plaintiff’s conduct, first after failing to blow satisfactorily into the breathalyser and then later at the front door, gave both witnesses the impression that she intended to evade further investigation, namely the taking of a blood sample, by absconding. The Chamber can understand that the police officers could have foreseen very considerable difficulties if the plaintiff managed to get into the building without the two witnesses. First, the police officers could not know whether the plaintiff would have allowed them access to her flat at all. Secondly, the plaintiff would have had an opportunity of consuming more alcohol or at least claiming that she had done so, thereby making ascertainment of her blood alcohol level impossible or significantly more difficult to obtain. In the light of these circumstances the arrest does not appear to be disproportionate either, but a perfectly reasonable means of ensuring that the further investigations could be carried out. It is for the plaintiff to prove that in this initially lawful exercise of their duty the police officers went further than was necessary, by handling the plaintiff too roughly and in so doing injuring her or even by deliberately inflicting the injuries on her. Just as an attacker must prove that a person attacked by him, acting in self-defence, exceeded the limits of necessary self-defence (see Federal Court of Justice - Bundesgerichtshof -, Versicherungsrecht 1971, pp. 629 et seq.), so also, in the Chamber’s opinion, must this apply in a case such as the present one: a person who puts forward claims in respect of injuries suffered during a lawful arrest must prove that the police officers went beyond what was necessary and thereby caused the injuries. The plaintiff, however, has not succeeded in providing such proof. On the evidence which has been taken, the Chamber is not convinced that the police officers caused the plaintiff’s injuries by exceeding what was necessary when arresting her. With respect to the origin of the graze, the evidence of witness Monika Klaas, the plaintiff’s daughter, conflicts with that of witnesses Bolte and Wildschut. Whereas witness Klaas claims to have seen one of the police officers repeatedly knocking the plaintiff’s head against the wall by the door, the two police officers deny this. None of these three witnesses can be regarded as not having an interest in these proceedings; the two police officers could certainly expect disciplinary proceedings and a resumption of the criminal investigation if these proved to be the facts, while witness Klaas has a natural interest in supporting her mother’s claim and account of the facts. It is not clear to the Chamber which of the statements corresponds to what really happened. Definite findings of fact can therefore not be made in this respect. The largely disinterested witness Krüger [the neighbour] was unable in her testimony to confirm the plaintiff’s assertion that witness Wildschut had pulled her arms upwards while she was handcuffed. Neither can such a conclusion be drawn merely from the fact that according to witness Krüger’s statements the plaintiff leant forward jerkily several times while witness Wildschut stood behind her. Neither the balance of probability nor general experience militate in favour of accepting the plaintiff’s version of events. The Chamber considers it by no means improbable that the plaintiff sustained all her injuries when she resisted being handcuffed. In the process her head could easily have knocked against the wall; the shoulder contusion could also have occurred when she struggled while being restrained by the police and when the handcuffs were being put on her. For these reasons the claim must be dismissed.“

On 21 September 1988 the Hamm Court of Appeal dismissed the first applicant’s appeal. It upheld the decision of the Detmold Regional Court that Mrs Klaas had not proved that excessive force had been used against her by the police officers.

On 8 February 1989 a panel of three judges of the Federal Constitutional Court declined to accept for adjudication the first applicant’s constitutional complaint on the ground that it did not offer sufficient prospects of success. It considered in particular that the Court of Appeal’s assessment of the evidence did not appear arbitrary or otherwise in violation of constitutional law. PROCEEDINGS BEFORE THE COMMISSION

In an application (no. 15473/89) lodged with the Commission on 11 July 1989, Mrs Hildegard Klaas, the first applicant, submitted that, in the presence of her daughter, Monika, she had been subjected in the course of her arrest to inhuman and degrading treatment by the police contrary to Article 3 (art. 3) and that this treatment had violated her right guaranteed under Article 8 (art. 8) to respect for her private and family life. Monika Klaas, the second applicant, contended that the aforementioned treatment of her mother in her presence had violated her right to respect for her private and family life, contrary to Article 8 (art. 8), in addition to subjecting her to inhuman and degrading treatment contrary to Article 3 (art. 3).

On 9 July 1991 the Commission declared the applicants’ complaints admissible and in its report of 21 May 1992 (Article 31) (art. 31), expressed the opinion: (a) by ten votes to five that there had been a violation of Article 3 (art. 3) in respect of the first applicant; (b) by ten votes to five that no separate issue had arisen under Article 8 (art. 8) in respect of the first applicant; (c) by fourteen votes to one that there had been no violation of Article 3 (art. 3) in respect of the second applicant; (d) by eight votes to seven that there had been a violation of Article 8 (art. 8) in respect of the second applicant. The full text of the Commission’s opinion and of the various separate opinions contained in the report is reproduced as an annex to this judgment. FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT

The Government in their memorial of 12 November 1992 invited the Court to find “that the applicants did not suffer violations of their rights under Article 3 (art. 3) or Article 8 (art. 8) of the Convention“.