PROCEDURE

The case originated in an application (no. 47274/15) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two German nationals, Mr Ingo Hentschel and Mr Matthias Stark (“the applicants”), on 22 September 2015.

The applicants were represented by Mr M. Noli, a lawyer practising in Munich, and Ms A. Luczak, a lawyer practising in Berlin. The German Government (“the Government”) were represented by their Agents, Mr H.‑J. Behrens and Ms K. Behr, of the Federal Ministry of Justice and Consumer Protection.

The applicants alleged, under Article 3 of the Convention, that they had been beaten and that pepper spray had been used on them by police officers who, owing to an inadequate investigation, had been neither identified nor punished. They further complained under Article 13 that they had had no judicial remedy at their disposal to challenge the discontinuation and the ineffectiveness of the investigation.

On 26 February 2016 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The first applicant was born in 1969 and lives in Illertissen. The second applicant was born in 1989 and lives in Harburg.

A. Police operation

On 9 December 2007 both applicants went to a football match in Munich.

The police had predicted an increased risk of clashes between rival football supporters owing to confrontations at previous matches between the two teams. Therefore a total of 227 police officers were deployed, including two squads – comprising eight to ten police officers each – of the 3rd platoon of the Munich riot control unit (Unterstützungskommando), one squad of the 2nd platoon of the Munich riot control unit and the 23rd platoon of the 6th Dachau public-order support force battalion (Bereitschaftspolizei). The deployed officers of the Munich riot control unit also included “video officers”, who carried handheld video cameras and recorded videos of incidents that might be relevant under criminal law. The officers of the Munich riot control unit were dressed in black/dark blue uniforms and wore black helmets with visors. The officers of the Dachau public-order support force battalion wore green uniforms and white helmets with visors. Both uniforms did not include any name tags or other signs identifying the individual officers. However, on the back of the helmets an identification number of the squad was displayed.

After the match had ended the police cordoned off the stands of the supporters of one of the teams, including both applicants, to prevent them from leaving the stadium and encountering supporters of the other team. The cordon was lifted after around fifteen minutes.

1. The applicants’ version of the subsequent events

According to the first applicant, he left the stands after the blockade had been lifted. While walking between the exit of the stands and the exit of the football stadium a group of police officers dressed in black uniforms came running towards the exiting spectators with their truncheons raised above their heads. Some of these officers started hitting the spectators with their truncheons without any prior warning as soon as they reached them. The first applicant himself was hit with a truncheon on the head, which resulted in a bleeding laceration of 3 cm behind his ear. After having reached the exit of the stadium he was treated by a paramedic in an ambulance that was parked close to the ground. Subsequently, he returned to his home town, where he was treated in the emergency unit of the local hospital.

The second applicant also exited the stands after the blockade had been lifted. Before exiting the stadium he was grabbed by the shoulder and, after turning round, had pepper spray doused in the face at close range. He lay down on the ground and was subsequently struck on his left upper arm with a truncheon. He suffered swelling and redness of his face and pain in his arm.

Both applicants were able to identify their attackers as police officers, but were not able to distinguish them further, owing to their identical uniforms and the lack of identifying signs or name tags.

2. The Government’s version of the subsequent events

According to the Government the blockade was lifted due to the aggressive behaviour of some of the spectators and the pressure applied to the police cordon. When the supporters streamed from the stands towards the exit, they came upon police units which had been called in to provide backup for the police cordon. Subsequently some of the supporters continued their aggressive behaviour towards these officers and provoked them. The supporters’ conduct resulted in the arrest of one supporter and two police officers sustained minor injuries. After a few minutes the police pacified the situation and got the exiting supporters under control.

The Government furthermore challenged the accounts of the applicants and submitted that there was no credible evidence that the applicants had deliberately been hit or harmed by police officers and that the injuries had been a result of the police operation.

B. Investigation

As of 15 December 2007 the press reported about the police operation in the aftermath of the football match, inter alia quoting football supporters describing arbitrary attacks by police officers of the riot control unit with truncheons and pepper-spray. In an article of 18 December 2007 a spokesperson of the police commented on the operation and stated that the alleged assaults by police officers would be investigated. On 2 January 2008, the Munich public prosecutor’s office instigated a preliminary investigation. On 21 January 2008 the second applicant reported the alleged police violence and submitted a medical certificate concerning the effects of the pepper spray on his face from the same day. He filed a formal criminal complaint on 7 March 2008. The first applicant filed a criminal complaint against an unidentified police officer on 25 April 2008. He also submitted a medical certificate confirming a bleeding laceration on his head. The certificate was issued at 12.05 a.m. on 10 December 2007. Several other spectators at the match had also lodged criminal complaints against unidentified police officers.

The investigation was conducted by the unit of the Munich police responsible for offences perpetrated by public officials under the responsibility of the Munich public prosecutor’s office. The officer in charge interviewed a total of twenty witnesses, including the applicants, the officer in charge of the Munich riot control unit and the squad leaders of the deployed squads of the 2nd and 3rd Munich riot control units.

The investigating division was also provided with a DVD showing excerpts of the video surveillance recorded by the riot control police at the football match. The DVDs were compiled by the “video officers” of the Munich riot control unit. In line with their usual procedure the entire recorded video material was reviewed by the respective video officer after his or her deployment and the parts which were deemed relevant under criminal law and of sufficient quality to serve as evidence were copied to a DVD.

On 10 September 2008 the competent public prosecutor discontinued the investigation. He found that the investigation had produced evidence that some of the police officers had used truncheons against spectators, including women and children, in a disproportionate way and without an official order or approval. However, he concluded that the investigation had not led to a situation where concrete acts of violence could be related to specific police officers and it could not be ascertained either whether the use of force had been justified. In sum, the public prosecutor had been able neither to establish whether the applicants’ injuries had been inflicted by police officers nor to identify the suspects who had allegedly struck and used pepper spray on the applicants.

The applicants appealed against the decision to discontinue the investigation and argued, in particular, that the public prosecutor had only questioned the squad leaders, but had not identified all the officers involved in the operation and deployed in the area of the stadium at issue.

On 14 October 2008 the public prosecutor reopened the investigation and ordered further enquiries. On 20 October 2008 the head of the investigation unit met with the platoon leaders of the Munich riot control unit and other division heads of the Munich police to discuss the investigation. Neither the public prosecutor nor the applicants’ representative attended the internal police meeting. Subsequently, a further twenty-two witnesses were interviewed including fourteen platoon leaders, squad leaders and video officers of the deployed police units. The individual squad members of the three squads of the Munich riot control unit were not interviewed. The applicants had requested that they be interviewed, as the evidence had suggested that the alleged perpetrators had belonged to one of these three squads.

The investigating police unit was also provided with video surveillance recorded by the 23rd platoon of the 6th Dachau public-order support force battalion. Upon the request of the applicants to secure the entire video material of the police operation, and not only the already submitted video excerpts, it was established that the original video tapes and possible digital copies had already been deleted and that only the excerpts were still available.

On 4 August 2009 the public prosecutor discontinued the investigation again. In a detailed fifteen-page decision he first summarised the investigative measures taken, referring in particular to the interviews of several witnesses, including police officers and the alleged victims, the review of video material from the police and from the internet, the assessment of the applicants’ written observations and of the submitted documents, inter alia, medical certificates, as well as gathered information and reports on past events and applicable guidelines. After assessing all the available evidence, the public prosecutor concluded that the enquiries had shown that several supporters had aggressively approached, insulted and provoked the deployed police officers and that therefore a situation had existed in which the officers could have been justified in using their truncheons. Besides this general conclusion he held that the applicants had neither been able to identify a particular suspect nor to determine whether the suspected police officers had been male or female and that the investigation had not produced other persons who had witnessed the alleged acts against the applicants. Furthermore, he outlined in detail certain “considerable discrepancies” in the witness statements of the first applicant and referred to “unspecific” statements of the second applicant. Consequently, according to the public prosecutor, there was insufficient evidence to establish criminal conduct by specific police officers to the detriment of both applicants. He concluded that the investigation had to be discontinued again, since the considerable additional investigative measures had not revealed disproportionate conduct on the part of individual police officers, in particular truncheon strikes against innocent bystanders, which would require criminal prosecution of the respective officers.

On 20 August 2009 the applicants appealed and pointed out that the members of the deployed squads had still not been questioned and that the inspected videos were fragmentary, but nonetheless contradicted certain parts of the statements made by the squad leaders.

On 3 February 2011 the Munich general public prosecutor confirmed the decision of the public prosecutor’s office of 4 August 2009 to discontinue the investigation. The instructions on available legal remedies attached to the decision informed the applicants that they could request a judicial decision in the framework of proceedings to force criminal proceedings (Klageerzwingungsverfahren).

C. Court proceedings

On 19 September 2011 the Munich Court of Appeal declared the applicants’ application to force further enquiries inadmissible. The court interpreted the applicants’ request as an application to force criminal proceedings (Klageerzwingungsantrag) and held that these proceedings were only admissible if the prosecution of one or more identified accused had been requested. An application to force criminal proceedings against an unidentified accused had to be declared inadmissible, since the proceedings were not supposed to identify the accused or replace investigations. Only in a case where a public prosecutor’s office had entirely refrained from investigating a crime had a court the possibility to order an investigation. Under Article 173 § 3 of the Code of Criminal Procedure (Strafprozessordnung – hereinafter “the CCP”; see paragraph 37 below) a court was only allowed to conduct minor enquiries to fill in remaining gaps in an investigation. Moreover, the applicants had not submitted specific facts or evidence that would have allowed the court to identify an accused.

On 25 October 2011 the applicants lodged a constitutional complaint, relying on Articles 2 § 2, 19 § 4 and 103 § 1 of the German Basic Law (Grundgesetz) (see paragraphs 29-31 below). Besides referring to articles of the Basic Law, the applicants also referred in their complaint to Articles 2, 3, and 13 of the Convention. In essence they complained that the investigation had not been effective and that the Court of Appeal had not evaluated the effectiveness of the investigation.

On 23 March 2015 the Federal Constitutional Court (hereinafter “the Constitutional Court”) refused, in a reasoned decision (2 BvR 1304/12), to admit the applicants’ constitutional complaint. The court held that the investigations had been conducted diligently, but had not established sufficient suspicion of criminal conduct on the part of specific police officers. Moreover, the remaining gaps and factual uncertainties could not be attributed to omissions in the investigation. The court also found that it had not been necessary to question all the squad members who had possibly been involved. In its decision the Constitutional Court referred to the Court’s case-law concerning the procedural obligation of Article 2 of the Convention and, in particular, to the cases of McCann and Others v. the United Kingdom (27 September 1995, Series A no. 324) and Grams v. Germany ((dec.), no. 33677/96, ECHR 1999‑VII). The court also emphasised that the public prosecutor’s office had been the responsible authority for the investigation and thereby “master of the proceedings” (Herr des Verfahrens).

D. Other investigations

During the investigation the applicants also filed criminal complaints in respect of assistance given in an official capacity in avoiding prosecution or punishment (Strafvereitelung im Amt) and suppression of evidence (Beweismittelunterdrückung). The applicants alleged that several relevant parts of the video material, showing disproportionate police violence, had been deleted. The investigation against the five police officers was discontinued by the Munich public prosecutor’s office.

A subsequent appeal before the Munich general public prosecutor was to no avail.