European Court of Human Rights deals Munich police a real slap in the face. Deservedly so, when it comes to torture.

• At an amateur socker derby in Munich 2007 officials are said to have proceeded with batons and pepper spray against two lion fans.
• The two beaten men complained through all instances against the police - but their identity was not clear.
• This is exactly what the European Court of Justice saw the problem - and suggests labeling.

It took those two gentlemen long to finally get justice. Hey, that's Germany.


CASE OF HENTSCHEL AND STARK v. GERMANY (Application no. 47274/15)

JUDGMENT STRASBOURG, 9 November 2017

Here the gist:

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.

The Federal Contitutional Court refused to accept the case. Small wonder with these guys in red. Unless you have a name, you do not count much. So in that sense the ECHR's decision is also a slap in the face of the FCC.

On page 11 of the judgement it says:

III. RELEVANT INTERNATIONAL LAW AND PRACTICE 

42. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) stated in its report to the German Government published on 1 June 2017 on the visit to Germany from 25 November to 7 December 2015 (CPT/Inf (2017) 13) with reference to the Court’s judgments in Kummer v. the Czech Republic (no. 32133/11, §§ 85-87, 25 July 2013) and Eremiášová and Pechová v. the Czech Republic (no. 23944/04, 16 February 2012) that it: “has some doubts as to whether investigations carried out by investigators of the central investigation units – and even more so those carried out by criminal police officers of regional or local police headquarters – against other police officers can be seen to be fully independent and impartial.” (CPT/Inf (2017) 13, § 18)

43. The CPT further reiterated its recommendation that the police authorities should take the necessary steps to ensure that police officers wearing masks or other equipment that may hamper their identification be obliged to wear a clearly visible means of identification (for example a number on the uniform and/or helmet). It held that: “... the CPT has repeatedly stressed that appropriate safeguards must be in place in order to ensure that police officers wearing masks or other equipment that may hamper their identification can be held accountable for their actions (e.g. by means of a clearly visible number on the uniform). Such a requirement is also likely to have a preventive effect and significantly reduce the risk of excessive use of force and other forms of ill-treatment.” (ibid., § 21)

Since we are in corrupt Bavaria, why not delete some video footage which might have been incriminating.

On page 25 we read:

95. Securing and analysing the original video material, recorded by the deployed riot units constituted one of the obvious lines of inquiry into the circumstances surrounding the break-out of violence and the alleged disproportionate use of force first reported in the press and then complained of by the applicants. The Court considers that the treatment, securing and analysis of the original video material was a crucial investigative measure which was capable of shedding light on what occurred, whether the alleged force used by the police was disproportionate and specifically whether the applicants had in fact been beaten and doused with pepper spray by police officers in circumstances which did not warrant such an intervention (see, as regards the importance of video evidence in an investigation, Ciorap v. the Republic of Moldova (no 5), no. 7232/07, §§ 66-67). In that regard, it observes that the investigating unit had only been provided with excerpts of the original video material, which it analysed together with other videos of the football match and of the subsequent events found online. However, the Government did not clearly explain whether the entire video material was analysed by an independent unit, why only excerpts of the video material were provided to the investigating unit, or when the video material was deleted and by whom. 

96. To the extent that the Government referred to the procedure according to which the entire recorded video material was reviewed by the respective video officer (see paragraph 16 above) as standard, the Court concludes that the video officers cannot be considered independent in the context of investigations into allegations of police violence by members of his or her own squad.

97. In addition, the timing of deletion of parts of the video material was of particular importance, as the Court notes that from 15 December 2007 onwards, according to press reports relating to the events on match day, the Munich police had been aware that allegations of police violence existed. Furthermore, it is clear from the material in the case file that by the latest on 18 December 2007 the Munich police envisaged an investigation into the conduct of the deployed riot control unit (see paragraph 14 above).

On page 28 the verdict:

103. After having assessed all relevant elements and circumstances of the investigation in this particular case, the Court concludes that there has not been an effective investigation, since the deployment of helmeted police officers without identifying insignia and any difficulties for the investigation resulting from it were not sufficiently counter-balanced by thorough investigative measures. Consequently, the Court holds that there has been a violation of Article 3 of the Convention under its procedural head.

Here is Article 3:

Article 3 – Prohibition of torture

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

Oops, Germany!

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So far so bad, but the very best comes at the end on pages 31/32 and that is a real dress down of the German authorities.

CONCURRING OPINION OF JUDGE HÜSEYNOV

I share the Court’s conclusion that there was a procedural violation of Article 3 of the Convention in the present case. Indeed, the investigation into the applicants’ allegations of police violence was marred by a number of shortcomings. However, I am of the view that the Court’s findings have omitted one important deficiency, namely the lack of independence of the investigation. I agree with the applicants that the investigation was not conducted by an independent authority.

 As noted by the Court, the investigation into the alleged misconduct of the riot control unit was carried out by a division of the Munich police responsible for offences perpetrated by public officials under the supervision of the Munich public prosecutor’s office (§ 15). The investigating division was thus part of the same police service as the police officers whose alleged misconduct they were investigating. Both the investigating unit and those subject to investigation were under the command of the Munich Chief of Police. Having acknowledged this fact, the Court nevertheless emphasised that “the investigating officer was not a direct colleague of the officers of the riot control unit”, and went on to conclude that “it finds no sufficient hierarchical, institutional or practical connection between the investigating division and the riot control unit which, by itself, would render the investigation unreliable or ineffective” (§ 85).

I respectfully disagree. In my view, the “direct colleagues” criterion referred to by the Court appears to have been broadened in its recent case-law. The case of Kulyk v. Ukraine (no. 30760/06, § 107, 23 June 2016), is worthy of particular mention here. In that case, the criminal inquiry conducted by an entity within the Ministry of Interior vis-à-vis employees of that same Ministry was found to have lacked independence. The Court, in particular, noted that “...on several occasions the police bodies were asked by the prosecutor’s office to conduct certain investigative steps, in particular to find witnesses. Although those requests were addressed to an entity different from the one where the police officers L. and P. were employed, the fact that an entity within the Ministry of Interior was involved in an investigation concerning employees of that same Ministry is capable of undermining the independence of such an investigation. In this respect the Court also refers to the findings of the CPT, which has long been urging the Ukrainian authorities to create an independent investigative agency specialised in the investigation of complaints against public officials ...”

Accordingly, I am of the opinion that there was a sufficient institutional connection between the investigating unit of the Munich police and the police officers under investigation, and that the criminal inquiry in question failed to present an appearance of independence.

Interestingly, in the present case the Court has also referred to the CPT’s findings (§ 42). In particular, in the report on its visit to Germany from 25 November to 7 December 2015, the CPT expressed its doubts “as to whether investigations carried out by investigators of the central investigations units – and even more so those carried out by criminal police officers of regional or local headquarters – against other police officers can be seen as fully independent and impartial” (see CPT/Inf (2017) 13, § 18).

On a more general note, the Court’s finding that the investigation in question fulfilled the requirements of independence and impartiality seems to me regrettable in the light of the longstanding criticisms raised by various international and regional human rights institutions, specifically the UN Human Rights Committee, the UN Committee against Torture, the CPT and the Commissioner for Human Rights, with regard to the lack of independent police investigations in Germany (see CCPR/C/DEU/CO/6 (2012), § 10; CAT/C/DEU/CO/5, § 19; CPT/Inf (2017) 13, cited above; and CommDH(2015)20, § 38-39). Similarly, the German National Agency for the Prevention of Torture (Nationale Stelle zur Verhütung von Folter) established as a national preventive mechanism under the Option Protocol to the UN Convention against Torture has also advocated the establishment of independent bodies dealing with allegations of police violence in the German Federal States (Länder) (see Annual report 2016 of the National Agency for the Prevention of Torture).

(Bold mine)

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I have read quite some concurring and dissenting opinions of judges at the ECHR but this is one of the very best and in your face. Kudos!