3.3
The complainant contends that the preliminary inquiries lacked the necessary
impartiality, because they were carried out by the police and, therefore, constituted a
breach of article 13 of the Convention. Impartial investigations would have identified
the “fourth person”.
3.4
The complainant further submits that there is no legal basis in Austrian law for
preliminary police inquiries such as the one carried out in the present case, although
such inquiries are frequently conducted in Austria. Neither a magistrate’s preliminary
investigation nor a legal preliminary inquiry, both provided for in the Code of
Criminal Procedure, was carried out.
3.5
Finally the complainant submits that the only domestic remedy still available
is a civil action (Amtshaftungsklage). Such an action, however, would not be
practicable, because in the absence of a thorough criminal investigation a civil action
would fail.
State party’s observations on admissibility
4.1
On 20 May 1999, the State party submits that the case should be declared
inadmissible. The State party states that the interrogation of the complainant by the
first investigation team was interrupted when the officer assigned to the case at the
police station had him brought into his office to be examined by the medical officer of
the Vienna Federal Police Directorate in order to determine whether his health and
state of mind were impaired as a result of drug consumption.
4.2
After being examined by the medical officer, the complainant told another
official of the station (Colonel P.) that he had been ill-treated by the officer who had
questioned him, the medical office and other police officer. Colonel P. immediately
informed the head of the police station of the complainant’s allegations. The latter
phoned, without delay, the President of the Vienna Federal Police Directorate and the
Director of the Criminal Investigations Office (Sicherheitsbüro) and requested them
to take action. The Criminal Investigations office immediately opened an
investigation. On the same day, only about one and a half hours after the complainant
had made the allegations, he was taken to the Criminal Investigations Office and
questioned at length.
4.3
The accused police officers and Colonel P. were interrogated extensively on
31 July and 1 August 1996. Five other police officers were also questioned
thoroughly by officers of the Criminal Investigations Office on 2, 5 and 6 August
1996. The Criminal Investigations Office also tried, unsuccessfully, to find out
whether a fourth person had been present during the alleged ill-treatment.
4.4
The Criminal Investigations Office submitted a Statement of Facts to the
Vienna Public Prosecutor’s Office on 9 August 1996 reporting on the results of its
investigations. The public prosecutor filed charges against the accused police officers
with the Vienna Regional Criminal Court on 20 August 1996 for having inflicted
suffering on and trying to coerce a prisoner. This information arrived at the Vienna
Regional Criminal Court on 28 August 1996.
4