Principal facts
The applicant, Naser Palushi, born in 1972, was previously a national of the former Socialist Federal Republic of Yugoslavia; he is now an Austrian national and lives in Vienna.
On 28 April 1994, his request for asylum refused, Mr Palushi was detained and held in custody in Vienna Police Prison with a view to his expulsion for illegal stay. Two days later he went on hunger strike.
Mr Palushi alleged that on 21 May 1994, three weeks into his hunger strike, prison officers called to his cell by his cellmates because he had slipped and hit his head while going to the toilet had pulled him out of his cell by his feet, kicked and beaten him and stabbed him behind the ears with ballpoint pens. He had then been dragged down some stairs – causing injuries to his back – and was placed in solitary confinement. He claimed that his requests to see a doctor were refused until 24 May 1994 when a representative of an NGO, a journalist and a friend visited him and, noticing abrasions on his back and hip and small bruises behind his ears, insisted that he be taken to the prison doctor. The doctor’s report of the same day noted several abrasions in the middle and lower parts of the applicant’s back; one of the abrasions, being substantial, was treated with a spray and bandaged.
On 26 May 1994 Mr Palushi was seen again by a prison doctor; the ensuing report confirmed that he had scabs behind his ears and on his back and that the remaining abrasion on his back required a new bandage.
In June 1994 Mr Palushi filed a complaint with the Vienna Administrative Panel (Unabhängiger Verwaltungssenat) about his ill-treatment while in detention. His case was heard in July 1994 and January 1995; evidence was given by the applicant, two of his former cellmates and two of the prison officers concerned. The former cellmates claimed that they had heard screaming and noises of beating coming from behind the closed cell door where the applicant had been taken by the prison officers. The officers denied the applicant’s allegations stating that, on the day in question, the applicant had been causing unrest by shouting and banging against his cell door. Finally, when called to the cell by the other inmates, the paramedic prison officer ascertained that the applicant was pretending to be unconscious. They had therefore had no other choice but to take him to an individual cell as a disciplinary measure and, as he could not be made to walk on his own, had to be dragged there. In March 1995 the Administrative Panel dismissed the case as it concerned a disciplinary measure and was a matter for the Police Prison Internal Rules.
The Constitutional Court subsequently quashed that decision and remitted the case to the Administrative Panel. Further hearings were held during which the NGO representative, journalist and applicant’s friend testified that they had seen injuries behind the applicant’s ears and abrasions on his back. The Panel dismissed, however, the applicant’s complaint on 3 September 1999. The additional testimonies were rejected on the grounds that the witnesses, not experts and only having seen the injuries a while after they had occurred, could not comment on their origin. The Panel concluded that the applicant’s submissions as a whole had been inconsistent and that the police officers’ actions had been justified by his recalcitrant behaviour. The Panel further dismissed the applicant’s claims about being denied medical assistance as both during his hunger strike and while in solitary confinement the applicant had been under the constant supervision of a qualified paramedic.
In the meantime, Mr Palushi, found unfit for detention, had been released on 28 May 1994. His request for asylum was subsequently granted.
|
|