FIFTH SECTION

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

JUDGMENT

STRASBOURG
9 November 2017

This judgment will become final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.

 HENTSCHEL AND STARK v. GERMANY JUDGMENT

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In the case of Hentschel and Stark v. Germany,
The European Court of Human Rights (Fifth Section), sitting as a
Chamber composed of:
Nona Tsotsoria, President,
Angelika Nußberger,
Yonko Grozev,
Síofra O’Leary,
Carlo Ranzoni,
Mārtiņš Mits,
Lәtif Hüseynov, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 26 September 2017,
Delivers the following judgment, which was adopted on that date:

PROCEDURE
1. 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.
2. 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.
3. 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.
4. On 26 February 2016 the application was communicated to the
Government.

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THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. 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
6. On 9 December 2007 both applicants went to a football match in
Munich.
7. 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.
8. 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
9. 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

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to his home town, where he was treated in the emergency unit of the local
hospital.
10. 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.
11. 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
12. 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.
13. 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
14. 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

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spectators at the match had also lodged criminal complaints against
unidentified police officers.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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.

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20. 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.
21. 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.
22. 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.
23. 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).

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C. Court proceedings
24. 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.
25. 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.
26. 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).

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D. Other investigations
27. 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.
28. A subsequent appeal before the Munich general public prosecutor
was to no avail.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The German Basic Law
29. Article 2 § 2 of the Basic Law reads:
“Every person shall have the right to life and physical integrity. Freedom of the
person shall be inviolable. These rights may be interfered with only pursuant to a
law.”

30. Article 19 § 4 of the Basic Law, in so far as relevant, reads:
“Should any person’s rights be violated by public authority, he may have recourse to
the courts. ...”

31. Article 103 § 1 of the Basic Law, in so far as relevant, reads:
“In the courts every person shall be entitled to a hearing in accordance with the law.
...”

B. Criminal Investigations
32. The relevant provisions of the Code of Criminal Procedure
regulating criminal investigations, in so far as relevant, read:
Article 152
“(1) The public prosecutor’s office shall have the authority to bring public charges.
(2) Except as otherwise provided by law, the public prosecutor’s office shall be
obliged to take action in relation to all prosecutable criminal offences, provided there
are sufficient factual indications.”
Article 160
“(1) As soon as a public prosecutor’s office obtains knowledge of a suspected
criminal offence either through a criminal complaint or by other means it shall
investigate the facts to decide whether to bring public charges. ...”

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HENTSCHEL AND STARK v. GERMANY JUDGMENT

Article 170
“(1) If an investigation provides sufficient reasons for bringing public charges, the
public prosecutor’s office shall bring charges by submitting a bill of indictment to the
competent court.
(2) In all other cases a public prosecutor’s office shall terminate the proceedings.
The public prosecutor shall notify the accused thereof if he was examined as such or a
warrant of arrest was issued against him; the same shall apply if he has requested such
notice or if there is a particular interest in the notification.”
Article 171
“If the public prosecution office does not grant an application for preferring public
charges, or after conclusion of the investigation it orders the proceedings to be
terminated, it shall notify the applicant, indicating the reasons. ...”
Article 200
“(1) The bill of indictment shall indicate the indicted accused, the criminal offence
with which he is charged, the time and place of its commission, its statutory elements
and the penal provisions which are to be applied (the charges). ...”

C. Organisation of the public prosecutor’s office
33. The organisation of the public prosecutor’s office is governed in the
Courts Act (Gerichtsverfassungsgesetz). The relevant provisions, in so far
as relevant, read:
Section 142 of the Courts Act
“(1) The official duties of the public prosecutor’s office shall be discharged:
...
2. at the Courts of Appeal and the Regional Courts by one or more public
prosecutors;
3. at the District Courts by one or more public prosecutors or officials of the public
prosecutor’s office with a right of audience before the District Courts. ...”
Section 146 of the Courts Act
“The officials of the public prosecutor’s office must comply with the official
instructions of their superiors.”
Section 147 of the Courts Act
“The right of supervision and direction shall lie with:
...
2. the Land agency for the administration of justice in respect of all the officials of
the public prosecutor’s office of the Land concerned;
3. the highest-ranking official of the public prosecutor’s office at the Courts of
Appeal and the Regional Courts in respect of all the officials of the public
prosecutor’s office of the given court’s district.”

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34. The highest-ranking official of the public prosecutor’s office at the
Courts of Appeal bears the title general public prosecutor. The Munich
general public prosecutor supervises, inter alia, the public prosecutors at the
Munich Regional Court.
D. Relationship between the police and the public prosecutor’s office
35. The hierarchical order and relations between the public prosecutor’s
office and the police are regulated by the CCP and the Courts Act. The
relevant provisions, in so far as relevant, read:
Article 161 of the CCP
“(1) For the purpose indicated in Article 160 § 1 to § 3 [of the CCP], the public
prosecutor’s office shall be entitled to request information from all authorities and to
initiate investigations of any kind, either itself or through the authorities and officials
in the police force provided there are no other statutory provisions specifically
regulating their powers. The authorities and officials in the police force shall be
obliged to comply with such a request or order of the public prosecutor’s office and
shall be entitled, in such cases, to request information from all authorities.”
Article 163 of the CCP
“(1) The authorities and officials in the police force shall investigate criminal
offences and shall take all measures that may not be deferred, in order to prevent
concealment of facts. To this end they shall be entitled to request, and in exigent
circumstances to demand, information from all authorities, as well as to conduct
investigations of any kind in so far as there are no other statutory provisions
specifically regulating their powers.
(2) The authorities and officials in the police force shall transmit their records to the
public prosecutor’s office without delay. Where it appears necessary that a judicial
investigation be performed promptly, transmission directly to the Local Court shall be
possible. ...”
Section 152 of the Courts Act
“(1) The investigating personnel of the public prosecutor’s office shall be obliged in
this capacity to comply with the orders of the public prosecutor’s office of their
district and the orders of the officials’ superior thereto. ...”

E. Proceedings to force criminal proceedings
36. The possibilities for an aggrieved person to challenge a decision to
discontinue a criminal investigation are regulated in Article 172 of the CCP,
which, in so far as relevant, reads:
“(1) Where the applicant is also the aggrieved person, he shall be entitled to lodge a
complaint against the notification made in accordance with Article 171 [of the CCP,
see paragraph 32 above] to the official superior of the public prosecutor’s office
within two weeks of receipt of such notification. ...

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(2) The applicant may, within one month of receipt of notification, apply for a court
decision in respect of the dismissal of the complaint by the official superior of the
public prosecutor’s office. He shall be instructed as to this right and as to the form
such an application shall take; the time-limit shall not run if no instruction has been
given. ...
(3) The application for a court decision must indicate the facts which are intended
to substantiate the bringing of public charges, as well as the evidence. The application
must be signed by a lawyer; legal aid shall be governed by the same provisions as in
civil litigation. The application shall be submitted to the court competent to decide.
(4) The Court of Appeal shall be competent to decide on the application. ...”

37. The CCP provisions regulating the proceedings to force criminal
proceedings read:
Article 173
“(1) Upon the request of a court a public prosecutor’s office shall submit to the
court the records of the hearings conducted so far.
(2) The court may inform the accused of the application, setting him a time-limit for
making a statement in reply.
(3) The court may order an investigation to prepare its decision and may entrust
such investigations to a commissioned or requested judge.”
Article 175
“If after hearing the accused, the court considers the application to be well-founded,
it shall order that public charges be brought. This order shall be carried out by the
public prosecutor’s office.”

F. Proceedings before the Constitutional Court
38. Section 31 of the
Federal
Constitutional
Court
Act
(Bundesverfassungsgerichtsgesetz – hereinafter “the Constitutional Court
Act”) declares the decisions of the Constitutional Court binding upon all
constitutional organs, courts and administrative authorities. It reads:
“(1) The decisions of the Constitutional Court shall be binding upon the
constitutional organs of the Federation and of the Länder, as well as on all courts and
those with public authority.”

39. Under section 32 of the Constitutional Court Act, the Constitutional
Court is empowered to issue preliminary injunctions and under section 35 of
the Constitutional Court Act it may specify who is to execute its decisions
and the method of execution. These provisions read, as far as relevant, as
follows:
Section 32
“(1) In a dispute, the Constitutional Court may provisionally decide a matter by
way of a preliminary injunction if this is urgently required to avert severe

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disadvantage, to prevent imminent violence or for another important reason in the
interest of the common good. ...”
Section 35
“The Constitutional Court may specify in its decision who is to execute it; in
individual cases it may also specify the method of execution.”

40. The relevant
proceedings read:

provisions

regulating

constitutional-complaint

Section 90
“(1) Any individual claiming a violation of one of his or her fundamental rights or
of one of his or her rights under Article 20 § 4, Articles 33, 38, 101, 103, or 104 of the
Basic Law by a public authority may lodge a constitutional complaint with the
Constitutional Court.
(2) If legal recourse to other courts exists, the constitutional complaint may only be
lodged after all remedies have been exhausted. However, the Constitutional Court
may decide on a constitutional complaint that was lodged before all remedies were
exhausted if the complaint is of general relevance or if prior recourse to other courts
were to the complainant’s severe and unavoidable disadvantage.”
Section 95
“(1) If the Court allows a constitutional complaint, the decision shall declare which
provision of the Basic Law was violated and by which act or omission. The
Constitutional Court may simultaneously declare that any repetition of the contested
act or omission would violate the Basic Law.
(2) If the Court allows a constitutional complaint that challenges a decision, the
Constitutional Court shall reverse the decision; in the cases referred to in § 90 sec. 2
sentence 1, it shall remit the matter to a competent court. ...”

41. In accordance with the jurisdiction of the Constitutional Court the
term “decision” in section 95(2) of the Constitutional Court Act is not
limited to court decisions, but understood in a way that it entails every act of
a public authority violating the fundamental rights of a plaintiff
(1 BvR 289/56, 7 May 1957). In line with this understanding the
Constitutional Court set aside, in the case 2 BvR 878/05 (17 November
2005), the reasoning of a decision to discontinue criminal proceedings, as it
violated the presumption of innocence of the plaintiff.
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,

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§§ 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)

THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
44. The applicants alleged under Article 3 of the Convention that they
had been beaten and had had pepper spray used on them by police officers
who, owing to an inadequate investigation, had been neither identified nor
punished. They also complained that the German legal system did not
provide them with an effective judicial remedy to complain about the
alleged ineffectiveness of the investigation. In this connection, the
applicants relied on Article 13 of the Convention taken in conjunction with
Article 3.
45. The Court, as master of the characterisation to be given in law to the
facts of the case (see Bouyid v. Belgium [GC], no. 23380/09, § 55,
ECHR 2015), finds it appropriate to examine the complaints solely under
Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.”

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A. The parties’ submissions
1. The applicants
(a) Substantive aspect of the complaint

46. The applicants argued that based on their statements to the Court and
to the national authorities, which had been corroborated by the provided
medical certificates, it had been established that they had been beaten and
had had pepper spray used on them by police officers. Moreover, the
investigation had not shown that the applicants had been behaving
aggressively or had provoked the use of force in any way. Consequently, the
attack they had endured had been unjustified and constituted ill-treatment in
violation of Article 3 of the Convention.
(b) Procedural aspect of the complaint
(i) Effective official investigation

47. The applicants submitted that from the beginning there had been an
arguable claim of excessive use of force by the police. Besides their own
testimonies, the statements of other spectators at the match and several
reports in the press had confirmed their account of events. Consequently,
the national authorities had been obliged to conduct an investigation capable
of leading to the identification and punishment of the responsible police
officers.
48. The Government had, nevertheless, failed to do so, since the
investigation had suffered from several deficiencies which had made it
ineffective. Firstly, the investigation had never produced the identity of the
deployed police officers and thereby of the possible suspects. Even though
the authorities had deployed helmeted officers without any identifying
insignia, the investigating unit had refused to identify and question the
officers at issue. Secondly, the investigation had not been conducted by a
sufficiently independent authority. The public prosecutor’s office had not
been practically independent, owing to the proximity between the local
police force and the local public prosecutor’s office and the fact that the
latter had to rely on the local police force for the investigation in every
single case. Moreover, for all practical purposes the investigation had been
conducted by the Munich police and the Munich public prosecutor had only
been informed of the status of the investigation. The investigating unit,
however, had been part of the same police force as the officers they had
been investigating. Therefore the investigating and the investigated unit had
been under the command of the Munich Chief of Police and the
investigation could not be considered to have been independent or impartial.
Thirdly, the investigation had been neither prompt nor thorough. The
investigator had failed to secure the entire video material before it had been

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deleted, had questioned witnesses only after a considerable time and had
never questioned all the deployed police officers, or the paramedic who had
treated the first applicant at the stadium.
49. These deficiencies had prevented the identification of the suspected
perpetrators and the collection of further evidence, in particular witness
statements of the colleagues of the suspected perpetrators confirming the
applicants’ accounts. In sum the deployment of helmeted officers without
any identifying insignia in conjunction with the deficient investigation had
led to the impunity of the perpetrators.
(ii) Remedy to complain of the alleged ineffectiveness of the investigation

50. The applicants submitted that the German legal system had not
provided them with an effective remedy to review the effectiveness of the
investigation. At the outset they submitted that, given the hierarchical
structure of the public prosecutor’s office, the general public prosecutor had
not been sufficiently independent. Consequently, the complaint before the
general public prosecutor under Article 172 § 1 of the CCP could not be
considered an effective remedy in the meaning of Article 13 of the
Convention. As regards judicial remedies at their disposal they referred to
the Court’s judgment in Kaverzin v. Ukraine (no. 23893/03, § 93, 15 May
2012) and argued that an effective remedy would have required that the
domestic courts had had the power to examine all relevant evidence, to
overturn the prosecutor’s decision to discontinue, and to initiate enquiries.
This, however, had not been the case for them.
51. Their application to force further enquiries had been interpreted by
the Court of Appeal as an application to force criminal proceedings and had
been declared inadmissible. The Court of Appeal had only assessed whether
the public prosecutor’s office had entirely refrained from investigating a
criminal offence but not whether the investigation had been effective within
the meaning of Article 3 of the Convention. Moreover, the court had had the
power only to bring charges, but not to reopen the investigation.
52. As regards the proceedings before the Constitutional Court, the
applicants argued that the court had confined itself to assessing whether the
decision of the Court of Appeal had been legitimate. It had not examined
whether the investigation had been effective. Furthermore, the
Constitutional Court had not had the power to initiate an investigation or to
order specific investigative measures. In accordance with the Constitutional
Court Act, the Constitutional Court could only declare which provision of
the German Basic Law had been violated (section 95(1)) and refer the case
back to the competent court (sections 95(2) and 90(1)). The competent
court, however, would have been the Court of Appeal again, which had
previously decided that it had not had the legal power to reopen the
investigation and had declared the application to force further enquiries
inadmissible. The applicants further submitted that up until that point there

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15

had never been a successful constitutional complaint challenging a decision
that upheld the discontinuation of investigations in cases of alleged police
violence in which the perpetrator had not been identified.
2. The Government
(a) Admissibility

53. The Government submitted that the applicants’ argument that the
police had suppressed video material during the investigation should be
dismissed owing to non-exhaustion of domestic remedies. After the
investigation into this allegation had been discontinued, the applicants had
not initiated court proceedings to force criminal proceedings. Moreover, the
applicants had not raised this issue in their constitutional complaint.
Similarly, the applicants had not complained about the promptness of the
investigation before the Constitutional Court either. Lastly, the applicants
had also failed to challenge the lack of a judicial remedy, in particular the
alleged ineffectiveness of the proceedings to force criminal proceedings,
before the Constitutional Court.
(b) Substantive aspect of the complaint

54. The Government argued that it had not been established beyond
reasonable doubt that the applicants had been subjected to treatment
contrary to Article 3 of the Convention or that the authorities had had
recourse to physical force which had not been rendered strictly necessary by
the applicants’ behaviour.
55. As regards the police operation as a whole the Government
submitted that the police had been confronted with aggressive behaviour on
the part of some supporters and had justifiably used their truncheons as a
defensive weapon. However, there had been no indication that any police
officer had intentionally struck or used pepper spray on the first or second
applicant. The accounts of the applicants themselves had neither been
credible nor supported by any evidence.
(c) Procedural aspect of the complaint
(i) Effective official investigation

56. As regards the obligation to effectively investigate the allegations of
police violence, the Government submitted that, owing to the lack of a
credible allegation, no such obligation had arisen. The German authorities
had nonetheless conducted an effective investigation into the police
operation and the applicants’ allegations.
57. During the investigation thirty-nine witnesses had been questioned,
including the video officers and the leaders of the relevant units. Moreover,
all available video material had been analysed. An investigation into

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allegations of suppression and intentional destruction of the video material
had not confirmed those allegations, but had shown that the material had
been handled in accordance with the generally applicable policies. The
investigation had been conducted by an independent authority, namely the
public prosecutor’s office. As this office had not had their own
investigators, they had instructed and supervised officers from the general
police force. Lastly, the investigation had been sufficiently prompt and the
applicants had been sufficiently involved therein.
58. Moreover, under Article 170 § 2 of the CCP the public prosecutor’s
office could only bring public charges if the investigation had unearthed
sufficient reasons to do so. This had not been so in the present case.
Furthermore, the public prosecutor’s office had not been obliged to carry
out unorthodox investigative measures. It was permissible to omit such
measures if weighing up the effort and the anticipated outcome did not
justify their taking. Therefore, the public prosecutor’s office had justifiably
refrained from questioning the individual police officers involved, as it had
already questioned their commanders.
59. In sum the investigation had not led to the punishment of a suspect
because the allegations of the applicants had not been confirmed and not
because the suspected police officers had not or could not have been
identified.
(ii) Remedy to complain about the alleged ineffectiveness of the investigation

60. The Government submitted that Article 3 of the Convention did not
require a judicial remedy and that the possibility to challenge a decision to
discontinue an investigation before the general public prosecutor under
Article 172 § 1 of the CCP had fulfilled the requirements stemming from
the Convention. Even though the general public prosecutor had been the
superior of each public prosecutor in the respective court district, he or she
had been provided with his or her own staff and therefore had been
sufficiently independent from subordinate public prosecutors.
61. Moreover, the applicants had had judicial possibilities to challenge
the effectiveness of the investigation at their disposal. Firstly proceedings to
force criminal proceedings, a remedy they had also made use of. The Court
of Appeal had adopted the most favourable interpretation of the law for the
applicants, in accordance with which it could have ordered further
investigations if the public prosecutor’s office had conducted an entirely
inadequate investigation. As the court had found that this had not been the
case and that the applicants had not shown that further enquiries would have
been fruitful, the applicants’ request had been declared inadmissible. The
Government argued that the Court of Appeal’s assessment had been in line
with the requirements for an effective investigation under Article 3 of the
Convention.

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17

62. Lastly, the applicants had also challenged the effectiveness of the
investigation before the Constitutional Court. The Constitutional Court had
directly referred to the jurisdiction of the Strasbourg Court regarding the
obligation to investigate allegations of police violence and concluded that
the investigation had been effective. Moreover, the Constitutional Court had
also been competent to initiate or reopen an investigation. Under section 35
of the Constitutional Court Act, the Constitutional Court could have
specified the method of execution and the competent authority to execute its
decision, and under section 32 of the Constitutional Court Act it could have
issued a preliminary injunction. Under section 95(2) of the Constitutional
Court Act the court could also have set the public prosecutor’s decision to
discontinue the investigation aside. The Constitutional Court had already
done so in its judgment in the case 2 BvR 878/05.
B. The Court’s assessment
1. Admissibility
63. The Court notes that the Government argued that the applicants had
not lodged an application to force criminal proceedings in respect of the
alleged suppression of evidence and video material. In that connection it
observes that these proceedings would have concerned a different
investigation. While the applicants unsuccessfully lodged an application to
force criminal proceedings concerning the investigation into alleged police
violence, they did not do so in respect of the investigation into alleged
suppression of evidence. As the applicants’ present application to the Court
concerns the allegation of police violence the Court considers it unnecessary
for the applicants’ present complaint to have exhausted domestic remedies
regarding a second, separate investigation.
64. Moreover, the Government raised the objection of non-exhaustion
regarding two of the applicants’ arguments (see paragraph 53 above),
because the applicants had not made these arguments in their constitutional
complaint. The Court notes that it is not in dispute between the parties that
the applicants challenged the effectiveness of the investigation before the
Constitutional Court. Furthermore, the applicants referred in their
constitutional complaint to the Court’s jurisdiction concerning States’
obligations under the procedural head of Articles 2 and 3 of the Convention,
pursuant to which investigations had to be prompt, thorough and
independent. It also notices that the applicants described in detail the course
and duration of the investigation and the subsequent court proceedings.
Consequently, the Court finds that the applicants provided the
Constitutional Court with all relevant information to assess the effectiveness
of the investigation, which they challenged in their constitutional complaint.

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65. Lastly, in so far as the Government raised the objection of
non-exhaustion in regards to the lack of a possibility to challenge the
effectiveness of the investigation, the Court observes that the applicants
complained under Articles 19 § 4 and 103 § 1 of the Basic Law that the
Court of Appeal had not evaluated the effectiveness of the investigation and
that it had not responded in detail to the several alleged flaws therein, as
outlined in the applicants’ application to force further enquiries. In the light
of the applicants’ submission to the Constitutional Court in the
constitutional-complaint proceedings the Court considers that the applicants
raised this complaint explicitly and in substance.
66. Having regard to the above the Court holds that the application
cannot be rejected for the applicants’ failure to exhaust domestic remedies.
It also finds that this complaint is not manifestly ill-founded within the
meaning of Article 35 § 3 (a) of the Convention and also not inadmissible
on any other grounds. Therefore, the applicants’ complaint under the
substantive and procedural limbs of Article 3 must be declared admissible.
2. Merits
(a) Substantive aspect of the complaint

67. The Court observes that it is confronted with a dispute over the exact
events after the football match on 9 December 2007 and the acts that led to
the applicants’ injuries.
68. The Court reiterates that it is sensitive to the subsidiary nature of its
role and recognises that it must be cautious in taking on the role of a
first-instance tribunal of fact, where this is not rendered unavoidable by the
circumstances of a particular case. Nonetheless, where allegations are made
under Article 3 of the Convention the Court must apply a “particularly
thorough scrutiny”, even if certain domestic proceedings and investigations
have already taken place (see El-Masri v. the former Yugoslav Republic of
Macedonia [GC], no. 39630/09, § 155, ECHR 2012, with further
references).
69. In cases in which there are conflicting accounts of events, the Court
is inevitably confronted with the same difficulties as those faced by any
first-instance court when establishing the facts and must reach its decision
on the basis of the evidence submitted by the parties. In the proceedings
before it, there are no procedural barriers to the admissibility of evidence or
predetermined formulae for its assessment. It adopts the conclusions that
are, in its view, supported by the free evaluation of all evidence, including
such inferences as may flow from the facts and the parties’ submissions (see
Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147,
ECHR 2005-VII). While in general the Court has adopted the standard of
proof “beyond reasonable doubt” in assessing evidence, according to its
established case-law, the level of persuasion necessary for reaching a

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19

particular conclusion and, in this connection, the distribution of the burden
of proof, are intrinsically linked to the specificity of the facts, the nature of
the allegation made and the Convention right at stake (ibid.).
70. It is to be reiterated that Convention proceedings do not in all cases
lend themselves to a strict application of the principle affirmanti incumbit
probatio (he or she who alleges something must prove that allegation) (see
El-Masri, cited above, § 152). Under certain circumstances the Court has
borne in mind the difficulties associated with obtaining evidence and the
fact that often little evidence can be submitted by the applicants in support
of their applications (see Saydulkhanova v. Russia, no. 25521/10, § 56,
25 June 2015). In particular where the events in issue lie wholly, or in large
part, within the exclusive knowledge of the authorities, as in the case of
persons within their control in custody, strong presumptions of fact will
arise in respect of injuries occurring during such detention. The burden of
proof is then on the Government to provide a satisfactory and convincing
explanation by producing evidence establishing facts which cast doubt on
the account of events given by the victim (see Bouyid, cited above, § 83,
with further references).
71. These principles also apply to all cases in which a person is under
the control of the police or a similar authority, such as an identity check in a
police station (ibid., § 84).
72. Assessing the present case, the Court firstly notes that the applicants
voluntarily attended the football match, but were involuntarily kept by the
police in the stands for about fifteen minutes. However, the Court also notes
that the blockade was maintained only by cordoning the exits off and that
the supporters were still able to freely move within the stands themselves. In
addition, the alleged police violence occured – according to the applicants –
after the blockade was lifted and the applicants had left the stands. The
Court therefore concludes that the applicants were not ‘under the control of
the police’ – in the meaning of the Court’s jurisprudence (see Bouyid, cited
above, §§ 83, 84) – and that the burden of proof could not be shifted to the
Government. Consequently, it was for the applicants to substantiate their
factual arguments by providing the Court with the necessary evidence.
73. The Court notes that the applicants submitted parts of the
investigation file, including their and other witnesses’ statements, medical
certificates concerning their injuries and different press articles concerning
the police operation at the football match. They also submitted their
correspondence with the public prosecutor’s office and their appeals to the
chief public prosecutor and the domestic courts.
74. The Court has previously emphasised the strong evidential value of
medical certificates attesting evidence of ill-treatment and issued shortly
after the alleged ill-treatment (see Bouyid, cited above, § 92). In that regard
the Court observes that the first applicant’s medical certificate was issued
the night after the football match and attested to a bleeding laceration 3 cm

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HENTSCHEL AND STARK v. GERMANY JUDGMENT

in length behind his right ear. The certificate also stated that according to
the account of the patient, that is to say the first applicant, the laceration was
caused by a strike with a truncheon. The second applicant’s medical
certificate noted redness in his face, possibly stemming from pepper spray.
However, that certificate was issued only on 21 January 2008 and based
upon the second applicant’s account and pictures taken, according to him,
after the football match. The Court considers that both certificates attest to
possible consequences of ill-treatment, namely being beaten with a
truncheon on the head and having pepper spray applied to the face from a
close distance. However, while confirming the injuries, the certificates do
not attest to the specific cause of the injuries. Moreover, the second
applicant’s medical certificate was only issued six weeks after the alleged
ill-treatment and was not based on an examination of the actual injuries.
75. Regarding the other documents submitted, the Court observes that
some of the witnesses and the press reports described the police operation in
terms similar to the accounts of the applicants. Furthermore, the accounts of
the applicants before the police and before the Court were in essence the
same. However, the applicants did not submit to the Court any witness
statements or other evidence confirming their accounts and none of the
persons interviewed in the domestic investigation witnessed the alleged acts
against them.
76. Lastly, the Court notes that the second applicant reported the alleged
police violence only on 21 January 2008 and filed a formal criminal
complaint only on 7 March 2008. The first applicant did not file his criminal
complaint until 25 April 2008.
77. Having regard to the evidence before it, the Court acknowledges that
some of the evidence confirms the applicants’ accounts. In sum, however, it
finds itself unable to establish beyond reasonable doubt that the first
applicant was hit by a police officer with a truncheon on his head and that
the second applicant had pepper spray doused in his face at close range and
subsequently had been struck on his left upper arm with a truncheon by a
police officer.
78. Accordingly, the Court finds that there has been no violation of
Article 3 of the Convention under its substantive head.
(b) Procedural aspect of the complaint
(i) General principles

79. The Court has recently summarised its general principles regarding
States’ procedural obligation to effectively investigate allegations of police
violence under Article 3 of the Convention in the case of Bouyid (cited
above, §§ 115-23). While the principles relate to the manner of application
of Article 3 to allegations of ill-treatment made by persons in detention or

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21

otherwise under the control of State agents they can be also transposed to
cases concerning the use of force for crowd control purposes:
“115. Those principles indicate that the general prohibition of torture and inhuman
or degrading treatment or punishment by agents of the State in particular would be
ineffective in practice if no procedure existed for the investigation of allegations of illtreatment of persons held by them.
116. Thus, having regard to the general duty on the State under Article 1 of the
Convention to ‘secure to everyone within [its] jurisdiction the rights and freedoms
defined in [the] Convention’, the provisions of Article 3 require by implication that
there should be some form of effective official investigation where an individual
makes a credible assertion that he has suffered treatment infringing Article 3 at the
hands of, inter alia, the police or other similar authorities.
117. The essential purpose of such an investigation is to secure the effective
implementation of the domestic laws prohibiting torture and inhuman or degrading
treatment or punishment in cases involving State agents or bodies, and to ensure their
accountability for ill-treatment occurring under their responsibility.
118. Generally speaking, for an investigation to be effective, the institutions and
persons responsible for carrying it out must be independent from those targeted by it.
This means not only a lack of any hierarchical or institutional connection but also
practical independence.
119. Whatever mode is employed, the authorities must act of their own motion. In
addition, in order to be effective the investigation must be capable of leading to the
identification and punishment of those responsible. It should also be broad enough to
permit the investigating authorities to take into consideration not only the actions of
the State agents who directly used force but also all the surrounding circumstances.
120. Although this is not an obligation of results to be achieved but of means to be
employed, any deficiency in the investigation which undermines its ability to establish
the cause of injuries or the identity of the persons responsible will risk falling foul of
the required standard of effectiveness.
121. A requirement of promptness and reasonable expedition is implicit in this
context. While there may be obstacles or difficulties which prevent progress in an
investigation in a particular situation, a prompt response by the authorities in
investigating allegations of ill-treatment may generally be regarded as essential in
maintaining public confidence in their adherence to the rule of law and in preventing
any appearance of collusion in or tolerance of unlawful acts.
122. The victim should be able to participate effectively in the investigation.
123. Lastly, the investigation must be thorough, which means that the authorities
must always make a serious attempt to find out what happened and should not rely on
hasty or ill-founded conclusions to close their investigation.”
(ii) Application of these principles to the present case
(α) Arguable claim

80. At the outset the Court notes that the parties’ disagreement regarding
the facts (see paragraphs 9-13 above) also affects the question of whether
the applicants raised an “arguable claim” that they had been ill-treated by

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HENTSCHEL AND STARK v. GERMANY JUDGMENT

the police and thereby whether an effective official investigation had been
required under Article 3 of the Convention.
81. While the Government argued that there had not been a credible
allegation of police violence, the applicants submitted that, from the start,
there had been sufficient indications of unjustified and excessive use of
force by the police. The Court notes that the public prosecutor’s office had
initiated an investigation into the police operation, which under Article 160
of the CCP presupposed a suspicion of a criminal offence. It also observes
that in the first decision to discontinue the investigation the public
prosecutor had held that the investigations had produced evidence that some
police officers had used truncheons against spectators, including women and
children, in a disproportionate way and without an official order or
approval. However, the Court reiterates that it was unable to establish
beyond reasonable doubt that the first applicant had been hit by a police
officer with a truncheon on his head and that the second applicant had been
doused with pepper spray in the face at close range and subsequently struck
on his left upper arm with a truncheon by a police officer (see
paragraphs 72 77 above).
82. In that regard the Court reiterates that the term “arguable claim”
cannot be equated to finding a violation of Article 3 under its substantive
head. An arguable claim only requires that there is a reasonable suspicion
that applicants were ill-treated by the police or another national authority
(compare Assenov and Others v. Bulgaria, 28 October 1998, §§ 101
and 102, Reports of Judgments and Decisions 1998-VIII, and Đurđević
v. Croatia, no. 52442/09, § 86, ECHR 2011 (extracts)). Given the
statements made by the applicants to the police – which, it must be stressed,
were made with a certain delay and were not free of contradictions –, the
press reports that corroborated their accounts and the medical certificates
confirming the applicants’ injuries, the Court finds that there was an
arguable claim of ill-treatment by the police which had to be effectively
investigated by an independent national authority.
83. The Court acknowledges the difficulties which may be encountered
in policing large groups of people during mass events where the police have
not only the duty of maintaining public order and protecting the public, but
also of maintaining confidence in their adherence to the rule of law.
(β) Adequacy of the investigation

84. Concerning the adequacy of the investigation, the Court observes, at
the outset, that the public prosecutor’s office was, according to the
Constitutional Court, “master of the proceedings” (see paragraph 26 above)
and responsible for the investigation of criminal offences as well as the
bringing of charges. However, based on the documents in its possession the
Court finds that, in particular during the first phase of the investigation,
before the first decision to discontinue, the investigation had been, in fact,

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23

primarily conducted by the police and that the public prosecutor only had a
supervisory role.
85. As regards the second phase of the investigation, the investigating
unit was again drawn from the Munich police and was again under the
supervision of the public prosecutor. Where investigations are for all
practical purposes conducted by the police, the supervision of the police by
an independent authority has not been found to provide a sufficient
safeguard (see Kelly and Others v. the United Kingdom, no. 30054/96,
§ 114, 4 May 2001; Kummer, cited above, § 87, and Ramsahai and Others
v. the Netherlands [GC], no. 52391/99, § 337, ECHR 2007-II, with further
references). Therefore, the Court has to assess whether the unit investigating
the alleged police violence was sufficiently independent from the officers of
the riot control unit whose operation was under investigation. In that regard
the Court notes that the investigation was not conducted by a separate police
force but by a division of the Munich police which specialised in offences
perpetrated by public officials under the supervision of the public
prosecutor’s office. It also observes that the investigating officer was not a
direct colleague of the officers of the riot control unit (contrast Ramsahai,
cited above, §§ 335-37) and that the only link between these two divisions
was their common Chief of Police and the fact that they belonged to the
Munich police. While the Court considers it desirable that investigations
into the use of force by the police, if possible, be conducted by independent
and detached units (see, for example, Oğur v. Turkey [GC], no. 21594/93,
§ 91, ECHR 1999-III and Eremiášová and Pechová, cited above,
§§ 135-39), 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.
86. The Court further notes that on 20 October 2008 there had been an
internal meeting concerning the investigation between the head of the
investigation unit and different heads of divisions of the Munich police,
including the platoon leaders of riot control units, which the competent
public prosecutor did not attend (see paragraph 19 above). Where, as in the
present case, the investigation is conducted by a unit of the same police
force and only under the supervision of an independent authority, it is of
increased importance that the manner in which it is conducted also gives an
appearance of independence so as to preserve public confidence (see
Hugh Jordan v. the United Kingdom, no. 24746/94, § 123, 4 May 2001,
Đurđević, cited above, § 89, Mihhailov v. Estonia, no. 64418/10, § 128,
30 August 2016).
87. As far as the promptness of the investigation is concerned, the Court
has consistently emphasised that a prompt response by the authorities in
investigating allegations of ill-treatment may generally be regarded as
essential in maintaining public confidence in their adherence to the rule of
law and in preventing any appearance of collusion in or tolerance of

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HENTSCHEL AND STARK v. GERMANY JUDGMENT

unlawful acts (Bouyid, cited above, § 133). In this respect, the Court
observes that the Munich police commenced a preliminary investigation on
2 January 2008, after they had been alerted by press reports to allegations of
police violence in the context of the football match on 9 December 2007.
The investigation lasted for nineteen months and was eventually
discontinued by the public prosecutor on 4 August 2009. Based on all the
documents in its possession the Court detects no particularly long periods of
inactivity in the conduct of the investigation. In sum, around forty witnesses
were interviewed, video material was reviewed, medical certificates were
examined, and further investigative steps were taken. The investigation,
therefore, appears to have been adequately prompt and expedient.
88. In the context of the expedience of the investigation, the Court also
observes that the applicants only lodged official complaints on 7 March and
25 April 2008. Consequently, their specific complaints could only be
investigated after the respective dates. Moreover, the delay in lodging
official complaints prevented the competent authorities to promptly order a
forensic examination of the applicants’ injuries and thereby contributed to
the difficulties in the investigation. The Court would reiterate in that regard
that a prompt forensic examination is crucial as signs of injury may often
disappear rather quickly and certain injuries may heal within weeks or even
a few days (see Rizvanov v. Azerbaijan, no. 31805/06, §§ 46 and 47,
17 April 2012).
89. Moreover, the Court notes that the applicants, who were assisted by
a lawyer during the investigation, had access to the investigation file, were
able to request certain investigative measures and were informed of the
progress of the investigation. Even though not all the requested measures
were implemented and the applicants were not involved in the meeting of
20 October 2008, the Court considers that they were able to effectively
participate in the investigation.
90. As regards the investigative measures actually undertaken, the Court
observes that the deployed police officers of the riot control unit did not
wear any name tags or other individually identifying signs, but only
identification numbers of the squad on the back of the helmets (see
paragraph 7 above).
91. The Court reiterates that where the competent national authorities
deploy masked police officers to maintain law and order or to make an
arrest, those officers should be required to visibly display some distinctive
insignia, such as a warrant number. The display of such insignia would
ensure their anonymity, while enabling their identification and questioning
in the event of challenges to the manner in which the operation was
conducted (see Ataykaya v. Turkey, no. 50275/08, § 53, 22 July 2014, with
further references; Özalp Ulusoy v. Turkey, no. 9049/06, § 54, 4 June 2013;
and the CPT recommendation in paragraph 43 above). The consequent
inability of eyewitnesses and victims to identify officers alleged to have

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25

committed ill-treatment can lead to virtual impunity for a certain category of
police officers (compare Atakaya, cited above, § 53, and Hristovi
v. Bulgaria, no. 42697/05, §§ 92 and 93, 11 October 2011).
92. In the Court’s previous cases concerning the effectiveness of
investigations against masked police officers the acts of ill-treatment had
been clearly attributable to one of the deployed officers. In the present case,
however, the Court was, based on the evidence before it, unable to reach a
different conclusion than the national authorities and establish that the
applicants’ injuries were a direct result of the conduct of one or more of the
deployed police officers. Therefore, the deployment of helmeted officers
with no identifying individual insignia could not – by itself – render the
subsequent investigation ineffective (contrast, Hristovi, cited above, § 93).
93. However, in the absence of such identifying insignia for helmeted
officers, the investigative measures open to the authorities to establish the
identities of the persons responsible for the alleged use of excessive force
causing ill-treatment became increasingly important.
94. According to the Court’s well-established case-law, the authorities
must take all reasonable steps available to them to secure the evidence
concerning the incident at issue. The investigation’s conclusions must be
based on thorough, objective and impartial analysis of all relevant elements.
Failing to follow an obvious line of inquiry undermines to a decisive extent
the investigation’s ability to establish the circumstances of the case and the
identity of those responsible. Nevertheless, the nature and degree of scrutiny
which satisfy the minimum threshold of the investigation’s effectiveness
depend on the circumstances of the particular case, and it must be assessed
on the basis of all relevant facts and with regard to the practical realities of
investigation work (see Armani da Silva v. the United Kingdom [GC],
no. 5878/08, §§ 233 and 234, ECHR 2016, with further references).
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

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HENTSCHEL AND STARK v. GERMANY JUDGMENT

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).
98. The Court accepts that the failure to secure all the video footage and
to have it analysed by independent investigating units could, in principle, be
counter-balanced by other investigative measures. As indicated previously,
the effectiveness of a given investigation will depend on the circumstances
of a particular case and must be assessed on the basis of all relevant facts
and with regard to the practical realities of investigation work (see
paragraph 94 above). One such measure could have been the questioning of
more of the deployed riot police officers. The Court acknowledges that
around forty witnesses were questioned and that these included the squad
leaders of the deployed riot control units. It nevertheless observes that not
all officers deployed in the area where the applicants had allegedly been
ill-treated were interviewed. Moreover, the video officers were interviewed
only after the investigation had been reopened on 14 October 2008, and no
efforts were undertaken to identify and question the paramedic who had
allegedly treated the first applicant at the stadium.
99. Having regard to the above considerations, the Court concludes that
the deployment of helmeted officers with no identifying individual insignia
and the consequent inability of eyewitnesses and victims to directly identify
the officers alleged to have committed the ill-treatment complained of had
the capacity to hamper the effectiveness of the investigation from the outset.
Such a situation required particular investigative efforts by the investigating
authorities to establish the cause of the victims’ injuries, the identities of the
persons responsible, whether police officers used force and, if so, whether
such force was proportionate to the security situation which confronted the
deployed units. The Court reiterates that any deficiency in an investigation
which undermines its ability to establish the facts or the identity of persons
responsible will risk falling foul of the standard of effectiveness required
under the procedural limb of Article 3 (see Hristovi, cited above, § 86). In

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27

the present case, it considers that, for example, the securing and analysis of
the original video footage by an independent authority or interviewing other
members of the deployed riot control units or other witnesses, such as the
paramedic who had allegedly treated the first applicant at the stadium, could
possibly have clarified the events after the football match of 9 December
2007 in Munich, the cause of the applicants’ injuries and the alleged
ill-treatment by police officers. Since these obvious lines of inquiry were
not comprehensively followed, the Court finds that the lack of insignia of
helmeted police officers and any difficulties resulting from it were not
sufficiently counter-balanced during the subsequent investigation.
(γ) Review of the prosecutorial decision

100. In so far as the applicants complained about the lack of an effective
judicial remedy to complain about the alleged ineffectiveness of an
investigation, the Court has already held that the procedural obligation in
Article 2 does not necessarily require a judicial review of investigative
decisions as such (see Armani da Silva, cited above, §§ 278 and 279, with
further references). The Court also established that in at least twelve
member States, the decision of a prosecutor not to prosecute could only be
contested before a hierarchical superior (ibid, § 279).
101. The Government indicated one non-judicial and two judicial
remedies open to the applicants to challenge the effectiveness of the
investigation, as protected under Article 3 of the Convention. Upon the
applicants’ complaint about the decision of the public prosecutor to
discontinue the investigation under Article 172 § 1 of the CCP (see
paragraph 36 above) the Munich general public prosecutor, in its decision of
3 February 2011, reviewed the decision of the public prosecutor and the
underlying investigation in detail and responded to the specific complaints
submitted by the applicants. However, the Court notes that the Munich
general public prosecutor was the superior of the Munich public
prosecutor’s office.
102. As far as judicial remedies are concerned, the Court notes that the
applicants’ application to force further enquiries was declared inadmissible,
since the Court of Appeal found that these proceedings were not supposed
to identify the accused or replace investigations. Nonetheless, upon the
applicants’ constitutional complaint, the Constitutional Court assessed the
investigation in detail and referred to the Court’s case-law concerning the
procedural obligation of Article 2 and 3 of the Convention. Moreover, based
on the case-law of the Constitutional Court and the relevant provisions of
the Constitutional Court Act (see paragraphs 38-41 above), the
Constitutional Court appears, in principle, to be able to set aside a decision
to discontinue a criminal investigation and to initiate or reopen an
investigation. Therefore, the applicants had at their disposal a remedy to
challenge the ineffectiveness of an investigation.

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HENTSCHEL AND STARK v. GERMANY JUDGMENT

(δ) Conclusion

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.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
104. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.”

A. Damage
105. The applicants claimed the sum of 3,500 euros (EUR) each in
respect of non-pecuniary damage.
106. The Government considered the amount of EUR 3,500 excessive,
but left it to the discretion of the Court.
107. For the Court, the applicants undeniably sustained non-pecuniary
damage on account of the violation of the procedural head of Article 3 of
the Convention of which they were the victims. Making its assessment on
an equitable basis as required by Article 41 of the Convention, it awards
each of them EUR 2,000 in respect of non-pecuniary damage.
B. Costs and expenses
108. The applicants also claimed the sum of EUR 2,588.91 each in
respect of costs and expenses for the domestic proceedings and
EUR 5,176.50 each for costs and expenses relating to the proceedings
before the Court. The claimed costs and expenses before the Court consisted
of EUR 3,986.50 for Mr Noli and EUR 1,190 for Ms Luczak’s contribution
to the applicants’ reply to the Government’s observations.
109. The Government did not object to the amount claimed in respect to
expenses for the domestic proceedings, but regarded the costs and expenses
relating to the proceedings before the Court excessive. It considered
attorney fees, comparable to the ones occurred before the Federal
Constitutional Court, in the amount of EUR 614 sufficient and reasonable.

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29

110. According to the Court’s established case-law, an applicant is
entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these were actually and necessarily incurred and are
reasonable as to quantum. Having regard to the documents in its possession
and the above criteria, the Court finds it reasonable to award each applicant
EUR 2,588.91 in respect of costs and expenses for the domestic proceedings
and EUR 3,986.50 for costs and expenses relating to the proceedings before
the Court.
C. Default interest
111. The Court considers it appropriate that the default interest rate
should be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been no violation of Article 3 of the Convention
under its substantive aspect;
3. Holds that there has been a violation of Article 3 of the Convention
under its procedural aspect;
4. Holds
(a) that the respondent State is to pay each applicant, within three
months from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, the following amounts:
(i) EUR 2,000 (two thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR 6,575.41 (six thousand five hundred and seventy-five
euros and forty-one cents), plus any tax that may be chargeable to
the applicants, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;

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HENTSCHEL AND STARK v. GERMANY JUDGMENT

5. Dismisses the remainder of the applicants’ claims for just satisfaction.
Done in English, and notified in writing on 9 November 2017, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško
Deputy Registrar

Nona Tsotsoria
President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of
the Rules of Court, the separate opinion of Judge Hüseynov is annexed to
this judgment.

N.T.
M.B.

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31

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.

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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).