2023-09-06 09:23:37
The trigger for the court decision was the complaint by an activist of the “last generation” this spring about disproportionality.
On February 20, an officer forced the 24-year-old to take off his underwear in the Rossauer Lände police detention center (PAZ). “The BF (appellant) was arrested on suspicion of a minor administrative violation under the Assembly Act, did not resist his arrest and cooperated in his search at the place of assembly and the establishment of his identity,” the final decision said. “There was no reason to assume that the BF was dangerous. A first superficial search of the BF at the scene of the incident had already shown that he was not carrying any questionable objects,” explains the administrative court. “In summary, there was no reason to ask the BF to fully undress and inspect his unclothed body.”
“disproportionate”
In the finding of the hearing last Friday, the Vienna Administrative Court refers to the case law of the Administrative Court (VwGH). Accordingly, the inspection of the naked body can also be considered a search of persons. According to VwGH case law, such an action in the event of an arrest is permitted in any case, but only to prevent injuries to oneself or others and to prevent an escape. As the risk potential decreases, “a measure such as the search of an unclothed body becomes fundamentally disproportionate”.
According to the Supreme Court, the intensity of the measure should also be measured against the purpose. If there is a suspicion that the arrested person is wearing objects that pose a risk to security or that would facilitate escape and are small enough to be overlooked, a request to remove underwear is permissible. “Otherwise, only a search of the clothing and inspection of the clothed body is permissible,” argues the court. In general, the principle of proportionality should always be applied. In addition, the finding in this case is also in line with the case law of the European Court of Human Rights (ECtHR).
“Significant Judgment”
Clemens Lahner, the 24-year-old’s lawyer, emphasized to APA on Wednesday that this is a groundbreaking judgment by the court. “The decision sets a precedent in that it makes it clear that non-violent protest does not justify degrading treatment,” said Lahner. “The message to young people in particular is: if something is important to you, you can take to the streets without your human dignity being violated.” It makes a difference “how intensively a person is searched and whether they only have to take off their outer clothing or also their underwear,” says Lahner. “The arrest of a peaceful sit-in does not justify stripping a person naked, it is disproportionate, it violates human dignity and is therefore illegal.”
“At the time I had the information that I didn’t have to do it and I refused,” said the 24-year-old last Friday at the administrative court about the incident at the PAZ in February. “Then we discussed until the officer fetched his colleague, who came into the room and put on his gloves,” said the activist. For fear of possible violence by the officers, he then pulled his underwear down himself. The policeman “then took a quick look” and said he could put his underwear back on.
The group inspector responsible at the time emphasized last week that this procedure was a “standard procedure”. The police officer said that he could never rule out endangering himself or others in advance, even if there were no concrete signs. He also suspected that he might have found super glue in the man’s underwear. “It could have been that someone stuck to us in the PAZ and we don’t need that.”
According to Lahner, the Vienna State Police Headquarters can now theoretically lodge an extraordinary appeal against the decision.
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