Voir Note explicative

See Explanatory Note

COUR EUROPEENNE DES DROITS DE L'HOMME

EUROPEAN COURT OF HUMAN RIGHTS

Conseil de 1'Europe - Council of Europe

Strasbourg, France

n REQUETE
APPLICATION

presentee en application de Particle 34 de la Convention europeenne des Droits de 1'Homme,

ainsi que des articles 45 et 47 du Reglement de la Cour

under Article 34 of the European Convention on Human Rights

and Rules 45 and 47 of the Rules of Court

Mario Herrera Padron v. Denmark

IMPORTANT: La presente requete est un document juridique et peut affecter vos droits et obligations
This application is a formal legal document and may affect your rights and obligations.
 I. LES PARTIES THE PARTIES

LE REQUERANT / LA REQUERANTE THE

A. APPLICANT

(Renseignements a fournir concernant le / la

requerant(e) et son / sa representatt(e) eventuel(le))
(Fill in the following details of the applicant and the
representative, if any)

Nom de famille Herrera Padron. Prenom (s) Mario

1. Surname First name (s)

Sexe: masculin / feminin Male Sex: male /female

2. Nationalit y American Nationality

Profession Student Occupation

3.
Date et lieu de naissance Date and place of birth
27.02.1963, Cuba
4.
Domicile Permanent
Hjortevej 2, 8700 Horsens
5.
Tel. N° +45 29 29 52 09 / +45 51 16 91 46
6.
Adresse actuelle (si differente de 6) Present address
(if different from 6)

7.
Nom et prenom du / de la representant(e)* Jan
8.
Schneider
Name of representative *

Profession du / de la representant(e) Lawyer

Occupation of representative
9.
Adresse du / de la representant(e)
Address of representative
Frichsparken, Søren Frichs Vej 42A, 8230
Åbyhøj
10.

12. Tel N° +45 70 11 08 2 Fax N° +45 70 11 08 01

B. LA HAUTE PARTIS CONTRACTANTE THE HIGH
.CONTRACTING PARTY

(Indiquer ci-apres le nom de 1'Etat / des Etats contre

le(s) quel(s) la requete est dirigee)
(Fill in the name of the State(s) against which the
application is directed)

13. The Kingdom of Denmark

* Si le / is requdrant(e) est reprdsentd(e), joirdre une procuration signee par le / la requdrant(e) en faveur du / de la reprdsentant(e). A form
o f authority signed by the applicant should be submitted if a representative is appointed.
II. EXPOSE DES FAITS STATEMENT OF THE FACTS
(Voir chapitre II de la note explicative) ( S e e P a r t 1 1 of t h e E x p l a n a t o r y N o t e )

14.

A. Unwarranted arrest

By way of introduction, it should be pointed out that before the time of his arrest Marion Herrera Padron
had not been charged with any offence. The offences of which he has been convicted all lie after the time
of his arrest. Therefore these offences cannot be included when assessing whether this is an unwarranted
arrest.

The following is Mario Herrera Padron’s perspective on the events (Mario Herrera Padron’s complaint of
the 9th of November 2006. See Annex B).

On the 1st of November 2006 at about 12.15 pm, Mario Herrera Padron was a passenger on bus ‘Linie 5A’
in Copenhagen, Denmark. Mario does not speak nor understand the Danish language, but communicates
in English and Spanish.

After Mario Herrera Padron’s paying for his bus ticket, the bus driver talks to Mario Herrera Padron in an
aggressive and vociferous manner. Mario Herrera Padron understands that he has to get off the bus,
however, he does not understand why he has to get off, and Mario Herrera Padron asks in English why he
has to get off. The reply that he receives is only in Danish which he does not understand. The bus driver
manages to explain to Mario Herrera Padron that he will call the police if Mario Herrera Padron does not
get off the bus. Mario Herrera Padron chooses not to get off the bus, as he has not done anything wrong,
and as he expects that the police will help him, and thus Mario Herrera Padron stays on the bus until the
police arrive.

The police represented by two police officers Anders Bitsch and Nicolai Cederskjold arrive 10 - 15
minutes after being called by the bus driver. The said police officers get on the bus and talk to the bus
driver and two other passengers in Danish. Mario Herrera Padron does not understand what they are
talking about, but remains calm and awaiting in the situation.

4.
Subsequently, the police address Mario Herrera Padron in English and ask him what has happened.
Mario Herrera Padron explains in English as written above. Then the same police officer asks where
Mario Herrera Padron comes from and Mario Herrera Padron answers that he is an American citizen.
Then one of the police officers takes Mario Herrera Padron by the arm and asks him to leave the bus.
Mario Herrera Padron declares that he will leave the bus himself and that the police do not have to
resort to force. Mario Herrera Padron asks the police officers why he is being held back by the police
and the police officers answer his question saying that it will be explained, but that it will not be
explained until they are outside the bus. Therefore Mario Herrera Padron voluntarily and quietly leaves
the bus.

Mario Herrera Padron and the two police officers get off the bus at Hulgårds Plads, Copenhagen, and
the police waves the bus on without making a report or getting explanations from the bus driver or the
other passengers. Mario Herrera Padron then asks the police officers why they let the bus drive on and
why there was made no report with the names of the bus driver and the other passengers and witnesses
on the bus. One of the police officers says to Mario Herrera Padron that he does not have to worry about
that, but that he has to state his name, and Mario says that his name is Mario. The police officer wants
his last name for the report. Mario explains in English that he wishes to talk to a superior police officer
at the police station.

The police officer insisted on getting Mario’s last name and his ID. Mario Herrera Padron answered that
he was an American citizen, had legal residency in Denmark, lived and was married in Denmark and
that he wished to talk to a superior police officer at the police station.

Then one of the police officers stepped over to Mario Herrera Padron so that the distance between their
faces was at most 10-15 cm and yelled that Mario Herrera Padron had to take his hands out of his
pockets. As it was on the 1st of November, the weather was cold and it was snowing. From having
believed that the police would help him, Mario Herrera Padron was now alarmed over the situation.
Mario Herrera Padron immediately took both hands out of his pockets and showed everything that he
had in his pockets. It was keys to his home, a packet of chewing gum, the bus ticket, some coins and a
cell phone. Mario Herrera Padron said to the police that there was nothing in his pockets that could pose
a threat to the police and that he wished to make a call to the American Embassy as well as to his wife.
Then Mario Herrera Padron started dialling the phone number and put the phone to his ear.

When Mario Herrera Padron put the phone to his ear both police officers started a physical attack on
Mario Herrera Padron. Thus Mario Herrera Padron’s right arm was struck with such force that the cell
phone flew out of his hand. Then Mario Herrera Padron was violently brought to the ground by both
5.
police officers, so that Mario Herrera Padron ended up lying on his stomach. In that same position, Mario
Herrera Padron was handcuffed with his hands on his back and the police officers sat down on him. One
of the police officers placed his right knee on Mario Herrera Padron’s head and the left knee in the back
of Mario Herrera Padron. The same police officer then placed his right hand over Mario Herrera Padron’s
nose and mouth while the other police officer sat on the back of Mario Herrera Padron.

While Mario Herrera Padron was unnecessarily pacified in the above mentioned way, one of the police
officers took Mario Herrera Padron’s wallet and asked if Mario Herrera Padron thought that he was a
lawyer. At this point, Mario was shocked at the situation he found himself in and answered the police
officer with a "Fuck you". The police officers’ reaction to this was laughter. Mario Herrera Padron
repeated that he wished to get in contact with the American Embassy and his wife. The police officers
answered that he was not in America now but in Denmark and they asked whether Mario was studying to
become a lawyer and continued laughing.

One of the police officers started reciting in English the American Miranda Rights for Mario Herrera
Padron, but then interrupted himself. Again Mario Herrera Padron asked to be allowed to call the
American Embassy, his wife or a lawyer. However, the police officers continued laughing and Mario
reacted by saying: "Fuck you fascist mother fucker".

Moreover, it emerges from the court transcript from the city court of Frederiksberg the 25th of June 2007
(Annex no. i) that police officer Cederskjold and police officer Bitsch both explained in court that Mario
Herrera Padron had said that he wanted to talk to the American Embassy.

At that time, the two police officers and Mario Herrera Padron were waiting for a police car that would
bring them to the police station. All the time while waiting – approximately 10 minutes - Mario Herrera
Padron is handcuffed lying on his stomach with two police officers on top. Mario Herrera Padron has not
yet been informed of the reason for his arrest.

While Mario Herrera Padron is lying on the ground he tries to yell to passers-by that they shall contact the
American Embassy. This resulted in the fact that one of the police officers pressed Mario’s head down in
the mud on the ground and held his hand over Mario’s mouth.

When the police transport car arrived at Hulgårds Plads, Copenhagen, another five police officers got out
6.
of the car and lifted up Mario in his arms which were fixed on his back with handcuffs so that he was
hanging in the air (at that time, Mario Herrera Padron weighed a good 100 kg). By this, Mario Herrera
Padron felt a crack and an intense pain in his left shoulder. The police officers threw Mario Herrera Padron
on the floor of the police transport car. Thus, Mario Herrera Padron was placed in the same position lying
on his stomach, but now with his legs crossed and a police officer sitting on top of them which resulted in
an intense pain. Another police officer placed his knee on the lower part of Mario Herrera Padron’s back
and the aforementioned police officer resumed his position with one knee on Mario’s head and the other on
his back and all the time also holding Mario Herrera Padron over the mouth with one hand. Then the police
officer placed the cap of Mario Herrera Padron’s winter coat over Mario Herrera Padron’s head which
increased the choking sensation.

During transport Mario Herrera Padron shouted repeatedly in English that he wished to call the
American Embassy and his wife. One of the police officers then said: "What do you want to say Mario?
You want to kill me?" Mario Herrera Padron had at no point threatened any of the police officers in
question with violence. Thus Mario Herrera Padron had only sworn at the police officers involved.

When the police transport car had arrived with the police and Mario Herrera Padron at Bellahøj police
station, Mario Herrera Padron again asked the police permission to call the American Embassy and his
wife. The answer from the police was a: "Yeah yeah yeah". Repeatedly, Mario asked permission to contact
the American Embassy and his wife.

Mario Herrera Padron was placed in a cell at the police station. He was thrown on the cell floor and again
held by the police officers with a knee on Mario Herrera Padron’s head, back and legs. Then he was
stripped naked. At that time and from his position lying on his stomach, Mario Herrera Padron could see a
police officer standing with a flash light. When the police had removed Mario Herrera Padron’s pants and
underpants the police officers shone a light on Mario Herrera Padron’s anus and they were laughing.

Subsequently, Mario Herrera Padron was left alone in the waiting cell. The police returned to the waiting
cell because they had forgotten to strip Mario Herrera Padron of his watch. At the request of the police,
Mario Herrera Padron took of his watch and threw it on the ground close the door of the waiting cell where
the police was standing. The police picked up the watch and then again left Mario Herrera Padron in the
waiting cell.

After an hour alone in the waiting cell, Mario Herrera Padron began to feel cold and felt pain various
places on his body, the ribs on the left side of his body, the left shoulder (collarbone) and the right knee. As
there is a video camera and a speaker/microphone in the waiting cell, Mario Herrera Padron talked via the
7.
aforementioned to the police officer on duty and asked to get in contact with the American Embassy, his
wife and a doctor. There was no answer from the police officer on duty (subsequently Mario Herrera
Padron has again - besides his complaint of the 9th of November 2006 – through his lawyer asked for the
recordings from the cell, but has been told that they do not exist).

Then Mario Herrera Padron started yelling and knocking on the door of the waiting cell. After a long time,
the door was opened by a police officer who offered Mario Herrera Padron a blanket. Still, nobody had
contacted the American Embassy, Mario Herrera Padron’s wife or a doctor even though he had asked for
it.

At approximately 5 pm Danish time (after normal office hours) Mario Herrera Padron was picked up by
two police officers. Mario Herrera Padron repeated that he wished to contact the American Embassy, his
wife and a doctor. Mario Herrera Padron had the possibility of making a phone call on the condition that
the police could now inform Mario Herrera Padron what he would be charged with. Mario Herrera
Padron wished to have a lawyer present. Mario Herrera Padron could choose to either wait in the waiting
cell for a lawyer to come or a lawyer could assist him over the phone. Mario told the police that he just
wished a lawyer’s assistance one way or the other. The police made a call to a lawyer of their choice. This
lawyer was on vacation in Shanghai, China, and the police did not call any other lawyers, as the police
was of the opinion that when it was after 5 pm it would not be possible to get hold of any other lawyers.
Mario Herrera Padron had now been in police custody for more than four hours.

The police now read the charges to Mario Herrera Padron while he was still not informed of why he had
been arrested. Then Mario Herrera Padron was granted permission to call his wife.

The police charges Mario Herrera Padron with violating the Danish penal code section 119 (1) and section
121 by on the 1st of November 2006 at approximate 11.53 am at Hulgårds Plads in Copenhagen NV having
attacked the police officers on duty Anders Bitsch and Nicolai Cederskjold with threats of violence, as he –
after his arrest – yelled at both of them several times: “I am going to kill you”, “You don't know, who you
are dealing with”, “I am going to get you” or the like, just as he spat at them, and as he also tackled Bitsch
and Cederskjold with disdain, terms of abuse or other offensive talk, as he yelled at both of them “Fuck
you” and “Fascists” or the like.

Then, the police took photos of and finger prints and DNA from Mario Herrera Padron. The police gave
him a brochure in Danish (which he does not understand) with information about how to complain about
the police.
8.
At 5.30 pm Mario Herrera Padron is released.

Immediately after his release, Mario Herrera Padron goes to see an emergency doctor. Thus his injuries
have been documented within a few hours after his arrest.

That this case is based on too weak grounds for arrest is supported by an undated letter from the district
attorney (Politiadvokat) Jens Rasmussen at Legal Department (Advokatur) K, Copenhagen Police to the
public prosecutor for Copenhagen, Frederiksberg and Tårnby (Annex 1). It appears from this letter that
it has been remarked that the arrest that took place prior to the alleged threats from my client was made
on a weak basis, and that the arrest was motivated particularly by the fact that my client did not want to
keep his hands out of his pockets while talking to the police about why he did not want to state his full
name. It is noted that the letter in question was not part of the material that the counsel for the defence
had at their disposal in connection with the case against Mario Herrera Padron (both defence lawyers
have certified this).

It also appears from the last 3 lines in the letter from the district attorney (Politiadvokat) Jens Rasmussen
that it is his evaluation that the case against my client can thus result in acquittal, mitigation of the
sentence or annulment, as my client’s remarks could hardly be of such a nature that they make up an
“attack”. Thus it was the district attorney’s opinion that my client’s remarks – which came after the
rough arrest, were not of such a nature that they could characterize an attack on a police officer.

The police have – in the police’s own reports, in court and to the American Embassy – stated different and
conflicting reasons for the arrest.

B. The attorney general’s ruling of the 6th of April 2009

On the 9th of November 2006, Mario Herrera Padron – via Copenhagen’s commissioner of police – filed a
complaint with the public prosecutor for Copenhagen and Bornholm of unlawful detention and violence
against him carried out by the police in connection with his arrest on the 1st of November 2006.

The public prosecutor for Copenhagen and Bornholm acknowledged the complaint by letters to Mario
9.
Herrera Padron of the 24th of November 2006 and the 31st of January 2007.

However, the complaint was suspended awaiting the result of the criminal case against Mario Herrera
Padron.

On the 25th of June 2007, the court of Frederiksberg passed sentence in the case. Mario Herrera Padron
was convicted in accordance with the indictment and was given a suspended sentence of 10 days. On the
12th of October 2007, the Eastern High Court (Østre Landsret) confirmed the sentence.

On the 6th of November 2008, the ruling came from the public prosecutor in connection Mario Herrera
Padron’s reporting the police for violence in connection with his arrest on the 1st of November 2006 at
Hulgårds Plads.

The public prosecutor did not find that there was any basis for assuming that any police officer had
exerted punishable violence and humiliation against Mario Herrera Padron in connection with the arrest,
the transport to the police station or the frisk.

Neither did the public prosecutor find enough evidence to criticize any of the police officers’ conduct
towards Mario Herrera Padron.

In his ruling, the public prosecutor refers to the court of Frederiksberg’s sentence on Mario Herrera Padron
as well as to the Eastern High Court’s (Østre Landsrets) confirmation. Thus, the public prosecutor only
considers the course of events that have appeared in court in the case against Mario Herrera Padron as the
basis for his ruling.

In court, Mario Herrera Padron has described the course of events as above under A. Unwarranted
arrest, but the court has attached importance to the arresting police officers’ explanation of the course of
events.

It should be pointed out that the sentence on Mario Herrera Padron concerns his alleged threats to the
police after they have arrested him. Thus it does not concern whether the police have arrested Mario
Herrera Padron on an unwarranted basis. Neither whether there is a basis for complaining over the police
concerning the conduct of punishable violence and humiliation against Mario Herrera Padron in
connection with the arrest and transport to the police station and frisk in the waiting cell.

However, the public prosecutor refers to the court of Frederiksberg’s grounds which state:

10.
“In accordance with the existing facts there are no grounds for establishing that the arrest of the defendant
has not been a legal act of duty.”

Investigations into the conduct of the police were never carried out as Mario Herrera Padron’s complaint
against the police was wrongly suspended. Subsequently no investigations were carried out with reference
to the long period of time which had elapsed since the arrest. Thus the conduct of the police has never been
investigated.

In spite of existing medical certificates stating the opposite, the public prosecutor did not find that Mario
Herrera Padron was quite seriously injured during the arrest or had suffered permanent injuries. The public
prosecutor draws this conclusion without carrying out any kind of alternative medical investigations.

As the public prosecutor attached importance to the fact that according to the police Mario Herrera
Padron had – during the entire course of events – behaved aggressively, vociferously and threatening as
well as resisted arrest, the public prosecutor decides – cf. the Danish procedural law section 749 (2) 1 –
to stop the investigation into police officers in the case and dismiss the complaints in the case.

On the 2nd of December 2008, the public prosecutor’s ruling was brought before for the attorney general.

On the 6th of April 2009, the ruling came from the attorney general.

The attorney general found no reason to change the public prosecutor’s ruling. The attorney general
attached importance to the same circumstances as the public prosecutor.

However, the attorney general notes that Mario Herrera Padron’s complaint against the police should not
have been suspended with reference to awaiting a ruling in the criminal case against him.

The attorney general does not find that there is any basis for further investigations at present, in the light of
the time that has elapsed since the arrest on the 1st of November 2006. So, the public prosecutor wrongly
suspends looking into the complaint, and subsequently the time elapsed is used as the reason for not
investigating the case further.

11.
My client’s wife (Gitte Toldsted) complains independently of the police. The handling of her complaint is
similar to that of my client’s, where again the public prosecutor finally refuses to investigate the complaint
any further because of the time which has elapsed. However, when the public prosecutor dismisses the
wife’s complaint, he furthermore regrets the mistake of linking it with my client’s complaint as it should
have been handled separately.

C. Injuries inflicted on the plaintiff during the arrest

In connection with the rough arrest and the following rough treatment of Mario Herrera Padron during
transport to the police station and placement in the waiting cell, Mario Herrera Padron suffered serious and
permanent injuries.

Thus it appears from the public prosecutor’s ruling that during the arrest the two police officers - among
other things – grabbed both of my client’s arms and with an arm twisting hold brought him to the ground
(the public prosecutor’s ruling page 5, 1st paragraph, lines 2-3), just as my client in his complaint to the
public prosecutor has described, how the police officers sat on top of him with a knee in the back of his
neck and kidney region, while one of them also covered his nose/mouth. Furthermore, my client has
described that the police officers from the transport vehicle lifted my client up by the arms which were
fixed on his back with handcuffs so that he was hanging in the air (at the time, Mario Herrera Padron
weighed a good 100 kg); with a crack and a tremendous pain in his left shoulder as a consequence. The
police officers threw Mario Herrera Padron into the transport vehicle where he during transport to the
police station was lying on the floor of the car with a police officer sitting on his legs without regard for
the fact that my client’s legs were crossed (illegal leg-lock). This resulted in tremendous pain. In his
complaint, my client has also described that at the same time another police officer had placed his knee
on my client’s back and that the police had pulled his cap down over his head.

In his ruling in connection with my client’s injuries, the public prosecutor has referred to the medical
records from the emergency room of the 3rd of November 2006 (Annex 2), and to the medical information
submitted later by doctor Irma Calonius. The public prosecutor writes further that in doctor Irma Calonius’
opinion there is no information of any significance to the case besides what appears from the medical
records from the emergency room from the 3rd of November 2006. The public prosecutor notices further
that the information submitted afterwards concerns my client’s indication of pain, etc. in connection with
visits to the doctor’s office several months after the incident, i.e. in the spring and summer of 2007.
12.
It is correct that my client’s course of treatment has been prolonged and has lasted through many months
and is still not finished. This does not mean that my client has at any time remained passive when it comes
to his injuries. As the course of events described below will illustrate, my client has constantly been in
contact with the health authorities because of the pain and injuries that he incurred during the arrest. That
the course of treatment spreads over a long period of time is due to various circumstances such as referrals
to medical examinations, waiting for doctor consultations and medical examinations, waiting for results of
examinations, operation, secondary injuries, etc.

The public prosecutor’s opinion is that it does not appear from the medical documentation that my client
should be quite seriously injured or that my client should have incurred permanent injuries.

I shall in connection with my client’s injuries initially focus on the immediately visible injuries to my
client’s body after the rough arrest. I shall thus refer to the colour photos (Annex 3) of my client after the
arrest. The date on the photos is the 1st of November 2006 – the day of the arrest. There is a distinct bruise
on my client’s knee after having been lying on his stomach on the ground and in the transport vehicle.
Furthermore, you can see distinct extravasations in both arm pits. These extravasations are described by
the emergency doctors in Copenhagen on the 2nd of November 2006, visiting date the 1st of November
2006, (Annex 4), as thin thread like extravasations ... (clothing creases). The emergency doctor’s rapport
describes pains in – among other things – the shoulder. My client is recommended ’panodil’ (a pain killing
drug) against the pain.

The thread like extravasations described as clothing creases thus illustrate very clearly the force and
roughness with which the arrest took place. Presumably it requires quite an effort for clothes to make
extravasations on the body. Thus the clothes must have been subject to tremendous external action
(twisting, pulling, pressing), before such bruises will appear on the body. If the clothes have thus been
submitted to such a tremendous external force, then the person wearing the clothes must have been
submitted to exactly the same kind of force.

It appears from the medical records for my client, submitted by doctor Irma Calonius, that my client on the
2nd of November 2006 through his spouse explains his physical pain and psychological discomfort after the
episode with the police on the 1st of November 2006. On the 17th of November 2006, a note has been made
about the fact that the patient Mario Herrera Padron is still not feeling well. On the 16th of April 2007, my
client is still bothered by discomfort in his shoulder and on that background a referral to an orthopaedic
surgeon is made. Please refer to Annex 5. It appears from the medical records that my client is referred to
various examinations concerning the pain in the shoulder. Also please refer to doctor Irma Calonius'
13.
medical certificate, new copy (Annex 6). Since his arrest, my client has thus continuously been bothered
by pains from the shoulder and he has several times consulted a doctor and has been examined.

Specialist Holger Nygaard writes in his clinical info on the 3rd of May 2007 that the patient has pains in his
left shoulder region. Further, Holger Nygaard writes that there is no doubt about the causal connection;
the patient has been handled too violently. Please refer to the beginning of the letter where the rough arrest
is explained. (Annex 7).

There is a note from the 10th of May 2007 from the X-ray-Ultrasound Clinic (Røntgen-Ultralyd Klinikken
ApS) by specialist Peter Fleckenstein in which he describes how there is an audible sound from the AC
joint (Annex 8).

A letter dated the 22nd of June 2007 from the doctors on Strandboulevarden, from which it appears that the
patient complains of much nuisance from the left shoulder, and that the patient has been referred to
Bispebjerg Hospital for further examination, and is waiting to be called in for examination (Annex 9).

A note from Bispebjerg Hospital from the 12th of September 2007, which describes that in spite of
decreasing symptoms there is still inertia and pain in the shoulder when in motion. Another block
(Cortisone) is put in and my client is referred to physiotherapy. An operation at the orthopaedic surgical
department may be necessary (Annex 10).

In the medical records from the orthopaedic surgical outpatient department in Horsens, it says that
before his arrest the patient had no shoulder problems. Afterwards the patient has had pains in his
shoulder and neck. Steroid blocks have made the shoulder calm down for periods of time. There is pain
and soreness in connection with moving the AC joint and clear grating and cracking sounds can be
heard. In connection with surgical treatment there is no guarantee that the shoulder will be pain free or
will reach full use again (Annex 11).

Please refer to the medical records coming from the MR scan. The medical records are dated the 30th of
April 2008. The conclusion is that an operation can be offered. In the future, the patient will not be able
to carry out a physically demanding job (Annex 12).

Finally, please note that so far my client has gone through two operations – in the left shoulder and in the
left hand. He still has problems with his left shoulder, elbow, hand and neck and has at present been
referred to further examination of his left elbow as well as his neck. Thus he cannot – among other

14.
things – stretch his arm up over his head, and as it appears from the medical records presented, my client
will presumably never again be able to carry out a physically demanding job; just as the arrest has
caused him permanent injuries in the form of psychological injuries and pain.

On the basis of the medical records described above concerning the injuries to my client, I think that it
has been documented that my client suffered serious physical as well as psychological injuries in
connection with the rough arrest on the 1st of November 2006. Injuries which influence my client’s
everyday life and future.

At the same time, the injuries document the tremendously rough arrest and the following treatment by the
police. A treatment which is not excused by my client’s alleged violation of the Danish penal code and the
whole episode leading up to the arrest for that matter.

D. The court case against my client

Both my client’s wife (Gitte Toldsted) and an observer (Anita Faul Funcke) from the American Embassy
attended the case against my client in city court on the 25th of June 2007. During the hearing, one of the
two lay assessors was sleeping part of the time. Furthermore, afterwards the American Embassy thought it
necessary to send a formal complaint (Annex 14) The American Embassy’s complaint about the court
of the 25th of July 2007) about the judge’s arrogant and hostile attitude towards my client, that he laughed
at my client as well as demonstrated an open aversion to my client. This prevented my client from
presenting his case coherently. Likewise, the embassy complained that the judge did not give the time
necessary to translate what was said in court.

My client’s defence lawyer, Hanne Rahbaek, protested about the judge’s behaviour in court and later on in
her statement supported the American Embassy in their complaint (Annex 15). Hanne Rahbaek’s
comments to the complaint of the judge of the 24th of August 2007). – The complaint was dismissed.

In his pleading in the Danish high court, the counsel for the prosecution used my client’s cultural
background as evidence that my client should have acted as claimed in the indictment. More specifically
he referred to my client’s Caribbean temper. Also this hearing was attended by my client’s wife as well as
15.
the representative from the American Embassy and a friend of the family.

Furthermore, in court the two police officers found it difficult to explain what had been leading up to the
arrest of my client as well as the reason for his arrest. They gave conflicting evidence and evidence which
deviated from the original police report.

As in a Danish court of law the course of events is only documented in a record of judgments containing
the presiding judge’s resume of what has been said, subsequently the defendant (my client) has no
possibility of effectively defending himself in a court of appeal and unambiguously prove the course of
events.

The aforementioned undated letter from the district attorney (Politiadvokat) Jens Rasmussen to the public
prosecutor for Copenhagen, Frederiksberg and Tårnby (Annex 1), which supports that in this case the
grounds for arrest have been too weak and that thus the case against my client may result in acquittal,
mitigation of the sentence or annulment, as my client’s remarks could hardly characterize what is meant by
the expression "attack", was not part of the case material which was available to the counsel for the
defence in connection with the case against Mario Herrera Padron (both defence lawyers have testified to
this in writing), and did not appear in my client’s file until after the case against him was over. The fact
that it was thus the district attorney’s opinion, that my client’s remarks, which were not stated until after
the rough arrest, could not characterize an attack on a police officer, was thus not presented in court.

III. EXPOSE DE LA OU DES VIOLATION(S) DE LA CONVENTION ET / OU DES

PROTOCOLES ALLEGUEE(S), AINSI QUE DES ARGUMENTS A L'APPUI
STATEMENT OF ALLEGED VIOLATION(S) OF THE CONVENTION AND / OR
PROTOCOLS AND OF RELEVANT ARGUMENTS
(Voir chapitre IIl de la note explicative) (SeePart 111 ofthe Explanatory Note)

16.
 The applicant argues that Articles 3, 5, 6, 10, 13 and 14 of the European Convention on
Human Rights has been violated during the actions and the case handling by the
Danish authorities.

The applicant finds that Article 3 of the European Convention on Human rights has been
violated.

The plaintiff thinks that the circumstances of his arrest and transport to the police station on the
1st of November 2006 have clearly exceeded the acceptable use of force in connection with
arrests for minor offences. In this case, the plaintiff was arrested before he came with the
remarks to the police and it is unclear for which reason the plaintiff was arrested.

Apparently, he was arrested when according to the police he did not want to take his hands out of
his pockets again. At that time, he had already shown the police the contents of his pockets. He
constituted no danger to society, the police or himself before the arrest. Thus, it was not an arrest
of a dangerous person. Apparently it was an arrest of a person who did not immediately comply
with the request of the police.

The medical records document extravasations, bruises and injuries on my client’s left shoulder –
as well as secondary injuries in his elbow, his hand and the back of his neck. These injuries are a
direct consequence of the arrest; an obvious result of physical use of force on the arrested and
detained person. A number of the injuries have turned out to be permanent.

Furthermore, up to 7 police officers took part in connection with the later transport to the police
station. At the time, the plaintiff was powerless and thus constituted no danger to the police.

Subsequently, in the presence of 5-6 people the plaintiff was stripped at the police station for
safety reasons. Placed lying on the floor, a police officer shone a light at his anus, and at the same
time there was laughter. This was grossly humiliating to the plaintiff.

This combined with the police’s undue use of violence and humiliation in connection with the
arrest and transport to the police station is an inhuman and degrading treatment of the plaintiff.
Thus this is a violation of Article 3 of the European Convention on Human Rights.
 The applicant finds that Article 5 of the European Convention on Human rights has
been violated.

Article 5 (1) c has been violated as the plaintiff does not find that his arrest on the 1st of.
November 2006 meets the requirements of a legal arrest. Please, refer to the undated letter from
the district attorney (Politiadvokat) Jens Rasmussen, Copenhagen’s police, which reads "About the
arrest that took place immediately before the threats and remarks it is noted that the basis for the arrest seems weak ... add
to this that the manner of the arrest – pacifying by bringing the person concerned to the ground and hand cuffing him –
may seem too excessive in relation to the minor gravity of the situation".

Thus the police authorities have themselves had a feeling that this was an illegal arrest and that
the way the arrest was carried out exceeded the necessary measures in the light of the minor
gravity of the situation.

Thus it was not a legal arrest, there was no reasonable suspicion that at the time of the arrest the
plaintiff had committed any crime, and there was no good reason to consider it necessary to stop
him from committing a crime or from escaping after having committed a crime.

Thus none of the provisions of Article 5 (1) c have been met and thus this is a contravention of the
provisions.

Article 5 (2) has been violated as not until 4 hours after his arrest was the plaintiff informed of
the charges against him in a language that he understood. The police officers have explained
that the reason for waiting so long before informing the plaintiff of the charges was that he was
agitated and they wanted to wait until he had calmed down.

The plaintiff’s frustration was among other things caused by the fact that he did not understand
the reason for his arrest, as he does not speak nor understand Danish – and by the fact that
nobody complied with his requests for getting in contact with a lawyer or the American
Embassy. Thereby, the police did not only violate the European Convention on Human Rights,
but also the Vienna Convention on Consular Relations 1963, Article 36 a, b and c.
There was no interrogation or anything else of the plaintiff in a language that he understood
which could indicate to him what the charges against him were. There was no interpreter.

Information about the charges 4 hours after the arrest does not come as "soon as possible"
according to the wording of the Article and thus this is a violation of Article 5 (2). The fact that
the plaintiff was agitated does not constitute circumstances which can justify that the
announcement of the charges against the plaintiff should be postponed about 4 hours. At no point
in time was the plaintiff informed of the grounds for the arrest.

Altogether, the plaintiff has been discriminated on the basis of his not Danish background,
which is why Article 14 has also been violated.

The applicant finds that Article 6 of the European Convention on Human rights has been
violated.

Article 6 (1) has been violated as in the case against my client both the city court and the High
Court only attached importance to the two police officers’ testimonies and as only the police
officers’ testimonies were used as evidence for the sentence despite the fact that these testimonies
in several instances were unclear and conflicting. No other witnesses were heard.

In city court on the 25 th of June 2007, one of the two lay assessors gave his evaluation
after having slept during part of the hearing; just as the judge (documented by both the
American Embassy and my client’s defence lawyer) displayed an arrogant and hostile
attitude and an open aversion to my client, while at the same time laughing at my client
and not giving him the necessary time for translation (Annex 14). (The American
Embassy’s complaint against the judge in city court, on the 25th of July 2007.) This
must be considered to be discrimination, and thus also Article 14 has been violated.

In his pleading in the Danish high court, the counsel for the prosecution used my client’s
cultural background to explain that my client should have acted as claimed in the indictment.
More specifically, he referred to my client’s Caribbean temper. Also this hearing was attended
by my client’s wife as well as the representative from the American Embassy and a friend of the
family. Also here Article 14 was at the same time violated as the above must be considered to
be discrimination.

In a Danish court, the course of events is only documented in a record of judgments

containing the presiding judge’s resume of what has been said. There is no complete or literal
documentation of
the hearing, which means that afterwards the defendant (my client) had no possibility of effectively
defending himself in a court of appeal and unambiguously prove for instance unclear testimonies,
contradictions, that attention had been drawn to the sleeping lay assessor or to the biased,
condescending and discriminating conduct on the part of the judge and counsel for the prosecution.

District attorney (Politiadvokat) Jens Rasmussen’s letter to the public prosecutor for Copenhagen,
Frederiksberg and Tårnby (Annex 1), which supports the fact that in the case against my client the
grounds for arrest have been too weak and that thus the result could be acquittal, mitigation of sentence
or annulment, and the fact that my client’s remarks could hardly be of such a character that they can
cover the expression "attacks", was not part of the material which the counsel for the defence had at
their disposal in connection with the case against my client, and was not inserted in my client’s file
until after the case against him was over. The fact that it was the district attorney’s opinion that my
client’s remarks, which were not stated until after the rough arrest, were not of such a character that
they could constitute an attack on a police officer, was thus not presented in court.

Article 6 (2) has been violated, as the production of evidence, the remedies and the conduct which (cf. the
above) were used during the trial against my client have resulted in the fact that my client cannot be said to
have had the possibility of defending himself effectively or to have had a fair trial, during which any
reasonable doubt could benefit my client.

Article 6 (3) a has been violated as not until about 4 hours after his arrest was the plaintiff informed of the
charges against him in a language that he understood, and as all written documentation and correspondence
related to the case against my client is in Danish, a language that he does not understand. Examples are:
indictment, summons, record of judgments, police reports and all correspondence between the prosecution and
the defence.

Article 6 (3) d has been violated as my client had no possibility of summoning witnesses in his interest.
During the incident when my client was arrested on the 1st of November 2006, the police prevented my client
from getting in contact with witnesses at the place of the incident; just as they did not make a report of
witnesses.

Other kinds of evidence which my client has asked for access to (both in his original complaint dated the 9th of
November 2006 and later via his defence lawyer), more specifically recordings from the police transport car
and/or the waiting cell where my client was placed, do not exist according to the police.
The applicant finds that Article 10 of the European Convention on Human rights has been violated.

Article 10 (1) has been violated as the plaintiff on the 1st of November 2006 was prevented from informing his
embassy, a lawyer and his family of his arrest. As freedom of expression does not only include information
which is perceived as positive or harmless, it is the plaintiff’s claim that he has been charged with and
convicted only of having spoken his opinion about the police.

The applicant finds that Article 13 of the European Convention on Human rights has been violated.

Article 13 of the convention says. "Everyone whose rights and freedoms as set forth in this Convention
are violated shall have an effective remedy before a national authority notwithstanding that the
violation has been committed by persons acting in an official capacity." My client has been informed
that you cannot independently complain of violation of this article, but wishes however to point out
how his complaint against the police has been handled – in conflict with this article, as in these
examples:

• That my client was given a brochure about the complaint procedure, in a language that
he does not understand
• That my client complains about the police in a letter of the 9th of November 2006, after which he 2
weeks later receives an indictment about a case against him concerning threats to police officers (the
indictment is dated the 22nd of November 2006)

• That initially my client was denied access to have counsel assigned to support him in his complaint
against the police
• That the public prosecutor suspended the hearing of my client’s complaint until after the case against
my client. Later on it was said that this was a mistake.
• That the time elapsed – on the basis of (the faulty) suspension of the case – was used by the public
prosecutor as an argument not to make any investigations into the case; and thereby as a considerable
argument for dismissing the case.

• That the public prosecutor - concerning my client’s health – on his own account draws conclusions
which are in conflict with existing medical certificates; and this without having initiated his own
medical investigations.
• That the attorney general - except for regretting the erroneous postponement of considering the case -
supports the public prosecutor’s handling and dismissal of the complaint.
• That all in all, it is the police themselves who handle complaints about the police, which can hardly
be said to be impartial.
It is the plaintiff’s opinion that in this case he has made use of the relevant legal remedies and courts in
Denmark to have his complaint against the police’s conduct before, during and after the arrest of the plaintiff
heard, and that he has used the correct courts in connection with the authorities’ handling of his complaint. In
handling the case, the authorities have made a number of mistakes and it also appears from the attorney
general’s ruling of the 6th of April 2009 that mistakes have been made. Nevertheless, the attorney general
supports the public prosecutor’s ruling and says that because of the time that has elapsed since the arrest of
the plaintiff on the 1st of November 2006, there is no basis for making further investigations into the case
concerning the plaintiff’s complaint against the police in connection with the arrest on the 1st of November
2006.

Thus it is the plaintiff’s opinion that the official, correct legal remedies for handling the complaints against
public figures’ and authorities’ violations of individuals, are in reality ineffective, as in this instance the case,
but by the authorities because of the authorities’ admitted errors has dragged on, after which the case is
closed referring to the amount of time that has elapsed since the incident being complained about actually
took place.

The complaints concerning Article 13 are mainly related to the complaints concerning Article 5 and 6.

The applicant finds that Article 14 of the European Convention on Human rights has been violated.

Article 14 has been violated in that not until about 4 hours after his arrest was the plaintiff informed of the
charges against him in a language that he understood. Nor did the authorities comply with the plaintiff’s
request to let him contact a lawyer or the American Embassy.

For 4 hours, the plaintiff was – on the basis of his language and his nationality – kept in the dark about the
charges against him, which can be explained by the facts that the plaintiff’s language was English and that the
plaintiff was not of Danish nationality.

The following treatment of the plaintiff by the Danish legal system and complaint system has also been
characterized by opposition to his language and nationality as several rulings have not been translated into the
plaintiff’s language so that the plaintiff in a reassuring manner has been able to inform himself about his case.

The complaints concerning Article 14 are mainly related to the complaints concerning Article 5 and 6.
IV. EXPOSE RELATIF AUX PRESCRIPTIONS DE L'ARTICLE 35 § 1 DE LA CONVENTION
STATEMENT RELATIVE TO ARTICLE 35 § 1 OF THE CONVENTION
(Voir chapitre IV de la note explicative. Donner pour chaque grief, et au besoin sur une feuille separde, les renseignements demandes
sous les points 16 å 18 di. apr@s)
(See Part IV of the Explanatory Note. If necessary, give the details mentioned below under points 16 to 18 on a separate sheet for each
separate complaint)

16. Decision interne definitive (date et nature de la decision, organe -judiciaire ou autre -1'ayant rendue)
Final decision (date, court or authority and nature of decision)

Ruling of the 6th of April 2009 by the attorney general.

The attorney general’s ruling says that there is no basis for charging the police officers with violence
in connection with the arrest of the plaintiff on the 1st of November 2006. There is no basis for
carrying out investigations into the case, because so much time has elapsed since the arrest in 2006.
However, the plaintiff’s complaint to the public prosecutor should not have been suspended. The
attorney general deplores the long time it has taken to consider the case.

17. Autres decisions (enumerees dans 1'ordre chronologique en indiquant, pour chaque decision, sa date, sa
nature et 1'organe - judiciaire ou autre - l'ayant rendue)
Other decisions (list in chronological order, giving date, court or authority and nature of decision for each of
them)

1. Sentence passed in the court of Frederiksberg on the 25th of June 2007.

The plaintiff was convicted of uttering threatening remarks towards police officers, uttered after the
plaintiff’s arrest. (Annex A)

2. Sentence passed by the Eastern High Court (Østre landsret) on the 12th of October 2007.
The Eastern High Court (Østre landsret) upheld the sentence from the court of Frederiksberg.
(Annex B)

3. Ruling by the public prosecutor for Copenhagen and Bornholm on the 6th of November. The
public prosecutor did not think that the police officers had exerted violence against the plaintiff during
arrest of the plaintiff and transport to the police station. He found no basis for criticizing any of the
police officers’ conduct towards the plaintiff. The investigation into the case is discontinued and the
complaints dismissed. The public prosecutor deplores the long time it has taken to consider the case.
(Annex C)

4. Ruling by the attorney general on the 6th of April 2009.

 The attorney general upholds the ruling of the 6th of November 2008 by the public prosecutor for
Copenhagen and Bornholm. The plaintiff’s complaint against the police in connection with the arrest,
transport to the police station, visitation and the violation of the articles of The Vienna Convention on
Consular Relations 1963 should, however, not have been suspended while waiting for a ruling in the
criminal case against the plaintiff. Referring to the time that has elapsed since the plaintiff’s arrest in
2006, there is according to the attorney general no longer basis for further investigation into the
complaint. Complaint dismissed. The attorney general deplores the long time it has taken to consider
the case. (Annex D)

18. Dispos(i)ez-vous d'un recours que vows n'avez pas exerce? Si oui, lequel et pour quel motif n'a-t-il pas ete
exerce?
Is there or was there any other appeal or other remedy available to you which you have not used? If so,
explain why you have not used it.

The attorney general’s ruling concerning the plaintiff’s complaint against the police’s conduct on the 6th
of April 2009 cannot be appealed to a higher administrative authority and neither to any (Danish) court of
law.
 Si n8cessaire, continuer sur une feuille s6parle Continue
on a separate sheet tf necessary

V. EXPOSE DE L'OBJET DE LA REQUETE STATEMENT OF THE OBJECT OF THE

APPLICATION
(Voir chapitre v de la note explicative) (See Part V of the Explanatory Note)

The plaintiff wishes for a ruling by the European Court of Human Rights that the arrest of the
plaintiff, the transport to the police station as well as the late rendering of information to the plaintiff
about what he had been charged with all constitute a violation of the plaintiff’s rights in accordance
with the articles of the European Convention on Human Rights and that judgment be passed on the
Danish state for this violation.

VI. AUTRES INSTANCES INTERNATIONALES TRAITANT OU AYANT TRAITE L'AFFAIRE

STATEMENT CONCERNING OTHER INTERNATIONAL PROCEEDINGS
(Voir chapitre VI de la note explicative) (See Part VI of the Explanatory Note)

20. Avez-vous soumis å une autre instance internationale d'enquete ou de reglement les griefs enonces dans la
presente requete? Si oui, fournir des indications detaillees å ce sujet.
Have you submitted the above complaints to any other procedure of international investigation or settlement?
If so, give full details.

The plaintiff has not submitted complaints to any other international instance.

(PAS D'ORIGINAUX,
UNIQUEMENT DES COPIES)
VII. PIECES ANNEXEES (NO ORIGINAL DOCUMENTS,
LIST OF DOCUMENTS ONLY PHOTOCOPIES)

(Voir chapitre VII de la note explicative. Joindre copie de toutes les decisions mentionndes sous ch. IV et VI ci-dessus. Se procurer, au besoin, les copies
necessaires, et, en cas d'impossibilitd, expliquer pourquoi celles-ci ne peuvent pas etre obtenues. Ces documents ne vous seront pas retoumes.)
(See Part VII of the Explanatory Note. Include copies of all decisions referred to in Parts IV and VI above. 1 f you do not have copies, you should obtain them. I f
y o u cannot obtain them, explain why not. No documents will be returned to you)
VIII. DECLARATION ET SIGNATURE DECLARATION AND SIGNATURE
(Voir chapitre VIII de la note explicative) (See Part VIII of the Explanatory Note)

Je declare en toute conscience et loyaute que les renseignements qui figurent sur la presente formule de requete sont
exacts.
I hereby declare that, to the best of my knowledge and belief the information I have given in the present application
form is correct.

Lieu / Place Århus Date / Date

5th October 2009

(Signature du / de la requerant(e) ou du / de la representant(e))

(Signature of the applicant or of the representative)