CAT/C/41/D/257/2004 Page 5 other means and in cases of resistance or refusal of an individual to comply with a lawful order.” (b) that the actions of the police officers fall under the definition of the second sentence of article 1, paragraph 1 of the Convention, according to which the pain or suffering endured by the complainant arose “only from, inherent in or incidental to lawful sanctions”. For the State party, the material submitted by the complainant demonstrated that the police actions amounted to such lawful actions. Consequently, any pain or suffering that may have been caused to the complainant is not of the type defined in paragraph 1 of the Convention. 4.3 The State party observed that the complainant was found guilty of hooliganism (article 325, paragraph 25, of the CPC) and for damaging property (police car under article 2166 of the CPC), by three consecutive instances. At first instance on 11 November 2003, upon appeal on 16 February 2004 and by the Supreme Court on 2 November 2004. In light of his behaviour, the State party concluded that “it is evident that the police officers had to apply lawful measures against the complainant in order to interrupt his hooliganism”. Complainant’s comments 5. On 4 January 2005, the complainant contested the State party’s argument that he had not exhausted domestic remedies. He provided a copy of his request for review under article 362 of the CPC to the Prosecutor General of 25 March 2004, as well as a copy of the reply of 26 May 2004 signed by the Prosecutor General of the Supreme Prosecution Office. The prosecutor had concluded that the failure to examine certain witnesses had not resulted in a prejudiced or incomplete investigation. The complainant further argued that it was clear from the Supreme Court judgement of 2 November 2004, which affirmed his conviction for hooliganism, that this judgment was final and not subject to appeal. He stated that he was considering the possibility of filing an application for violation of his right to a fair trial with the European Court of Human Rights (based on article 6 of the European Convention of Human Rights). Decision of the Committee on Admissibility 6.1 The Committee examined the admissibility of the communication during its 36th session, in May 2006. It ascertained, as required under article 22, paragraph 5(a), of the Convention, that the same matter had not been and was not being considered under another procedure of international investigation or settlement. It noted that in April 2005, the complainant had submitted an application to the European Court of Human Rights, registered before the Court as Case No. 17720/05, and that in substance, this application related to the same facts (use of force by police officers against the complainant). The application was, however, still pending and had 5 According to the State party, article 325 (2) reads as follows: “Where the act has occurred with resistance to a body of authority or a representative of the public, fulfilling their obligations of preserving the public order, or where by its content it has been distinguished for its extreme cynicism or arrogance, the punishment shall be deprivation of liberty for up to five years.” 6 According to the State party, article 216 (1) reads as follows: “A person who unlawfully destroys or damages movable or real property belonging to somebody else, shall be punished by deprivation of liberty for up to five years.”