FIRST SECTION
CASE OF
TALI v. ESTONIA
(Application no.
66393/10)
JUDGMENT
STRASBOURG
13 February 2014
This judgment will become final in the circumstances set out
in Article 44 § 2 of the Convention. It may be subject to editorial
revision.
In the case of Tali v. Estonia,
The European Court of Human
Rights (First Section), sitting as a Chamber composed of:
Isabelle Berro-Lefèvre,
President,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 21 January 2014,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
66393/10) against the Republic of Estonia lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by an Estonian national, Mr Andrei Tali (“the
applicant”), on 7 November 2010.
The applicant was represented by Ms E. Ezhova, a
lawyer from the Legal Information Centre for Human Rights, Tallinn. The Estonian
Government (“the Government”) were represented by their Agent, Ms M. Kuurberg,
of the Ministry of Foreign Affairs.
The applicant alleged, in particular, that he had
been subjected to ill-treatment in breach of Article 3 of the Convention.
On 7 September 2012 the application was
communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1977. He is serving a
life sentence in prison.
A. Background information about the applicant’s
convictions and behaviour in prison
According to an
extract from the register of convictions provided by the Government, the
applicant had nine criminal convictions and one misdemeanour punishment on
record. He was serving a life sentence on the basis of his conviction in 2001
for the murder of two people and attempted manslaughter of another person.
Furthermore, he had several convictions for attacking prison officers and other
prisoners. In addition, a large number of disciplinary punishments had been
imposed on him in prison, including for disobeying orders of and threatening
prison officers. In the individual action plans (kinnipeetava individuaalne
täitmiskava) drawn up in Tartu Prison and in Viru Prison, the applicant was
characterised as a dangerous person lacking in self-control and capable of
physically attacking others.
B. Events of 3 July 2009
On 3 July 2009 the
applicant was informed by prison guard KA that he would be transferred to a
punishment cell in the evening in order to serve a disciplinary punishment. The
applicant was dissatisfied, as he had been led to understand that he would not
have to serve the punishment in question until the resolution by the Chancellor
of Justice (Õiguskantsler) of his complaint related to the matter. He
said that he would not gather his belongings until he could clarify the
situation with a security officer. KA told him that if he continued to object
to going to the punishment cell, he would be taken there by force. The
applicant replied that he would defend himself if unlawfully attacked.
At 5.45 p.m. KA, together with two further
guards, MN and JT, went to the applicant’s cell. KA had a plastic shield and MN
and JT wore flak jackets and helmets. KA moved towards the applicant, keeping
the shield in front of him. MN and JT followed him.
According to the
applicant, KA came up to him and pressed the shield into his chest while the
two other guards added pressure from behind. The applicant tried to push back
against the shield, while MN and JT tried to grab his hands. Then KA let the
shield fall and tried to grab the applicant’s neck. The guards twisted his arms
behind his back and ordered him to lie down on the floor. The applicant was
brought down and KA pressed his neck so strongly that he lost his breath.
According to the applicant, KA pinched his nose with his fingers, covered his
mouth with his palm, pressed his knee into his neck and poked him in the eyes
with two fingers. While on the floor, the applicant was handcuffed and kicked
in the ribs so hard that he felt his left rib cracking. He was then raised up
and escorted to the punishment cell. In the corridor the applicant lost his breath,
cried that he could not breathe and asked for permission to straighten up but
the guards pressed him down and continued on their way.
According to the prison guards, the applicant attempted to hit them and had a
scuffle with KA, in the course of which the latter sustained minor injuries.
They denied having kicked or strangled the applicant and submitted that he had
subsequently threatened to kill them one by one.
In the punishment
cell, two nurses came to examine the applicant. They suspected a broken rib and
told him to lie still until an X-ray image was taken (for the medical evidence
in the case, see paragraphs 21 to 27 below). A guard told them that a medical
certificate was required to keep a mattress in the punishment cell around the
clock. According to the applicant a nurse confirmed that such a certificate would
be drawn up.
C. Events of 4 July 2009
At 6.45 a.m. guard OV entered the applicant’s
cell and told him to hand in the mattress. The applicant explained that the
nurses had drawn up a certificate stating that he needed the mattress around the
clock because his rib was broken. The guard left.
At around 8.00 a.m. guards AR, VG, RT and OV came
to the applicant’s cell and told him to hand in the mattress. They had a
discussion of some length, in the course of which the applicant requested that
senior duty officer ML be called. Guard AR warned the applicant that force
would be used if necessary. According to the statements of VG given in the
subsequent criminal proceedings, the applicant threatened to kill them. The
guards left and returned after about fifteen minutes. According to the
Government the guards had in the meantime checked with the medical service that
the applicant had not in fact been authorised to keep the mattress in the
punishment cell.
At around 8.30 a.m. six guards arrived at the
applicant’s cell. AR and VG entered, four further guards remained in the
corridor or stood at the door to the cell.
According to the applicant, AR came up to him,
grabbed his left hand and told him that they were going to take the mattress
from him. The applicant pulled his hand away and VG - unexpectedly and without
any notice - sprayed pepper spray in his face while AR was attempting to twist
his arm. The applicant ran out of the cell into the corridor, covering his face
with his hands. Several guards attacked him from behind and he was forced down
on the floor. He was repeatedly hit on the back after handcuffs had been put on
him. After the applicant shouted that he could not breathe VG struck him a
couple more times. He was then raised up off the floor, bent down and guided to
the security room. According to the applicant, he fainted several times on the
way because his injured rib caused him serious pain when being bent down.
The Government
relied on the statements of the prison guards given in the subsequent criminal
proceedings. All six prison guards present were interviewed in the criminal
proceedings, either as suspects or witnesses. According to AR and VG, the
applicant pushed AR when he attempted to take the mattress. Then VG used pepper
spray. According to the statements of the guards, the applicant resisted
strongly and was forced down on the floor in the corridor. According to VG, he struck
the applicant, who was on all fours, three times with a telescopic baton in
order to overcome his resistance and handcuff him. AR and RT were unable to
give details about the blows inflicted by VG. Nor was OV initially able to
provide such details, but at a second interview he stated that by the time he
closed the handcuffs, the applicant had not yet been hit with the telescopic baton.
AJ thought that the applicant had probably been handcuffed while he was being
hit by VG. According to AT, the applicant had been handcuffed but had
forcefully struggled and pushed VG with his shoulder, after which the latter
had struck him one or two times without much force.
The applicant was then strapped to a restraint
bed in accordance with the orders of duty officer ML, as he was still behaving
aggressively and offering physical resistance to the officers.
According to the applicant he was suffocating from
the pepper spray in his throat but the guards pressed him to the bed, strangled
him and did not let him spit. Finally he was allowed to spit and given the water
he had asked for.
According to a report on the use of the restraint
bed, the applicant was strapped to the bed from 8.40 a.m. to 12.20 p.m. His
condition was monitored once an hour, when the necessity of the continued use
of the means of restraint was assessed on the basis of his behaviour.
The report
contains the following entries. At 8.40 a.m., 9.35 a.m., 10.30 a.m. and
11.25 a.m.: “[use of the restraint measures] to be continued, [the applicant
is] aggressive”. At 12.20 p.m.: “[use of the restraint measures] to be discontinued,
[the applicant is] calm.” The report also contains an entry according to which
medical staff checked on the applicant; the time of the medical check-up recorded
on the copy of the report on file is illegible.
D. Medical evidence
According to a medical certificate dated 3 July 2009 medical staff had
been asked to establish the applicant’s injuries in the punishment cell. It was
stated in the certificate that the applicant had no visible injuries but there was
crepitation in the area of the seventh rib on the left side. A rib fracture was
suspected.
According to two medical certificates dated 4
July 2009 the applicant was examined by nurse RK at 8.50 a.m. and at 12.20 p.m.
after his release from the restraint bed. It is stated in the certificates that
the applicant had no visible injuries and did not need medical assistance. According
to the applicant these certificates were “fabricated” in order to cover up his
beating and were in contradiction with other medical evidence.
On 4 July 2009 the
applicant underwent an X-ray examination which revealed no clear traumatic
changes. Photographs were taken of the haematomas (described below) on the
applicant’s body. He gave a urine sample. Urine test results, dated 6 July
2009, showed red blood cells in the urine.
According to a
medical certificate dated 6 July 2009 the applicant had three haematomas
measuring 20 by 1.5 cm on his back, a haematoma with a diameter of 8 cm on his
right upper arm, a haematoma with a diameter of 3 cm on the right shin,
swelling to the left wrist, crepitation in the region of the eighth and the
ninth ribs on the left side. The applicant complained that he had been beaten on
the back by the guards, complained of pain in his back and said that his urine
had been red. The doctor considered that providing the applicant with a
mattress was justified.
An ultrasound scan of the applicant’s kidneys
performed on 7 July 2009 revealed no signs of disease.
According to a
medical certificate concerning the applicant’s examination in a punishment cell
on 9 July 2009, there were haematomas on the applicant’s back and ribs. The
applicant did not allow the doctor to touch him, was aggressive and demanded a
mattress. However, the doctor considered that the applicant’s chronic lower
back pain did not serve as a reason for him to have a mattress. She made a
recommendation “for further referral to a psychiatrist”.
In a written explanation
to the prison director by nurse RK, dated 21 July 2009, she submitted that
she had been asked to examine the applicant, who had been strapped to the
restraint bed on 4 July 2009. The applicant had complained, as he had already
done on the day before, of pain in the chest under the ribs. The nurse and
guards, as well as the applicant himself, had wiped his eyes with wet napkins.
The nurse had issued a medical certificate stating that she had discovered no
injuries on the applicant. At 12.20 p.m. on 4 July 2009, upon the applicant’s
release from the restraint bed, she had again been asked to examine him. He had
no complaints, save for the previously known complaint of pain in the lower
part of his chest. The nurse had issued a certificate stating that she had not
discovered any injuries and that the applicant had not needed medical
treatment. On both occasions the examination had been carried out visually and
the nurse had asked the applicant about his complaints. She had only noticed
the haematomas on the evening of 4 July 2009. She had not noticed them before and
had not carried out a more detailed examination because this had not been
requested by the applicant. Based on her earlier experience with the applicant,
the nurse had known that he was very demanding in respect of medical treatment.
Thus, she had assumed that the applicant was not suffering from any serious conditions.
E. Criminal proceedings concerning abuse of authority
On 7 July 2009 the Prisons Department of the
Ministry of Justice started a criminal investigation into the applicant’s
allegations of abuse of authority by prison guards. The investigation was
carried out by Ida Police Headquarters.
On 8 July 2009 the applicant was interviewed as
a victim. Between 7 and 28 July 2009 four guards (KA, MN, VG and JT) were
interviewed as suspects. Six further prison officers (including OV), a prison
doctor and a prisoner were interviewed as witnesses. Reports on the use of the
special equipment and means of restraint (shield, helmets, flak jackets and
handcuffs on 3 July 2009 and handcuffs and restraint bed on 4 July 2009), and
written explanations to the prison director from prison officers involved in
the incidents were also included in the criminal case file.
On 23 September 2009 prison guard OV was
interviewed for the second time.
On 26 November 2009 the police requested
additional information from the prison administration, including the applicant’s
medical records and information about the telescopic batons used in the prison.
On 15 December
2009 the police ordered a forensic expert examination of the applicant’s
injuries. The expert completed his report on 15 February 2010. He relied on the
written materials in the criminal case file, including a report of the
applicant’s interview, medical documents and photos of the haematomas on the
applicant’s body. He was of the opinion that the stripe-shaped haematomas on
the applicant’s back had resulted from blows struck with a blunt instrument
such as a stick or a baton, possibly on 4 July 2009. The haematomas on the
applicant’s upper arm and shin had resulted from blows struck with a blunt
instrument or from the applicant’s body being slammed against it. The haematoma
and crepitation in the region of the eighth and the ninth ribs may have
resulted from a rib fracture, but that diagnosis could not be confirmed without
an X-ray examination. The expert concluded that the injuries in question were
not life threatening and usually caused short-term health damage lasting from
four days to four weeks.
On 5 February 2010 the applicant was interviewed
for the second time.
On 10 February 2010 the police ordered a forensic
expert examination of video recordings from prison security cameras. The expert
completed his report on 13 April 2010. Having obtained forty-eight magnified
and processed images from the video recordings, he concluded that it was not
possible to establish the exact time at which the applicant was hit.
On 15 June 2010 the police investigator
discontinued the criminal proceedings. She considered that the use of force by
the prison guards against the applicant on 3 and 4 July 2009 had been lawful,
since he had not complied with their orders and had behaved in an aggressive
manner. On 3 July 2009 he had refused to gather his belongings for his transfer
to the punishment cell and had threatened to resist if force was used. On
4 July 2009 he had refused to comply with the prison’s internal rules and
hand in his mattress. The guards had not denied that they had used force but
had asserted that this had been the only way to overcome the applicant’s
resistance. The applicant had attempted to escape and run out of the cell.
Thus, the use of force had had a legal basis. It did not appear that VG had
used the telescopic baton to deliberately cause injuries to the applicant. Nor
could it be established that the force used by JT, VG, MN and KA had been
excessive. They had countered an imminent attack after a more lenient response
had not proved effective and the applicant had continued his resistance.
On 17 June 2010 the police investigator’s
decision to discontinue the criminal proceedings was approved by a circuit
prosecutor.
On 25
August 2010 the State Prosecutor’s Office dismissed the applicant’s appeal. It
considered that the use of force, special equipment and means of restraint had
been caused by the applicant’s behaviour, that is to say his failure to comply
with the orders given to him and his physical and verbal aggressiveness towards
the prison officers. It relied on the applicant’s handwritten letter of
explanation to the prison director, in which he had confirmed having said on 3
July 2009 that if the prison officers unlawfully attacked him, he would strike
back. Furthermore, according to prison guard MN the applicant had threatened to
kill them if force was used to transfer him to the punishment cell. Considering
the applicant’s extremely aggressive resistance, it had been proportionate to
use force to bring him down to the floor and to hold him there.
In respect of the events of 4 July 2009 the
State Prosecutor’s Office referred to the statements of the suspects and
witnesses, according to which the applicant had threatened the prison officers.
It had been established that guard VG had used pepper spray after the applicant
had pushed AR. The applicant had been engaged in an unlawful attack and the use
of pepper spray against him had been lawful. Although the applicant’s
subsequent running into the corridor could not be seen as an attempt to escape,
it had still been possible that the situation might have got out of the prison
officers’ control and they had had grounds to believe that the applicant would
continue attacking them. To prevent such a scenario, the prison officers had
legitimately acted in a quick and decisive manner, including through the use of
the telescopic baton by VG. The incoherent statements of the witnesses as to
the issue of whether the blows with the telescopic baton had been delivered
before or after the applicant’s handcuffing did not allow for a firm conclusion
to be made on that point. Nevertheless, based on the witness statements, the
prosecutor considered it probable that the applicant had been hit before
handcuffing. She also referred to the principle that any reasonable doubt
should benefit the accused and considered that it had not been established that
the prison guards had unlawfully used a weapon, special equipment or force
against the applicant. In respect of the applicant’s being strapped to the
restraint bed, the State Prosecutor’s Office concluded that the video
recordings showed that after being handcuffed the applicant had remained
aggressive and had offered physical resistance to the prison officers.
On 21 October 2010 the Tartu Court of Appeal
dismissed the applicant’s complaint against the decision of the State
Prosecutor’s Office. It found that it had been established that the applicant
had offered resistance to the prison officers and therefore the use of special
equipment and means of restraint had been legitimate. The court agreed with the
position expressed in the decision of the State Prosecutor’s Office that the
special equipment had been used to the extent it had been necessary to overcome
the applicant’s resistance. Thus, there were no grounds to continue the
criminal proceedings in respect of the prison officers.
F. Administrative Court proceedings
On 6 August 2009 the applicant filed a claim for
non-pecuniary damage with the prison administration for his inhuman and
degrading treatment on 3 and 4 July 2009. The claim was dismissed and the
applicant filed a complaint with the Tartu Administrative Court.
In a judgment of 8 March 2010 the Tartu
Administrative Court found for the applicant. It declared the use of the means
of restraint, special equipment and service weapons in respect of the applicant
unlawful. The court found that although the applicant’s failure to comply with
the orders given to him had undeniably constituted a threat to the general
security of the prison, the use of handcuffs and his immobilisation had
nevertheless not been justified, as there was no evidence and it had not been
argued that the applicant had been armed or equipped with a dangerous item or
that he had intended to escape or attack anyone. However, the court dismissed
the applicant’s claim for compensation, considering that the use of means of
restraint and special equipment had been caused, to a large extent, by the
applicant’s own behaviour. He had disputed the officers’ orders, engaged in an
argument with them, voiced threats and offered physical resistance. In these
circumstances the finding of the unlawfulness of the prison’s actions
constituted sufficient just satisfaction.
Both parties appealed against the Administrative
Court’s judgment. The applicant claimed monetary compensation and the prison
administration contended that the prison officers had not acted unlawfully.
At the hearing of the Tartu Court of Appeal on 22 September 2010 the applicant
submitted, inter alia, that on 3 July 2009 he had been kicked in ribs
once and that on 4 July 2009 he had been hit with a telescopic baton after he
had already been handcuffed. Video recordings concerning both 3 and 4 July
2009 were played at the hearing.
By a judgment of 14 October 2010 the Court of
Appeal quashed the Administrative Court’s judgment and dismissed the applicant’s
complaint. It found that the use of the means of restraint, special equipment,
physical force and service weapons had been lawful. The court considered that
the prison had been authorised to use preventive measures in case of a probable
threat. It noted that the applicant was serving a life sentence and had two
further convictions for attacking prison officers. In January 2009 he had also
threatened to kill a prison officer.
In respect of the
events of 3 July 2009 the Court of Appeal noted that there was no dispute that
the applicant had repeatedly refused to comply with the prison officers’ order
to go to a punishment cell. Furthermore, he had offered physical resistance and
caused minor injuries to KA. Therefore, physical force and handcuffs had been
used. Considering the applicant’s unlawful and aggressive behaviour, threats to
the prison officers and to the general security in the prison, as well as the
short duration (fifteen minutes) of the use of the handcuffs, the Court of
Appeal found that the use of handcuffs had not been unlawful. In respect of the
use of force, the court found that there was no evidence to prove that the
applicant had been kicked, strangled or poked in the eyes with fingers.
According to the medical evidence there had been crepitation but no fractures of
the ribs. The court considered that pain in the applicant’s chest that he had
complained of could have resulted from his resistance, which had led to a
scuffle and his being forced on the floor for handcuffing.
In respect of the events of 4 July 2009 the
Court of Appeal considered it established that the applicant had displayed
disobedience and threatened the prison officers. He had offered physical
resistance against the guard who had attempted to take the mattress. Thus, the
use of pepper spray had not been disproportionate or unlawful. Since the
subsequent use of physical force had proved not effective, it had also been
justified to use the telescopic baton in order to have the applicant
handcuffed. The fact that the applicant had been aggressive at the time he was
strapped to the restraint bed had also been proven by the video recording shown
at the court hearing.
On 17 February 2011 the Supreme Court declined
to hear the applicant’s appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Article 291 of the Penal Code (Karistusseadustik)
stipulates that abuse of authority, that is unlawful use of a weapon, special
equipment or violence by an official while performing his or her official
duties, is punishable by a fine or by one to five years’ imprisonment.
Relevant domestic law and practice concerning
the use of special equipment and means of restraint in prison has been
summarised in the judgement of Julin v. Estonia (nos. 16563/08,
40841/08, 8192/10 and 18656/10, §§ 84-90
and 94, 29 May 2012).
III. RELEVANT INTERNATIONAL STANDARDS
For relevant international instruments
concerning the use of instruments of restraint, see Julin, cited above,
§§ 95-97, and Kummer v. the Czech Republic, no. 32133/11, §§ 40-43, 25
July 2013.
According to the Convention on
the Prohibition of the Development, Production, Stockpiling and Use of Chemical
Weapons and on their Destruction of 13 January 1993 (“the CWC”),
tear gas is not considered a chemical weapon and its use is authorised for the
purpose of law enforcement, including domestic riot control (Article II § 9
(d)). The CWC entered into force with regard to Estonia on 25 June 1999.
The European
Committee for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (“the CPT”) has expressed its concerns over the use of such agents in
law enforcement. For example, in the report on its visit to Bosnia and
Herzegovina (CPT/Inf (2009) 25) it noted:
“79. ... Pepper spray is a
potentially dangerous substance and should not be used in confined spaces. Even
when used in open spaces the CPT has serious reservations; if exceptionally it
needs to be used, there should be clearly defined safeguards in place. For
example, persons exposed to pepper spray should be granted immediate access to
a medical doctor and be offered an antidote. Pepper spray should never be
deployed against a prisoner who has already been brought under control. Further,
it should not form part of the standard equipment of a prison officer.
The CPT recommends that the authorities of
Bosnia and Herzegovina draw up a clear directive governing the use of pepper
spray, which should include, as a minimum:
- clear instructions as to when pepper
spray may be used, which should state explicitly that pepper spray should not
be used in a confined area;
- the right of prisoners exposed to
pepper spray to be granted immediate access to a doctor and to be offered an
antidote;
- the qualifications, training and skills
of staff members authorised to use pepper spray;
- an adequate reporting and inspection
mechanism with respect to the use of pepper spray.”
Similar observations and recommendations were made by the CPT
in paragraph 48 of the report on its visit to the Czech
Republic (CPT/Inf (2009) 8).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained of ill-treatment on 3
and 4 July 2009 by prison officers in breach of Article 3 of the Convention,
which reads as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
The Government contested that argument.
A. General principles
As the Court has stated on many occasions,
Article 3 of the Convention enshrines one of the most fundamental values of
democratic societies. It prohibits in absolute terms torture and inhuman or
degrading treatment or punishment, irrespective of the circumstances and the
victim’s conduct (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR
2000-IV, and Chahal v. the United Kingdom, 15 November 1996, § 79,
Reports of Judgments and Decisions 1996-V).
Ill-treatment must attain a minimum level of
severity if it is to fall within the scope of Article 3 of the Convention. The
assessment of this minimum level of severity is relative: it depends on all the
circumstances of the case, such as the duration of the treatment, its physical
and mental effects and, in some cases, the sex, age and health of the victim
(see, among other authorities, Peers v. Greece, no. 28524/95, § 67, ECHR
2001-III, and Ireland v. the United Kingdom, 18 January 1978, §
162, Series A no. 25).
Thus, treatment has been held by the Court to be
“inhuman” because, inter alia, it was premeditated, was applied for
hours at a stretch and caused either actual bodily injury or intense physical
and mental suffering, and also “degrading” because it was such as to arouse in
the victims feelings of fear, anguish and inferiority capable of humiliating
and debasing them (see, for example, Kudła v. Poland [GC], no.
30210/96, § 92, ECHR 2000-XI, and Van der Ven v. the Netherlands, no.
50901/99, § 48, ECHR 2003-II). In order for punishment or treatment to be
“inhuman” or “degrading”, the suffering or humiliation involved must in any
event go beyond that inevitable element of suffering or humiliation connected
with a given form of legitimate treatment or punishment (see, for example, V. v. the
United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX, and Van der
Ven, loc. cit.).
The use of handcuffs or other instruments of restraint
does not normally give rise to an issue under Article 3 of the Convention where
the measure has been imposed in connection with lawful detention and does not
entail the use of force, or public exposure, exceeding what is reasonably
considered necessary. In this regard, it is important to consider, for
instance, the danger of the person’s absconding or causing injury or damage
(see, among other authorities and mutatis mutandis, Raninen v. Finland,
16 December 1997, § 56, Reports 1997-VIII;
Mathew v. the Netherlands, no. 24919/03, § 180, ECHR 2005-IX; and Kuzmenko
v. Russia, no. 18541/04, § 45, 21
December 2010).
The Court is mindful of the potential for
violence that exists in penal institutions and of the fact that disobedience by
detainees may quickly cause a situation to degenerate (see Gömi and Others v. Turkey,
no. 35962/97, § 77, 21 December 2006). The Court accepts that
the use of force may be necessary on occasion to ensure prison security, and to
maintain order or prevent crime in detention facilities. Nevertheless, such
force may be used only if indispensible and must not be excessive (see Ivan Vasilev v. Bulgaria, no.
48130/99, § 63, 12 April 2007, with further references). Recourse to
physical force which has not been made strictly necessary by the detainee’s own
conduct diminishes human dignity and is in principle an infringement of the
right set forth in Article 3 of the Convention (see, among others, Ribitsch
v. Austria, 4 December 1995, § 38, Series A no. 336; Vladimir
Romanov v. Russia, no. 41461/02, § 63, 24 July 2008; and Sharomov v.
Russia, no. 8927/02, § 27, 15 January 2009).
The Court reiterates that allegations of
ill-treatment must be supported by appropriate evidence. In assessing evidence,
the Court has generally applied the standard of proof “beyond reasonable doubt”
(see Ireland v. the United Kingdom,
cited above, § 161). However, such proof may follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar unrebutted
presumptions of fact. Where the events in issue lie wholly, or in large part,
within the exclusive knowledge of the authorities, as in the case of persons
under their control in custody, strong presumptions of fact will arise in
respect of injuries occurring during such detention. Indeed, the burden of
proof may be regarded as resting on the authorities to provide a satisfactory
and convincing explanation (see Salman v.
Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).
Where domestic proceedings have taken place, it
is not the Court’s task to substitute its own assessment of the facts for that
of the domestic courts and, as a general rule, it is for those courts to assess
the evidence before them (see Klaas v. Germany,
22 September 1993, § 29, Series A no. 269). Although the Court is not
bound by the findings of domestic courts, in normal circumstances it requires
cogent elements to lead it to depart from the findings of fact reached by those
courts (see Matko v. Slovenia,
no. 43393/98, § 100, 2 November 2006). Where allegations are made under Article
3 of the Convention, however, the Court must apply a particularly thorough
scrutiny (see, mutatis mutandis, Ribitsch, cited above, § 32).
B. Application of the principles to the present case
1. Events of 3 July 2009
Admissibility
The Court notes that the applicant’s complaint of
ill-treatment on 3 July 2009 related to the force used by the prison
officers in response to his refusal to comply with their order to move to a
punishment cell. It can be understood on the basis of the available information
that the applicant voiced threats against the guards, or at least explicitly
declared his intention not to comply and, moreover, to even resist them (see
paragraphs 7, 10 and 45 above). The Court notes that this was not denied by the
applicant (see paragraph 37 above). Thus, in order to secure the fulfilment of
the order, three prison officers went to the applicant’s cell in order to
handcuff him and take him to the punishment cell. The Court notes that the
prison officers only relied on the use of a shield, flak jackets and helmets, that
is to say, measures of passive defence.
As regards the intensity of the force used
against the applicant, the Court notes that the applicant did not deny that he
had resisted the prison officers. Furthermore, he did not allege that he had
been beaten but mentioned having been kicked in the ribs once (see paragraphs 9 and 43 above), whereas the prison guards denied having kicked the applicant at all
(see paragraph 10 above). Overall, the applicant’s description of the events
appears to refer to the use of immobilisation techniques by the guards rather
than anything close to indiscriminate beating. The Court also notes in this regard
that according to the medical evidence the applicant’s only injury established
in connection with the confrontation on 3 July 2009 was the crepitation in the
area of the seventh rib. A broken rib was initially suspected but this was not
confirmed by an X-ray examination. No other injuries were mentioned (see
paragraphs 11, 21 and 23 above). The Court considers that it is not called upon
to determine the exact origin of the applicant’s chest injury - whether it
originated in his having been abruptly forced to the floor, a kick from a
prison officer or a combination thereof. Having had regard to all the
information available to it including the findings of the domestic authorities
in the criminal and administrative court proceedings, the testimonies
concerning the applicant’s behaviour on 3 July 2009, the evidence related to his
personality and prior behaviour and the medical evidence, the Court considers
that the use of force on 3 July 2009 did not go beyond what may be considered
necessary in the circumstances. It follows that this part of the application is
manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3
and 4 of the Convention.
2. Events of 4 July 2009
(a) Admissibility
The Court notes that the complaint about the
applicant’s ill-treatment on 4 July 2009 is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further notes that
it is not inadmissible on any other grounds. It must therefore be declared
admissible.
(b) Merits
(i) The parties’ submissions
(α) The applicant
The applicant argued that he had been
ill-treated by the prison officers on 4 July 2009 and that the ill-treatment in
question had amounted to torture. The use of measures such as handcuffs, a telescopic
baton, pepper spray and a restraint bed in relation to a single incident by a
group of six prison officers had been entirely disproportionate. He submitted
that he had been beaten, kicked and subjected to ill-treatment with pepper
spray, as a result of which he had suffered intense pain over the course of
several days. He also claimed that he had been traumatised by the experience
and suffered from feelings of insecurity and helplessness.
The applicant contended that following the
incident of 3 July 2009 he had had reason to believe that he was allowed to
have a mattress in his cell on a permanent basis, based on his earlier medical
examinations and the doctors’ opinions.
The applicant disputed the Government’s argument
that he had been aggressive and had offered physical resistance. There was no
evidence to that effect. On the contrary, he had not been in a condition to put
up a fight against prison officers, due to the fact that he had been disabled
by the pepper spray. In fact, he had been choking and in agony. The use of
pepper spray against prisoners was not allowed and the use of physical force against
him while handcuffed and otherwise being beaten pointed to the disproportionate
use of force. The applicant referred to the statements of prison officers OV
and AJ, according to whom he had first been handcuffed and thereafter beaten with
a telescopic baton.
The applicant argued that the medical evidence
indicated that the ill-treatment he had been subjected to on 4 July 2009
amounted to torture. In particular, he referred to a broken rib, scratches,
abrasions and bruises, crepitation in the area of the eighth and ninth ribs and
blood in the urine. The ill-treatment had been particularly serious and cruel
and capable of causing “severe” pain and both physical and mental suffering
within the meaning of Article 3 of the Convention.
(β) The Government
The Government noted at the outset that the day
before the events constituting the immediate subject of the present case, the
applicant had refused to comply with the prison officers’ lawful orders and had
offered physical resistance to them. On 4 July 2009 he had again refused to
comply with an order to surrender the mattress. It was not acceptable to allow a
situation where a prisoner could argue with an officer about the lawfulness of
an order or about whether the officer should or could give such an order. In
the present case the order given to the applicant had been lawful, clear and
easy to comply with. The subsequent events had been prompted by the applicant’s
failure to obey a lawful order given by the prison officers. The Government
also considered that the applicant’s personality, his prior behaviour and the
real danger posed by him required to be taken into account. They pointed out
that the applicant was a life prisoner convicted of the brutal murder of two people
and attempting to kill a third victim. He had continued committing crimes, both
against prison officers and others, during his time in prison. At the time of
the events he had had 29 disciplinary punishments on record and according to
the assessment in the individual action plans drawn up for the applicant in
Tartu Prison and in Viru Prison he was a dangerous person. Thus, based on the
applicant’s prior behaviour, he could be considered a high-risk prisoner whose
unpredictable behaviour and instability could pose a serious danger to
everybody in his vicinity.
The Government considered that the use of the
means of restraint, special equipment and service weapons by the prison
officers on 4 July 2009 had been lawful under sections 69, 70, 70-1 and 71 of
the Imprisonment Act (Vangistusseadus).
The Government argued that the use of pepper
spray by VG after the applicant had pushed AR had been lawful - as had also been
found by the domestic courts - and the least injurious method available to the
officers that would also allow them to get a dangerous prisoner under control
and remove the danger posed. Nevertheless, as the prison officers had been
unable to get the applicant under control, as he had still been actively
resisting and disobeying the order to submit to the use of handcuffs, the use
of a telescopic baton - a measure less damaging than a rubber baton - had been
justified. Although it was not fully certain that the telescopic baton had been
used prior to the applicant’s handcuffing, this had been deemed more likely by the
domestic authorities. At the same time, there was no dispute that the applicant
had refused to comply with the order to submit to the use of handcuffs and had struggled
with the officers. In any event, the use of the telescopic baton could not be
considered disproportionate and excessive in the circumstances of the case. Regard
being had to the applicant’s physical resistance and his threats to the life
and health of the prison officers, as well as his previous pattern of
behaviour, the force used against the applicant had not gone beyond what had
been strictly necessary.
In respect of the use of handcuffs, the
Government also considered that it had been lawful and necessary in the
circumstances. They pointed out that the handcuffs had only been used in
respect of the applicant for a few minutes until he had been taken to the
restraint bed.
As concerns the applicant being strapped to the
restraint bed, the Government contended that it had been lawful and justified
as a measure of last resort, as all the previous measures had not succeeded in calming
down the applicant. The Government noted that the strapping of the applicant to
the restraint bed had only lasted for three hours and forty minutes, staff had
checked on an hourly basis whether it was possible to release the applicant,
and his condition had been checked twice by a doctor. The Government emphasised
that the means of restraint had not been punitive but rather had been a preventive
measure applicable in situations where there was a danger to the person’s own life
and health or that of others. In the present case, the applicant’s behaviour
had been extremely aggressive and disturbing and his immediate return to a
single-occupancy disciplinary cell would not have guaranteed his calming down or
prevented him, for example, from punching the walls and causing serious
additional injuries to himself and possibly others. Thus, the threat posed by
the applicant to himself and to others had justified the measure being applied.
The Government maintained that Article 3 had not been breached thereby.
The Government submitted, in conclusion, that
the use of pepper spray, handcuffs, physical force and a telescopic baton against
the applicant, as well as his being strapped to a restraint bed, on 4 July 2009
had not exceeded the level of severity or disproportionality necessary to amount
to a violation of Article 3 of the Convention.
(ii) The Court’s assessment
The Court notes at the outset that it is aware
of the difficulties the States may encounter in maintaining order and
discipline in penal institutions. This is particularly so in cases of unruly
behaviour by dangerous prisoners, a situation in which it is important to find
a balance between the rights of different detainees or between the rights of the
detainees and the safety of the prison officers.
In the present case, the Court has had regard to
the evidence provided by the Government in respect of the risk posed by the
applicant (his convictions for murder, attempted manslaughter, attacks against
prison officers and other prisoners, disciplinary punishments and his
characterisation in the individual action plans, see paragraph 6 above). Thus, the Court accepts that the applicant’s character and prior behaviour
gave the prison officers reason to be alert in relation to their safety and for
taking immediate measures when the applicant displayed disobedience, threats
and aggression towards them. The Court also notes that in two separate sets of
domestic proceedings (criminal and administrative) the domestic authorities
established after a thorough examination of the events that the applicant had
behaved aggressively and that it had therefore been justified to take different
measures to combat that aggression.
The Court observes that the prison officers
relied on the use of several immobilisation techniques and special equipment in
respect of the applicant. Thus, in addition to physical force and handcuffs
they also used pepper spray and a telescopic baton. The Court considers that
the applicant’s injuries, such as haematomas on his body and blood in his urine
(see paragraphs 23, 24, 26 and 32 above) indicate that a degree of force
was used against the applicant. As regards the use of the telescopic baton, the
Court notes that the domestic authorities were unable to establish with
certainty - despite a thorough examination of the evidence, including the video
recordings of the security cameras, both in criminal and administrative court
proceedings - whether the applicant was hit with the baton before or after he
had been handcuffed. The Court notes that it is in no better position than the
domestic authorities to establish the exact factual circumstances relating to
the use of the telescopic baton.
As regards the legitimacy of the use of pepper
spray against the applicant, the Court refers to the concerns expressed by the
European Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment (“the CPT”) in respect of the use of such agents in law
enforcement. According to the CPT pepper spray is a potentially dangerous
substance and should not be used in confined spaces; if exceptionally it needs
to be used in open spaces, there should be clearly defined safeguards in place.
Pepper spray should never be deployed against a prisoner who has already been
brought under control (see İzci v.
Turkey, no. 42606/05, §§ 40-41,
23 July 2013, and Ali Güneş v. Turkey, no. 9829/07, §§ 39-40, 10 April 2012; see also paragraph 52 above). The Court also notes that
although pepper spray is not considered a chemical weapon and its use is
authorised for the purpose of law enforcement, it can produce effects such as
respiratory problems, nausea, vomiting, irritation of the respiratory tract,
irritation of the tear ducts and eyes, spasms, chest pain, dermatitis and
allergies. In strong doses it may cause necrosis of the tissue in the
respiratory or digestive tract, pulmonary oedema or internal haemorrhaging
(haemorrhaging of the adrenal gland) (see Ali Güneş, cited above,
§§ 37-38, with further reference to Oya Ataman v. Turkey,
no. 74552/01, §§ 17-18, ECHR 2006-XIII; see also İzci, cited above, § 35, and paragraph 51 above).
Having regard to these potentially serious effects of the use of pepper spray in
a confined space on the one hand and the alternative equipment at the disposal
of the prison guards, such as flak jackets, helmets and shields on the other,
the Court finds that the circumstances did not justify the use of pepper spray.
Furthermore, the Court reiterates that it has
had occasion to deal with a complaint concerning strapping of a prisoner to a
restraint bed in the recent case of Julin v. Estonia (cited above).
In that case, the Court assessed both the domestic law underlying the use of
this measure and its practice and application in that particular case (see Julin,
cited above, §§ 124-128). The Court notes that the events giving rise to the
complaint about the use of the restraint bed in the case of Julin and
those of the present case took place at approximately the same time and under
the same domestic law. In Julin the Court found that the applicant’s
strapping to the restraint bed for nearly nine hours had been in breach of
Article 3 of the Convention.
The Government’s main argument in the present
case was that the applicant had been strapped to the restraint bed for three
hours and forty minutes, in other words for a considerably shorter period of
time than the applicant in the case of Julin. Furthermore, the
Government pointed out that, unlike in Julin, the report drawn up in the
present case had confirmed that the applicant had been aggressive throughout
the period of his being strapped to the bed (see paragraph 20 above).
However, the Court considers that these factors
are not sufficient to distinguish the present case from Julin. While it
is true that the period for which the applicant was strapped to the restraint
bed was shorter in the present case, and the report on the use of the restraint
bed describes the applicant as having been aggressive, and notes that his
situation was assessed on an hourly basis and that he was also checked on by
medical staff, the Court nevertheless does not consider that these factors
rendered the use of the restraint bed a justified measure in the circumstances
of the present case. The Court notes that the applicant’s behaviour was
described as “aggressive” after a physical confrontation with prison officers. The
Court reiterates, however, that means of restraint should never be used as a
means of punishment, but rather in order to avoid self-harm or serious danger
to other individuals or to prison security (see Julin, cited above, § 127).
In the present case, the Court considers that it has not been convincingly
shown that after the end of the confrontation with the prison officers the
applicant - who had been locked in a single-occupancy disciplinary cell - posed
a threat to himself or others that would have justified applying such a
measure. Furthermore, the period for which he was strapped to the restraint bed
was by no means negligible and the applicant’s prolonged immobilisation must
have caused him distress and physical discomfort.
In view of the above and considering the
cumulative effect of the measures used in respect of the applicant on 4 July
2009, the Court finds that the applicant was subjected to inhuman and degrading
treatment in violation of Article 3 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant further complained of the
authorities’ failure to carry out an effective investigation into his
allegations of ill-treatment on 3 and 4 July 2009. He relied on Articles 3
and 13 of the Convention.
However, having regard to all the material in
its possession, and in so far as these complaints fall within its competence,
the Court finds that there is no appearance of a violation of the cited provisions.
It follows that this part of the application must be rejected as manifestly
ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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
The applicant claimed 30,000 euros (EUR) in
respect of non-pecuniary damage.
The Government considered that as the Convention
had not been violated in respect of the applicant, there was no basis for
awarding any compensation. Furthermore, they submitted that, should the Court
find a violation of the applicant’s rights, a finding of a violation would
constitute sufficient just satisfaction, taking into account the aggressive and
dangerous behaviour of the applicant himself. Should the Court nevertheless
decide to make an award in respect of non-pecuniary damage, the Government
called on it to determine a reasonable sum.
The Court considers that the applicant has
suffered non-pecuniary damage which cannot be compensated solely by a finding
of a violation. In view of the circumstances of the present case, and ruling on
an equitable basis, it therefore awards the applicant EUR 5,000 in respect of
non-pecuniary damage, plus any tax which may be chargeable on that amount.
B. Costs and expenses
The applicant also claimed EUR 1,776.20 for
costs and expenses incurred before the Court.
The Government submitted that no award should be
made in respect of legal expenses incurred in the domestic proceedings and that
the administrative expenses had been calculated arbitrarily. In the event of a finding
of a violation of the Convention, the Government left it for the Court to
determine a reasonable sum to cover legal assistance in the proceedings before
it.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to the
documents in its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 1,776.20 covering costs and expenses under
all heads.
C. Default interest
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 complaint concerning the
alleged ill-treatment on 4 July 2009 admissible and the remainder of the application
inadmissible;
2. Holds that there has been a violation of
Article 3 of the Convention on account of the applicant’s ill-treatment on 4
July 2009;
3. Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, the following
amounts:
(i) EUR 5,000 (five thousand euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,776.20 (one thousand seven hundred and seventy-six
euros and twenty cents), plus any tax that may be chargeable to the applicant,
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;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 13 February
2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Isabelle
Berro-Lefèvre
Registrar President
