Medical care / treatment during hunger strike
II. RELEVANT DOMESTIC LAW 44. The Police Prison Internal Rules ( Polizeigefangenenhaus-Hausordnung – “the Prison Rules” ), set out in an ordinance of the Federal Minister of the Interior of 28 September 1988, Federal Law Gazette no. 566/1988, regulate detention in police prisons. In the present context the following provisions are relevant: Detention “§ 4 (1) Detention shall take place while ensuring respect for human dignity and the utmost protection of the person. ... ... (4) Detention in solitary confinement shall be permitted only in the cases referred to in Rule 5 below. ” Solitary confinement “ § 5 (1) Detention in solitary confinement must take place: 1. where there are facts justifying the assumption that the detainee is endangering the health of others through violence; 2. where a request to that effect has been made by a court in respect of detainees against whom criminal proceedings are pending; 3. where there is a danger of infection from the detainee or where the detainee, on account of his or her appearance or conduct, objectively represents a significant burden for other detainees. (2) Detention in solitary confinement may take place : 1. at the detainee's request; 2. during the night, if this appears necessary to maintain safety or order; 3. as a disciplinary measure; 4. where it is necessary for a short time for organisational reasons; 5. where there are facts justifying the assumption that the detainee is endangering his or her own life or health through violence. ” Medical supervision of detainees “ § 10 (1) Detainees who have already been declared fit for detention ... shall be immediately seen by a doctor where a justified request is made or where their continued fitness for detention is in doubt. ... (2) The state of health of injured or sick detainees who have been declared fit for detention shall be kept under medical supervision, so that any deterioration may be observed in good time; should such deterioration render them unfit for further detention, the opinion of a doctor shall be obtained immediately.” 45. At the material time, the Prison Rules did not contain any specific rules on the treatment of hunger - strikers. However, instructions were contained in an internal order (no. 2/93) for police prisons issued on 11 April 1993 by the Vienna Federal Police Directorate. These instructions provided, inter alia, that (a) hunger - strikers were to remain in multi-occupancy cells, unless there were reasons for another form of detention; (b) a report had to be drawn up when a prisoner announced his or her intention to go on hunger strike; the prisoner had to be brought immediately before the paramedic, who had to take his weight and note it in the report; (c) on the cell-board a capital “H” had to be added for each hunger - striker; (d) a paramedic had to register all hunger - strikers daily; he had to keep one copy of the record, one had to be given to the prison officer on the floor concerned (and was to be transferred with the prisoner if he was transferred) and one had to be sent to the prison administration; (e) termination of the hunger strike, release or expulsion had to be noted on the prisoner's report by the paramedic. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 47. The applicant complained that he had been ill-treated while in custody. He relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties'submissions 48. The applicant alleged that in the evening of 21 May 1994 (a) he had been beaten and kicked; (b) he had been stabbed behind the ears with ballpoint pens; (c) he had suffered injuries as a result of the inappropriate manner in which he had been carried down the stairs; (d) he had subsequently been placed in solitary confinement; and (e) he had not been given sufficient medical care. 49. In the applicant's view, the Independent Administrative Panel's findings were open to criticism in many respects. On the basis of the facts it had established, it should have come to different conclusions. For instance, the Panel had established that he had suffered skin abrasions on his back but, instead of concluding that the injuries had been caused by the inappropriate way in which he had been carried, amounting to inhuman treatment, it insinuated that the applicant's own recalcitrant and uncooperative behaviour was to blame. Similarly, the Independent Administrative Panel had accepted that owing to his hunger strike and his fear of impending expulsion, he had been in an exceptional state of mind but did not conclude that, in these circumstances, his solitary confinement amounted to inhuman or degrading treatment. This was all the more so as he had not received any adequate care regarding his hunger strike and had been left without any medical treatment for the injuries to his back until 24 May 1994. 50. Furthermore, the applicant argued that the findings of the Independent Administrative Panel could not be accepted as the proceedings before it had been defective. Firstly, their duration had been excessive, which had a negative impact on the evidential value of the witnesses'statements. Moreover, the applicant and his counsel had not been informed of the inspection of the site, in which only the police authority had participated. 51. The Government, for their part, referred to the Independent Administrative Panel's decision of 3 September 1999. They underlined that it had held a number of hearings, some of which had been conducted shortly after the events at issue, and that it had carried out a visit on the spot. Assessing the applicant's complaints in the light of Article 3 of the Convention, the Independent Administrative Panel had come to the conclusion that they were unfounded. 52. In addition, the Government gave the following information in respect of the supervision of the applicant's state of health and the medial care provided to him during his detention in solitary confinement: the Government submitted that they were not in a position to submit the applicant's complete medical record, which had already been destroyed, but only those parts of his medical file which had been considered relevant and had therefore been submitted to the Independent Administrative Panel. They asserted that the applicant, as was provided for hunger-strikers in general, was observed daily by a paramedic with regard to his state of health. However, the skin abrasions on his back had not been examined on 22 or 23 May 1994. According to the disciplinary file, a prison doctor had commented on the applicant's solitary confinement as a disciplinary measure on 23 May. The injuries on his back had become known only on 24 May, when they had been treated by the prison doctor. B. The Court's assessment 1. General principles 53. The Court reiterates that the authorities have an obligation to protect the physical integrity of persons in detention. Where an individual, when taken in police custody, is in good health, but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention (see Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999 ‑ V with further references ). 54. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25 ). However, 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 within 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 lying with the authorities to provide a satisfactory and convincing explanation (see Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336, and Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII). 55. 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. 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. Where allegations are made under Article 3 of the Convention, however, the Court must apply a particularly thorough scrutiny (see, for instance, Vladimir Romanov v. Russia, no. 41461/02, § 59, 24 July 2008, and Matko v. Slovenia, no. 4 3393/98, § 100, 2 November 2006, both with a reference – mutatis mutandis – to Ribitsch, cited above, § 32). 2. Application to the present case 56. The Court will examine the applicant's allegations concerning his alleged ill-treatment on the evening in question on the one hand and those relating to his solitary confinement and the lack of medical care until 24 May 1994 on the other hand. ( a ) Alleged ill-treatment on the evening in question 57. The Court observes that the date of the events is in dispute between the parties. On the basis of the material before it the Court notes that there is indeed some inconsistency as to whether the events occurred on 21 or 22 May 1994. However, the Court does not find any cogent elements which could lead it to depart from the findings of the Independent Administrative Panel of 3 September 1999, according to which the events at issue took place on 21 May 1994 (see paragraph 40 above). 58. The applicant alleged firstly that he had been beaten and kicked by the police officers who transported him out of his cell on the evening in question. The Court observes that the medical evidence does not contain proof of any injuries clearly corresponding to the applicant's allegations. The Independent Administrative Panel did not address the issue directly. In the proceedings before the Independent Administrative Panel the police officers denied the applicant's allegations. For their part, two former cellmates of the applicant claimed that they had heard noises of beating and cries but that they had not been able to see what was going on in the corridor as the door of the cell had already been closed. Moreover, one of them had made a different statement during the criminal investigation of the case, when he had stated that the police officers had not mistreated the applicant. In sum, the Court concludes that it cannot be established beyond reasonable doubt whether the applicant was beaten and kicked by the police officers. 59. The applicant further alleged that he had been stabbed behind the ears with ballpoint pens. The Court observes that the medical report of 26 May 1994 confirms the presence of scabs behind the ears, which would be consistent with the treatment alleged by the applicant. Moreover, the applicant made the allegations three days after the incident, when he received the visit of three persons, a representative of an NGO, a journalist and a friend. All three testified as witnesses before the Independent Administrative Panel that they had seen injuries behind the applicant's ears. In its decision, the Independent Administrative Panel dismissed the allegation, with reference to an expert medical opinion. The Court notes, however, that the medical opinion (see paragraph 36 above) concerned a different question. It found it unlikely that the applicant's eardrum had been injured during his detention and stated further that it was impossible to establish whether the applicant's earaches and decreased auditory function were a consequence of his detention. The Independent Administrative Panel's reference to the expert medical opinion is therefore not conclusive as far as the alleged stabbing with ballpoint pens behind the ears is concerned. Having regard to the medical report of 26 May 1994 and the corresponding statement of the witnesses, the Court finds that the existence of injuries behind the applicant's ears is established beyond reasonable doubt. In the absence of any explanation of how he came by them other than through the ill-treatment described, the Government have failed to discharge their burden of proving that these injuries did not stem from stabbing with ballpoint pens by the police officers. 60. According to the applicant, the police officers carried him down the stairs in such a manner that his legs and his back dragged along the steps, causing skin abrasions. The Court notes that the medical report of 24 May 1994 describes several skin abrasions in the middle and lower regions of the applicant's back. It notes that one of them, being substantial, was treated with a spray and a bandage. The medical report of 26 May 1994 notes that the bandaged skin abrasion was still moist and required a new bandage, while the other skin abrasions on the applicant's back were already covered with scabs. Moreover, the three persons who had visited the applicant in prison on 24 May 1994 all testified as witnesses before the Independent Administrative Panel that they had seen the skin abrasions on the applicant's back. One of them described two of these abrasions as having been about the size of the palm of a hand. The Independent Administrative Panel found it established that the applicant had been carried in such a way that “his back dragged along the edges of the steps” and that he had suffered “skin irritations” as a result. In the following paragraph, however, it referred to the fact that the applicant had signalled skin abrasions to the prison's paramedic on 24 May 1994 and that he had subsequently been treated by the prison doctor. 61. The Court therefore finds that the injuries on the applicant's back are established beyond reasonable doubt. Moreover, the police officers involved did not deny having carried the applicant in such a manner that his back dragged along the steps. In the absence of any explanation of how the applicant may have sustained the skin abrasions other than as a result of being improperly carried down the stairs, the Court concludes that they stemmed from the treatment described. 62. Turning to the legal assessment of the facts established, the Court has emphasised that in respect of a person deprived of his liberty, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (see Ribitsch, cited above, § 38, and Selmouni, cited above, § 99). 63. In that connection, the Court rejects both the Independent Administrative Panel's argument that the police officers had no other possibility than to transport the applicant in the way described as he refused to walk on his own, and the panel's other assertions to the effect that the applicant's recalcitrant behaviour justified “the fact that he was not treated in the most attentive and gentle way.” In the Court's view it is for the respondent State to ensure that prison staff are properly trained to deal even with difficult prisoners without resorting to excessive physical force. It refers in that context to the CPT's report, which also underlined the special need to provide appropriate training to staff assigned to supervise persons detained under aliens legislation ( see paragraphs 90-91 of the CPT report, cited at paragraph 46 above). 64. The Court considers that the treatment to which the applicant was subjected, namely the stabbing behind his ears and the manner in which he was carried to the individual cell, such that his back dragged along the edges of the steps, causing skin abrasions of a considerable size, must have caused him physical and mental pain and suffering. In addition, the acts complained of were such as to arouse in the applicant feelings of fear, anguish and inferiority capable of debasing him and possibly breaking his physical and moral resistance. The Court finds elements which are sufficiently serious for the treatment to which the applicant was subjected to be considered inhuman and degrading (see Selmouni, cited above, § 99, with further references ). In reaching that conclusion the Court has taken into account the fact that the applicant had been on hunger strike for three weeks at the time of the events and was undisputedly in a physically and mentally weakened state. 65. Consequently, there has been a violation of Article 3 on account of the ill-treatment to which the applicant was subjected in the evening of 21 May 1994. ( b ) Detention in solitary confinement and alleged lack of medical care 66. The Court considers that the applicant's complaints about his detention in solitary confinement and the alleged lack of medical care are closely linked and will therefore examine them together. 67. The Court notes at the outset that, in the Convention proceedings, the applicant did not complain about the conditions in the individual cell, an issue which remained in dispute in the domestic proceedings. 68. The Court reiterates that the removal from association with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman or degrading treatment or punishment. In assessing whether such a measure may fall within the ambit of Article 3 in a given case, regard must be had to the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned (see Lorsé and Others v. the Netherlands, no. 52750/99, § 63, 4 February 2003, with further references). 69. According to the findings of the Independent Administrative Panel, the applicant had acted in a disturbing manner on 21 May 1994. It is not contested that his placement in solitary confinement was a disciplinary measure. The applicant was thus placed in an individual cell in the evening of 21 May 1994, and remained there for a week, until 28 May 1994, when he was released as being unfit for further detention. On the third day of his solitary confinement he received three visitors. Moreover, he was taken to a prison doctor on the third and fifth day of his solitary confinement. In sum, the Court considers that the duration and stringency of the measure are not such as to bring the applicant's solitary confinement within the scope of Article 3. 70. However, the Court attaches weight to one particular element of the present case, namely that the applicant had already been on hunger strike for three weeks when he was placed in solitary confinement. Moreover, it refers to its above findings that the applicant had been injured as a result of the ill-treatment which he suffered during his transport to the individual cell. 71. According to the Court's established case-law, the authorities are under an obligation to protect the health of persons deprived of their liberty. The lack of appropriate medical care may amount to treatment contrary to Article 3 (see Keenan v. the United Kingdom, no. 27229/95, § 111, ECHR 2001 ‑ III ). 72. The Court finds it problematic to place in solitary confinement a detainee who is at an advanced stage of a hunger strike and may present an increased risk of losing consciousness, unless appropriate arrangements are made in order to supervise his state of health. In the present case, the Court notes in particular that upon his admission to the individual cell the applicant was not examined by a doctor. The assessment that he had only pretended to be unconscious and that his state of health did not require permanent supervision and thus permitted detention in an individual cell was made by a paramedical officer (see the latter's statement before the Independent Administrative Panel, paragraph 27 above). In addition, it follows from the CPT report (see paragraphs 86-87 of that report, cited at paragraph 46 above) that at the material time the paramedical personnel received only very basic training. It also appears from the same report hat there was no sufficiently developed approach to the treatment of hunger-strikers. In these circumstances the Court is not satisfied by the Independent Administrative Panel's explanation that the applicant was under constant supervision by a “qualified paramedic”, or by the Government's assertion that he, like any other hunger-striker, was observed daily by a paramedic. Moreover, there are no documents to show that the applicant was actually examined by a paramedic on 22 or 23 May 1994. 73. Furthermore, the Court notes that the applicant has consistently claimed that he requested to see a doctor but was refused access to one until 24 May 1994. The fact that the applicant was not examined by a doctor until that date is not disputed by the Government. It was only then that the injuries he had received as a result of his ill-treatment by the police officers were treated. The doctor's written diagnosis (see paragraph 14 above) also shows that his weight was taken and that his blood pressure and blood sugar level were also measured. 74. The fact that the applicant, as a hunger-striker, was placed in solitary confinement without a proper medical examination and was refused access to a doctor until 24 May 1994 must, taken together, have caused him suffering and humiliation going beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (see Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000 ‑ XI, with further references). In the Court's view the applicant was subjected to degrading treatment. 75. Consequently, there has been a violation of Article 3 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 76. 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 77. The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage. He argued that the ill-treatment to which he had been subjected had caused him intense physical and mental suffering as well as feelings of anguish and inferiority. 78. The Government asserted that the applicant's claim was excessive. 79. The Court notes that it has found violations of Article 3 in two respects, namely on account of the ill-treatment to which the applicant was subjected on 21 May 1994 and his lack of medical care in solitary confinement until 24 May 1994. Making an assessment on an equitable basis, the Court awards the applicant EUR 1 0 ,000 for non-pecuniary damage, plus any tax that may be chargeable on that amount. B. Costs and expenses 80. The applicant claimed a total amount of EUR 25,685.29, including value - added tax (VAT), comprising EUR 19,514.17 for costs incurred in the domestic proceedings and EUR 6,171.12 for costs incurred in the Convention proceedings. 81. Regarding the costs of the domestic proceedings, the Government argued that they were excessive. They observed in particular that the bill submitted by the applicant included the costs of his first complaint to the Constitutional Court, made in 1995, although that complaint had been successful and the associated costs had therefore been reimbursed to him. Moreover, the bill contained an unjustified 10% supplement for the applicant's second complaint to the Constitutional Court. 82. Turning to the costs of the Convention proceedings, the Government submitted that the application was only partly admissible and that consequently only part of the costs claimed should be reimbursed. 83. 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 in order to prevent or redress the violation found and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the applicant EUR 15,000 in respect of the domestic proceedings and EUR 5,000 in respect of the Convention proceedings. Consequently, the Court awards the applicant EUR 20,000 in respect of costs and expenses, plus any tax that may be chargeable to him. C. Default interest 84. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court noted in particular that the applicant, who had already been on hunger strike (with the risks that that implied such as loss of consciousness) for three weeks, had been placed in solitary confinement based on the assessment of a paramedic who had received only basic training, and had been refused access to a doctor until the third day of his solitary confinement. Taken together, those factors had to have caused him suffering and humiliation going beyond what had been inevitable in a situation of detention. In the Court's view the applicant had therefore been subjected to degrading treatment on account of the lack of medical care provided in solitary confinement until he had been allowed to see a doctor, in violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention.