Medical care / treatment during hunger strike
II. RELEVANT DOMESTIC LAW AND PRACTICE A. Domestic law 59. On the basis of section 68 ( 4 ) of the 1997 Aliens Act ( Fremdengesetz ) and section 53 (c) ( 6 ) of the Execution of Sentences Act ( Strafvollzugsgesetz ) – both as in force at the relevant time – the Federal Minister for the Interior issued the ordinance on people held in detention by the police ( Verordnung des Bundesministers für Inneres über die Anhaltung von Menschen durch die Sicherheitsexekutive, Anhalteordnung, Federal Law Gazette II no. 128/1999 – hereinafter “the Detention Ordinance”). Within the context of the present case the following provisions of that regulation are relevant: Scope of the applicationSection 1 “ ( 1 ) The present regulation applies to persons in detention, who are detained after having been arrested by organs of the public security service, or who have started to serve their prison sentence on the basis of a detention order ( [that is to say] prisoners). ... ” DetentionSection 4 “ ( 1 ) Prisoners are to be held with regard being had to human dignity and with the greatest possible care [being exercised towards] their person. ... ” Solitary confinementSection 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 [engaging in] violence; ... 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. ( 3 ) Detention in solitary confinement may [be imposed] : ... 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 [engaging in] violence. ... ” Fitness for detention [ Haftfähigkeit ] Section 7 “ ( 1 ) Prisoners must not be detained if their unfitness for detention is detected or obvious. ... ( 3 ) All prisoners have to be examined without delay by a medical doctor with regard to their fitness for detention, at the latest within twenty-four hours of their arrest. They must submit to a medical examination, [which is] necessary to establish their fitness for detention. If prisoners refuse to be examined, it must be assumed that they are fit for detention, as long as they do not show any symptoms of disease or injury, and if there are no other reasons to doubt their fitness for detention. ... ” Medical care for detaineesSection 10 “ ( 1 ) The necessary medical care for prisoners is to be ensured by public health officers [ Amtsarzt ] or otherwise by means of precautionary measures [which] ensure that a doctor can intervene without unnecessary delay. Regarding minor cases, medical assistance may be provided by a paramedic [ Sanitäter ]. ( 2 ) Prisoners who have already been declared fit for detention ... shall immediately be seen by a doctor where there are reasons to doubt their continued fitness for detention, in particular if a prisoner alleges that he is unfit. The state of health of injured or ill prisoners who have been declared fit for detention shall be assessed by a doctor in order that any deterioration shall be noted in a timely manner; if such deterioration gives rise to doubt as to his or her fitness for detention, the opinion of a public health officer is to be sought. ... ... ( 4 ) Prisoners who go on hunger strike in order to render themselves unfit for detention must be seen by a doctor without unnecessary delay; the latter has to determine (and inform the prisoner of) what is medically required. In particular, it is to be decided if such prisoners are to be held in single - occupancy medical cells ... ” 60. Article 47 of the Code of Criminal Procedure ( Strafprozessordnung ), as in force at the relevant time, reads as follows: “1 Any person whose rights have been violated by a criminal offence or by an offence that is prosecutable ex officio can join the criminal proceedings [at any time before] the beginning of the trial hearing in the light of claims that he/she may have under private law, thus becoming a private party to the proceedings. 2 Such a private party has the following rights: (1) He/she can provide the public prosecutor and the investigating judge with anything that could be used] to convict the defendant or to substantiate a claim for compensation. (2) He/she can inspect the [ material in the case file ] during the preliminary investigation and the preliminary examination, unless there are extraordinary reasons to the contrary. (3) The private party is summoned to the trial hearing on the understanding that in the event of his/her non-appearance, the trial will nevertheless take place and the requests contained in the case file lodged by him/her will be read out. He/she can ask the accused, witnesses and experts questions or, in order to make other statements, can speak during the trial. Immediately after the Public Prosecutor has submitted and substantiated his/her final motion, the private party will be entitled to speak at the end of the hearing in order to specify and substantiate his/her claims and to lodge requests intended by him/her to be determined in the main ruling.” 61. Under Article 48 § 1 (1) of the Code of Criminal Procedure, as in force at the relevant time, a private party was entitled – after being informed to that effect – to bring a charge if the public prosecutor had dismissed the charge and refused to prosecute the offender. 62. Under Article 129a § 1 (2) of the Federal Constitution, as in force at the relevant time, the Independent Administrative Panels were to decide on any complaints lodged by persons alleging a violation of their rights on account of the administrative authorities exercising their direct authority to engage in coercion. B. Domestic practice 1. Domestic practice relating to detainees on hunger strike at the time of Y.C. ’ s detention 63. Under an ordinance issued by the Ministry of the Interior on 7 June 2000, a detainee announcing or starting a hunger strike must be given an information sheet ( Infoblatt bei Hungerstreik ) in a language that he or she understands. That information sheet, which was prepared by the Ministry of the Interior ’ s medical service upon the recommendation of the Committee for the Prevention of Torture (CPT) after a visit that it paid to Austria in 1999, contains information on the dangers of a hunger strike ( such as the health risks – including unconsciousness and death – that can result from insufficient fluid intake ). 64. With the aim of securing the uniform and improved medical treatment of detainees on hunger strike, the Ministry of the Interior organised consultations with its medical service and with various NGOs. The resulting recommendations served as a basis for further ordinances issued on 4 January 2002 and of 28 October 2002. These ordinances required police detention centres, after being notified of a hunger strike, to ensure without undue delay the undertaking of a preliminary examination of the hunger striker in question by a police doctor in the presence of an interpreter or an official conversant in the language of the detainee. The individual critical weight of the person on hunger strike had to be determined during such a first examination on the basis of his or her weight at the outset of the hunger strike. In the event that a hunger striker was of normal weight or was overweight and enjoyed good health, the benchmark for determining the critical weight of a hunger striker was to be 20 % of his weight, as recorded at the outset of his hunger strike; in the event that a hunger striker was in poor physical condition the benchmark was to be 10%. A urine test was recommended. A documented clinical examination of all the parameters set out in the hunger-strike form – together with a documented assessment of arterial oxygen saturation – had to be carried out on a daily basis. 65. In the event that a detainee reached his or her individually calculated critical weight, additional checks had to be carried out every other day in respect of blood sugar, packed cell volume, and urine – including measurements of protein and red blood cells. When the critical weight was reached, it was recommended that supplementary blood samples be taken at shorter intervals and that the person concerned be taken to a hospital. 66. The assistance of a psychiatrist was to be ordered in individual cases if this was considered necessary in the light of the detainee ’ s mental state, as assessed during the first interview, or because of deterioration in his or her mental health in the course of his or her detention. After fourteen days of a hunger strike, the assistance of a psychiatrist was in any event obligatory. 2. Domestic practice relating to detainees on hunger strike after Y.C. ’ s death 67. After Y.C. ’ s death, an ordinance was issued on 6 October 2005 reiterating and specifying the measures to be taken in the event of a hunger strike being staged by a detainee in a police detention centre. 68. On 20 October 2005 all detention centres ’ medical services were informed on the basis of the latest findings regarding sickle cell disease that in the event of a hunger or thirst strike being staged by persons from countries where sickle cell disease was endemic, a complete blood count and a differential blood count had to be taken. THE LAW I. THE GOVERNMENT ’ S OBJECTION TO THE ADMISSIBILITY OF THE APPLICATION 70. The Government submitted – in respect of both complaints lodged by the applicant under Articles 2 and 3 of the Convention (see paragraphs 74 and 102 below) – that he had failed to exhaust the domestic remedies. After the public prosecutor had decided to discontinue the criminal investigation into Y.C. ’ s death, the applicant ’ s counsel had been informed in writing that the applicant had the possibility to take over the prosecution as a subsidiary prosecutor ( Subsidiärankläger ), in accordance with Article 48 § 1 (1) of the Code of Criminal Procedure. This legal remedy had been accessible, suitable and sufficient for the alleged violations of the Convention to be redressed. However, the applicant had not made use of this possibility, and had thus failed to comply with the admissibility requirement stipulated in Article 35 § 1 of the Convention. 71. The applicant contested this argument. While admitting that he had not made use of this remedy, he explained firstly that to conduct criminal proceedings as a subsidiary prosecutor, he would have had to accept the risk of having to bear the full costs of such proceedings. Secondly, he submitted that at that time he had already raised all relevant arguments in relation to Y.C. ’ s death during the proceedings before the IAP, and that a positive decision in those proceedings would, in his view, necessarily have led to the reopening of the criminal investigation. Thirdly, the applicant argued that by requiring him to act as a prosecutor in the investigation into his brother ’ s death, the Government ’ s obligation to investigate and prosecute criminal acts ex officio in all possible directions would have been shifted to him. He concluded that the remedy of taking over the prosecution as a subsidiary prosecutor had not been one that he could have reasonably been expected to take. 72. The Court is not convinced that requesting a preliminary investigation under Article 48 § 1 (1) of the Code of Criminal Procedure would have constituted an effective remedy in the circumstances of the instant case. The Government has not brought forward any convincing arguments in that respect or quoted domestic case-law to demonstrate that in a comparable case this remedy has proven to be effective. In the light of the fact that the public prosecutor did not find any reason to continue the preliminary investigation, and given that there were not even any concrete suspects ( since the investigation was directed against “unknown persons” ), it appears unlikely that a request to continue the proceedings would have had any prospect of success. The Court agrees in any event with the applicant that requesting him to pursue this remedy would have inappropriately shifted the duty stipulated by Articles 2 and 3 of the Convention to conduct an effective investigation from the Government to the applicant. The procedural obligation to investigate alleged ill-treatment and a death in police custody under these provisions clearly lies with the authorities, who must act of their own motion once the matter has come to their attention. The authorities cannot leave it to the initiative of the next-of-kin either to lodge a formal complaint or to request particular lines of inquiry or investigative procedures (see, mutatis mutandis, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 111, ECHR 2005 ‑ VII). The Court therefore dismisses the Government ’ s objection regarding the admissibility of the application in respect of the exhaustion of domestic remedies. 73. Furthermore, the Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It notes that it is not inadmissible on any other grounds, and must therefore be declared admissible. II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 74. The applicant complained under the procedural limb of Articles 2 and 3 of the Convention that there had not been an effective and comprehensive investigation into his brother ’ s death, and that the causes of Y.C. ’ s death thus far remained unclear. The Court considers it appropriate to assess this complaint under the procedural limb of Article 2 of the Convention alone. Article 2 reads as follows in its relevant parts : “1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally ... .” A. The parties ’ submissions 1. The applicant 75. The applicant submitted that, contrary to what the forensic expert report commissioned by the IAP had stated, his brother had not died as a result of dehydration combined with the fact that he had been a carrier of sickle cell trail, but because the doctor at the detention centre had inaccurately calculated Y.C. ’ s critical weight. The applicant relied in this respect on Dr W. G. ’ s statement, which he had submitted as evidence to the IAP in the course of the public hearing on 13 February 2006 (see paragraphs 38 and 44 above). The applicant complained that Dr W. G. ’ s findings had not been taken into account. The applicant concluded from W.G. ’ s statement that if the police doctor had not made a mistake in the calculation of Y. C. ’ s critical weight, his brother would still be alive. 76. The applicant concluded that the outcome of the investigation into Y.C. ’ s death had been neither correct nor thorough, in violation of Article 2 of the Convention. 2. The Government 77. The Government took the view that the criminal investigation into Y.C. ’ s death had been conducted expeditiously and effectively, in accordance with the Court ’ s case-law. To secure evidence regarding the circumstances of Y.C. ’ s death, the investigating judge had ordered an autopsy, as requested by the public prosecutor, on 4 October 2005 ( the very day of Y.C. ’ s death ). On the following day the blood sample from Y.C. and the related examination report had been seized and the OIA had been asked to investigate the facts. Shortly thereafter, the persons directly involved had been questioned extensively. The taking of evidence had been supplemented by the obtaining of an independent expert report on the results of the autopsy. The expert had informed the public prosecutor on 12 October 2005 of the results of the autopsy. 78. The Government stated that the criminal investigation had, moreover, been independent, as it had been subject to the supervision of an investigating judge, who had been independent not only of the public prosecutor, but also the administration in general. 79. As to the participation of relatives in the investigation, the Government submitted that the applicant had been able to join the criminal proceedings at the investigative stage as a private party, in accordance with Article 47 of the Code of Criminal Proceedings. This status had given him the right to lodge requests to be permitted to inspect the files and to participate in the criminal investigation and the establishment of facts, and that evidence be gathered. 80. In sum, the Government considered that there had been an efficient, independent and transparent investigation aimed at determining criminal liability in connection with Y.C. ’ s death. 81. The Government submitted that the circumstances of Y.C. ’ s death had also been the subject of ensuing administrative proceedings, namely to examine the question of whether Y.C. ’ s death had been caused by a lack of adequate medical treatment while in detention pending expulsion. The IAP had based its decision on findings which had relied on the results of two oral hearings during which the police officers concerned, a further medical expert and the detainee sharing a cell with Y.C. had been questioned extensively about the course of Y.C. ’ s hunger strike and his medical treatment. Moreover, the Human Rights Advisory Board had carried out an independent review of the police investigation and published the results in a report (see paragraph 27 above). B. The Court ’ s assessment 1. General principles 82. The first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998 ‑ III). 83. Persons in custody are in a vulnerable position and the authorities are under a duty to protect them (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 131, ECHR 2014). Where an individual is taken into custody in good health but later dies, it is incumbent on the State to provide a satisfactory and convincing explanation of the events leading to his death (see Carabulea v. Romania, no. 45661/99, § 108, 13 July 2010) and to produce evidence casting doubt on the veracity of the victim ’ s allegations, particularly if those allegations are backed up by medical reports (see Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999 ‑ V, and Abdülsamet Yaman v. Turkey, no. 32446/96, § 43, 2 November 2004). 84. The State ’ s duty to safeguard the right to life must be considered to involve not only the taking of reasonable measures to ensure the safety of individuals in public places but also, in the event of serious injury or death, having in place an effective independent judicial system securing the availability of legal means capable of promptly establishing the facts, holding accountable those at fault and providing appropriate redress to the victim (see Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, § 132). 85. Having regard to its fundamental character, Article 2 of the Convention contains a procedural obligation – as described below – to carry out an effective investigation into alleged breaches of its substantive limb (see Mastromatteo v. Italy [GC], no. 37703/97, § 89, ECHR 2002 ‑ VIII, and Giuliani and Gaggio, [GC], no. 23458/02, § 298, ECHR 2011). 86. The State ’ s obligation to carry out an effective investigation has in the Court ’ s case-law been considered as an obligation inherent in Article 2, which requires, inter alia, that the right to life be “protected by law”. Although the failure to comply with such an obligation may have consequences for the right protected under Article 13, the procedural obligation of Article 2 is seen as a distinct obligation (see, inter alia, Šilih v. Slovenia [GC], no. 71463/01, §§ 153 ‑ 154, 9 April 2009). It can give rise to a finding of a separate and independent “ interference ”. This conclusion derives from the fact that the Court has consistently examined the question of procedural obligations separately from the question of compliance with the substantive obligation (and, where appropriate, has found a separate violation of Article 2 on that account) and the fact that on several occasions a breach of a procedural obligation under Article 2 has been alleged in the absence of any complaint as to its substantive aspect ( ibid., §§ 158-159). 87. The question of whether an investigation has been sufficiently effective must be assessed on the basis of all relevant facts and with regard to the practical realities of investigation work (see Dobriyeva and Others v. Russia, no. 18407/10, § 72, 19 December 2013; and Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, § 147). 88. In order to be “effective” as this expression is to be understood within the context of Article 2 of the Convention, an investigation must firstly be adequate (see Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 324, ECHR 2007 ‑ II). That is to say it must be capable of leading to the establishment of the facts and, where appropriate, the identification and punishment of those responsible. The obligation to conduct an effective investigation is an obligation not of result but of means: the authorities must take the reasonable measures available to them to secure evidence concerning the incident at issue (see Jaloud v. the Netherlands [GC], no. 47708/08, § 186, ECHR 2014, and Nachova and Others, cited above, § 160). 89. In any event, the authorities must take whatever reasonable steps they can to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides, among other things, an objective analysis of clinical findings, including the cause of death. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard (see Giuliani and Gaggio, cited above, § 301 ). 90. In particular, the investigation ’ s conclusions must be based on a thorough, objective and impartial analysis of all relevant elements. Failing to follow an obvious line of inquiry undermines to a decisive extent the investigation ’ s ability to establish the circumstances of the case and, where appropriate, the identity of those responsible (see Kolevi v. Bulgaria, no. 1108/02, § 201, 5 November 2009). 91. Nevertheless, the nature and degree of scrutiny which satisfy the minimum threshold of the investigation ’ s effectiveness depend on the circumstances of the particular case. It is not possible to reduce the variety of situations which might occur to a bare check-list of acts of investigation or other simplified criteria (see Tanrıkulu v. Turkey [GC], no. 23763/94, §§ 101-110, ECHR 1999-IV, and Velikova v. Bulgaria, no. 41488/98, § 80, ECHR 2000 ‑ VI). 92. Moreover, the persons responsible for the investigation should be independent of anyone implicated or likely to be implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence (see Anguelova v. Bulgaria, no. 38361/97, § 138, ECHR 2002 ‑ IV). 93. A requirement of promptness and reasonable expedition is implicit within this context (see Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 167, ECHR 2011 ). 94. In addition, the investigation must be accessible to the victim ’ s family to the extent necessary to safeguard their legitimate interests. There must also be a sufficient element of public scrutiny of the investigation, the degree of which may vary from case to case (see Hugh Jordan v. the United Kingdom, no. 24746/94, § 109, ECHR 2001 ‑ III). The requisite access of the public or the victim ’ s relatives may, however, be provided for at other stages of the procedure (see, among other authorities, Giuliani and Gaggio, cited above, § 304, and McKerr v. the United Kingdom, no. 28883/95, § 129, ECHR 2001 ‑ III). In addition, Article 2 does not impose a duty on the investigating authorities to satisfy every request for a particular investigative measure made by a relative in the course of the investigation (see Ramsahai and Others, cited above, § 348, and Velcea and Mazăre v. Romania, no. 64301/01, § 113, 1 December 2009). 95. Lastly, the Court considers it useful to reiterate that, when it comes to establishing the facts, and sensitive to the subsidiary nature of its role, it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see Ataykaya v. Turkey, no. 50275/08, § 47, 22 July 2014, and Leyla Alp and Others v. Turkey, no. 29675/02, § 76, 10 December 2013). 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 it is for the latter to establish the facts on the basis of the evidence before them (see, among other authorities, Edwards v. the United Kingdom, 16 December 1992, § 34, Series A no 247-B). Although the Court is not bound by the findings of domestic courts and remains free to make its own appreciation in the light of all the material before it, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by the domestic courts (see Giuliani and Gaggio, cited above, § 180, and Aydan v. Turkey, no. 16281/10, § 69, 12 March 2013). 2. Application to the present case 96. The Court notes at the outset that under Article 2 of the Convention, the applicant did not allege that Y.C. had died as a result of the use of force by the authorities. He complained of an insufficient investigation into his brother ’ s death. The Court ’ s task therefore consists of examining whether the guarantees under the procedural limb of Article 2 of the Convention have been respected – namely whether the authorities have complied with their duty to carry out an effective and comprehensive investigation in respect of Y.C. ’ s case (see also paragraph 74 above). The Court considers that the complaint raised by the applicant regarding the allegedly inaccurate calculation of Y.C. ’ s critical weight – and, more generally, the medical treatment afforded to Y.C. during his hunger strike – fall to be examined under the substantive limb of Article 3 of the Convention (see paragraphs 115 - 123 below). 97. The Court reiterates that a criminal investigation was opened by the public prosecutor on the day of Y.C. ’ s death. The Court finds that the steps taken by the public prosecutor were carried out promptly and without unnecessary delays. All relevant witnesses were questioned, evidence was immediately secured and seized, and an expert report concerning the cause of death was ordered. It was not disputed by the applicant that the expert Dr H. had been independent. The applicant, as a member of Y.C. ’ s family, was able to join the proceedings as a private party. The Court cannot discern any indication of shortcomings in the public prosecutor ’ s investigation. The criminal investigation was ultimately closed by the public prosecutor as no sufficient evidence was found to indicate misconduct on the part of the persons in charge. The public prosecutor thereby relied on the comprehensive autopsy report and expert report issued by Dr H. (see paragraphs 30 - 33 above), which clearly stated that death through the use of force could be excluded, and that Y.C. had in fact died of dehydration, combined with the fact that he had been a carrier of sickle cell trait (see paragraph 33 above). 98. The applicant also instituted administrative proceedings before the IAP for a review of the lawfulness of Y.C. ’ s detention and lodged a complaint about the conditions of his detention. In the course of these proceedings, several witnesses and two experts were questioned. The IAP examined the evidence and delivered three decisions, two of which were quashed by the Administrative Court. While the IAP found that the authorities should have known that Y.C. came from a country whose inhabitants bore a high likelihood of being a carrier of sickle cell disease and therefore should have informed Y.C. of this potential risk after he had embarked upon his hunger strike, the Administrative Court found that the mere fact that a person came from a country with a high rate of sickle cell disease did not mean that the State had a duty to test every person from a certain area for this genetic predisposition. After obtaining a second expert report, the IAP eventually acted in accordance with the legal opinion of the Administrative Court and dismissed the applicant ’ s complaints. 99. The Court notes in relation to the administrative proceedings that they were equally comprehensive as the criminal proceedings. Relevant witnesses were heard, an additional expert report was obtained, and the applicant played an active role in those proceedings, was able to lodge requests, and had access to the case file. Again, the independence of the court-appointed expert was at no point called into question by the applicant. However, he did submit as evidence a statement which focused on the calculation of Y.C. ’ s critical weight and possible mistakes which allegedly were made in that respect. The Court, contrary to the applicant ’ s allegation in that respect (see paragraph 75 above), sees no indication from the documents at hand that the IAP did not take into account the statement. The applicant was able to submit it as evidence in the course of the IAP proceedings, and the question of Y.C. ’ s critical weight was discussed with the expert Dr L. during the hearing of 21 June 2012 (see paragraph 55 above). In addition, the expert Dr H. concluded that the cause of Y.C. ’ s death had been dehydration, combined with the fact that he had been a carrier of sickle cell trait, and his death could therefore only have been prevented if he had been tested earlier for sickle cell trait, or if he had been aware that he was a carrier thereof. The expert Dr L. equally found that the calculation of the critical weight had had no bearing on Y.C. ’ s death. In its subsequent decision, the IAP ultimately decided to follow Dr L. ’ s expert report rather than the statement of Dr W. G. (see paragraph 44 above). The Court sees no reason to question the domestic courts ’ decision to ascribe decisive importance to these findings, rather than relying on the statement of Dr W.G. The Court recalls within this context that it is not its task to substitute its own assessment of the facts for that of the domestic courts and it is for the latter to establish the facts on the basis of the evidence before them (see, among other authorities, Edwards, cited above, § 34). 100. As to the applicant ’ s argument that the domestic authorities erred in finding that they had not been under a duty to test Y.C. for sickle cell disease merely because he came from a high-risk area, the Court notes first of all that apparently not even Y.C. had been aware of his being a carrier of sickle cell trait, and secondly finds no ground for disagreeing with the Administrative Court that the authorities had not been under an obligation to conduct medical tests without there being a clear indication or necessity to that end (see paragraph 48 above). 101. The Court therefore concludes that the manner in which the investigation into Y.C. ’ s death was carried out by the domestic authorities does not give rise to a violation of Article 2 of the Convention under its procedural limb. III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 102. The applicant complained that the medical assistance to his brother during his hunger strike had not been in accordance with the law ( section 10 ( 1 ) and ( 4 ) of the Detention Ordinance ). Furthermore, because (i) Y.C. had been kept in detention even though he had no longer been fit to be so held, and (ii) had been placed just before his death in a security cell without a water outlet, his brother had been subjected to inhuman and degrading treatment. The applicant relied on Article 3 of the Convention, which reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 103. The Court considers that these complaints fall to be examined under the substantive limb of Article 3 of the Convention alone. A. The parties ’ submissions 1. The applicant 104. The applicant submitted observations concerning Y.C. ’ s medical care in relation to his complaint under Article 3 of the Convention that were similar to those that he submitted in relation to his Article 2 complaint (see paragraph 75 above). He added that the police had not recognised that Y.C. had already been on hunger strike for several days before he had announced it. Therefore, during these days the authorities had not followed the applicable regulations. Intensive medical care should have been provided in the days before Y.C. ’ s death, as he had been in a life-threatening condition because of the inaccurate calculation of his critical body weight. Instead, he had been placed alone in a security cell. The applicant concluded that Article 3 of the Convention had been violated because of the inhuman situation that Y.C. had been in. 2. The Government 105. The Government contended that the medical care afforded to Y.C. between 28 September and 4 October 2005 had been adequate. This could be seen from the fact that the first examination had been carried out by the police doctor directly after Y.C. ’ s announcement of his hunger strike and that the ensuing daily medical check-ups had continued until his death ( contrast Nevmerzhitsky v. Ukraine, no. 54825/00, §§ 103-104, ECHR 2005 ‑ II (extracts)). The clinical examinations carried out within this context were based on the ordinance issued by the Ministry of the Interior regarding the medical measures to be taken in the event of a hunger strike ( contrast Palushi v. Austria, no. 27900/04, § 72, 22 December 2009). The doctors treating Y.C. had been able to communicate with him in English without problems. When Y.C. had refused to be examined by the police doctor on 4 October 2005, he had immediately been transferred to a public hospital for a complete clinical evaluation ( contrast Aleksanyan v. Russia, no. 46468/06, §§ 151-158, 22 December 2008). 106. The Government submitted that Y.C. had therefore been subject to an extensive medical examination at a public hospital only a few hours before his death. According to the report issued by the clinic, Y.C. had by no means been in grave danger at the time of his examination there, and there had been no indication of a life-threatening situation. There had therefore been no indication that Y.C. should have been admitted by the hospital as an in-patient. As the autopsy report had shown, Y.C. had ultimately died as a result of dehydration, combined with the fact that he had been a carrier of sickle cell disease; the fact that he had been a carrier of sickle cell trait had been known neither to him nor the authorities. Until Y.C. ’ s death, the Austrian authorities had had no experience regarding the health risk emanating from this anomaly of the blood cells within the context of a hunger strike. 107. The Government stated that the IAP had conducted a detailed and thorough investigation with the assistance of sworn medical experts. The Administrative Court had considered it an established fact that under the given circumstances, the competent authorities had not been required to know about the direct danger to Y.C. ’ s life and health posed by sickle cell disease, and that the need for a prophylactic blood test for the detection of this anomaly had not been medically indicated at any time. 108. When it came to the applicant ’ s complaint that Y.C. had been placed in a security cell, the Government submitted that the applicant had not presented any arguments concerning the condition of the cell, but had merely stated that there had been no legal basis for that measure. The Government stated that the legal basis could be found in section 5 of the Detention Ordinance as Y.C. had been endangering his own health and that of others by violence. He had also been a significant burden on other detainees as he had already exhibited very aggressive behaviour during his examination in hospital (see paragraph 17 above). Moreover, Y.C. could have requested a water bottle at any time, there had been a mattress on the floor, and natural light had entered through two barred windows. Given the adequacy of the equipment in the cell and the short duration (less than two hours) of Y.C. ’ s detention there, the intensity of the separation measure had not attained such a level of severity as to bring his detention in the security cell within the scope of Article 3 of the Convention (see, mutatis mutandis, Valašinas v. Lithuania, no. 44558/98, § 112, ECHR 2001 ‑ VIII). 109. The Government considered that the fact that Y.C. had been on hunger strike at that time could not change this assessment. The present case differed in several aspects from the facts underlying the case of Palushi ( cited above ), as adequate measures had been taken to supervise Y.C. ’ s stay in the security cell by carrying out checks at short (fifteen - to thirty- minute ) intervals. B. The Court ’ s assessment 1. General principles 110. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim ’ s behaviour (see, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000 ‑ IV). 111. According to the Court ’ s case-law, ill ‑ treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum 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 state of health of the victim (see, among other authorities, Stanev v. Bulgaria [GC], no. 36760/06, § 202, ECHR 2012 ). 112. Conditions of detention may sometimes amount to inhuman or degrading treatment (see Peers v. Greece, no. 28524/95, § 75, ECHR 2001 ‑ III ). When assessing conditions of detention, account has to be taken of the cumulative effects of those conditions, as well as the specific allegations made by the applicant (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II). 113. The authorities are under an obligation to protect the health of persons deprived of their liberty. A 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). Moreover, the Court has found problematic from the point of view of Article 3 the placement in solitary confinement of 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 (see Palushi, cited above, § 72 ). 114. The Court has previously held that complete sensory isolation, coupled with total social isolation, can destroy the personality and constitutes a form of inhuman treatment which cannot be justified by the requirements of security or any other reason. On the other hand, removal from association with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or degrading punishment (see Messina v. Italy (no. 2) (dec.), no. 25498/94, ECHR 1999 ‑ V). 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 and its duration, the objective pursued and the effects of the measure on the person concerned (see Van der Ven v. the Netherlands, no. 50901/99, § 51, ECHR 2003 ‑ II; and Lorsé and Others v. the Netherlands, no. 52750/99, § 63, 4 February 2003). Furthermore the Court has emphasised that the positive obligation to protect persons in custody must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities (see, in the context of Article 3, Pantea v. Romania, n  33343/96, § 189, 3 June 2003; Premininy v. Russia, no. 44973/04, § 83, 10 February 2011; Tautkus v. Lithuania, no. 29474/09, § 52, 27 November 2012; in the context of Article 2 see Ketreb v. France, no. 38447/09, §§ 71-72, 19 July 2012, with further references ). 2. Application to the present case 115. In relation to the applicant ’ s complaint that the medical treatment of Y.C. during his hunger strike was not in accordance with the relevant laws and ordinances, the Court notes in general that with regard to the steps to be taken in the event of a hunger strike, clear instructions were issued by the Ministry of the Interior to the authorities, which had been prepared after consultations with its medical service and various NGOs (see paragraphs 63 - 66 above). The Court sees no indication that these instructions were in themselves insufficient or unclear, or that overall in the instant case they were not sufficiently followed. When Y.C. announced his hunger strike to the authorities, he was handed an information sheet in his mother tongue detailing the risks associated with a hunger strike, and he was examined by a medical doctor without delay. A hunger strike form was filled out and certain medical measures were taken on a daily basis by the police doctor on duty (see paragraphs 12 - 14 above). There is no indication that any legal provision, internal order, recommendation or international material concerning medical care for detainees on hunger strike was disregarded. Furthermore there were no indications that Y.C. suffered from sickle cell disease and he was not aware of it himself. At the time, even hospitals did not conduct standardised tests for that blood anomaly (see paragraph 52 above). The Court therefore cannot blame the authorities for not having given appropriate instructions at the outset to conduct such a test for the applicant. 116. When it comes to the question of whether the authorities should have noticed Y.C. ’ s worsening state of health at an earlier stage and taken appropriate measures, the Court reiterates that on 28 September 2005, the day of Y.C. ’ s initial hunger- strike examination, the police doctor described Y.C. ’ s appearance as “vital, overall”, “his musculature in a good, well ‑ trained state” with “pronounced muscles of the upper arm, six-pack like someone who practices athletic sports” (see paragraph 12 above). During the administrative proceedings, all except one of the witnesses stated that even shortly before his death, Y.C. had still appeared to be athletic and strong (see paragraph 40 above). The police doctor Dr F.G. stated that on 3 October 2005 Y.C. had walked into the examination room without support, which is why he had not assumed that Y.C. was in a life ‑ threatening situation. However, because on 4 October 2005 it was noticed that Y.C. had a dry tongue and barky lips and had arrived at the examination room while being supported by two detainees (see paragraph 16 ), Dr F.G. ordered the examination that day to be carried out at the hospital (see paragraph 41 above). During the examination at Linz General Hospital on the day of his death, he used a great deal of physical force, resisting the examination and kicking out at the hospital staff (see paragraphs 17 and 19 above). The treating doctor, an experienced emergency doctor, observed Y.C. ’ s dry lips, but after a further examination he could not find other symptoms of dehydration or other abnormalities (see paragraph 19 above). Nevertheless, a blood test was ordered to address that question. 117. The Court therefore concludes that on the morning of 4 October 2005 Y.C. ’ s external appearance was that of a physically fit man who was aggressive because he did not want to be examined. Even though the applicant ’ s behaviour might, with hindsight, be considered as a sign of already advanced dehydration and a consequent disintegration of his blood cells owing to sickle cell disease (see paragraph 34 above), that was not foreseeable at the time of the events. That impression is confirmed by both experts ’ description of Y.C. ’ s physical condition after his death. Dr H., who drew up the autopsy report, found no signs of classic dehydration in Y.C.´s body and, moreover, no malnutrition and no long-term abstinence from food (see paragraph 31 ). 118. As regards the calculation and registration of Y.C. ’ s weight, the Court observes that, according to the information available to it, prior to the hunger strike, on 12 September 2005, it was recorded as 76.5 kg which went down to 70 kg on 26 September. When he informed the authorities of his hunger strike on 28 September 2005, Y.C. ’ s weight was recorded as 67 kg, which was taken as the basis for calculation of his critical weight at 54 kg. When he died, Y.C. weighed 59 kg (see paragraphs 10 - 13 and 18 above). Based on the extensive investigation conducted at domestic level, there were no indications that Y.C. ’ s weight had ever been wrongly calculated and that he had possibly reached his critical weight before he died on 4 October 2005. Dr L., appointed by the IAP to deal extensively with that issue, did not support the assumptions of Dr W.G., whom the applicant had engaged and who contended that Y.C. had started his hunger strike earlier than 27 September 2005 and had already fallen below his critical weight before his death (see paragraph 44 above). Dr L. found it likely that Y.C. had always been weighed properly and stated that the relatively high weight of 76. 5 kg recorded on 12 September must have been an incorrect recording (see paragraph 55 above). The Court considers this possible mistake particularly regrettable because the correct recording of a detainee ’ s weight may be critical for determining when and what medical care is made available during detention and the course of a hunger strike (see paragraphs 64 - 65 above). Given the protocol in place in Austria for the treatment of detainees on hunger strike, it falls to the competent authorities to follow the instructions it contains with due diligence. However, on the basis of the experts ’ reports, which were examined in detail by the domestic investigative authorities, the Court cannot discern any causal link between the possible mistake in recording Y.C. ’ s weight on 12 September, the calculation of his critical weight on 28 September and his death on 4 October 2005. As has been convincingly established in medical terms, the cause of Y.C. ’ s death was dehydration whose effects were rapidly and unforeseeably exacerbated by the fact that he was a carrier of sickle cell disease (see paragraphs 32, 33 and 54 ). Neither Y.C. ’ s appearance nor his behaviour at the hospital gave rise to an assumption that he could be suffering from acute, life-threatening dehydration. The fact that Y.C. was a carrier of sickle cell disease was only discovered through a blood test, of which the result only became available after his death. In addition, although Y.C. was returned to the detention centre before the result of the blood test was available, this was following a medical assessment of his condition. 119. In the light of those facts and the witness and expert statements, the Court sees no reason to question the domestic courts ’ conclusion that the authorities could not have been aware that Y.C. was in a life-threatening situation requiring urgent medical attention. It was not foreseeable that, if his health declined, the rate of decline would be precipitous due to the undetected sickle cell disease. 120. Turning to the applicant ’ s complaint that the measure of placing Y.C. alone in a security cell without any legal basis after he had returned from Linz General Hospital on 4 October 2005 had constituted inhuman or degrading treatment, the Court notes at the outset that the decision was based on section 5 of the Detention Ordinance and was due to his aggressive behaviour in hospital (see paragraphs 42 and 108 above). 121. The present case must furthermore be distinguished from Palushi (cited above, § 74). In the latter case the Court found a violation of Article 3 of the Convention because the applicant had been placed in solitary confinement without access to appropriate medical care, had had no access to a doctor for several weeks (ibid., § 7 2 ) and was therefore at the time of the critical events already at an advanced stage of a hunger strike with an increased risk of losing consciousness. In the present case, the applicant ’ s brother had access to medical care throughout his detention, care which was even provided on a daily basis after he had announced his hunger strike, only six days before his death. This constant medical care was based on a developed domestic practice concerning the treatment of hunger strikers and was in compliance with international standards (see paragraphs 63 – 66 and 115 above). Moreover, the applicant ’ s brother was examined in hospital a few hours before his death (see paragraph 17 above). 122. In that context, the Court observes that while it is true that Y.C. could have requested a water bottle at any time, it would clearly have been advisable given the situation to provide him with direct access to water in the cell and to advise him to take in fluids. However, as it was not possible either for the hospital or the authorities at the detention centre to detect the critical state of the applicant ’ s health and the fact that he might go into rapid decline due to the sickle cell disease, the failure to take such measures cannot, under the circumstances, be considered as inhuman or degrading. 123. For the above reasons, the Court concludes that there has been no violation of Article 3 of the Convention.
The Court held that there had been no violation of Article 2 (right to life) of the Convention. There was, in particular, no indication of shortcomings in the public prosecutor’s investigation, which had been closed as no sufficient evidence had been found to indicate misconduct on the part of the persons in charge. The public prosecutor had relied on the comprehensive autopsy report and expert medical report, which had clearly stated that death through the use of force could be excluded, and that the applicant’s brother had died of dehydration, combined with the fact that he had been a carrier of sickle cell trait. The Court also held that there had been no violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. As regards, in particular, the steps to be taken in the event of a hunger strike, it noted that clear instructions had been issued by the Ministry of the Interior to the authorities, which had been prepared after consultations with its medical service and various NGOs. There was no indication that those instructions were in themselves insufficient or unclear, or that overall in the instant case they were not sufficiently followed. Furthermore there had been no indications that the applicant’s brother suffered from sickle cell disease and he had not been aware of it himself. At the time, even hospitals did not conduct standardised tests for that blood anomaly. The authorities could not be blamed for not having given appropriate instructions at the outset to conduct such a test for the applicant’s brother.