Ill-treatment by prison officers
II. RELEVANT DOMESTIC LAW AND PRACTICE 48. 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. 49. 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 50. 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. 51. 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. 52. 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 53. 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.” 54. The Government contested that argument. A. General principles 55. 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). 56. 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). 57. 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.). 58. 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 ). 59. 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). 60. 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). 61. 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 62. 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. 63. 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 64. 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 65. 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. 66. 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. 67. 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. 68. 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 69. 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. 70. 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 ). 71. 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. 72. 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. 73. 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. 74. 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 75. 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. 76. 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. 77. 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. 78. 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. 79. 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. 80. 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). 81. 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. 82. 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 83. 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. 84. 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 85. 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 86. The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage. 87. 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. 88. 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 89. The applicant also claimed EUR 1,776.20 for costs and expenses incurred before the Court. 90. 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. 91. 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 92. 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.
The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. As regards in particular the legitimacy of the use of pepper spray against the applicant, the Court referred to the concerns expressed by the European Committee for the Prevention of Torture (CPT) concerning the use of such agents in law enforcement. According to the CPT, pepper spray was a potentially dangerous substance which was not to be used in confined spaces and never to be used against a prisoner who had already been brought under control. Pepper spray could have serious effects on health such as irritation of the respiratory tract and of the eyes, spasms, allergies and, if used in strong doses, pulmonary oedema or internal haemorrhaging. Having regard to these potentially serious effects of the use of pepper spray in a confined space and to the fact that the prison officers had had alternative means at their disposal to immobilise the applicant such as helmets or shields, the Court found that the circumstances had not justified the use of pepper spray. As further regards the applicant’s strapping to a restraint bed, the Court underlined in particular that measures of restraint were never to be used as a means of punishment of prisoners, but rather in order to avoid self-harm or serious danger to other individuals or to prison security. In the applicant’s case it had not been convincingly shown that after the end of the confrontation with the prison officers – and being locked in a single-occupancy disciplinary cell – he had posed a threat to himself or others that would have justified applying such a measure. The period of three and a half hours for which he had been strapped to the restraint bed had therefore by no means been negligible and his prolonged immobilisation had to have caused him distress and physical discomfort.