Incident of 8 July 2002

The European Court of Human Rights recalled that in respect of a person deprived of his liberty, recourse to physical force that has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of Article 3 ( Ribitsch v. Austria 1995; Berliński v. Poland 2002).

The applicant maintained that the authorities knew or ought to have known about his deteriorating mental condition and had ample time to consider appropriate measures to prevent his violent outburst on 8 July. Furthermore, despite his erratic behaviour, witnesses commented that he did not constitute any obvious or imminent danger to the prison officers and cellmates. He considered that the use of force against him was unnecessary and excessive, i.e. disproportionate. The government contended that the applicant had been restrained only to the extent made necessary by his own conduct, i.e. the guards had used proportionate force.

In this context the Court found that the use of truncheons was unjustified and amounted to inhuman treatment, thus violating Article 3, i.e. the force used was in essence excessive and disproportionate.

Handcuffing in the disciplinary cell

The Court recalled that Article 3 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 ( Labita v. Italy 2000; Poltoratskiy v. Ukraine 2003; Van der Ven v. the Netherlands 2003). In considering whether a punishment or treatment is degrading within the meaning of Article 3, the Court will also have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected their personality in a manner incompatible with Article 3 ( Raninen v. Finland 1997). Degrading treatment has also been described as involving treatment such as to arouse feelings of fear, anguish and inferiority capable of humiliating or debasing the victim and possibly breaking their physical or moral resistance ( Ireland v. UK 1978; Kudła v. Poland 2000) – the question whether the purpose of the treatment is to humiliate or debase the victim is a further factor to be taken into account, but the absence of any such purpose cannot conclusively rule out a violation of Article 3 ( Peers v. Greece 2001; Kalashnikov v. Russia 2002; Ramirez Sanchez v. France 2006).

The Court noted that the use of handcuffs or other instruments of restraint does not normally give rise to an issue under Article 3 where the measure has been imposed in connection with a lawful detention and does not entail the use of force or public exposure exceeding what is reasonably considered necessary ( Raninen v. Finland 1997; Mathew v. the Netherlands 2005). Moreover, a measure that is of therapeutic necessity from the point of view of established principles of medicine cannot in principle be regarded as inhuman and degrading – however, a Court must nevertheless satisfy itself that the medical necessity has been convincingly shown to exist ( Herczegfalvy v. Austria 1992). Furthermore, the manner in which the applicant is subjected to the measure in issue should not go beyond the threshold of a minimum level of severity envisaged by the Court's case law under Article 3 ( Nevmerzhitsky v. Ukraine 2005).

The applicant submitted that the period of being constantly handcuffed and the insufficiency of the medical assistance afforded him amounted to a violation of Article 3. The government maintained that the handcuffing was a proportionate and necessary measure in response to the applicant's conduct and the potential threat he posed to himself and others. The Court was struck that having been injured while being restrained and having been observed by medical staff to exhibit self-injurious behaviour even when handcuffed, the applicant was not afforded any medical care for his injuries.

The Court found that the handcuffing of the mentally ill applicant without psychiatric justification or medical treatment for injuries sustained was to be regarded as constituting inhuman and degrading treatment and violated Article 3.

Medical assistance and treatment provided for the applicant

The applicant submitted that he had not been provided with necessary medical treatment in the course of his detention in prison on two separate periods (4 and 6 weeks respectively). The Court recalled that authorities are under an obligation to protect the health of persons deprived of liberty ( Hurtado v. Switzerland 1994) and more importantly the lack of appropriate medical care may amount to treatment contrary to Article 3 (& Idot;lhan v. Turkey 2000; Sarban v. Moldova 2005; see also Naumenko v. Ukraine 2004; Farbtuhs v. Latvia 2004). In the case of people with mental illness, the assessment of whether the treatment or punishment concerned is incompatible with the standards of Article 3 must take into consideration their vulnerability and their inability, in some cases, to complain coherently or at all about how they are being affected by any particular treatment ( Herczegfalvy v. Austria 1992; Aerts v. Belgium 1998).

The Court concluded that the domestic authorities did not provide appropriate medical treatment to the applicant while he was handcuffed in solitary confinement. It was particularly concerned with the 1-month delay in him being seen by a psychiatrist, despite specifically being moved into the psychiatric ward of the prison hospital. Another delay of a month, during which his mental state deteriorated and he assaulted a cellmate, was also of concern following his forensic assessment, which recommended that he be moved to receive treatment in a specialised hospital. The Court found that this level of care could not ‘be deemed to be adequate and reasonable medical attention, given the applicant's serious mental condition’ and amounted to inhuman and degrading treatment and hence an Article 3 violation.

Effectiveness of the investigation

The Court recalled that where an individual raises an arguable claim that he or she has been seriously ill-treated by state officials in breach of Article 3, that provision, read in conjunction with the state's general duty under Article 1 of the Convention to ‘secure to everyone within their jurisdiction the rights and freedoms defined in … [the] Convention’, requires that there should be an effective official investigation. Such an investigation should be capable of leading to the identification and punishment of those responsible ( Assenov and Others v. Bulgaria 1998; Labita v. Italy 2000). The minimum standards as to effectiveness also include that the investigation must be independent, impartial and subject to public scrutiny, and that the competent authorities must act with exemplary diligence and promptness ( Menesheva v. Russia 2006).

The Court concluded that because of the lack of independence, promptness and public scrutiny on the part of the investigative authorities, the investigation failed to meet the minimum standards of effectiveness and hence there had been a procedural violation of Article 3.

Final judgment

The Court held there had been multiple violations of Article 3 in respect of:

1. • the prison officers' excessive use of force

2. • the applicant's handcuffing while in detention in the disciplinary cell

3. • the lack of adequate medical treatment

4. • the lack of adequate investigation into the applicant's complaints of ill-treatment.

The Court established that the Article 3 violations had occurred while the applicant was deprived of liberty in violation of Article 5 (the right to liberty and security) and, having regard to the comparable case law ( Nevmerzhitsky v. Ukraine 2005; Khudoyorov v. Russia 2005; Menesheva v. Russia 2006), awarded the applicant, on an ‘equitable basis’, €20 000 in compensation.

Conditions of detention

The applicant complained that he had to share overcrowded cells with detainees who had infectious diseases such as tuberculosis and about the presence of parasitic insects. He also complained of a lack of proper ventilation and access to daylight (there was no window in his cell and he had electric lights for only 5–6 hours a day) and the rudimentary sanitary conditions allowed no privacy. (See also the Scottish case of Napier [2004] which found that both Article 3 and 8 (the right to respect for private and family life) were violated with regard to the conditions of detention of a remand prisoner, which included ‘slopping out’ procedures and prompted mass claims by prisoners for compensation totalling millions of pounds.)

The Court commented that the distinction between torture and inhuman or degrading treatment was intended to ‘attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering’ ( Ireland v. UK 1978). The Court reiterated that to fall within the scope of Article 3, ill-treatment must attain a minimum level of severity and that 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 gender, age and state of health of the victim ( Ireland v. UK 1978; see also Papon v. France 2002; Mouisel v. France 2002). The judgment pertinently noted that the state must ensure that:

More recent case law noted that when assessing conditions of detention, account has to be taken of the cumulative effects of those conditions and the duration of the detention ( Ostrovar v. Moldova 2005). Unsurprisingly, the Court found that the conditions of the applicant's detention had been inhuman, in particular as a result of extreme overcrowding, unsanitary conditions and the poor quality of food, as well as the prolonged period during which the applicant had been detained in such conditions. Article 3 had therefore been violated.

Force-feeding

The applicant began a hunger-strike as a protest against alleged violations of his rights. Because no prosecutor came to discuss with him the alleged violations for 2 weeks after being imprisoned, he cut his wrists and set fire to himself (the prison psychiatrist considered the applicant had been perfectly aware of the consequences of his actions and that they were a protest against abuses of his rights). The applicant was subsequently force-fed (pursuant to domestic law) on seven occasions when his health was assessed to be deteriorating. His hunger-strike lasted 2 months.

In lodging his force-feeding complaint he described the ‘pain and humiliation’ caused – he was always handcuffed, even though he never physically resisted force-feeding but simply refused to take food as a form of protest. The prison staff forced him to open his mouth by pulling his hair, gripping his neck and stepping on his feet until he could no longer bear the pain and opened his mouth. His mouth was fixed in an open position by means of a metal mouth-widener. His tongue was pulled out of his mouth with a pair of metal tongs. A hard tube was inserted as far as his stomach and liquidised food was passed through.

The applicant complained that he was force-fed for punitive reasons only and in the absence of any medical necessity. He also complained about the manner in which the force-feeding had been carried out. The government contended the applicant's force-feeding was based on medical need, was ordered and carried out by qualified medical personnel and was authorised by law. The applicant's refusal to eat for 24 days had exposed his life to a real risk and it was the duty of the doctors to protect him (the applicant's suicidal behaviour and being diagnosed with ‘mosaic schizophrenia’ were additional factors making the restraints necessary according to the government).

The Court's assessment

The Court noted previous case law had held that:

The Court reiterated that a measure that is of therapeutic necessity from the point of view of established principles of medicine cannot in principle be regarded as inhuman and degrading ( Jalloh v. Germany 2006). The same could be said about force-feeding aimed at saving the life of a particular detainee who consciously refuses to take food.

The Court concluded that the applicant's repeated force-feeding was not prompted by valid medical reasons, but rather with the aim of forcing the applicant to stop his protest. Furthermore, it was performed in a manner that unnecessarily exposed him to great physical pain and humiliation that could only be considered as torture, which violated Article 3. Deciding on an equitable basis, the Court awarded the applicant €20 000 in compensation (for a review of force-feeding and the Human Rights Act 1998, see Reference CurticeCurtice 2002).

Pilcic v. Croatia (2008)

The first case involved a prisoner who had various undisputed physical ailments. The Court considered the applicant's medical problems, other than kidney stones, had been appropriately treated. Surgery was recommended for his kidney stones. Despite being seen on dozens of occasions for renal symptoms over a 4-year period, no steps were taken to organise surgery. The Court considered that by leaving the applicant to experience considerable occasional pain for a prolonged period of time without a foreseeable prospect of being permanently relieved of his kidney ailment, the prison authorities failed in their obligation to provide the required medical treatment, which constituted inhuman and degrading treatment. (Although this is a medical case, the concept of treatment being inadequate for one disorder in someone who has many disorders that are adequately treated, could easily apply to psychiatric patients.)

Musiał v. Poland (2009)

The second case involved a young man held on remand and who had schizophrenia. In prison the applicant received regular psychotropic drugs. Although he had regular access to prison in-house medical staff, he did not remain under regular psychiatric supervision and his access to a psychiatrist had been restricted to emergencies or when he was seen as an out-patient. The Court found that the cumulative effects of the inadequate medical care, and specifically the lack of ‘constant and specialised medical supervision’, clearly had a detrimental effect on his health and well-being and qualified as inhuman and degrading treatment.