ECHR judgment of June 21, 2018 in the case of Semash v. France (application No. 36083/16).
In 2014, the applicant was assisted in the preparation of the application. Subsequently, the application was communicated to France.
The case has successfully considered an application of use to an elderly person who was intoxicated with a deterrent technique, when a person is forced to take a sitting position and press his head to his knees (the so-called "double seizure technique"), and then left without medical assistance for more than one hour. The case was a violation of Article 2 of the Convention.
THE CIRCUMSTANCES OF THE CASE
In 2009, the applicant's father, who was 69 years old, was detained by the police for insulting a police officer, and the driver of the car was also detained along with him, who unpredictably drove along the road. Both men were intoxicated. During the time they were brought to the police station, a police officer immobilized the applicant's father, forcing him to bend and lean his head against his knees (the so-called “double-seizure” technique).
Upon arriving at the police station, at about 8.45 pm, the applicant's father could hardly stand, vomited him several times, and then he fell into a pool of his vomiting, where he remained lying with his hands cuffed, without a medical examination or medical assistance. Half an hour later, it was decided to send the applicant's father to the hospital, but before that he waited 45 minutes in a police van. When the applicant's father was taken to the hospital after 10 pm, the police officers noted that the detainee was choking on vomiting. At 10.45 pm the doctor diagnosed the applicant's father with a heart attack. He fell into a coma and died the next day at 7.30.
In its 2010 conclusion, the National Ethics and Safety Commission (CNDS) noted that the force applied to the complainant’s father was excessive and that the police did not receive adequate assistance from the police station. In 2012, the judge who considered the case ordered the termination of the proceedings, which was left unchanged in 2014 by the Chamber of the Criminal Appeal Court, in particular, on the grounds that the judicial investigation did not confirm the findings of the National Ethics and Safety Commission and that, according to expert conclusions, it was not established the presence of a causal link between chest compression during the transportation of the detainee and his death.
QUESTIONS OF LAW
(a) Admissibility (exhaustion of domestic remedies). In a recent suicide case of a person detained under the control of police officers, the European Court of Justice found that even for a complaint based on the substantive part of Article 2 of the Convention, the fact of using the complaint as a remedy in a criminal proceeding and joining the process as a third civil party, submitted to the judge considering the case, did not exempt the applicants from filing a claim, funds that existed at least since March 2011, for the recognition of responsibility of the state for the inadequate functioning of the judicial system, that is, the applicants use a more flexible procedure that provides other prospects for success (see Benumouna and Others v. France) of the European Court of Justice on September 15, 2015. ., complaint N 51097/13).
Since the applicant in the present case appealed against actions or omissions that could have resulted in criminal responsibility of police officers for the death of her father, taking into account the applicant’s use of the above remedy and the fact that the criminal complaint she submitted led to a number of court decisions, talk about exhausting the remedies available to her. Therefore, she cannot be reproached with the fact that she did not file an additional complaint against the state (see, in particular, the European Court of Justice in the case of Slimani v. France (Slimani v. France) of July 27, 2004, complaint No. 57671 / 00, and the European Court of Justice in the case of "De Donder and de Klippel v. Belgium" (De Donder and De Clippel v. Belgium) of December 6, 2011, complaint No. 8595/06).
(b) The merits of the complaint are a violation of Article 2 of the Convention (substantive aspect). Two separate issues were touched upon in the case: first, the negative obligation of the authorities of the respondent state regarding the use of force by police officers, secondly, the positive obligation of the authorities of the respondent state to take all necessary measures to protect the lives of persons under their control.
(i) Use of force during escort to the police station. The Court agrees that the application of actions to immobilize the applicant's father pursued a legitimate aim: in accordance with Article 2, paragraph 2 (a) of the Convention, to neutralize the detainee, since his aggressive condition posed a threat to his safety and the safety of other persons transported, persons who were on the road, so these actions were strictly proportional to the threat in question.
The applicant claimed that the deterrence technique applied to her father was disproportionate in and of itself.
In the case of Saud v. France (Saoud v. France) (European Court of Justice of 9 October 2007, application No. 9375/02), the European Court found that there was a violation of the Convention in relation to various methods of immobilizing people, except for one which was also associated with putting pressure on the chest: put the detainee with his belly down on the ground, turning his head to the side. However, the European Court considered the use of this technology in the light of not a negative obligation of the state, but its positive obligation to care for persons under its control in order to protect their lives.
In the present case, the Court decided to apply a similar approach. It was impossible to determine from the case file whether there was a direct causal link between the use of the detention technique in question and the death of the detainee, which occurred several hours later.
(ii) The applicant’s father’s treatment at the police station. Firstly, the police could not be unaware of the state of the victim, the circumstances of his escort to the police station and his poor health.
Secondly, the danger to life when applying containment techniques, including pressure on the chest, was recognized by the French authorities and was known to police officers who detained and transported the applicant's father, especially because of a person’s mental or physical disabilities or general vulnerability:
- after the adoption of the above-mentioned European Court ruling on the Saud v. France case, it was now recommended (not only with respect to the equipment used in the present case, but also in other cases) to put the controlled person “in a safe lying position” special supervision of him;
- with regard to the “double capture” technique, it was actually banned for use in France against expatriate aliens.
Consequently, the authorities of the respondent state had an increased duty to attend to the detainees. Instead, the applicant's father was left lying on the floor for 75 minutes in her own vomit with her cuffed hands without immediate medical examination or medical attention.
The decision of the Court of Appeal on this matter only noted that none of the witnesses in the case had reported the loss of consciousness to the applicant's father or analyzed the treatment of the detainee, in particular, not checking whether he was lying on the floor in a safe position to hold.
Thus, it appears that, as also noted in the opinion of the National Ethics and Safety Commission, the situation concerning the applicant's father was treated with negligence at the police station.
Taking into account the peculiarities of the case, namely the age of the victim, his general condition and, especially, being intoxicated, the fact that the applicant's father was abused during her transfer to the police station and kept in a potentially life-threatening posture and the lack of medical care for 75 minutes, the European Court concluded that the authorities of the respondent state did not fulfill their positive duty to take all necessary measures to protect the applicant’s father’s life herts This conclusion is based on a combination of all the above factors, and not on one of them.
The case was a violation of Article 2 of the Convention (adopted unanimously).
The European Court also unanimously established that there was no violation of the procedural aspect of Article 2 of the Convention.
In application of Article 41 of the Convention. The European Court awarded the applicant EUR 30,000 in respect of non-pecuniary damage.