(Application no. 27900/04)
22 December 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Palushi v. Austria,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Sverre Erik Jebens, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 3 December 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. The events at issue
B. Proceedings brought by the applicant
1. First set of proceedings before the Independent Administrative Panel
2. Second set of proceedings before the Independent Administrative Panel
“As a result of his hunger strike, the applicant lost eleven kilograms within a very short time and was further behaving in an uncooperative, refractory manner and did not miss an opportunity to attract attention, which – from the applicant's point of view – is probably legitimate and comprehensible but also resulted in his not being treated in the most attentive and gentle way.
The applicant had repeatedly shouted and disturbed the peace in his cell, which he shared with several other inmates. On 21 May 1994 the applicant's cellmates informed the police officers on guard in the prison that he had fallen from the toilet and had suffered an injury to his head. Since the police officers wanted to restore order in the cell shared by several inmates, the applicant was carried out from the cell and transferred to the individual cell situated in a separate part of the building – one floor below. Since he was carried – in particular because he made no voluntary effort to walk on his own – it happened that while being taken down the steps, his back dragged along the edges of the steps and in the process he suffered superficial skin irritations.
After being moved to individual cell no. E 184 and examined by a paramedic of the Police Prison, his slightly bleeding wound was cleaned and bandaged. After the applicant had informed the paramedic on 24 May 1994 that he also had an abrasion on his back, the latter notified the prison doctor, who treated the wound with a spray and bandage.
The applicant subsequently remained in detention awaiting his expulsion until 28 May 1994, 12 noon, staying in cell E 184, and at the above time he was released because he was unfit for further detention.
Evidence was taken through an inspection of the file of the Vienna Federal Police Authority, the file of the Vienna Regional Criminal Court, the Josefstadt District Court and the file of the proceedings conducted by the Vienna Independent Administrative Panel. In addition, the established facts were based on the transcripts of the oral hearing in the first round of proceedings, Zl. 02/31/57/94, which contain the statements of the police officers examined at that time. Moreover, the Independent Administrative Panel conducted a supplementary oral hearing during which the transcripts of the first round of proceedings were read out and the witnesses Horvath, Mag. Staub and Pichler were examined. Finally, the Panel taking this decision obtained a medical opinion from an ear, nose and throat specialist and indirectly carried out an inspection of the site to determine the local situation at the relevant time.
The witnesses examined both in the first round of proceedings and in the continued proceedings were highly credible. The witnesses in the continued proceedings were, however, unable to comment on the factual situation, in particular the cause of the injuries, firstly because they had only noticed the applicant's injuries some time after they had been inflicted on him and were thus unable to comment first hand on the cause of these injuries. Secondly, the injuries were not such as to clearly indicate their origin, and on account of their lack of expert knowledge, the witnesses were not able to comment on the cause of these injuries. Lastly, it is doubtful to what extent statements by witnesses which are intended to reflect a direct perception can – after a period of almost four years – still be so unhampered and uninfluenced as to meet the requirements of fair proceedings.
The same must naturally hold true for the police officers, and it was not least for that reason that these officers were not examined afresh and the present decision is based on their examination in the course of the oral hearing in the first round of proceedings. The statements by the police officers were conclusive and in accord with one another; moreover, the statements made during the oral hearing in the first round of proceedings and the statements made during their questioning in the course of the preliminary investigations were consistent, without any serious contradictions relevant to the decision being discernible. Moreover, the statements of the police officers were in line with the contents of the first-instance administrative file, and on that account it could also be assumed that during his detention pending expulsion the applicant behaved in an extremely refractory manner, and the conduct of the police officers was thus the only suitable way to bring about a solution to these problems.
The applicant appeared extremely calm – not to say serene – to the Vienna Independent Administrative Panel, which is why from the present perspective, the idea that the applicant behaved as described in the facts seemed realistic only with a great deal of imagination. The Vienna Independent Administrative Panel must, however, also take into account the fact that at that time – unlike today – the applicant was in an exceptional state of mind, and such conduct must therefore be regarded as absolutely possible.
Finally, the authority determining the case also proceeds from the assumption that the applicant had been in a kind of emergency situation at the time, and his 'civil disobedience' was the only possible way for him to successfully avoid expulsion.
The expert medical opinion and the inspection of the site could not support the applicant's submission that he had to await his expulsion in a cell without light in inhuman conditions. The cell referred to by the applicant is situated at least as high as half a floor above the elevated cell level so that there is no access to the cells through the open windows from outside. The statements made by the applicant about the route on which he had been carried from the cell shared with other inmates to the individual cell differed from the maps depicting the relevant section of the Police Prison that are included in the file. It is thus also to be assumed that the applicant's emotional state in his surroundings in the Police Prison was so tense at the relevant time that it may well be that the circumstances as the applicant perceived them should be evaluated differently from his statements in his written submissions.
There is no indication that the statements by the head of Vienna Police Prison are untrue. Although he was not yet in his present position in the prison at the time, the head of Vienna Police Prison stated that as far as he knew and according to information from his colleagues, the prison had not been redesigned or renovated during the past few years.
Finally, basing itself on the expert medical opinion obtained, the Vienna Independent Administrative Panel found that the applicant had not been injured with a ballpoint pen at that time as he maintained. An injury would almost invariably have resulted in blood coming out from the wound, and the official expert in his opinion also arrived at the conclusion that such an injury did not occur.”
“Since the applicant – as can be deduced from the established facts set out above – is himself responsible for his injuries, and either inflicted those injuries on himself through his own conduct or sustained them as a result of his conduct – such as, for example, circulatory insufficiency while he was on the toilet, resulting from his hunger strike – no conduct contrary to Article 3 of the Convention could be observed. On account of both his refractory behaviour in his shared cell, causing unrest among the other inmates, and his passive resistance while being taken to the individual cell, the police officers carried the applicant down the staircase because of his circulatory insufficiency, and the intervening officers had no other possible way of taking him to the individual cell.
The applicant also described the situation and circumstances in the individual cell in such a manner that one cannot follow his submissions from the present perspective. The cell at issue has always been situated some five metres above the ground level of the courtyard, and in any event sufficient light comes into the cell. Moreover, the cell has a sufficiently large window, which thus also guarantees the inflow of natural light. Nor is it understandable why the applicant believes that he was taken to a cell in the cellar and was detained in virtual darkness. At no time was there any indication to that effect in the investigation proceedings.
If the applicant also submits that he was denied medical treatment, it must be said on the contrary that he regularly received medical treatment both during his hunger strike and during his detention in the individual cell, which means that he was repeatedly taken to a doctor and his state of health was under constant supervision by a qualified paramedic, who would at any time have been in a position to arrange for the intervention of a doctor.
Finally, in his submissions as a whole, the applicant gave an explanation of the entire sequence of events which was not very consistent or easy for the authority deciding his case to understand; it cannot be assumed that the applicant intentionally made untrue statements to the panel deciding his case, thus intending to obtain an unjustified advantage. It must rather be assumed that – as already outlined above – the applicant was in a state of mind lacking full mental orientation and thus actually perceived the situation faced by him in such a manner.
Since no further violations of the law emanated from the proceedings conducted by the authority, the complaint had to be rejected as being unfounded on all counts ...”
II. RELEVANT DOMESTIC LAW
“§ 4 (1) Detention shall take place while ensuring respect for human dignity and the utmost protection of the person. ...
(4) Detention in solitary confinement shall be permitted only in the cases referred to in Rule 5 below.”
“§ 5 (1) Detention in solitary confinement must take place:
1. where there are facts justifying the assumption that the detainee is endangering the health of others through violence;
2. where a request to that effect has been made by a court in respect of detainees against whom criminal proceedings are pending;
3. where there is a danger of infection from the detainee or where the detainee, on account of his or her appearance or conduct, objectively represents a significant burden for other detainees.
(2) Detention in solitary confinement may take place:
1. at the detainee's request;
2. during the night, if this appears necessary to maintain safety or order;
3. as a disciplinary measure;
4. where it is necessary for a short time for organisational reasons;
5. where there are facts justifying the assumption that the detainee is endangering his or her own life or health through violence.”
Medical supervision of detainees
“§ 10 (1) Detainees who have already been declared fit for detention ... shall be immediately seen by a doctor where a justified request is made or where their continued fitness for detention is in doubt. ...
(2) The state of health of injured or sick detainees who have been declared fit for detention shall be kept under medical supervision, so that any deterioration may be observed in good time; should such deterioration render them unfit for further detention, the opinion of a doctor shall be obtained immediately.”
These instructions provided, inter alia, that
(a) hunger-strikers were to remain in multi-occupancy cells, unless there were reasons for another form of detention;
(b) a report had to be drawn up when a prisoner announced his or her intention to go on hunger strike; the prisoner had to be brought immediately before the paramedic, who had to take his weight and note it in the report;
(c) on the cell-board a capital “H” had to be added for each hunger-striker;
(d) a paramedic had to register all hunger-strikers daily; he had to keep one copy of the record, one had to be given to the prison officer on the floor concerned (and was to be transferred with the prisoner if he was transferred) and one had to be sent to the prison administration;
(e) termination of the hunger strike, release or expulsion had to be noted on the prisoner's report by the paramedic.
III. REPORT OF THE EUROPEAN COMMITTEE FOR THE PREVENTION OF TORTURE AND INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT (CPT)
“5. Police prisons
a. follow-up visit to the Vienna Police Prison
56. As already indicated (see paragraph 3), the CPT's delegation carried out a follow-up visit to the Vienna Police Prison at Roßauer Lände. Since the end of 1990, there have been two police prisons in Vienna, with a total capacity of 450 places. At the time of the CPT's second visit, the Police Prison at Roßauer Lände had a capacity of 220 and, on the day of the visit, 211 prisoners were being held there. The majority of them – 154 – were persons detained under the aliens legislation pending deportation (Schubhäftlinge). The rest were either being held at the disposal of the Security Bureau, serving an administrative sanction or awaiting transfer.
During the talks held at the end of the visit, the CPT delegation expressed its concern to the Austrian authorities about its findings in the police prison. Indeed, four years after the first visit, it found very few improvements in the conditions of detention.
57. The single and multi-occupancy cells in the prison were still in a dilapidated state and the conditions of hygiene were deplorable. In particular, most of the cells' equipment (beds, mattresses, sheets and blankets) was dirty and shabby; further, in the multi-occupancy cells, the state of the toilets and their partitioning remained very poor.
c. medical care in the police prisons visited
80. The number of general practitioners assigned to the police prisons visited can be considered adequate, given the respective capacity of those establishments. Moreover, appointments with outside specialists could be arranged where necessary.
81. The situation regarding nursing staff levels in some of the prisons visited was less satisfactory.
At the Vienna Police Prison, health care was provided by a team of ten paramedical officers (Sanitäter), who were in charge of both this establishment and of the other police prison in Vienna (see paragraph 56). They had received six weeks' basic training in the Army, followed by a period of practical training in a hospital. This training programme had begun a year earlier and it was envisaged that, in future, health care staff would follow a recognised training programme for nurses (Krankenpfleger). There was always a paramedic on duty on the establishment's premises.
85. The delegation was also concerned by the absence of any psychological support for inmates in the Vienna Police Prison.
In one of the establishment's single cells, the delegation saw an Asian woman who was patently in a state of extreme psychological distress, exacerbated by the language barrier, and for whom the necessary psychological support was not forthcoming. According to staff, the inmate in question had resisted while being escorted for deportation and had displayed violent behaviour when placed in a multi-occupancy cell.
Another inmate, on hunger strike, was observed to be in a similar state, but was not receiving the necessary psychological support either. Moreover, this inmate had started a thirst strike; he had evidently not been informed of the potential consequences of such conduct for his health.
86. It is plain from the CPT delegation's observations that the medical care provided in the police prisons visited amounted to nothing more than a somewhat developed form of first aid. This finding is all the more serious given that periods of custody in these police establishments may last for up to six months.
The CPT considers that these establishments – particularly the larger ones, such as the Vienna Police Prison – should offer a level of medical care comparable to that which can be expected in a remand prison.
In this connection, the CPT has noted with interest the proposal to create a health care unit at the Vienna Police Prison.
87. Consequently, the CPT recommends that the Austrian authorities review the provision of medical care in the light of the foregoing remarks. More particularly, it recommends that immediate steps be taken to ensure that:
The CPT would also like to receive detailed information from the Austrian authorities on the approach adopted in police prisons as regards the treatment of persons on hunger or thirst strike, and further information on the planned creation of a health-care unit at the Vienna Police Prison.
d. other issues
i. persons detained under the aliens legislation
90. As already mentioned (see in particular paragraphs 56, 65, 71 and 74), persons deprived of their liberty under the aliens legislation (FrG) represent the largest group of persons held in the police prisons visited.
It should be stressed that the detention of such persons gives rise to specific problems. Firstly, there will inevitably be communication difficulties caused by language barriers. Secondly, many foreign nationals will find it hard to accept being in custody when they are not suspected of any criminal offence. Thirdly, tensions may arise between detainees of different nationalities or ethnic groups.
Staff assigned to supervise such persons must therefore be very carefully selected and receive appropriate training. Supervisory staff should possess heightened interpersonal communication skills; they should also be familiar with the detainees' different cultures and at least some of them should have appropriate language skills. Further, staff should be taught to recognise possible symptoms of stress displayed by detainees (whether post-traumatic or induced by sociocultural changes) and to take appropriate action.
91. It is clear from the delegation's observations during the second visit that – despite commendable efforts by certain officers in the establishments visited – the staff of police prisons had not been trained to perform this particularly onerous task. The CPT therefore recommends that the Austrian authorities review the training of police officers responsible for the custody of foreign nationals in the light of the above remarks.
The CPT would also like to receive the comments of the Austrian authorities on the possibility of creating special centres for this category of persons, in which they could enjoy material conditions and a detention regime appropriate to their legal status.”
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. The parties' submissions
(a) he had been beaten and kicked;
(b) he had been stabbed behind the ears with ballpoint pens;
(c) he had suffered injuries as a result of the inappropriate manner in which he had been carried down the stairs;
(d) he had subsequently been placed in solitary confinement; and
(e) he had not been given sufficient medical care.
B. The Court's assessment
1. General principles
2. Application to the present case
(a) Alleged ill-treatment on the evening in question
(b) Detention in solitary confinement and alleged lack of medical care
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage and EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 22 December 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić