CASE OF CEESAY v. AUSTRIA
(Application no. 72126/14)
16 November 2017
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 Ceesay v. Austria,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Angelika Nußberger, President,
Gabriele Kucsko-Stadlmayer, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 17 October 2017,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 72126/14) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Gambian national, Mr Lamin Ceesay (“the applicant”), on 14 November 2014.
2. The applicant was represented by Mr H. Blum, a lawyer practising in Linz. The Austrian Government (“the Government”) were represented by their Agent, Mr H. Tichy, Head of the International Law Department at the Federal Ministry for Europe, Integration and Foreign Affairs.
3. The applicant alleged that there had been no effective or comprehensive investigation, contrary to Articles 2 and 3 of the Convention, into the death of his brother, Y.C., who had died in detention (pending his expulsion) while on hunger strike. Under Article 3 alone, he complained that the treatment of Y.C. during his hunger strike had not been in accordance with the law and that he had been subjected to inhuman and degrading treatment.
4. On 6 July 2015 the above-mentioned complaints concerning Articles 2 and 3 of the Convention were communicated to the Government and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.
I. THE CIRCUMSTANCES OF THE CASE
A. Background to the case
5. The applicant was born in 1969 and lives in Hamburg. He is the brother of the late Y.C., also a Gambian national, who was born in 1987 and applied for asylum in Austria in 2004.
6. On 4 April 2005, the Vienna Regional Criminal Court (Straflandesgericht) convicted Y.C. of drug trafficking and sentenced him to seven months’ imprisonment. Y.C. began serving his sentence at Vienna-Josefstadt Prison (Strafvollzugsanstalt). On 2 May 2005 he was transferred to Linz Prison.
7. On 18 April 2005 the Vienna Federal Police Authority (Bundespolizeidirektion) dismissed Y.C.’s asylum application and ordered his expulsion to the Gambia. An appeal lodged by Y.C. was dismissed by the Vienna Federal Asylum Office (Bundesasylamt) on 6 June 2005. He did not appeal against this decision and it became legally binding on 5 July 2005.
10. Upon his admission to the detention centre, Y.C. was examined by a police doctor (Polizeiarzt), who noted that Y.C. was in a good general state and was fit for detention. His weight was recorded at 76.5 kg and his height at 170 cm. Communication between the authorities and Y.C. took place in English.
11. On 26 September 2005 the police doctor, while conducting a routine examination which all detainees have to undergo at two-week intervals, again noted that Y.C.’s state of health was good and recorded his weight at 70 kg.
12. On 27 September 2005 Y.C. went on hunger strike. On 28 September 2005 he informed the authorities thereof. Representatives of Human Rights Association Austria (Verein Menschenrechte Österreich), a non-governmental organisation (NGO) who had already been counselling him since the day of his admission to the detention centre, came to talk to him. On the same day Y.C. was subject to an initial hunger-strike examination (Hungerstreik-Eingangsuntersuchung). Y.C. was handed an information pamphlet on hunger strikes (in English) and was also orally informed by the public medical officer of the possible consequences of a hunger strike. A medical hunger-strike protocol (Hungerstreikprotokoll) was filled out, in which his state of health was described as follows:
“Musculature in a good, well-trained state, pronounced muscles of the upper arm, six-pack like someone who practices athletic sports, appears vital, overall.”
13. On the hunger-strike protocol it was noted that at the outset of his hunger strike, Y.C. had weighed 67 kg. On the basis of this, Y.C.’s “critical weight” was calculated at 54 kg (see paragraph 64 below). Under the heading “reasons given for hunger strike”, it was noted that Y.C. “absolutely wanted to be transferred back to cell no. 36”. He had been placed in a different cell because he and his cellmates had allegedly tried to escape from cell no. 36.
14. Daily health checks of Y.C. were subsequently carried out, during which his weight was checked, his blood pressure was taken and his oxygen saturation level was measured. Until 1 October 2005, no anomalies were detected.
15. On 2 October 2005 the public medical officer noted that Y.C.’s tongue was slightly dry, and on 3 October 2005 that his lips were “barky” (borkig). Further, there were occasional comments on the hunger-strike form to the effect that Y.C. resisted examination and was “malingering” (simuliert) - for example, he had “pretended to fall”, “refused to be examined”, “needed to be carried by other detainees”, and “tilted over from [his] chair in an ostentatious manner”.
16. After examining Y.C. during the morning of 4 October 2005, Dr F.G., the police doctor in charge, noted the following:
“Pretends to be weak, has to be physically supported by two detainees - therefore weight check not possible. Dry tongue, barky lips. I request a medical assessment by a specialist. Possibly blood test, ionogram.”
17. On 4 October 2005 at 9.30 a.m., Y.C. was taken to Linz General Hospital (Allgemeines Krankenhaus) for examination and an assessment of whether he was fit enough for further detention. Because Y.C. resisted the examination and kicked out at a nurse, his hands and feet had to be shackled by the police officers who had accompanied him to the hospital. According to a report drawn up by the treating doctor on 4 October 2005, it was “not possible to assess the intake of liquids”, “communication [was] difficult” because Y.C. did not speak German, he had “dry lips” and had his eyes “constantly closed”, but “walking [was] possible if [he was] supported”. The hospital further noted that if his general condition worsened, he would have to be force-fed and taken to a psychiatric ward, because he “lashed out from time to time”. Taking his blood for a blood test had been difficult and risky; nevertheless, with the support of the two police officers, who secured Y.C. in a chair in the examination room, the doctor nonetheless managed to take a small amount of blood. After consulting the senior doctor, the treating doctor formally confirmed Y.C.’s fitness for detention and noted the police doctor’s telephone number in order to contact him after obtaining the results of the blood test.
18. Y.C. was subsequently taken back to the detention centre and at around 11 a.m. was placed alone in a security cell (Sicherheitszelle) because of his behaviour at the hospital. His shackles were removed. The security cell did not contain a water outlet, but Y.C. could request a water bottle at any time. A police officer checked on Y.C. every fifteen to thirty minutes. At 12.30 p.m., Y.C., who was lying on the bed, reacted to the police officer’s presence by lifting his head. When the officer next checked, at 12.50 p.m., he was not breathing anymore and had no pulse. At 1.20 p.m. he was declared dead by an emergency doctor who had been immediately called to the scene. The presumed time of death was 12.40 p.m. His weight was recorded at 59 kg. At 1.42 p.m. the blood test results from the hospital examination (see paragraph 17 above) were produced. They indicated that Y.C. had been dehydrated and that he should have been hydrated intravenously and placed in intensive care.
19. In a report of 5 October 2005 the doctor from the hospital noted that Y.C. had been uncooperative during his examination. It had been virtually impossible to take a blood sample as the patient had resisted strongly. At that time nothing had indicated that Y.C.’s physical condition could become life-threatening. In a statement given on 14 October 2005 the doctor described Y.C. as not having been weak at all, rather, he had been physically strong and had steadily resisted treatment with all his might (nach Leibeskräften), using the whole of his body and kicking out with his legs. After examination of his tongue, pulse, respiration, heartbeat and skin, he had observed Y.C.’s dry lips, but had seen none of the other usual signs of dehydration or other abnormalities. He further stated that even as an experienced emergency unit doctor, a rapid and fatal development of Y.C.’s situation had not at all been foreseeable by him.
B. Criminal investigation
20. On 4 October 2005, the day of Y.C.’s death, the Linz public prosecutor’s office (Staatsanwaltschaft - hereinafter “the public prosecutor”) instituted a criminal investigation against “unknown offenders” and requested the Linz Regional Court (Landesgericht) to conduct a judicial investigation. The investigating judge ordered that an autopsy be conducted by a sworn and judicially certified expert (beeideter und gerichtlich zertifizierter Sachverständiger); the autopsy was conducted on 5 October 2005. On the same day, the investigating judge, in response to a request made by the public prosecutor, delivered a decision ordering the seizure of the blood samples taken from Y.C., together with the pertinent examination report.
21. On 5 October 2005 the Linz Federal Police Authority submitted a detailed report on the circumstances of Y.C.’s death.
22. On 6 October 2005 the public prosecutor requested the Office for Internal Affairs at the Ministry of the Interior (Büro für interne Angelegenheiten des Bundesministeriums für Inneres - hereinafter the “OIA”) for it to carry out an investigation. The request included that interviews be conducted with: the two police officers who had accompanied Y.C. to the hospital on the day of his death; the police doctor who had examined Y.C. on that day; the doctor at Linz General Hospital who had examined Y.C.; the police officers who had been checking on Y.C. when he was placed in the security cell; and Y.C.’s cellmate.
23. On 12 October 2005 the public prosecutor added to the case file a note regarding a telephone conversation between him and Dr H., the expert who had conducted the autopsy, regarding the preliminary findings of that autopsy.
24. The OIA subsequently conducted an investigation at the detention centre’s medical service, procured documents from the detention centre, and produced written records of the requested interviews (see paragraph 22 above). The OIA’s report was submitted to the public prosecutor on 18 October 2005.
25. On 24 October 2005 the investigating judge complied with a request lodged by the public prosecutor for the inclusion in the case file of the results of the investigation up until that date, as well as for Y.C.’s medical history to be obtained from the detention centre, and for these documents to be transmitted to the expert Dr H. It was further decided that the scale used to weigh Y.C. at the detention centre be seized and sent for technical examination.
26. On 5 November 2005 the OIA submitted a report containing the results of the supplementary investigation.
27. On 1 December 2005, after being supplied with all pertinent documents by the OIA, the Austrian Human Rights Advisory Board (Menschenrechtsbeirat - hereinafter “the Advisory Board” - an independent monitoring body established in 1999 at the Ministry of the Interior) issued a report on Y.C.’s death. In that report, the Advisory Board considered several points to be problematic: that Y.C., after his visit to Linz General Hospital on 4 October 2005, had been further monitored only by police officers, rather than by medical professionals; that no interpreter had been present during the said hospital visit; that a blood sample had been taken from Y.C. against his will; and that the calculation of Y.C.’s critical weight had been questionable. The issues of Y.C.’s possible dehydration and carrying sickle cell disease had not been addressed in the report, as it had been drawn up before the delivery of the final autopsy report by Dr H. (see paragraph 30 below).
28. On 12 December 2005 the applicant, who was represented by counsel, joined the criminal proceedings as a private party.
29. By an order of 14 December 2005 the investigating judge urged the expert to submit his report.
30. On 4 January 2006 Dr H., the forensic expert who had conducted the autopsy, submitted his final autopsy report (dated 5 October 2005), as well as his expert report on Y.C.’s death, to the Linz Regional Court. He stated in the autopsy report that Y.C.’s body had not shown signs of “significantly acute malnutrition”, nor had there been signs of “classic dehydration”.
31. In the more detailed expert report, Dr H. stated that Y.C.’s body had not shown signs of any injuries; therefore, death caused by the use of force could be excluded. Y.C. had been slim, but had not appeared malnourished. His body had weighed 59.3 kg; his height had been 171 cm. No typical external signs of dehydration had been visible, except for the lips appearing to be slightly dry. The results of the internal investigation had recorded a thickening of the blood, which indicated a possible alternation to the blood while Y.C. had still been alive caused by a lack of hydration. Dr H. noted that a hunger strike alone could not lead to a thickening of the blood, as long as enough fluids were consumed. As concerns the hunger strike, Dr H. stated that it was likely that Y.C. had not eaten solid food for several days, but that it was unlikely that he had engaged in a long-term total hunger strike as the large intestine had still been filled with an abundance of stool along its entire length.
32. Dr H. further stated that neither Y.C.’s external appearance nor the medical reports produced until 4 October 2005 had indicated a life-threatening situation, although there had been a significant reduction in his weight. Rather, it was more likely that a shift in the electrolyte system had commenced over a period of several days, as indicated by the results of the blood test conducted by Linz General Hospital on 4 October 2005. A post-mortem examination of Y.C.’s blood (conducted in the course of the autopsy) had shown that he had been a carrier of sickle cell trait (Sichelzellanlage). Dr H. explained that sickle cell disease (Sichelzellenkrankheit) was an inherited red blood cell disorder; while red blood cells (containing normal haemoglobin) were disc-shaped, sickle haemoglobin could form stiff rods within the cell, changing it into a sickle shape. Dr H. added that the disease was rare among the white population, occurring mostly among black people. Unlike in the case of people suffering from sickle cell disease, in Y.C.’s blood the trait had been present in the heterozygous form, which is why the disease had remained undetected during his lifetime. In cases like Y.C.’s, symptoms of sickle cell disease only manifested themselves if there were further damaging external factors, such as dehydration or a lack of oxygen.
33. 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, which had caused a shift in the electrolyte system and had ultimately caused his heart to stop beating. Neither the authorities nor Y.C. himself had been aware that he had been a carrier of sickle cell trait. Dr H. stated that Y.C.’s death could 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. However, the hunger-strike protocol had not indicated any necessity for a blood test in that respect. The test results from the hospital on the day of Y.C.’s death would have given reason for further tests. However, the results had only been produced after Y.C.’s death.
34. On 12 October 2005 the public prosecutor made a note in the criminal file (Aktenvermerk) about a conversation with Dr H. The doctor had expressed the opinion that with hindsight Y.C.’s extraordinarily aggressive behaviour at the hospital on the day of his death had resembled a delirious state caused by advanced dehydration and the consequent disintegration of his blood cells.
35. On 13 January 2006 the public prosecutor decided to discontinue the criminal investigation into the death of Y.C., as no sufficient evidence could be found to warrant criminal proceedings. The applicant was informed that he had the right to ask the Council Chamber (Ratskammer) of the Linz Regional Court to conduct a preliminary investigation. However, he was also informed that he would have to bear the full costs of the criminal proceedings should the Council Chamber grant his request but the proceedings did not result in a criminal conviction. This decision was served on the applicant’s counsel on 19 January 2006. The applicant did not request that a preliminary investigation be instituted.
36. On 2 March 2006 the applicant submitted the decision of 13 February 2006 issued by the Upper Austria Independent Administrative Panel (Unabhänigiger Verwaltungssenat Oberösterreich - hereinafter “the IAP”) (see paragraph 46 below) to the public prosecutor and requested him to investigate further. On 13 March 2006 the public prosecutor replied that the documents submitted had already been made available to him, but that they could not change his assessment of the procedural results obtained so far, since every aspect of the legal question to be answered had already been clarified by Dr H.’s autopsy report and his comprehensive expert report.
C. Administrative proceedings
37. On 15 November 2005 the applicant requested the IAP to review the lawfulness of Y.C.’s detention (Schubhaftbeschwerde) and at the same time lodged a complaint about the conditions of his detention (Maßnahmenbeschwerde). He submitted in particular that Y.C. should not have continued to be kept in detention because he had no longer been fit to be detained on account of his hunger strike. As regards the conditions of Y.C.’s detention, he submitted that the medical treatment of Y.C. had not been in conformity with section 10(1) of the Detention Ordinance (Anhalteordnung - see paragraph 59 below). He furthermore claimed that his brother had been placed in a security cell, without access to water, on the day of his death, in contravention of section 5(5) of the Detention Ordinance.
38. On 13 February 2006 the competent member of the IAP held a hearing during which he examined as witnesses the applicant, a cellmate of Y.C., one of the police doctors who had examined Y.C. during his hunger strike, and the police officers who had been in charge of examining detainees on the day of Y.C.’s death.
39. Y.C.’s former cellmate, H.C., stated that they had gone on hunger strike together to protest the duration of their detention, and that they had not been treated correctly by the police officers; however, he did not specify how that treatment had not been correct. He said that he did not remember the exact day on which they had begun their hunger strike, but that they had not eaten or drunk anything at all for twelve days. H.C. stated that he had had the impression that Y.C. had been “terribly weak” during the three days before his death.
40. According to the witness statements by employees of the NGO Human Rights Association Austria who had visited Y.C. on several occasions, Y.C. had not raised any allegations of ill-treatment during their visits. In fact, with the exception of his former cellmate, all other witnesses who had been in contact with Y.C. until his death had also stated during the IAP hearing that he had not appeared to be ill or weak, but that on the contrary, even on the day of his death he had seemed athletic and strong; which had been corroborated by photographs taken of his dead body and its description by Dr H. in the autopsy report (see paragraph 30 above).
41. One of the police doctors, Dr F.G., gave evidence regarding, inter alia, the reason why the calculation of the critical weight of a detainee on hunger strike was based on his or her weight at the outset of the hunger strike, and not the weight recorded upon admission to the detention centre. He stated that detainees usually lost weight slightly during their detention, but that it was also possible for them to gain weight. He acknowledged that he had not even checked Y.C.’s initial weight, as the 65.5 kg recorded on the day after Y.C. had announced his hunger strike had in principle amounted to a normal weight, given his height. Dr F.G. furthermore stated that on 3 October 2005 Y.C. had walked into the examination room without support. One day later, Y.C. had showed signs of dehydration and had come to the examination room supported by two police officers. Dr F.G. stated that he had accordingly ordered him to be examined at the hospital.
42. H., the police officer who had accompanied Y.C. to and from the hospital on the day of his death, stated that the reason for Y.C.’s placement in solitary confinement had been that - following Y.C.’s behaviour at the hospital - he and the other officer in charge had feared that Y.C. might harm himself or others. H. confirmed that there had been no water outlet in the security cell, but that Y.C. could have requested a water bottle at any time by ringing a bell.
43. B., the police officer who had been in charge of checking on Y.C. while he was being held in the security cell, stated that he had received an order to do so every fifteen to thirty minutes. During the checks, he had had to make sure that the detainee reacted when spoken to. When B. had checked on Y.C. at 12.30 p.m., the latter had moved his head. At the next check at 12.50 p.m., he had showed no reaction and had subsequently been pronounced dead by the emergency doctor, who had immediately been called to the scene.
44. During the IAP hearing on 13 February 2006 the applicant presented an undated and unsigned three-page statement by Dr W.G., whom he had engaged himself and who was a general practitioner in Linz with a focus on nutritional medicine. Dr W.G, who had not examined Y.C.’s body, had based his report on the autopsy report and expert report issued by Dr H., the report of the OIA (see paragraph 24 above) and the report by Linz General Hospital, and had come to the following opinion. On 12 September 2005, the day on which Y.C. had been taken into detention with a view to his expulsion, he had weighed 76.5 kg. On 28 September 2005, the day on which Y.C. had announced that he was on hunger strike, he had had a body weight of only 67 kg. The police doctor had made a mistake in taking the latter as the normal weight of Y.C. for the purposes of calculating his critical body weight. The doctor had not taken into account the fact that Y.C. had already lost 9.5 kg between 12 and 28 September 2005, meaning that Y.C. must have already started his hunger strike before he had officially announced it. From 28 September until the day of his death on 4 October 2005, Y.C. had lost a further 8 kg in body weight. However, the doctor had used Y.C.’s weight on 28 September (namely 67 kg) as a starting point, and had established his critical weight as 54 kg, which in Dr W.G.’s view was incorrect. The police doctor should have based his calculations on how much Y.C. had weighed when he had arrived at the detention centre. If he had, the correct critical weight would have been determined at 67 kg, minus 10%. Instead, Y.C. at the time of his death had already lost approximately 18% of his weight in fluids. For an adult person a loss of even 10% in fluids constituted a life-threatening situation. Dr W.G. assumed that Y.C. had died of dehydration resulting from the erroneous calculation of his body weight. He did not deal with the question of how far the sickle cell trait present in Y.C.’s blood had played a role in his death, nor did he provide any scientific source for his calculations. Dr W.G.’s opinion was later not supported by any of the official experts.
45. The applicant asked the IAP that the second police doctor in charge at the detention centre on the day of Y.C.’s death be questioned, and that another expert report be obtained in order to refute the expert report issued by Dr H. (see paragraphs 30-33 above). The IAP refused these requests.
46. The IAP, at the end of the hearing of 13 February 2006, ruled that Y.C.’s detention pending his expulsion had been unlawful and that the conditions of detention during his hunger strike had violated Y.C.’s right under Article 3 of the Convention to protection against ill-treatment. Concerning the cause of Y.C.’s death, the IAP reiterated the findings of the autopsy report and the expert report attached thereto (see paragraphs 30-33 above). The IAP argued that the State authorities had not fulfilled their role of guarantor of the applicant’s rights under Articles 3 and 5 of the Convention. It found that given the frequency of sickle cell disease among people from sub-Saharan Africa, the State was under an obligation to offer a test for sickle cell disease to all detainees from that specific geographic area, and in particular to those on hunger strike.
47. The Ministry of the Interior appealed against that decision.
48. On 30 August 2007, the Administrative Court quashed the IAP’s decision. It held that the applicant had no locus standi regarding the request for a review of the lawfulness of the detention of his brother because rights under Article 5 of the Convention were not transferable to other persons. Therefore, the IAP had not had authority to issue a decision in that respect. Concerning the complaint under Article 3 of the Convention, it held that the mere fact that a person was detained did not place any duty on the State to take measures (the need for which had not necessarily been foreseeable) because of the genetic disposition of that person without a manifest outbreak of disease in that person. Moreover, it found that the IAP had not respected certain procedural requirements, which is why the Administrative Court referred the case back to the IAP.
49. On 1 April 2008 the applicant lodged an application with the European Court of Human Rights concerning the above-mentioned judgment of the Administrative Court; it was registered as Ceesay v. Austria (no. 17208/08). Thereupon, the IAP decided to suspend the fresh proceedings until such time as the Court rendered its decision in respect of this complaint.
50. On 21 May 2010 the Court declared application no. 17208/08 inadmissible, pursuant to Article 35 §§ 1 and 4 of the Convention, as the proceedings were still pending before the IAP and the complaints lodged by the applicant with the Court were therefore premature.
51. The IAP resumed the proceedings and on 11 June 2010 again issued a decision finding a violation of Article 3 of the Convention in respect of the conditions of Y.C.’s detention. It essentially reiterated the reasoning contained in its previous decision, explaining that the proceedings were not aimed at identifying an individual who could be held culpable for Y.C.’s death but at identifying errors inherent in the detention system - specifically, the lack of a standardised test for sickle cell disease for certain high-risk groups and the lack of clear instructions for the staff of the detention centre concerning detainees on hunger strike.
52. The Ministry of the Interior again lodged a complaint, arguing that there had been sufficient rules and instructions in place concerning the treatment of detainees. In the present case, there had not been any indications that Y.C. had suffered from sickle cell disease. Not even hospitals conducted standardised tests for this blood anomaly where there was no concrete suspicion in that respect. It added that the death of Y.C. had nonetheless prompted the Ministry of the Interior to issue a directive to detention centre authorities instructing them to (i) inform detainees who were on hunger strike and who belonged to a high-risk group of the possible consequences of sickle cell disease, and (ii) conduct the necessary tests.
53. On 20 October 2011 the Administrative Court again quashed the IAP’s decision. It reminded the IAP that it was bound by the legal interpretation that the Administrative Court had expressed in its previous judgment concerning the obligations of the State under Article 3 of the Convention towards detainees (see paragraph 48 above). Moreover, it suggested that the IAP order an expert report in order to determine whether the reduced mental and physical condition of Y.C. should have given rise to an investigation into the possibility that he had been suffering from sickle cell disease and whether appropriate medical treatment from that moment onwards could have prevented the death of Y.C.
54. During the course of the new round of proceedings, the IAP ordered an expert report, as suggested by the Administrative Court. In a report dated 19 May 2012, as well as during the hearing of 21 June 2012, the expert in question, Dr L., confirmed that according to his findings, Y.C. had been a sickle cell trait carrier. He added that this was the case in respect of 30% of the population of countries in sub-Saharan Africa, such as the Gambia (where Y.C. had been from), and that this trait served as a protection from Malaria. The fact that a person was a carrier of sickle cell trait did not mean that he or she was ill or had a lower life expectancy. Nonetheless he or she would face a higher risk of death in the event of engaging in strenuous activities (anstrengungsassoziierte Todesfälle), and the trait could also cause rapid dehydration in the event of reduced liquid intake. Dr L. explained that sickle cell disease could only be detected through an analysis of blood samples, but that the need for such an analysis had at no point been clearly indicated in Y.C.’s case, even in the light of his reduced mental and physical condition.
55. The applicant submitted the same unsigned statement that he had already submitted during the hearing of 13 February 2006 (see paragraph 44 above). He did not submit any further requests. When the expert Dr L. was questioned by the IAP regarding the calculation of Y.C.’s critical weight, he stated that he was inclined to believe that Y.C.’s weight had been correctly calculated, but that that calculation had been wrongly recorded. In his opinion, it was unlikely that Y.C. could have lost 9 kg over the course of a sixteen-day hunger strike.
56. On 13 July 2012 the IAP dismissed the applicant’s complaint about the conditions of Y.C.’s detention, basing its decision on the finding contained in the expert report of Dr L. (see paragraph 54 above) that the need for an analysis of Y.C.’s blood in respect of sickle cell trait had not been indicated. It reiterated that according to the Administrative Court’s legal interpretation, by which it was bound, the State had no duty to take measures the need for which had not been foreseeable in respect of a person because of a certain genetic disposition without a manifest outbreak of the disease in that person. Therefore, the authorities’ conduct had not constituted a violation of Article 3.
57. The applicant lodged a complaint with the Constitutional Court, which was dismissed on 22 November 2013.
58. On 25 April 2014 the applicant lodged a complaint with the Administrative Court, which, referring to its decisions of 30 August 2007 and 20 October 2011, dismissed it. This decision was served on the applicant on 16 May 2014.
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 application
“(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). ...”
“(1) Prisoners are to be held with regard being had to human dignity and with the greatest possible care [being exercised towards] their person. ...”
“(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]
“(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 detainees
“(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.
III. INTERNATIONAL MATERIAL
69. The World Medical Association Declaration on Hunger Strikers (adopted by the 43rd World Assembly, Malta, November 1991, editorially revised at the 44th World Medical Assembly in Marbella, Spain, September 1992 and ultimately revised at the 57th WMA General Assembly in Pilansberg, South Africa, October 2006), addresses the conflicting situations faced by doctors in treating hunger strikers and provides guidelines for dealing with them. The relevant provisions of September 1992 “Malta Declaration”, the version in force at the relevant time, can be found in Nevmerzhitsky v. Ukraine, no. 54825/00, § 69, ECHR 2005-II (extracts).
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., § 72) 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.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been no violation of Article 2 of the Convention;
3. Holds that there has been no violation of Article 3 of the Convention.
Done in English, and notified in writing on 16 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Milan Blaško Angelika Nußberger
Deputy Registrar President