European Court of Human Rights

 

 

 

SECOND SECTION

 

CASE OF JERET v. ESTONIA

(Application no. 42110/17)

 

 

 

 

 

JUDGMENT

STRASBOURG

9 June 2020

 

 

 

 

This judgment is final but it may be subject to editorial revision.

In the case of Jeret v. Estonia,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

          Egidijus Kūris, President,
          Arnfinn Bårdsen,
          Darian Pavli, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 12 May 2020,

Delivers the following judgment, which was adopted on that date:

1.     PROCEDURE

1.  The case originated in an application (no. 42110/17) against the Republic of Estonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Estonian national, Mr Peeter Jeret (“the applicant”), on 9 June 2017.

2.  The applicant was represented by Mr R. Paas, a lawyer practising in Tallinn. The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs.

3.  On 3 September 2018 notice of the complaints under Article 3, concerning the handcuffing of the applicant to a hospital bed, was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

4.  The President of the Section acceded to a request by the Government to grant confidentiality to their observations as well as to Annex 5 of these observations (Rule 33 § 1 of the Rules of Court).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1959 and is detained in Jõhvi.

A.    The applicant’s stay in hospital

6.  On 18 September 2016 at 10.50 a.m. a member of the medical department at the Tallinn prison was asked to go to the applicant’s cell to check his health. As, based on a visual examination, the applicant seemed to have the symptoms of a heart attack, he was transported to a medical procedure room in the next building. The necessary medical indicators were recorded and an ambulance was called. At 11.46 a.m. the applicant arrived at East Tallinn Central Hospital (hereinafter “ETCH”). From 12.47 p.m. to 1.23 p.m. a coronary artery expansion procedure was performed. The applicant was then taken to an intensive care ward on the fifth floor. On 21 September 2016 the applicant was taken to a regular ward on the same floor.

7.  On the same day, a duty officer (peaspetsialist-korrapidaja) of the Tallinn prison issued an order in respect of escorting the applicant out of prison. In the order, under the section of means of restraint (ohjeldusmeetmed), use of handcuffs was indicated. Under the headline “The explanation of the use of the means of restraint and other relevant information”, a general reference was made to sections 69, 70(1) and 70-1 of the Imprisonment Act (Vangistusseadus), which allow for the use of various means of restraint when a prisoner is escorted outside the prison. It was also stated, in general terms, that escorting a prisoner out of prison entailed a serious security threat both for the prison as well as for society at large, and that the risk of escape increased when under escort. An escort plan (saateplaan) was attached to the order, according to which the escort would consist of two prison officers, one of whom was ordered to stay in close proximity to the applicant, in order to ensure constant supervision. Under the section entitled “Circumstances relevant to the escort task” (Saateülesande täitmiseks olulised asjaolud) it was noted that the applicant had been imprisoned since 2010 for a drug-related crime and that it was his first imprisonment. His age, height, physical build, eye and hair colour were noted and it was added that the applicant had a 6-cm-long scar and a large burn scar measuring 10 by 4 cm on the left inner forearm. It was also noted in that section that “in order to ensure the safety of the prison officers and the security of the surrounding people, it is expedient (otstarbekas) to use handcuffs as a means of restraint on the prisoner and to present him with the conditions of being escorted for his signature.” Under the heading “Special requirements for the escort task” (Saateülesande täitmise erinõuded) it was noted that the task of escorting the prisoner involved taking him for medical procedures. It was repeated that at least two prison officers were to stay within the near vicinity of the prisoner. No reference was made to the applicant’s behaviour in prison. In the second part of the escort plan, details of an incident which took place on 22 September 2016 were subsequently recorded (see paragraph 9 below).

8.  The applicant remained in hospital until 22 September 2016. Handcuffs were applied throughout his stay. However, the handcuffs were taken off every day when the escort teams changed (for a couple of minutes each time, on a total of nine occasions during his stay), during breakfast, lunch and dinner (lasting approximately ten to fifteen minutes each), when going to the toilet, when undertaking hygiene procedures (between ten and thirty minutes in the mornings or evenings), in order to change his clothes, once when changing wards and also during medical procedures (which lasted between five and twenty minutes). To avoid an unnatural and forced position, two pairs of handcuffs were used together, attached to each other in a chain. The officers varied which hand was handcuffed and the applicant always had one hand free. The handcuffs were attached to the rails of the hospital bed, midway down the bed, so that when lying down, the applicant’s hand and arms could rest in a normal position.

9.  On the morning of 22 September 2016 the applicant refused to be handcuffed when he returned from the toilet. According to the reports submitted after the incident by the two prison guards involved (see paragraphs 10-11 below), after being repeatedly warned that if he continued to refuse, coercion might be used, the applicant still refused to comply and used offensive and threatening language towards the prison officers. Two prison officers grabbed the applicant by his arms and one of them handcuffed him while the other tried to hold him down by his other arm and chest. In the subsequent criminal proceedings against the applicant (see paragraphs 27-30 below) it was established that during that process, the applicant kicked and hit one of the prison officers repeatedly with his fists in the facial and chest area.

10.  On the same day, a prison officer drew up a report about the use of force, describing the circumstances leading to the use of force and the use of force itself (Füüsilise jõu, teenistusrelva, erivahendi või ohjeldusmeetme kasutamise ja õiguserikkuja terviseseisundi kontrollimise protokoll). According to the report, the use of force had lasted for about five minutes from 7.15 a.m. to 7.20 a.m. The report stated that after the force had been used, the applicant’s health had been checked by a medical worker.

11.  Also on that day, the prison officers who had been present during the incident involving the use of force submitted further written reports (ettekanne) to the acting director of the Tallinn prison, again describing the events leading up to the use of force and explaining how the applicant was eventually handcuffed.

12.  According to the information provided by the ETCH in the course of the criminal proceedings against the applicant (see paragraphs 27–30 below), on the morning of 22 September 2016, the doctor on duty (K.K.) carried out a medical check of the applicant. The following entry was made in the applicant’s records (päevikukanne): “Left hand attached to the bed with handcuffs. Some subcutaneous haematomas on the wrist and redness of skin from the handcuff. ... Approximately 1 mm abrasion at the third to fourth [metacarpophalangeal] joint on the left hand, where a drop of blood was visible. No other visible physical injuries. The patient complains of pain in the right wrist, claiming that it was twisted - objectively no swelling or redness is visible, can freely move the hand from the wrist.” According to ETCH, the entry was made at 7.10 a.m. Despite this time reference, it is not entirely clear from the documents and arguments provided by the parties whether this medical check preceded the use of force or was carried out directly after that (compare paragraphs 22 and 51 below).

13.  The applicant’s attack on the prison officer was also noted in the applicant’s medical file under his case history (epikriis). It included a comment to the extent that the applicant had been very aggressive and had not understood his condition, although it had been repeatedly explained to him.

14.  In connection with the incident of 22 September 2016, criminal proceedings were initiated against the applicant and he was convicted by a judgment of the Harju County Court on 16 October 2017 (see paragraphs 27-30 below).

15.  The applicant was returned to the Tallinn prison at 11.23 a.m. on 22 September 2016. The handcuffs were removed. The doctors had not prescribed any special care regime for him.

16.  On 23 September 2016 the applicant wished to document the injuries sustained after the use of force. According to the applicant’s medical file at the prison, two haematomas on the left wrist with a diameter of 6 cm were recorded. On a request by the applicant, the prison also took photographs of his injuries. The photographs show haematomas around the applicant’s left wrist and on the inside of his right wrist, a small abrasion on one of the knuckles on the left hand and abrasions on one of his legs. Other than the photograph showing abrasions to the applicant’s leg, the injuries shown on the photographs match the description provided by the ETCH (see paragraph 12 above).

17.  It appears from the materials submitted to the Court that on 30 September 2016 the applicant requested the prison to take a photograph of a haematoma on his chest. He claimed not having noticed it before. The prison responded that the injuries relating to the use of handcuffs in prison had already been recorded on 23 September 2016 at which time the applicant had made no mention of a haematoma on his chest. The prison did not consider it necessary to take more photographs of the applicant’s chest.

B.     Criminal proceedings

1.    Applicant’s attempt to initiate criminal proceedings

18.  On 23 September 2016 the applicant lodged a criminal complaint with the Tallinn prison, arguing that handcuffing him between 18 and 22 September 2016 had been unlawful and disproportionate and that the prison officers had caused him physical pain and mental suffering by using that means of restraint.

19.  On 3 October 2016 the applicant lodged a criminal complaint with the Northern District prosecutor’s office, repeating his claims about the unlawful and disproportionate use of handcuffs on him.

20.  On 6 October 2016 the Tallinn prison refused to initiate criminal proceedings, explaining that the use of handcuffs had been based on a lawful order of the duty officer on 18 September 2016. Against that background, none of the statutory elements constituting the criminal offences laid down in Articles 290-1 (torture), 291 (abuse of authority) and 324 (unlawful treatment of prisoners) of the Penal Code (Karistusseadustik) had been present (see paragraphs 34 below). In particular, with regard to Article 324, the prison noted that the statutory offence presupposed - as a subjective element - direct intent on the part of the alleged perpetrator. In the instant case, the prison officers (who had been following the orders given to them) had not had a direct intention to degrade or discriminate against the applicant or to unlawfully restrict his rights. As for the other two offences, the prison noted that - as an objective element of the offence - they required unlawfulness, whereas the use of the means of restraint and the use of force had had a legal basis. Moreover, the use of force had not exceeded the acceptable level of intensity.

21.  On 12 October 2016, the Northern District prosecutor’s office refused to initiate criminal proceedings. It referred to the applicant’s criminal complaint which included a thorough description of the events, the order authorising the escort, the escort plan (see paragraph 7 above), the reports drawn up by the prison officers who had been involved in the incident of 22 September 2016 (see paragraphs 10 and 11 above), and the photographs taken of the applicant on 23 October 2016, and gave a day-by-day account of the number of times and the length of time that the applicant had been without handcuffs (see paragraph 8 above). It also noted that the applicant’s medical condition had been checked by a medical worker at the ETCH. The Northern District prosecutor’s office concluded that there had been a legal basis for the use of handcuffs and that neither the objective nor the subjective elements of the above-mentioned criminal offences (see paragraph 20 above) had been present. As for the use of force, the Northern District prosecutor’s office considered that it had been minimal and justified.

22.  A further appeal lodged by the applicant on 19 October 2016 before the Office of the Prosecutor General was dismissed on 24 October 2016. In addition to the information relied on by the Tallinn prison and the Northern District prosecutor’s office, the Prosecutor General referred to the witness statements given by the prison officers in the criminal proceedings against the applicant (see paragraph 27 below).

23.  According to the statement of the first officer, a medical worker had checked the applicant in the morning, at the beginning of the prison officer’s shift, and had stated that the haematomas on the applicant’s wrists had been caused by the treatment, namely by the attachment of a cannula. A medical worker who had checked the applicant after the use of force had stated that there had been no resultant injuries.

24.  The second prison officer explained in detail how they had handcuffed the applicant, and how he had in the process used aggressive and threatening language and had hit and kneed the officer in the face. The Prosecutor General concluded that in the event that the applicant had suffered any pain or sustained an injury when being handcuffed, it had been as a result of his own unlawful behaviour. The Prosecutor General agreed that, based on the established facts, no elements of any of the criminal offences referred to above nor of any other criminal offence set out in the Penal Code could be ascertained and that the decision not to initiate criminal proceedings had been justified. As for the applicant’s claim that the Northern District prosecutor’s office had not been impartial in the proceedings as he had not been questioned, the Prosecutor General explained that the applicant had had ample opportunity to submit his account of the events in writing and to provide evidentiary documents and that in such circumstances there was no obligation under the law for the prosecutor’s office to ask additional questions. In any event, the applicant had not explained what aspects he considered had not been sufficiently elucidated, nor had he raised any new issues in his appeal.

25.  As an appeal against the decision of the Office of the Prosecutor General had to be submitted by a lawyer (advokaat), on 31 October 2016 the applicant lodged a request with the Tallinn Court of Appeal for state legal aid. The Tallinn Court of Appeal, by a decision of 16 November 2016, dismissed the request. The court examined the materials concerning the refusal not to initiate criminal proceedings and found that in the light of the detailed analyses provided by the Office of the Prosecutor General in its decision, the prospects of success of the applicant’s appeal were negligible. The Tallinn Court of Appeal considered that under the circumstances handcuffing the applicant to a bed did not qualify as torture in the sense of the Penal Code. Moreover, the use of force on 22 September 2016 was not punishable as any other criminal offence as the applicant himself had actively resisted the lawful orders of the prison officers. The latter had shown no intention to cause pain or damage to the applicant’s health.

26.  On 21 November 2016 the applicant lodged a request for state legal aid with the Supreme Court, in order to appeal against the decision of the Tallinn Court of Appeal. The Supreme Court dismissed this request by a decision of 10 January 2017, finding that the prospects of success in the applicant’s case were negligible.

2.    Criminal proceedings against the applicant

27.  In 2016, while serving his sentence in prison, criminal proceedings concerning four separate instances of inflicting “health damage” between February and September 2016 were initiated against the applicant. The instances involved kicking another prisoner, attacking prison officers in prison and attacking a prison officer in hospital on 22 September 2016. As to that final incident, according to the applicant’s statements given in the course of the proceedings, he had resisted when the prison officers had tried to handcuff him, there had been a scuffle and he had hit a prison guard with his fists. According to a statement by one of the prison officers, the applicant had also kneed him in the face. The injuries of the prison officer were recorded at the ETCH.

28.  The applicant was convicted of physical abuse and use of violence against a representative of a state authority by the Harju County Court in a judgment of 16 October 2017. In relation to the incident of 22 September 2016, the court relied on, inter alia, the statement of one of the prison officers about the use of force and the applicant’s injuries allegedly sustained as a result of that (see paragraph 22 above) and examined the response provided by the ETCH which reflected the content of an entry by a medical professional on the morning on 22 September 2016 (see paragraph 12 above). It also noted that, based on the case file, there was no information to show that the use of handcuffs on the applicant had been contraindicated. The court noted that the use of handcuffs in the hospital, as an additional means of security, had been justified as the applicant’s previous conduct had been problematic and unpredictable.

29.  By a judgment of 12 December 2017 the Tallinn Court of Appeal dismissed an appeal lodged by the applicant.

30.  On 11 April 2018 the Supreme Court denied the applicant leave to appeal.

 

C.    Administrative proceedings

31.  On 4 May 2018 the applicant lodged an application with the Tallinn prison seeking compensation for non-pecuniary damage sustained as a result of, inter alia, his treatment at the hospital between 18 and 22 September 2016.

32.  On 4 July 2018 the Tallinn prison dismissed the applicant’s request, but noted that an appeal against the decision could be lodged within thirty days. The applicant did not appeal.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A.    Domestic law

1.    Imprisonment Act

33.  Sections 69, 70, 70-1 and 71 of the Imprisonment Act (Vangistusseadus), as in force at the material time, provided as follows.

 

Section 69 - Additional security measures

“(1) Additional security measures shall be imposed on a prisoner who systematically violates the requirements of this Act or the internal rules of the prison, damages his or her health or is likely to attempt suicide or escape, or to a prisoner who poses a threat to other persons or security in the prison. Additional security measures may also be imposed for the prevention of serious offences.

(2) The following additional security measures shall be permitted:

...

5. use of means of restraint.

(3) The application of additional security measures shall be terminated if the circumstances specified in subsection (1) of this section cease to exist. ...”

Section 70 - Use of means of restraint

“(1) It is permitted to use physical restraint, handcuffs, ankle cuffs or a restraint jacket as the means of restraint provided for in section 69(2)(5) of this Act. Means of restraint may also be used when a prisoner is being escorted. Ankle cuffs may be used as a means of restraint only while escorting a prisoner or placing a prisoner inside the prison.

(2) A means of restraint shall not be applied for longer than twelve hours.”

 

Section 70-1. Special equipment and service weapons used in prisons

“(1) The following are special equipment used in prisons:

1. handcuffs, ankle cuffs, bindings, restraint jackets, restraint chairs and beds used as a means of restraint;

...”

 

Section 71. Use of special equipment and service weapons in prisons

“...

(2) A prison officer has the right to use self-defence equipment and physical force when performing his or her service duties or for ensuring his or her own safety.

...

 (7¹) After use of direct coercion with regard to a prisoner, a healthcare professional shall examine the state of health of the prisoner as soon as possible. The circumstances of the use of direct coercion and the results of the medical examination shall be recorded.

(7²) Where means of restraint are used with regard to a prisoner, the provisions of subsection (7¹) of this section are mandatory only in the following cases:

1. where physical force was used in order to employ a means of restraint;

2. where means of restraint are used continually for more than fifteen minutes, unless the operation has been performed on the basis of a pre-issued administrative order or in the case that handcuffs and ankle cuffs are used during an escort task;

3. where a prisoner files a complaint relating to his or her state of health;

4. in other cases if the need to check the state of health of a prisoner becomes evident.

...”

2.    Penal Code

34.  Articles 290-1, 291 and 324 of the Penal Code (Karistusseadustik), as in force at the material time, provide as follows:

 

Article 290-1. Torture

“(1) The act of an official causing a person great or consistent physical or mental pain without legal grounds and with the intention of receiving statements from him or her or third persons, punishing, frightening, coercing or discriminating, as well as the act of an official instigating such an act or consenting to such an act is punishable by one to seven years’ imprisonment.

...”

Article 291. Abuse of authority

“Unlawful use of a weapon, special equipment or physical force by an official is punishable by a fine or by one to five years’ imprisonment.”

 

Article 324. Unlawful treatment of prisoners

“Degrading the dignity of a prisoner, a person in detention or custody or taken into custody to recover from intoxication, discriminating against such a person or the unlawful restricting of his or her rights by an official of a custodial institution while taking advantage of his or her official position, if it does not contain the necessary elements of an offence as set out in Article 290-1 of this Code, is punishable by a fine or up to one year’s imprisonment.”

3.    Regulation no. 17 of 30 May 2006 of the Minister of Justice, “Prisoner Escort Duties and Procedures”

35.  The relevant provisions of the Regulation no. 17 of 30 May 2006 of the Minister of Justice, “Prisoner Escort Duties and Procedures” (Vangla saatemeeskonna ülesanded ja töökord) have been cited in the case A.T. v. Estonia (no. 23183/15, §§ 32-34, 13 November 2018).

B.     Relevant domestic case-law

1.    Use of means of restraint

36.  In a judgment dated 13 November 2009 in administrative case no. 3‑3-1-63-09, the Supreme Court assessed the use of handcuffs on a prisoner while under escort. The Supreme Court stated that when escorting prisoners outside the premises of the prison, means of restraint were applied as a preventive measure in order to avoid an escape or to mitigate the risk to the life and health of others (such as the escort team or other people being escorted). When applying preventive measures, the harm feared did not definitely have to occur, but such harm had to be probable. It was considered that the opportunities to reduce risks were more limited in an escort vehicle than in a prison (as the latter had closed premises, different accommodation wings, increased security and surveillance possibilities and different supervisory measures).

37.  In a judgment of 2 June 2010 in case no. 3-3-1-33-10 the Supreme Court assessed the lawfulness of additional security measures (restrictions on freedom of movement and communication and placement in locked isolation cells). First, the court explained that when the grounds listed in section 69(1) of the Imprisonment Act existed, it was at the discretion of the prison as to whether to apply any additional security measures and, if needed, to choose a specific measure. In the light of that, the court’s control was limited to deciding whether mistakes had been made in the exercise of that discretion. The court found that additional security measures served a preventive or deterrent purpose and, in deciding to apply them, the prison authorities were anticipating a future situation. In the light of that, it was not always necessary to first verify the circumstances serving as the basis for applying additional security measures within disciplinary, misdemeanour or criminal proceedings. In order to apply such security measures, it was sufficient that the prison had developed a justified fear of potential harm. The same principles were also reiterated in the Supreme Court judgment of 23 May 2013 in administrative case no. 3-3-1-19-13, where the court underlined that when deciding on the use of any means of restraint, the administrative authority had to assess a person’s propensity to escape, his or her prior behaviour and potential behaviour during the escort, the general security threat based on the specific nature of the need to be escorted, and the sufficiency of any other measures that could be taken to reduce the threat.

2.    Compensatory remedies

38.  By a judgment of 26 November 2007 in administrative case no. 3‑07-1558, Tartu Administrative Court declared unlawful a measure taken by Tartu prison where the prison had used handcuffs on the complainant while escorting him outside the prison. The court ordered the prison to pay the complainant damages compensating for the non-pecuniary damage suffered in the amount of 3000 kroons (equivalent to 191.73 euros). In the course of judicial proceedings, it was ascertained that the complainant had been handcuffed for the whole time that he was being escorted, that is to say while going to the escort vehicle, while in the vehicle and while exiting the vehicle, even though the escort team had been authorised to use handcuffs only outside the compartment of the escort vehicle. Thus, the complainant’s rights had been excessively restricted.

39.  By a judgment of 3 October 2013 in administrative case no. 3-3-1-47-13, the Supreme Court’s Administrative Law Chamber ordered the Tallinn prison to pay the complainant damages in respect of non-pecuniary damage in the amount of 1,275 euros. The Supreme Court underlined that in accordance with the section 70(1) of the Imprisonment Act, the use of means of restraint was discretionary and that the necessity and the proportionality of the measure had to be established. The Supreme Court found that keeping the complainant in a restraint bed for two hours had been lawful, but it had been unlawful to continue restraining him in that manner for longer than that.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

40.  The applicant complained of the use of handcuffs throughout his stay in hospital and the use of force in order to handcuff him as well as the subsequent inadequate investigation of his complaints. He relied on Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

41.  The Government contested that argument.

A.    Admissibility

1.    The parties’ submissions

42.  The Government contended that the applicant had not exhausted the domestic remedies. Although he had tried to initiate criminal proceedings against the prison officers, this had not been an adequate remedy. In the present case, all the relevant levels of jurisdiction had refused to initiate criminal proceedings, coming to the conclusion that the activities of the prison officers had lacked the characteristics of a criminal offence. Against that background, an adequate remedy in the applicant’s case would have been an action for damages in the administrative court, where the outcome would not have been determined by the findings of the criminal proceedings. This was supported by the domestic case-law under which Estonian courts had established the unlawfulness of certain restraint measures taken by prisons and had awarded compensation to the relevant complainants (see paragraphs 38-39 above). Although the applicant had lodged an application with the Tallinn prison for compensation in respect of non-pecuniary damage, he had not pursued it further after the prison had dismissed his request.

43.  Alternatively, the Government argued that the application was inadmissible as manifestly ill-founded.

44.  The applicant contended that in the circumstances a criminal remedy had been an appropriate one. He referred to the Court’s position in Julin v Estonia (nos. 16563/08 and 3 others, 29 May 2012) where the Court had considered that as physical abuse and unlawful treatment of prisoners constituted criminal offences under the Penal Code, the applicant’s choice of resorting to a criminal procedure had not been unreasonable and that he had not been required to embark on another set of proceedings before the administrative courts (see Julin, cited above, § 115).

2.    The Court’s assessment

45.  As regards the exhaustion of domestic remedies, the Court reiterates that the only remedies which an applicant is required to exhaust are those that relate to the breaches alleged and which are likely to be effective and sufficient. In this connection the Court has held that, in the area of unlawful use of force by State agents - and not mere fault, omission or negligence - civil or administrative proceedings aimed solely at awarding damages, rather than ensuring the identification and punishment of those responsible, were not adequate and effective remedies capable of providing redress for complaints based on the substantive aspect of Articles 2 and 3 of the Convention (see Jeronovičs v. Latvia [GC], no. 44898/10, § 76, 5 July 2016, and Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 227, ECHR 2014 (extracts)). Moreover, under the established case-law, when one remedy has been pursued, the use of another remedy which has essentially the same objective is not required (see, among many authorities, Şerife Yiğit v. Turkey [GC], no. 3976/05, § 50, 2 November 2010).

46.  In the instant case, the applicant complained first to the prison and then to the prosecutor’s office about the use of handcuffs and the use of force when applying the handcuffs, which had caused him physical injuries and physical and mental suffering. He considered this to be an unlawful and disproportionate use of a means of restraint and as such in violation of, inter alia, Article 3 of the Convention. Taking into account that unlawful use of special equipment and physical force, as well as otherwise unlawful treatment of prisoners, is considered a criminal offence under the Penal Code, the Court does not consider the applicant’s choice of procedure unreasonable. It is to be noted that, despite concluding that the statutory elements of a criminal offence were lacking, the prison, the prosecutor’s office and the Court of Appeal analysed the alleged conduct in the light of Articles 290-1, 291 and 324 of the Penal Code. The applicant thereby sought the punishment of the persons he believed to be guilty of criminal conduct towards him (compare Mihhailov v. Estonia, no. 64418/10, § 81, 30 August 2016, and Julin, cited above, § 115).

47.  Against that background, given that the applicant’s complaints concern alleged violation of Article 3 of the Convention, the Court observes that the suggested action for damages could not be considered as an effective remedy within the meaning of Article 35 of the Convention. In any event, it is not the Court’s task to assess in the abstract whether administrative court proceedings might have been more appropriate for certain aspects of the applicant’s complaints or whether such proceedings would have offered him better prospects of success. The Court finds that, given the nature of the applicant’s complaints, it cannot be said that he chose an inappropriate remedy. Therefore the applicant was not required to embark on another set of proceedings before the administrative courts which would serve substantially the same purpose. The Government’s plea of non-exhaustion of domestic remedies must therefore be rejected.

48.  The Court notes that the applicant’s complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B.     Merits

1.    The parties’ submissions

(a)    The applicant

49.  The applicant asserted that the use of handcuffs on a person who had been admitted as an in-patient owing to a heart attack, constituted torture and inhumane treatment. As regards the incident on 22 September 2016, the applicant claimed that he had refused to be handcuffed, but the two prison officers had attacked him while he had been lying peacefully in his bed. According to the applicant he had never hit the prison officers but had instead been trying to hide his arm.

50.  The applicant also considered that the authorities’ refusal to initiate criminal proceedings constituted a procedural violation of Article 3 of the Convention. He also pointed out that the prison officers had refused to document a haematoma on his chest and had refused to ask for his statement.

(b)    The Government

51.  The Government considered that the use of handcuffs on the applicant had not amounted to a violation of Article 3 of the Convention. They pointed out, referring to the European Prison Rules and the position of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”), that the use of means of restraint as a precautionary measure against escape during a transfer and in order to protect a prisoner from self-injury or injuring the others was accepted, so long as they were used in a proportionate manner on the basis of an individual risk assessment. The use of handcuffs had had a legal basis (see paragraph 33 above). When choosing to use handcuffs as means of restraint, the prison had taken into account the applicant’s personal circumstances - he had committed numerous disciplinary violations while in prison and had behaved aggressively towards other prisoners and prison officers (see paragraphs 27 to 30 above). The Government also referred to the risk assessment questionnaire of 12 August 2016 completed in respect of the applicant, according to which he had refused to work in prison, had used obscene and offensive language and threats, and had been described as impulsive and manipulative. Thus there was reason to believe that the applicant had posed a security risk which could not have been ruled out by his health conditions. In that regard the Government pointed out that the applicant had continued to be aggressive while in hospital (see paragraphs 9 and 13 above). The Government also stressed that the handcuffs had been removed several times each day. The requirement under the Imprisonment Act that a means of restraint could not be used for longer than twelve hours had been met (see paragraph 33 above). In addition, two pairs of handcuffs had been linked together and the handcuffed hand had been varied to allow for more mobility and relief. The medical file of the applicant did not show that there had been any contraindications in relation to the use of handcuffs on him. In any event, the handcuffs had been removed for the duration of the applicant’s medical procedures. The Government highlighted that after the use of force on 22 September 2016 a medical professional had checked the condition of the applicant and had recorded subcutaneous haematomas, redness of skin and a 1 mm abrasion on a knuckle of the left hand (see paragraph 12 above). However, a doctor had explained to the prison officers on the same morning that the haematoma had been caused by the attachment of a cannula to the applicant. The Government held, moreover, that the level of injury deriving from the use of handcuffs depended also on the behaviour of the person himself - the more the person shook his arm, the more severe were the marks. The Government also referred to the recent judgment of A.T. v. Estonia (no. 23183/15, § 59, 13 November 2018), where the Court had pointed out that while being taken to a medical facility outside prison, a prisoner may still pose a threat to medical personnel or other patients and that “staff in ordinary public hospitals cannot be expected to have the same level of preparedness and training as prison officers to deal with possible risks posed by prisoners’ unpredictable or violent behaviour.”

52.  As regards the use of force on 22 September 2016, the Government argued that it had been in response to the applicant’s own behaviour and that force had been used only after warning the applicant. Moreover, the use of force, which had lasted for only five minutes, had been lawful (see section 71(2) of the Imprisonment Act, paragraph 33 above) and proportionate. A medical professional had checked the applicant’s condition directly after the incident.

53.  The Government also stated that there had been an effective official investigation regardless of the fact that no grounds had been found that would justify the opening of criminal proceedings. The applicant’s criminal complaint was investigated first by the prison (which was obliged to conduct pre-trial proceedings in all instances where an alleged offence had been committed in prison), and subsequently by two different levels within the prosecutor’s office and then by the courts. The applicant’s complaint had been dealt with effectively and swiftly. The following materials had been gathered and examined: documents related to the applicant’s escort to the hospital, the applicant’s own statements, the statements of the prison officers on duty, and the photographs of the applicant’s injuries. The relevant materials were sufficient to assess the events in the hospital between 18 and 22 September 2016 and to conclude that no elements of any statutory offence existed. The Government submitted that in the case at hand the obligation of investigation had been met two-fold - the circumstances of the use of force when applying the handcuffs had also been examined in the criminal case against the applicant, where the domestic courts had concluded that the prison officers’ actions had been lawful.

2.    The Court’s assessment

(a)    General principles

54.  The Court reiterates that, to fall within the scope of Article 3 of the Convention, the alleged treatment must attain a minimum level of severity (see, among many authorities, Bouyid v. Belgium [GC], no. 23380/09, § 86, ECHR 2015). It further reiterates that handcuffing does not normally give rise to an issue under Article 3 of the Convention where the measure has been imposed in connection with a lawful detention, and does not entail a use of force or public exposure exceeding what is reasonably considered necessary. In this regard it is important to consider, for instance, whether there is a danger that the person concerned might abscond or cause injury or damage to himself or herself or to others (see Filiz Uyan v. Turkey, no. 7496/03, § 30, 8 January 2009, and Tarariyeva v. Russia, no. 4353/03, § 109, ECHR 2006‑XV (extracts)) as well as the particular circumstances of a transfer to hospital for medical treatment (see Henaf v. France, no. 65436/01, § 48, ECHR 2003-XI, and Mouisel v. France, no. 67263/01, § 47, ECHR 2002-IX).

55.  The Court notes that Article 3 does not prohibit the use of force in certain well-defined circumstances. However, such force may be used only if indispensable and must not be excessive (see Mihhailov v. Estonia, cited above, § 104, and Anzhelo Georgiev and Others v. Bulgaria, no. 51284/09, § 66, 30 September 2014).

56.  In respect of a person who is deprived of his liberty, or, more generally, is confronted with law-enforcement officers, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is, in principle, an infringement of the right set forth in Article 3 (see, among other authorities, Bouyid, cited above, § 100).

57.  When an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV, and Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998‑VIII).

58.  An obligation to investigate “is not an obligation of result, but of means”: not every investigation should necessarily come to a conclusion which coincides with the applicant’s account of events. However, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (see Mikheyev v. Russia, no. 77617/01, § 107, 26 January 2006, with further references). Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of the required standard of effectiveness (see Bouyid, cited above, § 120).

59.  The investigation into serious allegations of ill-treatment must be thorough. That means that the authorities must make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis for their decisions (see Bouyid, § 123, and Mikheyev, § 108, both cited above).

(b)    Application of the above principles in the present case

(i) Alleged ill-treatment

60.  The Court notes that in the instant case the alleged ill-treatment concerns both the applicant’s handcuffing to the hospital bed as well as the use of force when applying the handcuffs on one particular instance.

61.  In the present case it is not in dispute between the parties that the applicant was taken to hospital on 18 September 2016 with the symptoms of a heart attack and that on the same day a coronary artery procedure was performed on him. He stayed in hospital for approximately four days, until 22 September 2016, initially on an intensive care ward and later on a regular ward. During this time one of his hands was handcuffed to the hospital bed by means of two pairs of handcuffs joined together. The handcuffs were removed during meals, hygiene procedures, when he changed his clothes, during medical procedures, when he went to the toilet, when changing wards and when the escort teams changed. The parties also agree that on the morning of 22 September 2016 the applicant refused to be handcuffed and the prison officers used force to handcuff him. With regard to that incident, the parties disagree as to whether the prison officers attacked the applicant who was lying peacefully in bed or whether the applicant hit the prison officers when they tried to handcuff him.

62.  The Court notes that the domestic law laid down a framework for the use of handcuffs as a means of restraint when escorting prisoners out of prison (see paragraph 33 above). In accordance with Regulation no. 17 of 30 May 2006 of the Minister of Justice, “Prisoner Escort Duties and Procedures” (see paragraph 35 above), specific circumstances concerning the person to be escorted and the nature of the need for an escort had to be taken into account when drawing up the escort plan. The need for a case-specific assessment was underlined by the Supreme Court (see paragraphs 37 and 39 above). The Government, in their submissions, also stressed the importance of carrying out an individual risk assessment.

63.  In the instant case, escorting the applicant to hospital was authorised by an order of a duty officer. The order stated that the applicant needed to be escorted in order to undergo a medical procedure, that he was to be handcuffed and that two prison officers had to stay in his immediate vicinity at all times.

64.  In analysing whether the use of handcuffs on the applicant throughout his stay in the hospital amounted to a violation of Article 3 of the Convention, the Court will lay particular emphasis on whether the application of such a measure was adapted to the needs of the situation and took into account the specific personality of the applicant.

65.  The Court notes that, other than a general reference to the relevant sections of the Imprisonment Act and to an abstract security threat and risk of escape during an escort, no specific circumstances related to the applicant’s personal risk factors (such as the nature of the escort, the applicant’s medical condition, his personality and the likelihood of violence against prison guards or medical personnel, the likelihood of self-harm or probability of attempting to escape) were mentioned in the order. Under the section outlining his personal circumstances, only a brief note was made, indicating that the applicant was a first-time prisoner who had been convicted for a drug-related offence, and listing his physical characteristics. Although later in the same year the applicant was convicted of four counts of having inflicted “health damage” on prison officers and another prisoner (three of which preceded the incident of 22 September 2016), it does not appear that these were relied on when authorising the constant use of handcuffs on the applicant. More importantly, it does not seem that the security requirements took any account of the applicant’s medical condition and how that could have affected the relevant risk profile. At the same time, the applicant’s health condition - even if the severity of it was not entirely clear at the time of issuing the order - could not have been completely unknown to the prison as a heart attack was already suspected when the applicant was taken to the medical ward in prison (see paragraph 6 above). The Court considers that in a situation where the applicant had to be taken to hospital in a hurry, given his state of health, the prison authorities might not have immediately had the time to thoroughly analyse and weigh up all the relevant circumstances when authorising his escort. However, this should not have prevented the authorities from reviewing the situation and the need for the applicant to be constantly handcuffed at a later time, when the applicant was already at the hospital.

66.  Against that background, the Court observes that instead of relying on a personal risk assessment, as required in general terms by domestic law, the prison resorted to standard references about abstract risks entailed in escorting a prisoner outside the confines of prison and authorised the use of handcuffs more as standard procedure rather than a thoroughly calculated need in the case at hand (compare and contrast A.T. v. Estonia, cited above, §§ 62-63). Moreover, the Court notes that at the material time there were no specific written rules setting a requirement of individualised risk assessment that governed the use of means of restraint in a hospital setting as such or for the regular review of such measures. This represented a regulatory shortage, apparently placing too much discretion in the hands of the prison duty officer.

67.  Regardless of the reasoning above, the Court considers that given the applicant’s state of health, keeping him handcuffed to a hospital bed for four days after a heart attack and the relevant medical intervention was disproportionate to the needs of security (see Henaf, cited above, § 56), especially since during his stay in hospital he was constantly guarded by two prison officers. The relatively short periods when the handcuffs were removed could not have offered enough relief for the applicant so as to change the above conclusion.

68.  While it is true that the State, when providing necessary medical treatment for prisoners in public hospitals, must also ensure the safety of medical personnel as well as other patients (see A.T. v. Estonia, cited above, § 59), it is necessary not to lose sight of the need for the use of security measures, such as handcuffs, to be based on an individual risk assessment, taking into account all of the relevant circumstances. In the instant case, the Court notes that the handcuffs were in any event removed during the medical procedures. However, two guards stayed in close proximity to the applicant at all times and there is nothing to indicate that they could not have intervened sufficiently quickly if needed.

69.  As for the use of force when handcuffing the applicant on 22 September 2016, the Court notes that the applicant did not deny that he had refused to comply with the order to be handcuffed, following which the prison guards had used force to apply the handcuffs. While the applicant maintained before the Court that he had remained peacefully in bed and had offered no physical resistance when the prison officers had attacked him, the Government argued that the prison officers had - after repeatedly warning the applicant about the use of force - used the minimum force necessary to apply the handcuffs while the applicant had hit one of the officers.

70.  As for the applicant’s behaviour during the incident, the Court notes that the applicant himself admitted in the domestic criminal proceedings against him that he had actively resisted being handcuffed and that he had hit one of the prison officers during the scuffle that followed (see paragraph 27 above). As for the injuries sustained by the applicant during the use of force, it appears that the applicant’s medical condition was checked after the incident. Although there is some confusion as to whether the check noted in the ETCH’s records (see paragraph 12 above) was performed briefly before or after the use of force, the Court notes that the injuries recorded in the entry match the ones recorded on the photographs taken at the request of the applicant on the following day and mainly include haematomas on the applicant’s wrists. The applicant has not challenged the Government’s argument that his health was checked by a medical professional after the use of force.

71.  Based on the above, particularly taking into account the fact that the applicant himself actively resisted being handcuffed, the Court finds that the recorded injuries are consistent with the physical confrontation which occurred between the applicant and the prison officers when they sought to suppress his resistance and put on the handcuffs. It cannot be excluded, as suggested by the Government, that some of the haematomas might have been caused earlier either by the treatment or by continuously wearing handcuffs. Taking into account that the domestic law allowed for the use of force in such circumstances and given that the prison officers were following the terms of the order authorising the escort which obliged the applicant to be handcuffed, the Court does not find that the level of force used by them on that particular occasion was in itself excessive. However, as the Court considers the use of handcuffs during the applicant’s hospitalisation to have been disproportionate in the first place, the conclusion about the incident on 22 September 2016 does not alter the Court’s overall finding.

72.  In the light of the above, the Court finds that the handcuffing of the applicant in hospital for the period from 18 September to 22 September 2016 amounted to inhuman and degrading treatment.

73.  There has therefore been a violation of Article 3 of the Convention.

(ii) Alleged ineffectiveness of the investigation

74.  Turning to the complaint under the procedural limb of Article 3, the Court notes that the issues of handcuffing of the applicant to the hospital bed and the incident involving the use of force of 22 September 2016 were addressed together in the domestic proceedings.

75.  The Court observes that although officially no criminal proceedings were initiated, it cannot automatically be concluded that no examination of the facts of the case took place or that the conclusion reached was hasty or ill-founded. In its decisions not to initiate criminal proceedings, the prison relied on the applicant’s written statements about the events in the hospital, on the order authorising the escort, on the escort plan (see paragraph 7 above), and on the report on the use of force (see paragraph 10 above). The prison also documented the applicant’s injuries the day after he was discharged from the hospital (see paragraph 16 above). In addition, the prosecutors relied on the written statements of the prison officers who had been involved in the incident of 22 September 2012 (see paragraph 11 above), on the day-to-day account of when the handcuffs were removed while the applicant was in hospital (see paragraph 8 above), on the statement of one of the prison officers in the criminal proceedings against the applicant (see paragraph 22 above) and on the fact that the applicant’s medical condition had been checked after the use of force but no injuries referring to excessive use of force had been recorded.

76.  As for the applicant’s medical condition after the use of force on 22 September 2016, there is no dispute between the parties that a medical check was performed by the ETCH medical worker after the incident. The extent of the applicant’s injuries was clear from the applicant’s explanations, in conjunction with the photos taken in the prison. The Court takes note of the applicant’s complaint that the prison refused to record the haematoma on his chest (see paragraph 17 above). However, considering that the applicant’s injuries from the use of handcuffs and/or from the use of force had already been recorded on the day after the applicant was discharged from the hospital and that he only made the request about the haematoma on his chest approximately a week later (that is to say, also a week after lodging a criminal complaint), the Court does not consider the prison’s refusal unreasonable, at least in so far as it concerned the investigation into the facts of the current case.

77.  As for the applicant’s complaint that his statement was not taken, the Court points out that he had raised a similar matter already on a domestic level (complaining that no questions had been put to him; see paragraph 22 above). During the domestic proceedings, the Prosecutor General pointed out that the applicant had had an unlimited opportunity to give his account of the case when submitting his criminal offence report and the appeals against the various decisions and highlighted that the applicant had not explained what aspects had been overlooked in the proceedings. The Court notes that the applicant has not clarified in the Convention proceedings what additional information he would have wanted to convey in an oral statement. Against that background the Court observes that in the instant case the facts were to a great extent clear. The description of the events in the applicant’s and in the prison officers’ written statements did not contain any significant differences. There was no dispute about the use of handcuffs or about the use of force as such. Nor were the perpetrators of the alleged offence unknown. The applicant did not deny that he had refused to comply with the order to be handcuffed. The parties only disagreed about the level of resistance that the applicant had shown when force was used to apply the handcuffs. However, the force used by the prison officers in response - even if one were to proceed from the applicant’s account of the events - does not appear to have been disproportionate. In any event, it can be noted that the applicant admitted in the criminal proceedings against him that there had been a scuffle and that he had hit one of the prison officers (see paragraph 27 above).

78.  The Court notes that other than complaining about the refusal to document a haematoma on his chest and a failure to take his statement, the applicant has not raised any complaints about the substance and the course of the investigation. Having analysed the applicant’s specific complaints about those two alleged shortcomings above, the Court does not ascertain any other pertinent procedural steps that ought to have been taken in order to secure relevant evidence or establish the crucial facts of the case. Furthermore, it is not disputed that the prosecuting authorities acted with sufficient promptness.

79.  Against that background it appears that the applicant’s complaint to the Court does not concern the investigation as such, but rather its outcome, that is to say the finding that the elements of a criminal offence were lacking and thus that there were no grounds to initiate a criminal investigation. Whereas the applicant felt that the use of handcuffs had been unlawful and disproportionate, the prosecuting authorities examined all the relevant materials, analysed the facts of the case in the light of possible criminal offences in the Penal Code and explained in reasoned decisions why a criminal investigation would not be initiated. By refusing to grant state legal aid, the courts, in substance, agreed with that position.

80.  Having regard to the circumstances of the case and reiterating that the procedural obligation under Article 3 is not an obligation of result, but of means, the Court is unable to conclude that the prosecuting authorities’ investigation into the incidents fell short of that obligation under Article 3 of the Convention (compare Julin, cited above, §§ 138-46).

81.  There has accordingly been no violation of Article 3 of the Convention under its procedural limb.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

82.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.    Damage

83.  The applicant claimed 25,000 euros (EUR) in respect of non-pecuniary damage.

84.  The Government argued that the Convention had not been violated and that therefore there was no basis for an award of damages. However, if the Court were to find a violation of the applicant’s rights, they contended that a finding of a violation would constitute sufficient just satisfaction. The Government stressed that the applicant could have claimed compensation on a domestic level in administrative court proceedings. They argued that the sum of EUR 25,000 was excessive.

85.  As regards the Government’s argument that the applicant could have sought compensation under the national law, the Court reiterates that an applicant who has already exhausted domestic remedies to no avail before complaining to this Court of a violation of his or her rights is not obliged to do so a second time in order to be able to obtain just satisfaction from the Court (see Jalloh v. Germany [GC], no. 54810/00, § 129, ECHR 2006-IX; and Julin, cited above, § 199). Accordingly, the Court is not prevented from making an award on that account.

86.  The Court accepts that the applicant suffered non-pecuniary damage as a result of the violation of Article 3. It considers that such damage cannot be compensated solely by the finding of a violation. Taking into account the circumstances and modalities of applying the handcuffs in the instant case, the Court finds it appropriate to award the applicant EUR 10,000 in respect of non-pecuniary damage plus any tax that may be chargeable.

B.     Costs and expenses

87.  The applicant also claimed EUR 2,340 for the costs and expenses incurred before the Court.

88.  The Government submitted that that sum was excessive.

89.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the judgment made above, to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,500 covering costs and expenses under all heads.

C.    Default interest

90.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

2.      Holds that there has been a violation of the substantive limb of Article 3 of the Convention;

3.      Holds that there has been no violation of the procedural limb of Article 3 of the Convention;

4.       Holds

(a)   that the respondent State is to pay the applicant, within three months, the following amounts:

(i)         EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)       EUR 1,500 (one thousand five hundred 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;

5.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 9 June 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

   Hasan Bakırcı                                                                      Egidijus Kūris
Deputy Registrar                                                                       President