El-Asmar v. Denmark

Last Updated on October 3, 2023 by LawEuro

Legal summary
October 2023

El-Asmar v. Denmark – 27753/19

Judgment 3.10.2023 [Section IV]

Article 3
Degrading treatment
Inhuman treatment
Effective investigation

Ineffective investigation into use of pepper spray against an aggressive prisoner in an observation cell without prior warning and without use made strictly necessary by his conduct: violation

Facts – Pepper spray was used by two prison guards on the applicant, a prisoner on remand, while he was held in an observation cell. Following an investigation into the applicant’s complaint, the Department of Prisons and Probation found its use justified and the police decided not to initiate criminal proceedings against the prison guards. The applicant appealed unsuccessfully.

Law – Article 3:

(a) The procedural limb – No issue arose as to the independence of the investigation. Although, the investigation had taken too long to start following the applicant’s reporting of the incident and could not thus be considered “prompt”, that initial delay in the circumstances could not of itself lead to a finding that the investigation had been ineffective. In particular, the identity of the relevant prison guards had been recorded and the description of the facts in the prison journal had corresponded to their subsequent descriptions.

That being said, the subject of the investigation had been rather narrow as it had been aimed at deciding whether to bring charges against the relevant prison guards and at addressing the applicant’s complaints about the investigation without an assessment of whether the use of force, in the form of deploying pepper spray against the applicant, had been “made strictly necessary by his conduct”. In particular, the Court found as follows:

Firstly, although the prosecution authorities had noted that the reports of events had been contradictory, it did not appear that they had made an assessment of the incident in the context of the surrounding circumstances, including the applicant’s prior behaviour and threats or the prison authorities’ ability to respond to prior attacks without the need to deploy pepper spray. Notably, they had not examined in any detail the reason for entering the observation cell, the preparation (if any) of the action, or whether the legal safeguards for the use of pepper spray laid down in domestic law had been complied with.

Secondly, there had been inconsistencies in the descriptions of the events and the timing set out in the prison journals. However, the prosecution authorities had made no adequate attempt to clarify the reasons for which the guards had entered the observation cell and had thus been unable to establish the necessity and urgency of the action taken.

Thirdly, as in the case of Tali v. Estonia, the prison authorities and the prison guards that had been involved in the incident had been well aware that the applicant was a violent and aggressive prisoner, who had made daily threats against them and had been placed in observation and security cells several times. The applicant had engaged in a physical attack against them the day before and had also been aggressive the same day of the incident, some 20 minutes before the guards had entered the cell. Nonetheless, there was no indication that the investigation authorities had examined whether the guards could and should have foreseen that their entering the cell could have involved a risk of the applicant turning violent towards them or whether that risk could have been averted by making specific preparations before entering. An examination of the preparation of the operation could have shed light on whether the applicant could have been brought under control without the need to deploy pepper spray.

Fourthly, it would have been relevant to question more thoroughly why the prison guards could not have forewarned the applicant, before entering the observation cell, that pepper spray would be used against him if he did not obey orders, or why, they had not entered his cell with the pepper spray visibly drawn ready to be used as required by domestic law. In that context, it might also have been appropriate to examine whether there had been sufficient “assistance” – to be offered to the prisoner after deployment of the pepper spray – available, and whether provision could or should have been made for specific evidence about the operation to be gathered.

Lastly, it appeared that the prosecution authorities had assumed that the remaining legal safeguards for the use of pepper spray provided for under domestic law had been complied with. In that connection, the Court reiterated the concern expressed by international bodies about pepper spray being used by law enforcement in confined spaces. Moreover, in light of the recommendations made by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) in its 2019 report to the Danish Government concerning the use of pepper spray in Danish prisons, the investigation should have carefully addressed whether the procedural safeguards laid down in domestic law had been complied with, as those would be elements to be taken into account in assessing whether the use of pepper spray in the present case had amounted to ill-treatment contrary to Article 3.

In that connection, while the investigation authorities had found it established that the prison guards had offered the applicant water and called the prison doctor immediately after the incident and again one hour later, it was not clear whether they had found it established, that he had been offered the necessary relief for symptoms caused by the use of pepper spray as required by domestic law or considered the appropriateness of the doctor’s response that “if the inmate had only been subjected to pepper spray, there was no need to attend to the inmate”. In addition, although it followed from the prison journals that the use of pepper spray had been registered and described and the applicant had been informed that he could appeal against the decision on its use, there was no information as to whether the incident had also been recorded in a dedicated register and reported to the Prison and Probation Service.

In the light of the foregoing, the respondent State’s authorities had failed to carry out an effective investigation into the applicant’s allegations of ill-treatment with a view to establishing whether the deployment of pepper spray had been made strictly necessary by his conduct.

Conclusion: violation (unanimously).

(b) The substantive limb – The Court fully acknowledged the difficulties that States might encounter in maintaining order and discipline in penal institutions, particularly in cases of unruly behaviour by dangerous prisoners.

In the present case, the prosecution authorities’ investigation, however, had not been aimed at deciding whether the use of force had been made strictly necessary by the applicant’s conduct, which was the Convention standard for determining such a matter, the burden of proof being on the Government. Moreover, due to the investigative flaws identified by the Court, several important questions, which could and should have been addressed by the relevant domestic authorities in order to show that the use of pepper spray in this case had been made strictly necessary by the applicant’s conduct had remained unanswered. In particular, they had failed to examine whether, despite their prior knowledge of the applicant’s repeated threats and physical attacks on the prison guards and the passage of some 20 minutes between the applicant’s conduct being first recorded and the prison guards entering his cell, their actions and the use of pepper spray without prior warning, had been strictly necessary, and whether in those circumstances, the operation had been prepared adequately and in compliance with domestic law and the CPT’s recommendations

Having regard to the above, and in particular the lack of any prior warning, the Court could not but conclude that the Government had failed to demonstrate that the use of force had been made strictly necessary by the applicant’s conduct.

Conclusion: violation (unanimously).

Article 41: EUR 10,000 in respect of non-pecuniary damage.

(See also Tali v. Estonia, 66393/10, 13 February 2014, Legal Summary)