Last Updated on July 2, 2019 by LawEuro
Information Note on the Court’s case-law 219
June 2018
Semache v. France – 36083/16
Judgment 21.6.2018 [Section V]
Article 2
Positive obligations
Article 2-1
Life
Use of “double seated embrace” technique against drunk elderly man, thereafter left without medical surveillance for more than one hour: violation
Facts – In 2009 the applicant’s father, aged 69, was arrested by the police for insulting an officer, along with the driver of a car which had been moving eratically; the two men were drunk in charge. During their short but agitated transfer to the police station, an officer immobilised the applicant’s father by bending him over, with his head touching his knees (the so-called “double-seated embrace” technique).
On arrival at the police station around 8.45 p.m., the man could hardly stand up, vomited several times and then fell down in his vomit, where he lay handcuffed without verification or medical supervision. Half an hour later it was decided to take him to hospital, but he first waited for 45 minutes in the police van. When they arrived at the hospital just after 10 p.m., the police officers noted that the applicant’s father was choking on his vomit. At 10.45 p.m. a doctor recorded cardiac arrest. He remained in a coma and died at 7.30 a.m. the next day.
In an opinion of 2010, the National Ethics and Security Commission (CNDS) took the view that the force used had been excessive and that inadequate care had been provided to the victim at the police station. In 2012 the investigating judge issued a discontinuance decision, upheld by the Investigation Division of the Court of Appeal in 2014, on the grounds, in particular, that the judicial investigation had not confirmed the Commission’s findings and that the experts’ reports had not established a direct connection between the chest compression during the transfer and the death.
Law
(a) Admissibility (exhaustion of domestic remedies) – In a recent case concerning a suicide in police custody, the Court had taken the view that, even for a complaint based on the substantive limb of Article 2, the fact of using the remedy of a criminal complaint and an application to join the proceedings as a civil party before the investigating judge did not exempt the applicants from bringing an action, effective since March 2011 at the latest, to establish State responsibility for the defective operation of the justice system, a more flexible procedure which afforded different prospects of success (see Benmouna and Others v. France (dec.), 51097/13, 15 September 2015, Information Note 189).
However, as the applicant in the present case had complained about acts or omissions that might engage the criminal liability of police officers for her father’s death, in so far as she had used the above-mentioned remedy and her criminal complaint had led to a number of judicial decisions, thus exhausting the available remedies in that connection, she could not be reproached for failing to bring an additional action against the State (see in particular Slimani v. France, 57671/00, 27 July 2004, Information Note 67; and De Donder and De Clippel v. Belgium, 8595/06, 6 December 2011, Information Note 147).
(b) Merits – Article 2 (substantive limb): The case raised two separate questions: first, the negative obligations of the State in terms of the use of force by the police; secondly, the State’s positive obligation to take all the necessary measures for the protection of the life of persons under its control.
(i) The use of force during the transfer to the police station – The Court accepted that the immobilising of the applicant’s father had pursued a legitimate aim – under Article 2 § 2 (a) of the Convention –, i.e. to neutralise him when his agitated state created a risk for his safety and for that of the other passengers in the vehicle and other road users, and that it was strictly proportionate to the danger in question.
The applicant had argued that the technique used was disproportionate in itself.
In the Saoud v. France judgment (9375/02, 9 October 2007, Information Note 101), the Court had found that there had been a violation of the Convention as regards a different immobilisation technique but one that also involved chest compression: stomach flat on ground, head turned to one side. However, it had examined the use of the technique in terms not of the State’s negative obligations but of its positive obligation to take care of individuals under its control in order to protect their life.
The Court decided to proceed in a similar manner here. It could not be ascertained from the case file whether there had been a direct causal link between the immobilisation technique in question and the death, which had occurred several hours later.
(ii) Handling of applicant’s father at the police station – First, the police officers could not have been unaware of the victim’s condition, the circumstances of his transfer or his resulting weakness.
Secondly, the dangerousness and risk for life of the immobilisation techniques involving a compression of the chest had been acknowledged by the French authorities and was known to the police officers who had arrested and transferred the victim, especially in view of the man’s state of mental or physical weakness, or general vulnerability:
– following the Saoud judgment, the training of officers now recommended (not only for the prone position technique used in that case, but others) that the person controlled by force should be placed in a “safe lying-down position” with special supervision;
– as regards the “double-seated embrace” technique, this had in fact been banned in France for alien removals.
The authorities had thus been bound by a heightened duty of vigilance. In spite of that, the applicant’s father had been left lying on the ground, in his vomit, and handcuffed, without verification or immediate medical supervision for an hour and a quarter.
The Court of Appeal’s judgment had merely found on this point that no witness had mentioned a state of unconsciousness, without going further in its analysis of the handling of the victim, and in particular not verifying whether he had been placed in a safe lying-down position.
It thus appeared that, as also stated in the CNDS opinion, the situation of the applicant’s father in the police station had been dealt with negligently.
Having regard to the particulars of the case – the victim’s age, his general condition and in particular his drunkenness, the fact that he had been manhandled during his transfer and had been subjected for several minutes to a potentially lethal immobilisation technique, and the lack of medical assistance for an hour and a quarter –, the Court took the view that the respondent State had failed in its positive obligation to take the necessary measures for the protection of life. That conclusion was based on the combination of all the above-mentioned factors, and not on a single one taken in isolation.
Conclusion: violation (unanimously).
The Court also found, unanimously, that there had been no violation of Article 2 under its procedural limb.
Article 41: EUR 30,000 in respect of non-pecuniary damage.
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