Tekin and Arslan v. Belgium

The applicants were Belgian and Turkish nationals who alleged that their son died in detention in violation of his right to life. The applicants’ son (the deceased) had been detained in the psychiatric wing of the prison two times and was discharged on probation. In 2009, the Criminal Court gave an order of the deceased’s detention under the ‘Social Protection in respect of Mental Defectives, Habitual Offenders and Specific Sexual Offenders Act’. Due to the way he behaved toward his inmates and the prison staff, the deceased had been sanctioned with disciplinary measures.

The deceased failed to comply with the conditions set for his discharge on probation in July 2009 and was returned to the psychiatric wing up on the Court’s order. He was arrested for ‘insulting and threatening’ police Officers on the same date. He was examined by physicians who prescribed a ‘sedative and a sleeping tablet’ and then detained in an individual cell. [Para. 10-12]

On August 8, 2009, the deceased behaved provocatively toward a police Officer (R) who was in charge of instructing him of the week long special security measures ordered by the Deputy Director of the prison. R, with his colleagues (L and D), decided to place the deceased in an isolated cell and right after they placed the deceased inside the cell, the Officers noted that he was cyanotic.  Between 11:50 a.m and 12:50 p.m, a medical team and an ambulance service were called but couldn’t prevent the death of the deceased.  A severe cyanosis around his face and neck was detected by a forensic pathologist after investigation was opened to his case.

In his statement Officer R. stated, “I grabbed [the deceased] by the neck in order to force him to the ground and take him to the isolation cell. I should point out that I got him in an ‘armlock’ before pushing him off balance…. I placed my right arm around his neck and fell to the ground with him. You ask me if I exerted pressure on his neck, and I would reply that I did not press on the front of his throat. Once we were on the floor on the corridor side of the cell door I reduced the pressure. When he started to struggle again I exerted a small amount of pressure and slackened it immediately. In any case he was talking to me…” [Para. 30&31]

After carrying out an autopsy on the body, Dr. B concluded that “the cervical manoeuvres had been caused by the armlock applied by R., while the weight applied by L. on [the deceased’s] thorax had had a negative effect on the latter’s respiratory mechanism and been conducive to asphyxia, his respiration being further hindered by the manner in which he had been transported to the isolation cell.” [Para. 35].

Dr B further stated that “the manoeuvres on [the deceased’s] neck had caused injuries deep enough to fracture the right upper horn of the thyroid cartilage and that those injuries had been prolonged, because symptoms of asphyxiation had been observed”. The autopsy report stated that “during the compression exerted by a forearm (acting as a lever, with the person standing behind the victim), the lethal mechanism is virtually identical to traditional manual strangulation. Such particularly severe compression causes a bilateral vascular obstruction and a flattening of the upper respiratory channels against the cervical vertebrae.” The three Officers then were charged with committing ‘grievous bodily harm that led to unintentional death’. The Criminal Court acquitted the accused stating that there was no proof that their actions were dangerous or that they had used excessive force to apply the armlock technique.

The applicants applied for the Court of First Instance to join their civil and criminal complaints against the Officers and their colleagues who failed to help the deceased. Because the facts were the same as those presented in previous criminal proceedings and sufficient evidence hadn’t been provided for the claim against the Officers’ colleagues, the Court declared the application inadmissible. The applicants’ action for damages before the Brussels Court of First Instance against Belgium had also been barred by limitation.

The applicants lodged their complaint before the European Court of Human Rights (the ECHR) alleging a violation, by Belgium, of Article 2 (the right to life) of the European Convention on Human Rights (the Convention). They stated that the Officers used unnecessary and excessive force against the deceased and Belgium failed in its obligation to protect the life of the deceased. The applicants argued that the Officers should have taken into consideration the health conditions of the deceased which they had known of while they strained him; this showed that they didn’t have sufficient training on how to apply the restraining technique. The applicants also stated that the State Party’s failure/negligence was manifested in the restraining methods it had in place and with the lack of prompt medical treatment.

The government argued that proper and effective investigation had been conducted on the death of the deceased; the Criminal Court found that the Officers ‘acted in self-defense’ and used necessary and proportional force. [Para. 78] The government further stated that the prison’s staff had been trained on how they should implement immobilization techniques and there hadn’t been negligence on the part of the three Officers. As regards the complaint on the lack of effective medical treatment, the government argued that the delay of the ambulance wasn’t a reason for the death.

The ECHR reiterated that a State’s responsibility under the Convention was different from criminal liability and that it would not aim to find guilt or innocence as this fell under domestic authorities’ mandate.  The ECHR also reiterated that “the primary duty on the State to secure the right to life entails putting in place an appropriate legal and administrative framework defining the limited circumstances in which law-enforcement officials may use force … National law governing policing operations must provide a system of adequate and effective safeguards against arbitrariness and abuse of force, and even against avoidable accident.”  The ECHR noted that the death of the deceased was related to the ‘armlock’ technique applied by the Officers. It held that a proper investigation had been conducted in to the death of the deceased in compliance with Article 2 of the Convention.

The ECHR noted that the Officers defended themselves from the deceased’s attack and thus their use of force fell under Article 2 (2) of the Convention. The ECHR further noted that at the time of the deceased’s death, the authorities neither issued detailed instructions for the use of the ‘armlock’ technique nor provided prison Officers “with clear recommendations and criteria on the use of force”. [Para. 93] The ECHR observed the gap in training prison staff in Belgium; Officer R in particular hadn’t received training on how to deal with psychiatrically ill people. Furthermore, the ECHR stated that the deceased should have been detained in the psychiatric wing of the prison where he could have been managed by a staff trained on how to treat mentally disturbed prisoners.

The ECHR noted that contrary to his vulnerability, the deceased had been treated as a mentally stable person both by the prison Officers and the domestic Criminal Court which failed to take his condition in to account while deciding on the necessity and proportionality of the force used against him. The ECHR noted that the Officers should have considered the risk that the deceased would be ‘asphyxiated’ and could die due to the stranglehold. It also noted that the Officers failed to check on the deceased’s condition even after they immobilized him. It therefore couldn’t conclude that the force used had been ‘absolutely necessary’. [Para. 107] Regarding the medical intervention, the ECHR found no reason to believe that the deceased’s life could have been saved had he been provided with the treatment right away.  The ECHR found Belgium in violation of Article 2 of the Convention.

“Persons in custody are in a vulnerable position and the authorities are under a duty to protect them ….. Consequently, where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused …..The obligation on the authorities to account for the treatment of an individual in custody is particularly stringent where that individual dies.” [Para. 83]

“….the Court reiterates that the authorities have an obligation to protect the health of persons who are in detention or police custody or who, as in the case of [the deceased], have just been arrested and whose relationship with the State authorities is therefore one of dependence. That entails providing prompt medical care where the person’s state of health so requires in order to prevent a fatal outcome…... It should be remembered that the scope of the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. In other words, only the fact that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life can constitute a possible violation of a positive obligation on the part of those authorities.” [Para. 85]