Published on 6 September 2021

SECOND SECTION

Application no. 27753/19 Abdallah EL-ASMAR against Denmark lodged on 13 May 2019 communicated on 20 August 2021

SUBJECT MATTER OF THE CASE

On 4 April 2017, while the applicant was serving a prison sentence and placed in an observation cell, two prison guards sprayed him with pepper spray. The concrete circumstances were disputed. Subsequently, the applicant was taken to a secure cell.

By a final decision of 16 November 2018, the Regional Prosecutor decided not to institute criminal proceedings against the prison guards finding, inter alia , that it could not be ruled out that the use of force had been legitimate and strictly necessary.

By a final decision of 9 January 2020, the Regional Prosecutor dismissed the applicant’s complaint that the investigation had been ineffective.

Before the Court, relying on Article 3 of the Convention (the substantive limb) the applicant complained that pepper spray had been used against him. He also complained that the investigation had been ineffective (the procedural limb), notably because it had been protracted; the parties involved had not been heard promptly after the incident; he had not been attended to by a doctor from outside the prison; only two of the four prison guards involved had been heard; and no video surveillance recordings of the corridors in the prison had been secured.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to treatment in breach of Article 3 of the Convention (see, for example, Bouyid v. Belgium [GC], no. 23380/09, §§ 100-103, ECHR 2015)?

2. In this respect, does the Convention, in general, rule out the use of pepper spray in confined areas or does this depend on a concrete assessment of all the relevant circumstances (see, inter alia , Ali Güneş v. Turkey , no. 9829/07, 10 April 2012 and Tali v. Estonia, 66393/10, 13 February 2014)?

3. Was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention (see, among others, Labita v. Italy [GC], no. 26772/95, §§ 131- 136, ECHR 2000-IV and Tymoshenko v. Ukraine , no. 49872/11, §§ 241, 30 April 2013)?