Communicated on 6 July 2015

FIRST SECTION

Application no. 72126/14 Lamin CEESAY against Austria lodged on 14 November 2014

STATEMENT OF FACTS

The applicant, Mr Lamin Ceesay , is a Gambian national, who was born in 1969 and is detained in Hamburg . He is represented before the Court by Mr H. Blum , a lawyer practising in Linz .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Background to the case

The applicant is the brother of Y.C., also a Gambian national , who applied for asylum in Austria in 2004. Y.C. was convicted for drug trafficking twice and in April 2005 sentenced to 7 months ’ imprisonment. H e served his sentence in the Linz prison.

On 18 April 2005 the Vienna Federal Asylum Office dismissed his asylum application and ordered his expulsion to Gambia . His appeal was dismissed by the Independent Asylum Panel ( Unabhängiger Bundesasylsenat ) on 6 June 2005. This decision became final.

On 6 September 2005 the Linz Regional Court decided to release Y.C. from prison on probation on 12. September 2005.

On 8 September 2005 the Linz Regional Police Authority issued an order against Y.C. for detention with a view to expulsion.

On 12 September 2005 Y.C. was transferred to the Linz Administrative Detention Centre.

On 28 September 2005 he went on hunger strike.

On 4 October 2005 he was brought to the General Hospital in Linz ( Allgemeines Krankenhaus Linz ) f or exploration of his health status. The applicant denied venepuncture and got aggressive towards hospital employees . Therefore, he was brought back to the Administrative Detention Centre and put into a security cell at 11.00 o ’ clock. At 12.30 o ’ clock he responded when he was asked by the security guard. At 12.50 o ’ clock it was discovered that Y.C. had stopped breathing. At 13. 2 0 o ’ clock, the medical doctor who was called in declared the death of Y.C. On 4 October 2005 he was found dead in the cell.

Y.C. was 18 years old at the time.

2. Criminal proceedings

Already at the day of Y.C. ’ s death , the Linz Public Prosecutor instituted criminal investigations into Y.C. ’ s death and requested judicial investigations at the Linz Regional Court.

The investigating judge ordered an autopsy which was conducted on 5 October 2005.

Also t he Office for Internal Affairs at the Ministry of Interior ( B ü ro f ü r interne Angelegenheiten des Bundesministeriums f ür Inneres ) was entrusted with investigations.

On 12 December 2005 t he applicant expressed his wish to join these proceedings as a private party .

On 4 January 2006 the medical expert submitted his report on Y.C. ’ s death and came to the conclusion that it was caused by dehydration in combination with sickle cell anaemia (an anomaly of blood cells occurring in Europe very rarely) which previously had neither been known to him nor to the authorities.

On 13 January 2006 the public prosecutor decided not to continue criminal proceedings as no sufficient evidences were found to show a misconduct of the persons in charge . There is no indication that the applicant requested further judicial investigations.

On 2 March 2006 the applicant submitted the Upper Austria Independent Administrative Panel ’ s decision of 13 February 2006 ( Unabhänigiger Verwaltungssenat , thereinafter: IAP) to the public prosecutor and asked for further investigations.

There is no information if the public prosecutor took action in this regard.

3. Administrative proceedings

On 15 November 2005 the applicant lodged a complaint for the review of the lawfulness of the detention ( Schubhaftbeschwerde ) of Y.C. and a complaint about the conditions of detention ( Maßnahmenbeschwerde ) with the Upper Austria Independent Administrative Panel ( Unabh ä nigiger Verwaltungssenat , therenafter : IAP ) . He submitted that the order for detention of 8 September 2005 against Y.C. was unlawful as there had not been a public interest ( Sicherungsinteresse ) in taking him into detention and an order of more lenient measures would have been sufficient. Moreover, he should not have been kept in detention because due to a hunger strike he was no longer fit enough for detention . In regard to the conditions of Y C. ’ s detention, he submitted that the medical treatment of Y.C. had not been in conformity with section 10 § 1 of the Detention Act ( Anhalteordnung ) and claimed that Y.C. had been placed in a security cell without water on the day of his death , which was not in compliance with the requirements of section 5 § 5 of the Detention Act.

On 13 February 2006 the IAP held a hearing in which the applicant, a cellmate of Y.C., one of the medical doctors who explored Y.C. during his hunger strike, as well as the detention centre officers who had been in charge on the day of Y.C. ’ s death, were questioned. The applicant submitted a private expert report which stated that Y.C. died because of dehydration due to a wrong calculation of his body weight. He requested to question the second medical doctor in charge at the detention centre as well as to obtain another expert report to counter the expert report obtained in the criminal proceedings. The IAP dismissed this request and decided that the detention with a view to expulsion had been unlawful and that the conditions of detention during his hunger strike had violated Y.C. ’ s right to pr otection against ill-treatment under Article 3 of the Convention. Concerning the course of the events leading to Y.C. ’ s death, the IAP made the following findings:

“ On 28 September 2005 the applicant informed the authorities that he was on hunger strike. Consequently, he was handed an information leaflet concerning the consequences of a hunger strike. Representatives of the NGO “Human Rights Austria” ( Verein Menschenrechte Österreich ) came to talk to him. On the Linz City Police Authority ’ s “Hunger strike form”, it was noted that at the outset of his hunger strike, his weight was 67 kilograms. However, when he had been medically examined on his first day of detention pending deportation, his weight was noted as being 76.5 kilograms. On the hunger strike form, Y.C. ’ s “critical weight” was calculated to be 54 kilograms, based on the weight he had on the first day of his hunger strike, not his initial weight. On the day of his death, Y.C. weighed 59 kilograms. Further, there were notes on the form that Y.C. ’ s tongue had always been moist until 2 October 2005, when it was found to be dry. On several occasions it was noted that he was resisting or feigning illness (“pretends to stumble”, “refuses examination”, “has to be carried by other detainees”, “runs from the scale to the chair”, “tilts from his chair with ostentation”).

After the examination on 3 October 2004 the medical doctor in charge noted the following after examining Y.C.: “Pretends to be decrepit, has to be physically supported by two detainees, therefore weight control not possible. Dry tongue, barky lips. Request for medical assessment by medical specialist. Possibly blood test, Ionogram .”

On 4 October 2005 at 9:30am, Y.C. was taken to the Linz General Hospital for examination and for assessment of his fitness for further detention. Because he was resisting the examination and was kicking with his feet towards a nurse, his hands and feet had to be shackled. According to the report by the hospital, it was “not possible to assess the intake of liquids”, and “communication [was] difficult” because Y.C. did not speak German. He had “dry lips” and held “his eyes constantly closed”, but “walking [seemed] possible if supported”. He was noted to be uncooperative. The hospital further noted that if his general condition worsened, he would have to be force-fed and taken to a psychiatric ward, because he “lashed about from time to time”, which is why it had been difficult and risky to take his blood for a test.

When Y.C. was taken back to the detention centre, he was placed in a security cell because of his behaviour at the hospital, and also because in his cell another detainee was on hunger strike. His shackles were removed. The security cell did not dispose of a water source, but according to the witness statement of one of the detention centre officers, he could have requested a water bottle at any time. A detention centre officer checked on Y.C. every 15 to 30 minutes. When he was checked on at 12:30pm, Y.C. still showed a reaction to the officer. At the next check at 12:50pm he was not breathing anymore and had no more pulse. At 1:20pm he was declared dead by the emergency doctor.

The autopsy report stated that according to the appearance of Y.C. ’ s body, he did not show signs of “significantly acute malnutrition”, nor were there signs of a “classic dehydration”. A medical expert opinion attached to the autopsy report stated that a life-threatening situation with regards to Y.C. was not visible from the outside or from previous medical reports. The autopsy report stated that Y.C. ’ s death was caused by an electrolyte misbalance, which did not occur acutely, but had developed over several days. Ultimately, probably because of an acute heart-rhythm-disturbance, Y.C. ’ s heart stopped beating. This could have only been prevented if he had been tested earlier for sickle cell anaemia. However, the “hunger strike protocol” did not indicate a necessity for such a blood test. The test results from the hospital on the day of Y.C. ’ s death would have given reason for further tests. However, the results only came in after Y.C. ’ s death. Sickle cell anaemia in itself is not a life-threatening illness. However, in combination with other factors, such as dehydration, lack of oxygen or great physical strain, it potentially can have lethal consequences. In conclusion, the autopsy report stated that in the case of Y.C., the combination of sickle cell anaemia and dehydration led to an electrolyte un balance, which ultimately caused his sudden heart death.

In a note to the file of the criminal proceedings, the Linz Public Prosecutor wrote that according to the forensic expert, Y.C. ’ s aggressive behaviour at the hospital on the day of his death was caused by the advanced stage of dehydration and the ensuing disintegration of his blood cells, which had put him in state of delirium.

According to the witness statements by the employees of the NGO “Human Rights Austria” who had visited Y.C. on several occasions, he had not raised any allegations of ill-treatment during their visits. He still had “the same, round face” after a week of being on hunger strike. In fact, all witnesses who had contact with Y.C. until his death concurringly stated that he did not appear to be ill or weak, but on the contrary even on the day of his death seemed athletic and strong, which was corroborated by pictures taken of his body. Further, the autopsy had shown lumps of stool in his digestive system. The IAP therefore concluded that Y.C. must have consumed at least some food and liquids during his hunger strike. ”

T he IAP concluded from the above findings that the State authorities had not fulfilled their role as guarantor of the applicant ’ s rights under Articles 3 and 5 of the Convention. The IAP argued that in the light of the commonness of sickle cell anaemia among Africans from certain regions, such as the one Y.C. was from, the State would have been under the obligation to offer a test in that respect to all detainees from that specific ethnic group, in particular to those who were on hunger strike.

The Ministry of Interior Affairs appealed against the IAP ’ s decision.

On 30 August 2007, the Administrative Court quashed the above decision . It held that the applicant had no locus- standi regarding the complaint for the review of the lawfulness of the detention of his brother, because rights under Article 5 of t he Convention were not transfer able to other persons . T herefore , the IAP had not been competent to issue a decision in that respect. C oncerning the complaint under Article 3 of the Convention, it held that the mere fact that a person was detained did not lay a duty on the State to take measures which were not necessarily foreseeable because of a genetic disposition of a specific person without a manifest outbreak of a disease. Moreover, it found that the IAP had based its decision on facts and a legal opinion which had not been previously assessed in the proceedings. Therefore, the authority did not have the opportunity to argue on this facts and legal opinion. Because of this violat ion of procedural requirements , the case was referred back to the IAP.

The applicant lodged a complaint to the European Court of Human Rights against this judgment of the Administrative Court which was registered under the number 17208/08 .

On 29 January 2008 the IAP decided to interrupt the fresh proceedings until the Court ’ s decision.

On 28 May 2010 the European Court of Human Rights declared the application under Article 35 § 1 of the Convention inadmissible.

Before t he IAP , proceedings were resumed and on 11 June 2010 i t again issued a decision finding a violation of Article 3 of the Convention concerning Y.C. ’ s conditions of detention. It essentially repeated the reasoning from its previous decision, explaining that the proceedings did not aim at identifying an individual who would be culpable for Y.C. ’ s death, but at identifying an error inherent in the present detention system, namely the lack of a standardised test for sickle cell anaemia for certain risk groups, and a lack of clear instructions concerning detainees in cases of hunger strike. The IAP concluded that this was in fact the case which is why there had been a violation of Article 3 of the Convention.

The Ministry of Interior again lodged a complaint, arguing that there were sufficient rules and instructions concerning the treatment of detainees. In the present case, there had not been any indications that Y.C. suffered from sickle cell anaemia. Not even hospitals conducted standardized tests for this blood anomaly without any suspicion in that respect. It added that nonetheless the death of Y.C. gave reason to the Ministry of Interior to issue a directive to detention centre authorities to inform detainees on hunger strike belonging to a risk group of the possible consequences of sickle cell anaemia, and to conduct the necessary tests.

On 20 October 2011 the Administrative Court again quashed the IAP ’ s decision. It reminded the IAP that it was bound by the legal interpretation the Administrative Court had gi ve n in its previous judgment concerning the obligations of the State towards detainees under Article 3 of the Convention. Moreover, it suggested ordering an expert report to determine if the reduced mental and physical conditions of Y.C. should have given rise to an exploration with regard to s ickle cell anaemia and if medical treatment from that moment on could have avoided the death of Y.C.

The IAP ordered an expert report in this regard.

In his report as well as in the hearing of 21 June 2012 the expert concluded that a sickle cell anaemia could only be detected through exploration of blood samples and that an exploration in this regard even under consideration of the reduced mental and physical conditions of Y.C . was not indicated. The fact that one was a carrier of this anaemia did not mean that he or she was ill or had a reduced expectancy of life . Nonetheless he or she would face a higher risk of death in case of e fforts (“ anstrengungsassoziierte Todesf ä lle ” ) and this anaemia could also cause rapid dehydration in case of reduced liquid intake. He challenged the correctness of the report produced during the first medical examination in detention and that Y.C. then actually had 76 .5 kilograms as the loss of 9 kilograms was unlikely. The applicant submitted the same expert report he already had submitted in the hearing of 13 February 2006 . He did not submit further requests.

O n 13 July 2012 the IAP dismissed the applicant ’ s complaints and found, based on the expert report, that an exploration of blood samples had been the only way to discover the life-threatening condition of Y.C. The expert had stated that an exploration in this regard even under consideration of the reduced mental and physical conditi ons of Y.C. was not indicated. According to the Administrative Court ’ s legal interpretation there was no duty of the State to take measures which were not necessarily foreseeable because of a genetic disposition of this pers on without a manifest outbreak of disease . Therefore, the IAP could not find a violation in the authorities ’ conduct.

The applicant lodged a complaint to the Constitutional Court which was dismissed on 22 November 2013.

The Administrative Court referring to his decisions of 30 August 2007 and 20 October 2011 rejected the applicant ’ s complaint on 25 April 2014 . This decision was served on the applicant on 16 May 2014.

B. Relevant domestic law

Based on Section 68 § 4 of the Aliens Act 1997 ( Fremdengesetz ) as well as Section 53c § 6 of the Execution of Sentences Act ( Strafvollzugsgesetz ) the Federal Minister for Interior adopted the ordinance in regard to people held in detention by police, Federal Law Gazette II, No 128/1999 ( Verordnung des Bundesministers fü r Inneres ü ber die Anhaltung von Menschen durch die Sicherheitsexekuti ve , Anhalteordnung , BGBl II, No 128/1999 ). In the present context the following provisions of that ordinance are relevant:

S cope of application Section 1

“ §1 The ordinance is applicable to person s in detention, who have been detained by police or who are under arrest under custody of police because of a decision of an administrative authority.

... ”

Procedure Section 4

“ § 1 Detainees have to be treated in respect of human dignity and shall be treated with utmost care. ”

Solitary confinement Section 5

“ §1 Detention in solitary confinement must take place:

1. where there are facts justifying the assumption that the detainee is endangering the health of others through violence;

2. where a request to that effect has been made by a court in respect of detainees against whom criminal proceedings are pending;

3. where there is a danger of infection from the detainee or where the detainee, on account of his or her appearance or conduct, objectively represents a signific ant burden for other detainees.

§ 2 Detention in solitary confinement may take place:

1. at the detainee ’ s request;

2. during the night, if this appears necessary to maintain safety or order;

3. as a disciplinary measure;

4. where it is necessary for a short time for organisational reasons;

5. where there are facts justifying the assumption that the detainee is endangering his or her own l ife or health through violence. ”

Adhesiveness Section 7

“ § 1 Detainees must not be detained if there unfitness for detention is detected or obvious.

...

§ 3 Detainees have to be examined by a doctor in regard to their adhesiveness without delay, at least within 24 hours after the person has been detained. This person has to accept the necessary medical examinations to testify if he or she is fit for detention. If a detained person refuses to accept these examinations, it is acted on the assumption of adhesiveness if there are no other indication s which lead to doubts about the adhesiveness.

... ”

M edical supervision of detainees Section 10

“ §1 Necessary medical attendance of detainees has to be ensured by public health officers ( Amtsarzt ). In any case it has to be ensured that medical doctors interfere without delay. For minor cases medical attendance may be provided by paramedic ( Sanitäter ).

§2 Detainees, who have already been declared fit for detention ... shall be immediately seen by a doctor where reasons indicate doubts about their continued fitness, in particular if the detainee states so. The state of health of injured or ill detainees, who have been declared fit for detention, shall be under supervision of a doctor to notice a worsening on time: if this worsening gives doubts to the adhesiveness, the detainee shall be seen by a doctor.

...

§4 Detainees, who go on hunger strike to cause their non-fitness for detention, have to be seen by a doctor without delay; the doctor has to examine all necessary medical means (das medizinisch Gebotene ) and has to inform the detainee. ...

§5 It is up to the detainee to call in a doctor of his own choice at his own expense .

... ”

COMPLAINTS

The applicant complains u nder Article 2 and 3 of the Convention that there had not been effective or comprehensi v e investigations into the death of his brother Y.C. The reasons of death of Y.C. were still unclear.

Under Article 3 he complains that the medical assistance of Y.C. during his hunger strike was not in accordance with the law (Section 10 § 1 and 4 of ordinance in regard to people held in detention by police ( Anhalteordnung ) ) , and Y.C. had been kept in detention even though not fit for detention anymore.

QUESTIONS TO THE PARTIES

1. Having regard to the procedural protection provided by Article 2 a nd Article 3 of the Convention ( Mustafa Tunç and Fecire Tunç v. Turkey [GC] , no. 24014/05 , § 169-182, 14 April 2015 ; El- Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 182 , ECHR 2012 ; Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08 , § 314-326, ECHR 2014 (extracts) ) , has the official investigation been effective in the present case, as required under these Article s of the Convention? In this respect:

(a) Which steps have been taken by the Public Prosecutor and the investigating judge at the Linz Regional Court to inves tigate into the death of Y.C?

(b) Was the decision of 13 January 2006 of the Public Prosecutor to discontinue criminal proceedings served on the applicant?

( c ) Has there been a reaction of Public Prosecutor on the letter of the applicant of 2 March 2006?

2. Has Y.C. been subjected to inhuman or degrading treatment in breach of Article 3 of the Convention in detention ( Palushi v. Austria , no. 27900/04 , § 68-74 , 22 December 2009 ) ? In this respect :

(a) Had the Linz Detention Centre been subject of national or international supervision (CPT, UN Committee against Torture , Menschenrechtsbeirat , Volksanwaltschaft etc.) in regard to the conditions of detainees at the present time especially conditions in solitary cells?

(b) How were detainees informed about possible risks of a hunger strike at the present time?

(c) What was the content of the Linz City Police Authority ’ s “Hunger Strike form” at the present time?

( d ) Did the applicant lack sufficient medical care from 2 8 September 2005 until 4 October 2005 ?

( e ) Did the applicant ’ s confinement in the solitary cell on 4 October 2005 constitute degrading and inhuman treatment ?

The government is explicitly invited to submit documents, confirming its observations.