7 September 2012

FIRST SECTION

Application no . 66393/10 Andrei TALI against Estonia lodged on 7 November 2010

STATEMENT OF FACTS

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The applicant, Mr Andrei Tali , is an Estonian national, who was born in 1977 . He is serving a life sentence for murder in Viru Prison in J õ hvi .

A. The circumstances of the case

The facts of the case, as submitted by the applicant and as they appear from the documents on file , may be summarised as follows.

1. Events on 3 July 2009

On 3 July 2009 the applicant was informed by prison guard KA that he would be transferred to a punishment cell in the evening in order to serve a disciplinary punishment. The applicant was dissatisfied as he had been made to understand that he did not have to serve the punishment in question. He said that he would not gather his belongings until he could clarify the situation with a security officer. KA told him that in case he objected to going to the punishment cell, he would be taken there by force. The applicant replied that he would defend him in case of unlawful attack.

At 5.45 p.m. KA together with two further guards, MN and JT came to the applicant ’ s cell. KA had a plastic shield and MN and JT wore flack jackets and helmets. KA moved towards the applicant keeping the shield in front of him. MN and JT followed him.

According to the applicant, KA came up to him and pressed him on his chest with the shield while the two other guards added pressure from behind. The applicant tried to oppose the pressure of the shield whereas MN and JT tried to catch his hands. Then KA let the shield fall and tried to grab the applicant ’ s neck. The guards twisted his arms behind his back and ordered him to lie down on the floor. The applicant was brought down and KA pressed his neck so strongly that he lost his breath. According to the applicant, KA squeezed his nose with his fingers, covered his mouth with his palm, pressed his neck with his knee and put two fingers in his eyes. While on the floor, the applicant was handcuffed and kicked in the ribs so that he felt his left rib cracking. He was then raised up and escorted to the punishment cell. In the corridor the applicant lost breath, cried that he had not enough air and asked permission to straighten up but the guards pressed him down and continued their way.

According to the prison guards, the applicant had attempted to hit them and had had a scuffle with KA in the course of which the latter sustained minor injuries. They denied having kicked or strangled the applicant and submitted that he had subsequently threatened to kill them one by one.

In the punishment cell, two nurses came to examine the applicant. They suspected a broken rib and told him to lie until an X-ray image would be taken. A guard told that a medical certificate was required to keep a mattress in the punishment cell for round the clock. According to the applicant a nurse confirmed that such a certificate was drawn up.

2. Events on 4 July 2009

At 6.45 a.m. guard OV entered the applicant ’ s cell and told him to hand in the mattress. The applicant explained that the nurses had drawn up a certificate stating that he needed the mattress round the clock because his rib was broken. The guard left.

At 8.00 a.m. guards AR, VG and OV entered the cell and told the applicant to hand in the mattress. They had a discussion of some length in the course of which the applicant requested that senior duty officer ML be called. Guard AR warned the applicant of the use of force. The guards left and returned in about fifteen minutes.

At 8.20 a.m. six guards arrived to the applicant ’ s cell. AR and VG entered, four further guards were in the corridor or at the door of the cell.

According to the applicant, AR came up to him, grabbed his left hand and told him that they were going to take the mattress. The applicant pulled his hand off and VG sprayed pepper gas in his face while AR was attempting to twist his hand. The applicant ran out of the cell to the corridor, covering his face with hands. Several guards attacked him from behind and he was forced down on the floor. His was repeatedly hit to his back while handcuffs were put on him. After the applicant shouted that he had no air VG gave him a couple of more strokes. He was then raised from the floor, bent down and guided to the security room. According to the applicant, he fainted several times on the way because the injured rib caused him serious pain when being bent down.

All six prison guards present were interviewed in the subsequent criminal proceedings either as suspects or witnesses. According to AR and VG, the applicant pushed AG when he attempted to take the mattress. Then VG used pepper gas. According to the statements of the guards, the applicant who resisted strongly was forced down on the floor in the corridor. According to VG, he gave the applicant who was on all fours three strokes with the baton in order to suppress his resistance and handcuff him. AR and RT were unable to give details about the strokes. Nor was OV initially able to provide such details but at a second interview he submitted that by the time he closed the handcuffs, the applicant had not yet been hit with the baton. AJ thought that probably the applicant had been handcuffed when he was being hit by VG. According to AT, the applicant had been handcuffed but had forcefully struggled and pushed VG with his shoulder after which the latter had given him one or two strokes without much momentum.

The applicant was then confined to a restraint bed. According to him he was suffocating with gas in his throat but the guards pressed him to the bed, strangled him and did not let him spit. Finally he was allowed to spit and given water he had asked for.

According to report on the use of the restraint bed the applicant was confined in the bed from 8.40 a.m. to 12.20 p.m. His condition was monitored once an hour, when the necessity of the continued use of the means of restraint was assessed on the basis of his behaviour.

The report contains the following entries. At 8.40 a.m., 9.35 a.m., 10.30 a.m. and 11.25 a.m.: “[use of the restraint measures] to be continued, [the applicant is] aggressive”. At 12.20 p.m.: “[use of the restraint measures] to be discontinued, [the applicant is] calm.” The report also contains an entry according to which medical staff checked on the applicant ’ s situation; the time of the medical check-up on the copy of the report on file is illegible.

3. Medical evidence

According to a medial certificate dated 3 July 2009 (on one of the copies of the certificate the date is corrected from “4” to “3” by hand; based on other evidence, such as the applicant ’ s statements subsequently given to the investigator, it can be presumed that the certificate in question concerns 3 July 2009) medical staff had been requested to establish the applicant ’ s injuries in the punishment cell. It was stated in the certificate that the applicant had no visible injuries but there were c repitation s at the seventh rib on the left side. Rib fracture was suspected.

On 4 July 2009 the applicant underwent an X-ray examination which revealed no clear traumatic changes. Photographs were taken of the haematomas on the applicant ’ s body. He gave a urine sample. Urine test results, dated 6 July 2009, showed erythrocytes in the urine.

According to a medical certificate dated 6 July 2009 the applicant had three haematomas measuring 20 by 1.5 cm on his back, a haematoma with a diameter of 8 cm on his right upper arm, a haematoma with a diameter of 3 cm on the right shank, swelling to the left wrist, crepitation in the region of the eighth and the ninth rib on the left side. The applicant complained that he had been beaten by the guards at his back, complained of pain in his back and said that his urine had been red.

Ultrasound scan of kidneys performed on 7 July 2009 revealed no pathological findings.

In a written explanation to the prison director by nurse RK, dated 21 July 2009, she submitted that she had been requested to examine the applicant who had been confined in the restraint bed on 4 July 2009. The applicant had complained, as he had already done on the day before, about pain in the chest under the ribs. The nurse and guards as well as the applicant himself had swept his eyes with wet napkins. The nurse had issued a medical certificate according to which she had discovered no injuries on the applicant. At 12.20 p.m. on 4 July 2009, at the applicant ’ s release from the restraint bed, she had again been requested to examine him. He had no complaints save for the previously known complaint about pain in the lower part of his chest. The nurse had issued a certificate stating that she had not discovered any injuries and that the applicant had not needed medical treatment. On both occasions the examination had been carried out visually and the nurse had asked the applicant about his complaints. She had noticed the haematomas only in the evening of 4 July 2009. She had not noticed them earlier and had not carried out a more detailed examination because this had not been requested by the applicant. Based on her earlier experience with the applicant the nurse had known that he was very demanding in respect of medical treatment. Thus, she could not presume that the applicant suffered from any serious disorders.

4. Criminal proceedings concerning abuse of authority

On 7 July 2009 the Prison Department of the Ministry of Justice started criminal investigation in respect of the alleged abuse of authority. The investigation was carried out by Ida Police Prefecture .

On 8 July 2009 the applicant was interviewed as a victim. Between 7 and 28 July 2009 four guards (KA, MN, VG and JT) were interviewed as suspects. Six further prison officers (including OV), a prison doctor and a prisoner were interviewed as witnesses. Reports on the use of the special equipment and means of restraint (shield, helmets, flack jackets and handcuffs on 3 July 2009 and handcuffs and restraint bed on 4 July 2009) as well as written explanations to the prison director from prison officers involved in the incidents were also included in the criminal case file.

On 23 September 2009 prison guard OV was interviewed for the second time.

On 26 November 2009 the police requested additional information from the prison administration, including the applicant ’ s medical records and information about telescopic batons used in prison.

On 15 December 2009 the police requested forensic expert examination of the applicant ’ s injuries. The expert completed his report on 15 February 2010. He relayed on written materials of the criminal case file, including a report on the applicant ’ s interview, medical documents and photos of the haematomas on the applicant ’ s body. He was of the opinion that the stripe-shaped haematomas on the applicant ’ s back had resulted from blows struck with a blunt instrument such as a stick or a baton, possibly on 4 July 2009. The haematomas on the applicant ’ s upper arm and shank had resulted from blows struck with a blunt instrument or against it. The haematoma and crepitation in the region of the eighth and the ninth rib could refer to a rib fracture but such diagnosis could not be confirmed without an X-ray examination. The expert concluded that the injuries in question were not life threatening and usually caused short-term health damage lasting from four days to four weeks.

On 5 February 2010 the applicant was interviewed for the second time.

On 10 February 2010 the police requested forensic expert examination of video recordings from prison security cameras. The expert completed his report on 13 April 2010. Having produced forty-eight magnified and processed images from the video recordings, he concluded that it was not possible to establish the moment when the applicant was hit.

On 15 June 2010 the police investigator discontinued the criminal proceedings. She considered that the use of force by the prison guards in respect of the applicant on 3 and 4 July 2009 had been lawful since he had not complied with their orders and behaved in an aggressive manner. On 3 July 2009 he had refused to gather his belongings for his transferral to the punishment cell and had threatened to resist in case force was used. On 4 July 2009 he had refused to comply with the prison internal rules and hand in his mattress. The guards had not denied the use of force but had asserted that this had been the only way to suppress the applicant ’ s resistance. The applicant had attempted to escape and run out of the cell. Thus, the use of force had a legal basis. It did not appear that VG had used the baton to deliberately cause injuries to the applicant. Nor could it be established that the force used by JT, VG , MN and KA had been excessive. They had countered an imminent attack since the more lenient response had not proved effective and the applicant had continued his resistance.

On 17 June 2010 the police investigator ’ s decision to discontinue the criminal proceedings was approved by a circuit prosecutor.

On 25 August 2010 the State Prosecutor ’ s Office dismissed the applicant ’ s appeal. It considered that the use of force, special equipment and means of restraint had been caused by the applicant ’ s behaviour, that is his failure to comply with the orders given to him as well as his physical and verbal aggressiveness towards the prison officers. It relied on the applicant ’ s handwritten letter of explanation to the prison director where he had confirmed having said on 3 July 2009 that if the prison officers would unlawfully attack him, he would strike back. Furthermore, according to prison guard MN the applicant had threatened to kill them if force were to be used to transfer him to the punishment cell. Considering the applicant ’ s extremely aggressive resistance, it had been proportionate to use force to bring him down to the floor and to hold him there.

In respect of the events of 4 July 2009 the State Prosecutor ’ s Office referred to the statements of the suspects and witnesses according to which the applicant had threatened the prison officers. It had been established that guard VG had used gas after the applicant had pushed AR. The applicant had been engaged in an unlawful attack and the use of gas against him had been lawful. Although the applicant ’ s subsequent running to the corridor could not be seen as an attempt to escape, it had still been possible that the situation got out of control of the prison officers and they had grounds to believe that the applicant would continue attacking them. To exclude such a possibility, the prison officers had legitimately acted in a quick and decisive manner, including the use of the telescopic baton by VG. The incoherent statements of the witnesses as to the question whether the strokes with the baton had been delivered before or after the applicant ’ s handcuffing did not allow making a firm conclusion on that point. Nevertheless, based on the witness statements, the prosecutor considered it more likely that the applicant had been hit before handcuffing. She also referred to the principle that any reasonable doubt should benefit the accused and considered that it had not been established that the prison guards had unlawfully used a weapon, special equipment or force against the applicant.

On 21 October 2010 the Tartu Court of Appeal dismissed the applicant ’ s complaint against the decision of the State Prosecutor ’ s Office. It found that it had been established that the applicant had showed resistance to the prison officers and therefore the use special equipment and means of restraint had been legitimate. The court agreed with position expressed in the decision of the State Prosecutor ’ s Office according to which the special equipment had been used to the extent it had been necessary to suppress the applicant ’ s resistance. Thus, there were no grounds to continue the criminal proceedings in respect of the prison officers.

5. Administrative Court proceedings

On 6 August 2009 the applicant filed a claim for non-pecuniary damage with the prison administration for his inhuman and degrading treatment on 3 and 4 July 2009. The claim was dismissed and the applicant filed a complaint with the Tartu Administrative Court .

In a judgment of 8 March 2010 the Tartu Administrative Court found for the applicant. It declared the use of the means of restraint, special equipment and arms in respect of the applicant unlawful. The court found that although the applicant ’ s failure to comply with the orders given to him had undeniably constituted a threat to the general security of the prison, the use of handcuffs and physical restraint had nevertheless not been justified as there was no evidence and it had not been argued that the applicant had been armed or equipped with a dangerous item or that he had intended to escape or attack anyone. However, the court dismissed the applicant ’ s claim for compensation considering that the use of means of restraint and special equipment had been caused, to a large extent, by the applicant ’ s own behaviour. He had disputed the officers ’ orders, engaged in an argument with them, voiced threats and showed physical resistance. In these circumstances the finding of the unlawfulness of the prison ’ s actions constituted sufficient just satisfaction.

Both parties appealed against the Administrative Court ’ s judgment. The applicant claimed monetary compensation and the prison administration contended that the prison officers had not acted unlawfully.

At the hearing of the Tartu Court of Appeal on 22 September 2010 the applicant submitted, inter alia , that on 3 July 2009 he had been kicked in ribs once and that on 4 July 2009 he had been hit with a baton when he had already been handcuffed.

By a judgment of 14 October 2010 the Court of Appeal quashed the Administrative Court ’ s judgment and dismissed the applicant ’ s complaint. It found that the use of the means of restraint, special equipment, physical force and arms had been lawful. The court considered that the prison had been authorised to use preventive measures in case of a probable threat. It noted that the applicant served a life sentence and had two further convictions for attacking prison officers. In January 2009 he had also threatened to kill a prison officer.

In respect of the events of 3 July 2009 the Court of Appeal noted that there was no dispute that the applicant had repeatedly refused to comply with the prison officers ’ order to go to a punishment cell. Furthermore, he had showed physical resistance and caused light injuries to KA. Therefore, physical force and handcuffs had been used. Considering the applicant ’ s unlawful and aggressive behaviour, threat to the prison officers and to the general security in prison as well as the short duration (fifteen minutes) of the use of the handcuffs, the Court of Appeal found that the use of handcuffs had not been unlawful. In respect of the use of force, the court found that there was no evidence to prove that the applicant had been kicked, strangled or poked with fingers in his eyes. According to the medical evidence there had been crepitation but no fraction of the ribs. The court considered that the applicant ’ s chest contusion could have resulted from his resistance which led to a scuffle, and his forcing on the floor for handcuffing.

In respect of the events of 4 July 2009 the Court of Appeal considered it established that the applicant had displayed disobedience and threatened the prison officers. He had showed physical resistance against the guard who had attempted to take the mattress. Thus, the use of pepper spray had not been disproportionate or unlawful. Since the subsequent use of physical force proved not effective, it had also been justified to use the telescopic baton in order to have the applicant handcuffed.

On 17 February 2011 the Supreme Court declined to hear the applicant ’ s appeal.

B. Relevant domestic law and practice

Article 291 of the Penal Code ( Karistusseadustik ) stipulates that abuse of authority, that is unlawful use of a weapon, special equipment or violence by an official while performing his or her official duties , is punishable by a fine or by one to five years ’ imprisonment.

Relevant domestic law and practice concerning the use of special equipment and means of restraint in prison is summarised in the judgement of Julin v. Estonia ( nos. 16563/08, 40841/08, 8192/10 and 18656/10 , §§ 84 ‑ 90 and 94, 29 May 2012 (not final)).

COMPLAINTS

The applicant complains under Article 3 of the Convention about his ill-treatment on 3 and 4 July 2009 and the authorities ’ failure to carry out an effective investigation into his allegations of ill-treatment. He also invokes Article 13 of the Convention in this context.

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QUESTION

1. Did the applicant ’ s treatment on 4 July 2009 in Viru Prison (use of pepper spray, physical force, telescopic baton and handcuffs and his confinement in the restraint bed) amount to his inhuman or degrading treatment, in breach of Article 3 of the Convention?