Published on 23 October 2023

FOURTH SECTION

Application no. 20995/22 Gerhard ZIMOTA against Austria lodged on 21 April 2022 communicated on 5 October 2023

SUBJECT MATTER OF THE CASE

The application concerns the allegedly disproportionate use of pepper spray against the applicant at the hand of the police in a restaurant and the subsequent investigation of the incident by the domestic courts.

On the eve of 13 March 2020, the applicant was having dinner at a restaurant with his wife and consumed alcohol to levels later tested at 1.68‰. He was subsequently involved in a physical altercation with another customer. Two police officers, who were called by staff, arrived at the scene when the situation had already calmed down and asked the applicant for an ID. The applicant refused and asked the police officers for their ID instead. The applicant claims that he had limited eyesight due to a prior eye surgery, a general feeling of disorientation due to his drunken state and that he had thus not realised that they were police officers. When the applicant became more agitated and approached the officers, one of them pushed him away and threatened to use pepper spray. The applicant, by gesticulating frantically, hit the police officer’s hand, who then pepper sprayed him in the face. The police officers removed the applicant’s wife from the room. They then restrained the applicant and – after medics cleaned the pepper spray off his eyes – cuffed his hands and feet, covered his head with a blanket to avoid his spitting due to the pepper spray, and transported him to a nearby police station. The applicant alleges that he suffers from chronic floaters ( mouches volantes ) in his eyes as a consequence of the pepper spray attack.

The applicant filed a complaint ( Maßnahmenbeschwerde ) with the Styria Regional Administrative Court ( Landesverwaltungsgericht Steiermark ) challenging, inter alia , the use of the pepper spray, the cuffs and the blanket, and the removal of his wife and his arrest. The Regional Administrative Court found that the use of the cuffs on his hands and feet and the blanket had been inhumane and excessive and that the whole arrest had therefore been unlawful. However, it found that given the applicant’s large build and his drunken state, the use of pepper spray had been the least intrusive means to combat his non-cooperative behaviour. Since the applicant had been frantically gesticulating, approaching the officers, and had – despite having been warned about the use of pepper spray – potentially inadvertently hit the hand of an officer, he had posed a danger to the officer’s physical integrity. The use of the pepper spray had thus been “just permissible and proportionate enough” (“ gerade noch zulässig und verhältnismäßig ”). The Regional Administrative Court did not deal with the applicant’s claim under Article 8 of the Convention because the wife herself would have had to challenge her removal. Both the Constitutional Court ( Verfassungsgerichtshof ) and the Supreme Administrative Court ( Verwaltungsgerichtshof ) declined to deal with the applicant’s further appeals.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?

In particular, did the applicant invoke before the last-instance courts the rights on which he now wishes to rely before the Court, at least in substance and in compliance with the formal requirements laid down in domestic law ( see Elçi and Others v. Turkey , nos. 23145/93 and 25091/94, §§ 604-605, 13 November 2003)?

2. Has the applicant been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention, through the use of pepper spray against him during his arrest ( see Tali v. Estonia , no. 66393/10, § 78, 13 February 2014)?

In particular, was the treatment strictly necessary in view of the applicant’s conduct (see Bouyid v. Belgium [GC], no. 23380/09, §§ 100-101, ECHR 2015)? Further, did the treatment attain a minimum level of severity (see Ali Güneş v. Turkey , no. 9829/07, §§ 37-43, 10 April 2012 and Tali v. Estonia , no. 66393/10, § 56, 13 February 2014)?

The applicant is also requested to provide copies of all medical reports concerning the injuries suffered. The parties are further requested to provide copies of the video and photo footage of the incident which was used in the proceedings before the Regional Administrative Court.

3. Having regard to the procedural protection from inhuman or degrading treatment (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?

4. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 3, as required by Article 13 of the Convention?

5. The applicant is further requested to provide information as to whether and to what extent, in the aftermath of the proceedings before the administrative courts, he has been awarded compensation for the aspects of his arrest which have been declared unlawful.