CASE OF BOUKROUROU AND OTHERS v. FRANCE

FIFTH SECTION

CASE OF BOUKROUROU AND OTHERS v. FRANCE

(Application no. 30059/15)

JUDGMENT

(Extract)

STRASBOURG

16 November 2017

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Boukrourou and Others v. France,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

Angelika Nußberger, President,
Erik Møse,
Nona Tsotsoria,
André Potocki,
Síofra O’Leary,
Mārtiņš Mits,
Gabriele Kucsko-Stadlmayer, judges,

and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 17 October 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 30059/15) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by six French nationals: Mr Abdelkader Boukrourou, Mrs Samira Mehigueni, née Boukrourou, Mrs Fatiha Hassioui (formerly Mrs Boukrourou), Mr Karim Boukrourou, Mr Lahoucin Boukrourou, and Mrs Yamina Boukrourou, née Hassioui (“the applicants”), on 18 May 2015.

2. The applicants were represented by Mr Y. Bouzrou, a lawyer practising in Paris. The French Government (“the Government”) were represented by their Agent, Mr F. Alabrune, Director of Legal Affairs at the Ministry of Foreign Affairs.

3. The applicants alleged a violation of Articles 2 and 3 of the Convention following the death of M.B., their late son, brother and husband.

4. On 2 June 2016 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The first applicant is a French national who was born in 1970 and lives in Mouroux. He is the brother of the victim, M.B. born in 1968.

The second, third, fourth, fifth and sixth applicants, who were born in 1977, 1973, 1972, 1939 and 1951 respectively, are the victim’s sister, widow, brother, father and mother. They live in Mouroux, Massy, Valentigney and Thulay respectively.

6. On 12 November 2009, at about 4.30 p.m., M.B., who was 1 m 80 tall and weighed about 100 kilos, went into a pharmacy in Valentigney. He was known to the staff there, where he habitually went to collect the medicine prescribed for his psychiatric disorders.

7. M.B. asked to exchange some medicine dispensed without a prescription, saying he was not satisfied with it. A pharmacist’s assistant, Ms R., and the owner of the shop, Mr F., explained to him that the effects of the medicine had diminished because he had become addicted to it. M.B. started to become angry, throwing the medicine boxes on the floor, raised his voice and started speaking incoherently:

“I’m fed up with your night visits, with your assistant and with you!”

8. M.B. told Mr F. that he intended to file a complaint against him. Mr F asked Ms R. to call the police. M.B. sat down on one of the chairs for customers at the pharmacy.

9. At 4.53 p.m. four police officers arrived on the scene after receiving a call from the incident room instructing them to intervene in an incident involving an individual with psychiatric disorders.

10. Deputy police sergeant L. and police constable M. asked M.B. several times to accompany them out of the pharmacy. When he vehemently refused, sergeant L. and constable D. seized him by the arm in order to remove him from the pharmacy. Constable M. seized M.B. by his right leg. M.B. struggled and called for help.

11. At the doorstep up to the pharmacy M.B. found himself on the ground. Constable M. attempted to handcuff him behind his back while he continued to struggle and appeal to the police for help. Constable M. punched M.B. twice in the solar plexus but still did not succeed in handcuffing him.

12. M.B. was then turned onto his right side and constable D. was able to handcuff him in the front with two pairs of interlinking handcuffs.

13. Deputy police sergeant P. went to get the police vehicle to move it closer to the pharmacy. Two police officers seized M.B. by the arm in order to put him in the van. Despite putting up resistance, M.B. was forced inside the police van.

14. M.B. continued struggling and shouting in the police van and pushed one police officer against the luggage holder above and another against a shelf before falling face downwards. Deputy police sergeant L. positioned himself above his shoulders in order to fasten another pair of handcuffs attaching M.B. to the fixed part of the back seat in the van. Constables D. and M. positioned themselves on top of him, on his legs and on his buttocks.

15. At 4.58 p.m., that is, exactly five minutes after they had arrived, the three police officers present in the vehicle contacted their headquarters requesting assistance from the fire brigade and the mobile emergency medical service (SAMU).

16. According to the incident room’s telephone log, at 5.07 p.m. the fire brigade asked the police to transfer M.B. to their vehicle. Deputy police sergeant L. refused to do so on grounds of M.B.’s extremely agitated state.

17. The firemen then drew up a record of M.B.’s condition. He had calmed down, but his heart rate could not be measured with the pulse oximeter because the sensors were not working. One of the firemen constantly monitored his breathing, which stopped at one point. A fireman noted the absence of blood circulation.

18. The team of firemen brought M.B. inside the pharmacy. One of them alerted the ambulance service by radio. The firemen inserted a semi-automatic defibrillator and started carrying out cardiac massage.

19. An emergency doctor from the mobile emergency and intensive care service (SMUR), called out by the firemen, administered specialist cardiopulmonary resuscitation. He recorded M.B.’s death at 6.02 p.m.

20. An investigation into the cause of M.B.’s death was commenced immediately.

21. Of the three pharmacists who gave a statement that day, on 12 November 2009, two were present when the police officers had asked M.B. to leave the premises. They confirmed that when M.B. had refused to comply, the police officers had approached him and seized him. They said that M.B. had begun shouting and struggling at that point and had continued shouting and struggling when he had got into the police van, handcuffed. None of the three witnesses had seen what had happened in the police van.

22. One of them stressed the fact that M.B. had been a customer at the pharmacy for a year and a half and had always been very pleasant during his monthly visits to collect his neuroleptics prescription.

23. On the same day Mr S., a volunteer firefighter, was also questioned. He stated that on his arrival M.B. had still been in a highly agitated state, lying face down in the van, with the police officers restraining him: one either sitting or kneeling on the victim’s buttocks, and the other holding his legs; his hands were outstretched and fastened by several handcuffs to the back seat of the van; the victim’s head was on the driver’s side, and his right cheek face down on the floor. He explained that he had requested medical reinforcements and that then, when they observed that his heart had stopped beating, the firemen had decided to take him back into the pharmacy to continue carrying out cardiac massage.

24. On 13 November 2009 one of the pharmacists was questioned a second time. He stated that M.B. had been a regular customer at the pharmacy. He said that the police officers had not hit M.B.

25. Constable M. was questioned the same day. He stated that deputy sergeant L. had introduced himself to M.B. and had asked him to come outside “to explain the problem, as in this type of intervention the aim is to separate the parties”. He explained that M.B. had refused to leave the pharmacy several times despite repeated requests by the police, who had finally dragged hm towards the door. He said that he had then seized M.B.’s right leg and that, just in front of the entrance to the pharmacy, M.B., who had lost his balance, had fallen down. He added that the police officers had then attempted to handcuff him and that when he had resisted attempts to put him in the police van constable D. had pulled his legs, which had unbalanced him and caused both of them and deputy police sergeant L. to fall over in the police van. He said that L. had managed “I don’t know how to pin him back down on the ground”. He also said that in order to finish handcuffing him deputy sergeant L. had squatted down on M.B.’s shoulders while constable D. remained at leg level; as M.B. had continued struggling, he himself had stood on his buttocks. He stated that they had remained “like that for a while, but I cannot tell you how long, it felt like a long time, with me on his buttocks, my colleague on his shoulders and the third officer on his feet, assisted by P., who had crossed his legs to stop him moving. It was then that the fire brigade arrived”.

26. Deputy sergeant L. was also questioned on 13 November 2009. He stated that he had received instructions from his headquarters to go to a pharmacy and had been informed that M.B. “suffered from psychiatric disorders”. He confirmed that M.B. had put up a violent struggle before letting himself slide to the ground in front of the entrance to the pharmacy. He explained that constable M. had administered two punches to the abdomen, using a technique known as “diversionary blows”. As regards the rest, he confirmed the above-mentioned conditions in which M.B. had been handcuffed in the police van.

27. An autopsy was carried out on 13 November 2009. The forensic doctor described and explained the traumatic injuries observed: the injury to the left eyebrow and the associated swelling did not suggest injuries following a blow but were related to an impact by that part of his face on a ridged surface. The other facial injuries suggested close contact on a rough surface. The injuries to the wrists were characteristic of handcuffing. Those to the lower part of the chest and in the abdominal cavity could have been incurred as a result of two violent blows to that area. The forensic doctor specifed that the injuries had caused neither internal bleeding nor fractures. He mainly noted marks on the lungs and 70% stenosis on a heart artery. Dr H.’s report, drawn up on 16 November 2009, contained the following conclusions:

“Death in all likelihood occurred as a result of heart failure.

An atheromatous attack observed on an artery of the heart exposed him to a severe risk of cardiac rhythm disorders and sudden death.

The state of stress and agitation presented by the victim on his arrest may have contributed to heart failure.

Restriction of chest expansion may have occurred when the victim was restrained, but it cannot be affirmed that mechanical asphyxiation was the cause of death. ...

Recent traumatic injuries consistent with action by third parties were observed. In any event, the various injuries did not directly contribute to the death; nor is there any injury consistent with blows to the face.”

28. On 14 and 23 November 2009 Ms S., a shopkeeper, was questioned and stated that she had heard shouts from her shop opposite the pharmacy. She said that she had seen four police officers with a man lying face down with his arms behind his back being punched and kicked. Through a side window of the police van she stated that she had seen a female and a male police officer trampling on the spot while hanging on to the roof of the van, one administering three punches in a downwards movement and lifting his knee up very high before bringing it down in one sharp movement.

29. On 23 November 2009 the shopkeeper’s minor son was questioned and stated that he had seen two police officers trampling on M.B. in the road and that a female police officer had hit him several times with a truncheon in the stomach, back and face.

30. On 3 December 2009 a judicial investigation for manslaughter was opened in respect of a person or persons unknown and assigned to two investigating judges.

31. On an unknown date the applicants applied to join the proceedings as civil parties.

32. On 7 January 2010 Ms C., a neighbour next to the pharmacy, stated that she had seen M.B. struggling, face downwards, outside the pharmacy. She said that the police officers had “thrown him into the van” and that she had left after the doors were closed. She stated that the police officers had not hit M.B.

33. On 21 January 2010 chief brigadier M. D., an instructor in defence and arrest techniques and in the psychological and behavioural aspects of police intervention, was heard as a witness. He stated that in the event of a dispute between people, “the opposing parties should in so far as possible be separated”: the police officers, in attempting to induce the M.B. to leave the pharmacy, had sought to avoid a fight in the shop. He said that the blows administered by constable M. and described as “two punches to the suspect’s abdominal area with the aim of distracting and and securely handcuffing him [were] among the priority areas for attempting to weaken the resistance of the person concerned. They [the police officers] had not been over zealous and had completed the handcuffing in the front. The officers had also acted in an emergency situation. The technique used by constable M. appear[ed] the most appropriate in the context of the intervention”. He added that all the techniques taught were designed to weaken resistance to arrest. He specified that, with regard to the immobilisation of M.B. in the van, standing on a person’s buttocks was not among the techniques taught and that positioning oneself across M.B.’s shoulders, as sergeant L. had done, was one of the procedures taught. That technique enabled the officer to prevent the suspect from moving while avoiding postural asphyxiation. He concluded that the intervening officers, having regard to the context of the intervention, had acted with pragmatism and discernment.

34. Reports were produced by several experts appointed by one of the investigating judges. On 23 June 2010 Dr L., professor of forensic medicine, and Dr R., lecturer in forensic medicine, provided a forensic medical report after examining M.B.’s body on 18 December 2009. They stated that their examinations had revealed “a series of cutaneous lesions that could not have contributed to the death”. They did not indicate evidence of any “factor suggesting death by chest compression”. There was thus no evidence of “petechial subconjunctival injuries or of facial petechial injuries”. They stated as follows:

“our examination of the sealed evidence has not revealed any elements indicating the cause of death of [M.B.]. The sealed evidence shows that he was receiving psychiatric treatment for psychosis with several episodes of hallucination requiring the regular ingestion of antipsychotic medicines. ... At the levels measured, the ingestion of psychoactive drugs revealed by the toxicological investigations does not appear capable of explaining the victim’s death by a process of direct toxicity. ... In conclusion, the death of [M.B.] ... is in all likelihood the result of myocardial failure. The death is due to natural causes.”

35. On 10 December 2010 Dr T. and Dr F. produced their anatomopathological expert report after examining a copy of the autopsy report of 16 November 2009, a copy of the interviews with the members of the police patrol team who had arrested M.B., a copy of the record of examination of two witnesses, various sealed samples collected both by Dr H. and by Professor L. and Dr R.:

“[M.B] died suddenly of cardiac rhythm disorders owing to a coronary spasm triggered by a context of intense and prolonged emotional and physical stress. ... In conclusion, the intense and prolonged emotional stress, and the prolonged and severe agitation, which started in the pharmacy and contined during the arrest explain the series of physiopathological phenomena which caused the death: (1) intense stimulation of the sympathetic nervous system (adrenergic neuro-hormonal system), (2) coronary-ischemic spasm, (3) fatal cardiac rhythm disorders.”

36. On 14 and 16 December 2010 and 19 January 2011 the four police officers appeared for the first time as assisted witnesses.

37. On 8 April 2011 a reconstruction was organised, by the two investigating judges in charge of the case, in the presence of the civil parties’ lawyers and the assisted witnesses. During the visit to the scene the forensic doctor stated that he had not noted any traumatic injury consistent with the violence described by the witness Ms S, the only injuries suggesting direct action by a third party being those corresponding to the punches administered to the stomach.

38. On 5 July 2011 Dr C., university professor, neurologist and psychiatrist, and head of a forensic medical department, examined M.B.’s medical file at his psychiatrist’s surgery, his medical file at the casualty department of Montbéliard Hospital, and the medical file kept by M.B.’s general practioner. He stated that M.B., who had been receiving psychiatric care for many years, had been admitted to a hospital psychiatric unit several times and presented a psychotic disorder characterised by delusional notions of a betwitching, persecutory and interpretative type During his most recent hospital consultation he had been diagnosed with paranoid psychosis, which is related to schizophrenia. Dr C. concluded his report as follows:

“[M.B.] presented a serious psychiatric disorder, namely, delusional psychosis, which explains the initial altercation with the pharmacist and his subsequent state of extreme agitation when the police officers attempted to induce him to leave the pharmacy. It is also possible that the intervention by the police was interpreted in a delusional manner.

When the SMUR [mobile emergency and intensive care service] intervened the criterion of seriousness was ... the fact that [M.B.] had been suffering from heart failure for approximately twenty minutes.

The superficial injuries observed, during the autopsy, to the right-hand side of the face and the front of the knees [appear to him] compatible with immobilisation on the floor of the van and the petechial injuries to the upper abdomen and the left abdominal region are compatible with punches administered as described in the autopsy report.”

39. On 25 November 2011 the Ombudsman, an institution independent of the State, having the task, inter alia, of ensuring compliance by the police with their code of professional ethics, to whom a member of parliament had submitted the case, produced a report. He found that whilst the police officers had been very quick to seek the assistance of the fire brigade and the emergency medical service, it was regrettable that the situation had been inaccurately described by the incident room to the firemen prior to their intervention (the latter had been informed of M.B.’s “withdrawal symptoms”). He considered that there had been no imminent danger to people or property in the pharmacy and thus no urgent need to remove M.B. as soon as possible. He stated that the immobilisation and compression procedures carried out in the van had been dangerous and disproportionate. He described as “amouting to a serious infringement of human dignity and to inhuman and degrading treatment within the meaning of Article 3” the techniques used by constables D. and M. to pin M.B. to the floor of the police van. The Ombudsman also noted conflicting statements by the police officers regarding whethere there had been physical violence other than the two diversionary blows and pointed out that no witnesses had been present throughout the entire incident. The Ombudsman concluded that the precipitation with which the police had acted had led them to make an erroneous assessment of M.B.’s situation and to react in a stereotypical manner rather than adjust their conduct during the intervention, despite the fact that they knew that M.B. was receiving treatment for psychiatric disorders and that they had been able to observe abnormal behaviour on his part. He recommended reinforcing the initial and continuous training of police officers with regard to dealing with persons suffering from a mental disorder. Lastly, he recommended that disciplinary proceedings be brought against the four police officers who had arrested M.B. for “disproportionate use of force or failing to cease using such force”.

40. On 18 January 2012 Dr T. and Dr F. supplemented their expert report of 10 December 2010. They confirmed the conclusion of their earlier report and ruled out mechanical asphyxia: “M.B. died suddenly of cardiac rhythm disorders, with no occurrence of mechanical asphyxia.” They reiterated the part played by extreme stress in the death, stating that “the adrenergic stimulation was related to the extreme and prolonged emotional and physical stress. The stress lasted approximately one hour and thirty minutes, starting in the pharmacy and continuing throughout the arrest”.

41. On 26 March 2012 the four police officers who had arrested M.B. were charged with manslaughter as a result of the manifestly wilful violation of a legal or statutory duty of caution and security.

42. On 5 November 2012 the the public prosecutor at the Montbéliard tribunal de grande instance filed submissions recommending that the charges be dropped.

43. On 21 December 2012 the investigating judges ruled that there was no case to answer. They found that whilst it was true that M.B. had been in a relatively calm state, the pharmacist had nonetheless considered his behaviour sufficiently disturbing to inform the police of the presence in his establishment of a person in an agitated state and suffering from psychiatric disorders. They observed that the police officers had not immediately used force and that, on being informed of M.B.’s pyschiatric pathology, they had called the emergency medical service. The judges found that the evidence given by Ms S. had been invalidated by the observations made during the reconstruction, the statements made by the pharmacists and the conclusions of the forensic doctor. The investigating judges observed as follows:

“ ... pinning [M.B.] to the ground was not identified by the medical experts as the direct cause of the death. Whilst the intervention by the police inevitably generated stress, the victim had already been stressed well before their intervention. As the police did not know about [M.B.’s] heart disease, of which he himself was unaware, they could not foresee that the combination of these two factors [stress and heart disease] could create a risk for the victim.”

44. The judges considered that the force used by the police officers had been necessary and proportionate “even if being pinned down in the van, by L. and P. and M.’s position – standing on [M.B.’s] legs – may appear objectionable in absolute terms”.

45. The applicants appealed against that ruling. On 16 October 2013 the Investigation Division of the Besançon Court of Appeal upheld the decision finding no case to answer on the following grounds:

“[M.B.’s death was due] according to the forensic doctor who carried out the initial autopsy ... to heart failure in circumstances of stress and effort acting on a predisposed heart condition; the second forensic report supported the finding of cutaneous injuries that could not have been a contributory cause of death and ruled out death due to chest compression; the experts indicated that the death of [M.B.] was, in all likelihood, the result of myocardial failure and natural causes; the anatomopathological report ... [led] the experts to conclude that [M.B.] had died suddenly of cardiac rhythm disorders owing to a coronary spasm triggered by a context of intense and prolonged emotional and physical stress, and formally ruled out mechanical asphyxia; lastly, the forensic and psychiatric expert ... concluded that [M.B.] presented a serious psychiatric disorder ... which explained the initial altercation with the pharmacist and the ensuing state of extreme agitation when the police officers attempted to induce him to leave the pharmacy, as their intervention could have been interpreted in a delusional manner”.

46. With regard to the conditions of arrest, the Investigation Division found that the agitated state and the “recalcitrant, not to say violent, behaviour of [M.B.] had obliged the police officers to use force and intervention techniques, which they had been taught, to restrain him”, including the two punches administered by constable M. “who explained that he had used a technique taught to police officers to assist in handcuffing suspects by creating a surprise effect, that explanation being confirmed by his colleagues and instructor”. The Investigation Division found that M.B. had been pinned to the floor of the van in conditions that had been “admittedly unusual, or even objectionable”, but that these had preserved the respiratory capacity and ventilation of a person who “was continuing to oppose strong resistance to the police officers”. It concluded that “no inadvertence, lack of care, inattention, negligence or breach of a statutory or legal duty of protection or care, or gross negligence [could] be attributed [to the police officers] in the death of [M.B.]”.

47. The applicants appealed on points of law. On 18 November 2014 the Court of Cassation dismissed their appeal on the following grounds:

“ ... the Court of Cassation is satisfied on the basis of the grounds of the judgment being appealed that in upholding the decision finding no case to answer the Investigation Division, after analysing all the facts referred to it and addressing the main grounds in the statement of appeal, gave sufficient and coherent reasons for their finding that the investigation had been thorough and that there was insufficient evidence on which to convict the persons charged with of manslaughter or any other offence ...”

...

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

48. The applicants complained of a violation of their relative’s right to life on account of the intervention by the police. They relied on Article 2 of the Convention, which reads as follows:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally ... .

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

49. The Government disputed that contention.

...

B. Merits

1. Submissions of the parties

a) The applicants

51. The applicants submitted that the police officers, who had been informed about M.B.’s psychiatric disorders, had not in any way exercised the requisite vigilance and had been negligent in many respects resulting in the death of their relative. They did not deny that their relative had been suffering from asymptomatic stenosis on a heart artery as revealed by the autopsy, and had been predisposed towards rhythmic cardiac disorders, but they observed that those disorders had been caused by severe emotional and physical stress that had been prolonged as a result of the intervention by the police. They referred, first of all, to the decision to take M.B. out of the pharmacy when he had been calm and there had been no imminent danger and no physical conflict with the pharmacist or his employees. In their submission, the use of coercion and force had inevitably exacerbated M.B.’s psychiatric disorder. The applicants stated that the police, who were inadequately trained in interventions involving vulnerable people, had been the cause of the stress experienced by their relative which had continued as the increasingly coercive measures were applied. They also complained about the blows administered to their relative’s abdomen and of the inappropriate immobilisation techniques used, which had continued to increase, abnormally, the pressure endured by M.B. The applicants submitted that “this intense and prolonged emotional and physical stress”, as observed by the experts, was undeniably among the factors that had caused decompensation of their relative’s pre-existing morbid condition.

b) The Government

52. The Government submitted that the use of force by the police officers had been absolutely necessary and strictly proportionate. They argued that the intervention by the police officers had been justified by the need to protect the physical integrity of everyone present at the scene in view of the dangerous behaviour of M.B., who suffered from psychological disorders. They submitted that the police officers had attempted to restore calm and had requested M.B. to leave the pharmacy, but he had vehemently refused to do so and had then become extremely agitated.

53. The Government maintained that the various expert reports and second opinions had stated that there had been no causal link between M.B.’s death and the force used, had ruled out mechanical asphyxia and concluded that there had been heart failure. Lastly, the Government submitted that the police officers had complied with the positive obligation to protect M.B.’s life and adjusted their intervention to his behaviour by requesting, less than five minutes after they had arrived on the scene, the assistance of the emergency services (fire brigade and emergency medical service), while informing them that M.B. was in a highly agitated state. The officers, after unsuccessfully attempting to reason with M.B., and faced with his highly agitated state and his mental disorder, had attempted to restrain him by using techniques they had been taught and had followed the recommendations issued by the National Police Inspectorate in a note of 8 October 2008 on the legal rules and professional ethics governing the use of force.

2. The Court’s assessment

a) General principles

54. The Court reiterates that Article 2 of the Convention, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention. Together with Article 3 of the Convention, it enshrines one of the basic values of the democratic societies making up the Council of Europe. The object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective (see, among other authorities, McCann and Others v. the United Kingdom, 27 September 1995, §§ 146-47, Series A no. 324; Taïs v. France, no. 39922/03, § 82, 1 June 2006; and Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 174 and 177, ECHR 2011 (extracts)).

55. In the light of the importance of of the protection afforded by Article 2, the Court must subject to the most careful scrutiny complaints about deprivation of life, taking into consideration not only the actions of the agents of the State who actually administer the force but also all the surrounding circumstances including such matters as the planning and control of the actions under examination (see, for example, McCann and Others, cited above, § 150, and Scavuzzo-Hager and Others v. Switzerland, no. 41773/98, § 89, 7 February 2006).

56. The Court reiterates that the exceptions delineated in paragraph 2 indicate that Article 2 extends to, but is not concerned exclusively with, intentional killing. The text of Article 2, read as a whole, demonstrates that paragraph 2 does not primarily define instances where it is permitted intentionally to kill an individual, but describes the situations where it is permitted to “use force” which may result, as an unintended outcome, in the deprivation of life. The use of force, however, must be no more than “absolutely necessary” for the achievement of one of the purposes set out in sub-paragraphs (a), (b) or (c) (see McCann and Others, cited above, § 148, and Saoud v. France, no. 9375/02, 9 October 2007).

57. In assessing evidence, the Court adopts the standard of proof “beyond reasonable doubt”. However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of unrebutted presumptions of fact (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 131, ECHR 2014).

b) Application of those principles to the present case

58. The Court considers it appropriate to examine the issue whether the police officers’ actions satisfied the requirements of Article 2 under two separate headings: i) the alleged causal link between the force used by the police officers and the death of M.B., and ii) the question whether the police officers violated the positive obligation to protect the life of M.B., who was in a vulnerable position and under their control (see Saoud, cited above, § 96).

i) Alleged causal link between the force used by the police officers and the death of M.B. and the foreseeability of the possible consequences

59. With regard first of all to the causal link between the force used by the police officers and M.B.’s death, having regard to the evidence before the Court, particularly the autopsy report by the forensic doctor, the second forensic medical report produced by two experts, the anatomopathological expert report by the psychiatric doctor (see, respectively, paragraphs 27, 34, 35 and 38 above), it appears that the police officers did not use intrinsically lethal force against M.B. The Court notes, like the domestic courts, that all the forensic medical reports ruled out death by chest compression, while noting that M.B. had suffered, unbeknown to him, from atherosclerotic coronary heart disease with approximately 70% stenosis. According to the experts, M.B. died suddenly of cardiac rhythm disorders owing to a coronary spasm triggered by a context of intense and prolonged emotional and physical stress in a subject suffering from an atheromatous attack on an artery of the heart. The Court observes that whilst the police operation created additional tension, M.B. had already been highly overwrought on his arrival at the pharmacy, long before the police had intervened. The Court notes that, according to the psychiatric expert, the victim had suffered from a serious psychiatric pathology, that is to say, a delusional psychosis, which explained both the initial altercation with the pharmacist and his state of extreme agitation when the police officers attempted to induce him to leave the pharmacy, as their intervention could have been interpreted “in a delusional manner”, to quote the psychiatric expert.

60. A separate question is whether the force used by the police officers, even if not intrinsically lethal, was nonetheless likely, given M.B.’s weak condition, to cause, or at least hasten, his death. The Court considers that in so far as M.B. died while the officers were attempting to immobilise him, it cannot be ruled out that the force inflicted to that end did cause the fatal outcome (see Scavuzzo-Hager and Others, cited above, §§ 58 and 60).

61. With regard next to the foreseeability of the consequences of the use of force in the present case, even supposing that the struggle between M.B. and the police officers did exacerbate his health problems, the Court reiterates that in order for the respondent State’s international responsibility to be engaged, the officers must also have been reasonably expected to know that the victim was in a vulnerable state requiring a high degree of care in the choice of “normal” arrest techniques (see Scavuzzo-Hager and Others, cited above, §§ 58 and 60 and, in another context, mutatis mutandis, Keenan v. the United Kingdom, no. 27229/95, § 93, ECHR 2001‑III). The police officers had certainly been aware that M.B. was receiving psychiatric treatment, but they did not know that he was suffering from a heart disease. Accordingly, they could not envisage the existence of any danger incurred by the combination of those two factors – stress and heart disease – liable to present a risk for the victim.

62. Having regard to the foregoing, considering that there are no grounds for calling into question the concurring conclusions of the experts, upheld by the national authorities, the Court finds that even if there is some causal link between the force used by the police officers and M.B.’s death, that consequence was not foreseeable in the circumstances of the present case.

ii) Positive obligation for the authorities to protect M.B.’s life

63. 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 M.B, 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 (see Saoud, cited above, § 98, and Ketreb v. France, no. 38447/09, §§ 73-74 and 93, 19 July 2012).

64. The Court also reiterates that such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. In other words, for a positive obligation to arise, it must be established that the authorities failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid a real and immediate risk to life (see Osman v. the United Kingdom, 28 October 1998, § 116, Reports of Judgments and Decisions 1998‑VIII, Scavuzzo-Hager and Others, cited above, § 66, and Saoud, cited above, § 99).

65. The Court considers that, in the light of the circumstances of the case, regard must be had to whether the police took account of M.B.’s psychiatric disorder. It observes that the police could not have been unaware of M.B.’s vulnerability as a result of that disorder, having received a call from Ms R., assistant pharmacist, and then their incident room, to intervene in a pharmacy where a person receiving psychiatric treatment was threatening to “smash everything up” and refusing to leave the premises. On account of his psychiatric illness, M.B. was in a vulnerable state and the police officers had a duty to protect his health, as he had been forcibly placed under their responsibility.

66. The Court notes in this connection that the chronology of events can be accurately determined from the communications log: the police officers arrived on the scene at 4.53 p.m. and requested the assistance of the fire brigade and the emergency medical services promptly at 4.58 p.m., that is, just five minutes after they had arrived. The fire brigade arrived at 5.07 p.m. At 5.20 p.m. their superiors were informed that M.B. was suffering from heart failure. Lastly, the emergency medical services’ arrival was confirmed at 5.40 p.m. In the light of those factors, established by the domestic courts and undisputed by the parties, the Court considers that, having regard to the police officers’ swift request for assistance and the rapid arrival of the emergency medical services on the scene (see paragraphs 16‑19 above), the authorities cannot be found to have failed in their obligation to protect M.B.’s life.

67. Having regard to the foregoing, the Court holds that there has been no violation of Article 2 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

68. The applicants complained of the inhuman and degrading treatment suffered by their relative. They relied on Article 3 of the Convention, which provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

69. The Government disputed that submission.

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B. Merits

1. The parties’ submissions

a) The applicants

71. The applicants submitted that the two punches to the abdomen received by their relative, the violence of which had been recorded in the autopsy report, had been neither necessary nor proportionate to the aim sought to be achieved. They argued that, in any event, it had in no circumstances been necessary to handcuff M.B. as he had not posed any danger to himself or others, having sought merely to free himself from the control of the police officers, which he did not understand.

72. The applicants referred to the witness evidence that their relative had suffered violent blows inflicted on him while he had been on the floor of the police van. They submitted that the injury observed on M.B.’s eyebrow corroborated that evidence.

73. They also complained of the immobilisation techniques used in the police van, M.B. having been handcuffed for many minutes to a fixed point, while being held face down by one police officer straddled astride his shoulders and a second and third officer standing on his legs and buttocks respectively. The applicants submitted that those techniques were unacceptable and humiliating and infringed human dignity. They observed that the various authorities that had examined the case had, moreover, acknowledged that that conduct had been inappropriate. The applicants pointed out that alternative techniques could have been used to calm M.B. down, especially as his conduct had not been dangerous per se.

b) The Government

74. The Government submitted that in the light of the circumstances and information known to the police officers, who had been faced with an extremely agitated and violent individual, their intervention had been appropriate, as had been noted by the French courts. They observed that the blows administered to the abdomen had been a technique taught to police officers with a view to facilitating handcuffing by using a surprise effect. With regard to M.B.’s immobilisation on the ground, the Government stated that the position of the police officers, one standing on M.B.’s buttocks and the other on his legs, was admittedly unusual, but that they had had to adjust their technique in the light of their own knowledge, the urgency of the situation, and their physical ability to immobilise M.B. without injuring him, in order to avoid endangering not only the police officers but also M.B. himself.

75. The Government pointed out that France had an up-to-date legal basis and code of professional ethics regarding intervention techniques, their safety and regulating the use of force: the note of 8 October 2008 issued by the National Police Inspectorate, and recently updated in a note of 4 November 2015 setting out the principles governing the use of force or coercion to restrain a person in a highly agitated state; the Code of Professional Ethics of 16 March 1986; and the Practical Guide to Professional Ethics revised in 2001.

76. Lastly, training in the relevant techniques had been undergone by the officers who had arrested M.B.

2. The Court’s assessment

a) General principles

77. The Court reiterates that Article 3 enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see, for example, Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999‑V, and Ghedir and Others v. France, no. 20579/12, § 108, 16 July 2015).

78. The Court also reiterates that according to its case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Ketreb, cited above, § 108, and Ghedir, cited above, § 109).

79. Further factors to be taken into consideration include the purpose for which the ill-treatment was inflicted, together with the intention or motivation behind it Whilst the question whether the purpose of the treatment was to humiliate or debase the victim is a factor to be taken into account, the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3 (see, among other authorities, V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999‑IX, and Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 114, ECHR 2014 (extracts)). Regard must also be had to the context in which the ill‑treatment was inflicted, such as an atmosphere of heightened tension and emotions (see Bouyid v. Belgium [GC], no. 23380/09, § 86, ECHR 2015).

80. In respect of a person who is deprived of his liberty any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is, in principle, an infringement of the right set forth in Article 3 (see Bouyid, cited above, § 88). Similarly, treatment of a mentally ill person may be incompatible with the standards imposed by Article 3 in the protection of fundamental human dignity, even though that person may not be able, or capable of, pointing to any specific ill-effects (see Keenan, cited above, §§ 111-13).

81. Furthermore, Article 3 of the Convention establishes a positive obligation on the State to train its law-enforcement officials in such a manner as to ensure their high level of competence in their professional conduct so that no one is subjected to torture or treatment that runs counter to that provision (see Bouyid, cited above, § 108).

b) Application to the present case

i) Establishment of the facts

82. The Court notes that the internal investigation established the facts of the case fairly clearly, the Government conceding that the injuries to M.B.’s body as noted by the medical experts were caused by the police officers during his arrest on 12 November 2009.

83. The Court agrees with the domestic courts that the evidence of Ms S. and her minor son, who stated that they had witnessed M.B. being deliberately and violently kicked and punched while being held down in the police van and on the doorstep to the pharmacy are unreliable. Indeed, it observes that the investigating judges and the public prosecutor noted that the reconstruction had made it possible to establish that in view of the cloudy weather, the lack of light at the material time, the lack of street lighting and the distance, Ms S. and her son could not have seen the gestures described. Moreover, the judicial investigation established that the evidence given my Ms S.’s son about the episode on the doorstep to the pharmacy and the use of a truncheon did not in any way tally with the other evidence. Lastly, the violence described by those witnesses does not correspond to the findings of the medical experts either.

84. However, the Court observes that the injuries established by the forensic reports (see paragraph 27 above) correspond to the techniques described by the police officers: those visible in the lower part of the chest and in the abdominal cavity consistent with two punches in the solar plexus; those to the face consistent with close contact on the rough surface of the police van; an injury to the eyebrow consistent with M.B. falling onto the shelf in the van and the wrist injuries characteristic of handcuffing. Over and above the medical findings, the Court notes that the police officers acknowledged having employed techniques against M.B. that raise an issue of compatibility with Article 3.

ii) Classification of the treatment inflicted on the applicants’ relative

85. The Court notes first of all that, whilst M.B. did have a fit of anger regarding medicine he wanted to exchange, he subsequently sat on a chair and no witness described him as particularly agitated when the police arrived. It also observes that whilst the police officers did indeed ask him to leave the pharmacy a number of times, they subsequently – when he refused – decided to move directly to coercive mode by attempting to forcibly remove him from the pharmacy even there had been no obligation to restrain a person threatening the life or physical integrity of another or himself (see Tekın and Arslan v. Belgium, no. 37795/13, § 101, 5 September 2017). Owing to the difficulties encountered in removing M.B. [from the pharmacy] and handcuffing him, the police officers punched him twice in the solar plexus. With regard to that action, the Court is not convinced by the Government’s explanation that the punches, which corresponded to a technique taught to police officers with the aim of creating a diversion and facilitating handcuffing, were necessary in the circumstances of the case. Indeed, it notes that the violence of that technique only intensified M.B.’s agitation and resistance, reinforcing his feeling of exasperation and, at the very least, his incomprehension as to the course of events. The Court also notes the undisputed witness evidence that M.B. appealed for help, requesting the intervention of the police, which led one of the officers to show him his insignia. It notes the expert psychiatrist’s explanation that M.B., who was suffering from a serious psychiatric disorder, could have interpreted those gestures as a form of persecution. In the circumstances of the instant case the Court considers that the punches, inflicted on a vulnerable person who clearly did not understand what the police officers were doing, amount to treatment that was neither justified nor strictly necessary.

86. The Court must also examine the treatment inflicted on M.B. inside the police van. He was kept face downwards, handcuffed to a fixed point and with three police officers standing with their full weight on various parts of his body, the first squatting on his shoulders, the second standing on his buttocks and the third standing on his legs. Furthermore, it observes that the statements of the firemen and the police officers themselves reflect the violence of the situation. The domestic courts stressed the unusual, or even objectionable, nature of those gestures. The Court notes that M.B., despite his vulnerable situation owing both to his psychiatric illness and to his status as a person deprived of his liberty, was literally trampled underfoot by the police inside the van. The latter clearly appeared unable to manage the situation, which got out of hand.

87. The Court points out that there was nothing to suggest that the violence inflicted on M.B had stemmed from any intention on the police officers’ part to humiliate him or make him suffer, but could be explained – as appeared to have been suggested by the Ombudsman when he recommended reinforcing the training of police officers with regard to dealing with persons suffering from a mental disorder (see paragraph 39 above) – by a lack of preparedness, appropriate training or equipment. The police officers do not appear to have given careful thought to the best way to approach M.B. and potentially how to react if faced with a negative or aggressive reaction on his part, whereas it is clear from the case file that they knew about his psychiatric disorder (see Tekin and Arslan, cited above, § 104). Furthermore, the Court considers that the repeated and inefficacious violent acts against a vulnerable person constitute an infringement of human dignity and attain a severity threshold rendering them incompatible with Article 3 of the Convention.

88. Accordingly, there has been a violation of Article 3 of the Convention.

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FOR THESE REASONS, THE COURT, UNANIMOUSLY,

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2. Holds that there has been no violation of Article 2 of the Convention;

3. Holds that there has been a violation of Article 3 of the Convention;

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Done in French, and notified in writing on 16 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan BlaškoAngelika Nußberger
Deputy RegistrarPresident

Full & Egal Universal Law Academy