Information Note on the Court’s case-law No. 166
August-September 2013
Dembele v. Switzerland - 74010/11
Judgment 24.9.2013 [Section II]
Article 3
Degrading treatment
Inhuman treatment
Effective investigation
Use of batons to control applicant during identity check: violation
Facts – On 2 May 2005 the applicant, a Burkina Faso national living in Geneva, was approached by two gendarmes for an identity check. According to the applicant, although he had complied with the gendarmes’ request by showing his papers, they subjected him to ill-treatment. He also complained of the lack of a thorough, prompt and independent investigation.
Law – Article 3
(a) Substantive aspect – While the parties’ versions of events differed as to whether the applicant had submitted to the identity check by presenting his papers, it was not disputed that he had refused several times to extinguish his cigarette, that he had reacted strongly when one of the gendarmes had taken the cigarette, that he had refused to lie down on the ground when the situation became more tense and that when one of the gendarmes had tried to take him by the arm to lead him to the police vehicle he had struggled and managed to run away. In addition, the medical findings made at the clinic found injuries to the arm and neck of one of the gendarmes and a superficial wound, with inflammation, on the forearm of the other gendarme. This evidence was sufficient to establish that the applicant had offered physical resistance to the gendarmes and that the use of force by the latter had been justified in principle. It remained to be ascertained whether the force used had been proportionate to the resistance offered by the applicant.
In that connection the fractured collarbone sustained by the applicant unquestionably exceeded the threshold of severity required for the treatment to which he had been subjected by the gendarmes who arrested him to come within the scope of Article 3 of the Convention. The applicant had been placed on sick leave for an initial period of twenty-one days as a result of the injuries caused by the gendarmes’ actions.
Quite apart from the direct and specific cause of the applicant’s fractured collarbone, the methods employed by the gendarmes, taken overall, disclosed a disproportionate use of force. It was not disputed that the applicant had not been armed with dangerous objects apart from the cigarette he was holding in his hand or that, at least in the early stages of the incident, he had not injured the gendarmes or attempted to injure them by punching or kicking them or by striking them using any other means. The resistance he had offered before being pinned to the ground and biting the arm of one of the gendarmes had therefore been largely passive, albeit determined. The use of batons by the gendarmes, whether or not this had been the direct cause of the injury to the applicant, had thus been unjustified per se. Accordingly, in view of the foregoing considerations, the force used to control the applicant had been disproportionate.
Conclusion: violation (six votes to one).
(b) Procedural aspect – A total of over five and a half years had elapsed from the time of the applicant’s arrest until the discontinuance of the proceedings by the Principal Public Prosecutor. The investigation had also lasted for more than one year and eleven months from the date when the Principal Public Prosecutor had forwarded the file to the investigating judge until the decision to discontinue the proceedings. In view of the seriousness of the accusations against the two gendarmes who had arrested the applicant, the relatively straightforward nature of the case in terms of the number of persons and events concerned, and the fact that the investigation had simply amounted to hearing evidence from five witnesses and producing a limited number of readily accessible items of physical evidence, such delays were unjustified.
As to the degree of care with which the domestic authorities had established the facts of the case, the reopening of the investigation ordered by the Federal Court had enabled some of the defects in the initial set of proceedings to be remedied, notably through the organisation of interviews with the key witnesses. Nevertheless, further investigative steps would have shed light on the precise circumstances in which the applicant had sustained the fracture to his collarbone. The investigation into the incident of 2 May 2005 had therefore not been conducted with the requisite diligence.
Conclusion: violation (five votes to two).
Article 41: EUR 4,000 in respect of non-pecuniary damage; EUR 15,700 in respect of pecuniary damage.
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This summary by the Registry does not bind the Court.
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