Information Note on the Court’s case-law No. 145
October 2011
Portmann v. Switzerland - 38455/06
Judgment 11.10.2011 [Section II]
Article 3
Degrading treatment
Use of hood, handcuffs and leg shackles to restrain particularly dangerous suspect for two hours: no violation
Facts – Following his escape from prison in February 1999 and after committing various subsequent offences, the applicant was arrested at around 7.45 p.m. on 10 March 1999 by police officers. In accordance with the customary procedure for the arrest of potentially dangerous individuals, he was immobilised on the ground using handcuffs and leg shackles. When back on his feet he became very aggressive. To protect themselves and to prevent the applicant harming himself the officers covered his head with a hood. They explained to him the purpose of the measure, which he did not challenge, and made sure he was breathing normally. When he arrived at the nearest police station he was presented to the investigating judge. The officers subsequently removed the hood so that he could read and sign his statement. They instructed him not to look around. The applicant refused to sign and the hood was placed over his head again. He was taken to a cell and at 9.50 p.m. transferred to another police station. It was at that point that the hood, handcuffs and shackles were removed. In a judgment of March 2001 the court sentenced the applicant to ten years’ imprisonment, reduced on appeal to nine years. In April 2006 the applicant filed a complaint with the investigating judge’s office alleging that he had been subjected to inhuman or degrading treatment under Article 3 of the Convention at the time of his arrest, transfer and presentation before the investigating judge. The investigating judge’s office ruled there was no case to answer. Subsequently, in 2006, the public prosecutor’s office declared the applicant’s complaint admissible, even though he had filed it more than seven years after the arrest in question, but considered it ill-founded. The applicant appealed against that decision but was unsuccessful.
Law – Article 3 (substantive aspect): The Court found it surprising that the applicant had filed his criminal complaint more than seven years after the events. Despite that delay, the domestic authorities had nevertheless examined it, but had dismissed it on the merits. That fact was not irrelevant when assessing the impact that the impugned treatment must have had on the applicant: if it had been significant, he would probably not have waited so long before complaining. Moreover, the applicant, who was forty at the material time, did not allege that he had had any particular health problems that would have made the measure harder to bear.
The treatment inflicted on the applicant during his arrest and transfer had been limited in time, lasting for about two hours. The applicant was a particularly dangerous individual against whom the police officers had to protect themselves adequately. They had thus considered it necessary to cover his head with a hood and to use handcuffs and shackles to stop him absconding or harming himself or others. The Court found the measures appropriate because they had been used both to reduce the applicant’s freedom of action and to preserve the anonymity of the police officers involved, thus protecting them from possible reprisals. The hooding had been accompanied by the requisite safety measures. The applicant had not objected to wearing the hood and had confirmed, when asked by the officers, that he could breathe normally. Subsequently he had been watched almost continually by a police officer in accordance with the applicable rules. As regards his allegation that he had been subjected to a real interrogation by the investigating judge, for twenty or thirty minutes, after arriving at the police station and while still wearing the hood, the Court found that such conduct, if proven, could not be regarded as compatible with Article 3. The Court observed, however, that in the present case the length of the confrontation between the applicant and the investigating judge was a matter of dispute between the parties. The disagreement was partly due to the fact that the arrest dated back to 1999 and the applicant’s delay in filing his criminal complaint had made it more difficult to reconstitute the relevant events in detail.Thus, the wearing of the hood, even combined with the handcuffs and shackles, had been limited to about two hours, had been accompanied by appropriate safety measures and had not sought to humiliate or debase the applicant. It had not therefore attained the level of seriousness required to engage Article 3.
Conclusion: no violation (six votes to one).
The Court further found, by six votes to one, that there had been no violation of the procedural aspect of Article 3.
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This summary by the Registry does not bind the Court.
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