CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 16 juillet 2015

.s800EAC49 { font-size:12pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .sB9D5CABB { width:28.35pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sB5B12DBD { width:33.24pt; text-indent:0pt; display:inline-block } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s2289AC0D { width:96.82pt; display:inline-block } .s59DEA84 { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .sB042F7C6 { width:162.94pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }       FIFTH SECTION             CASE OF GHEDIR AND OTHERS v. FRANCE   (Application no. 20579/12)             JUDGMENT ( Merits ) (Extract)     STRASBOURG   16 July 2015   FINAL   16/10/2015     This judgment is final in the circumstances set out in Article   44 §   2 of the Convention. It may be subject to editorial revision. In the case of Ghedir and Others v. France, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Angelika Nußberger, President,   Boštjan M. Zupančič,   Ganna Yudkivska,   Vincent A. De Gaetano,   André Potocki,   Helena Jäderblom,   Aleš Pejchal, judges, and Claudia Westerdiek, Section Registrar, Having deliberated in private on 23 June 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 20579/12) 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 two French nationals and two Algerian nationals, Mr Abdelkader Ghedir and Mr Houcine Ghedir, and Mr Abbas Ghedir and Ms Fatiha Ghedir, respectively (“the applicants”), on 23 March 2012. 2.     The applicants were represented by Mr A. Ursulet, a lawyer practising in Paris, and Mr G. Thuan dit Dieudonné, a lawyer practising in Strasbourg. The French Government (“the Government”) were represented by their Agent, Mr F. Alabrune, Director of Legal Affairs with the Ministry of Foreign Affairs. 3.     The applicants alleged, in particular, that the first applicant had been the victim of disproportionate use of force in breach of Article 3 of the Convention. 4.     On 2 April 2013 the application was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicants were born in 1983, 1985, 1937 and 1947 respectively and live in Villepinte, apart from the second applicant, who lives in Drancy. The second, third and fourth applicants are the first applicant’s brother, mother and father, respectively. A.     The first applicant’s arrest 6.     During the afternoon of 30 November 2004 the first applicant, who was smoking a cigarette in the Mitry-Villeparisis railway station, was identity-checked by officers of the General Security Service (“SUGE”) of the French National Railway Company (“SNCF”). 7.     Just before 8 p.m. on the same day two police officers from the Mitry Mory police station, S.D. and S.G., were called out to that railway station after a report that an individual had been throwing stones at the trains. Arriving at the railway station, they saw a man who did not correspond to the description provided, who appeared to be drunk, and who reacted aggressively when approached. They called for reinforcements just as five SUGE officers arrived on the scene. The individual in question, who was later identified as the first applicant, ran off towards an underground passageway. 8.     The SUGE officers, who included L.P., Y.F. and O.D.B., stopped and questioned the first applicant. The latter put up no resistance to his arrest. The SUGE officers then took him outside the main entrance to the railway station had placed him against a wall. 9.     The statements given by witnesses to that scène diverge concerning the subsequent events (see paragraphs 15 to 18, 20 and 34 to 44 below). 10.     The first applicant was forced to the ground by the SUGE officers, who handcuffed him behind his back, before frisking him. He was then placed in a police vehicle parked nearby. The operation ended at 7.59 p.m. 11.     During his transport to and arrival at the police station, the first applicant complained of nausea, and had to be helped out of the vehicle by the police officers. The latter mentioned that he was bleeding profusely from the chin. 12.     Having arrived in the police cells, the first applicant lost consciousness and went into a coma. A doctor present in the police station administered first aid, before the arrival of the fire brigade ambulance at 8.14 p.m. and then the emergency medical services (SMUR) at 8.45 p.m. He was then transferred to the Lagny-sur-Marne hospital, and later, to the Beaujon hospital in Clichy. 13.     The first applicant was remanded in custody at 8.15 p.m. on charges of insulting members of the police force and deliberate violence against a public-service employee, although the measure could not be notified to him owing to his state of alcoholic intoxication, according to the police report. The police custody was terminated at 10.10 p.m. on the instructions of the State Prosecutor. B.     Flagrante delicto procedure 14.     The duty officer at the Meaux public prosecutor’s office was advised of the case at 8.40 p.m. He ordered the opening of a flagrante delicto procedure on charges of deliberate violence against persons performing public duties, assigning the task to the Versailles Regional Police Department (“DRPJ”). 15.     The police and SUGE officers who had been involved or present during the first applicant’s arrest were questioned. Their versions contradicted each other: the SNCF employees spoke of a model arrest, whereas some of the police officers described it as “robust”. Among the latter, N.T., D.F. and R.D. pointed out that they had seen a SUGE officer, identified as Y.F., kneeing the first applicant in the face while he was being held on the ground by two other officers. They added that, noticing that Y.F. was about to knee him again, police sergeant A.H. had restrained him by the leg and said “that’ll do”. 16.     A.H. did not mention that fact during his first questioning. He was interviewed again, and he explained that when he had arrived at the railway station on the evening in question he had noted the presence of five SUGE officers surrounding the first applicant, who was waving his arms. One of them had attempted to take the latter by the arms, but he had brushed him off. The officer identified as Y.F. had replied “don’t you hit me”, and had become “annoyed” with the first applicant. With the help of three colleagues he had brought him to the ground. Given the applicant’s refusal to allow himself to be handcuffed, he had struck him on the head with his left knee. A.H. said that he had then approached the scene. Seeing Y.F. moving his left leg back to knee him again, he had prevented him from doing so. When asked why he had not mentioned these facts in his first witness statement, the police officer stated that he had “thought that it was for the person concerned to shoulder his responsibilities”. 17.     N.T. submitted that before being brought to the ground the first applicant had not been violent, but when an SUGE officer had touched him he had tried to remove his hand. One of the SUGE team had then, unsuccessfully, attempted to punch him in the face. 18.     Some of the police and SUGE officers mentioned that the first applicant had had a cut on his chin before his arrest. 19.     On 2 December 2004 L.P., Y.F. and O.D.B. were remanded in custody. 20.     On 3 December 2004 the scene was reconstructed in the presence of two members of the prosecutor’s office and the five SUGE officers and the six police officers who had been involved in the arrest. The SUGE officers said that the arrest had been effected without any particular difficulties, the first applicant having been handcuffed on the floor, emphasising that he had displayed no injuries on being handed over to the police officers. The latter presented a different version of events, explaining how the applicant had been kneed in the head. 21.     Dr M.K., who had operated on the first applicant at the Beaujon hospital, told the investigators that the injuries noted might have been compatible with one very violent blow, such as a hard slap, a kick or a knee strike, a blow from a medium-weight blunt instrument, or even a heavy fall. He did not consider the injury compatible with a truncheon blow. C.     Medical examinations and treatment 22.     At the Lagny-sur-Marne hospital, a brain scan showed an acute subdural haematoma of the left hemisphere. Blood tests showed alcohol levels of 1.51   grams per litre of blood and the presence of active cannabinoids (THC), pointing to exposure to cannabis between 2 and 24 hours before the testing. 23.     The first applicant was admitted to the Beaujon hospital on 1 December 2004 and immediately taken to the operating theatre, where he underwent emergency surgical evacuation of his haematoma. A control scan carried out the same day showed a residual subdural haematoma. 24.     On 1 December 2004 a forensic doctor was called upon to examine the first applicant, and noted that he was in a stage-3 coma on the Glasgow Coma Scale (on which stage 0 corresponds to death and stage 15 to a wakeful state). The doctor described a temporo-parietal fracture on the left-hand side, a closed 3.4 centimetre-long wound on the left side of the chin, two haematomas on the left tibia and a scratch on the left cheek. He also mentioned a subdural haematoma of the left hemisphere which was extended and compressive and had been the reason for the applicant’s emergency transfer to hospital. 25.     A second scan carried out on 3 December 2004 showed an odontoid fracture associated with a fracture of the lateral mass of vertebra C2. 26.     On 15 and 28 December 2004 the first applicant underwent further operations. 27.     From 14 February to 12 December 2005 he was hospitalised at the Bouffémont Functional Rehabilitation Centre. 28.     The discharge assessment drawn up by the said Centre mentioned a large number of neurological after-effects, including the partial loss of active motor skills in all four limbs, and serious cognitive and behavioural disorders (disinhibition, maladjustment, inability to concentrate, temporal disorientation, demotivation and loss of initiative, and passive opposition). 29.     On 12 December 2005, since his condition had not improved, the first applicant was transferred to another rehabilitation centre. On 26 June 2008 the first applicant’s residual rate of permanent partial disability (IPP) was estimated at 95 %, given his lack of autonomy in respect of all the basic activities of everyday life. He was confined to a wheelchair and was unable to engage in any autonomous occupational activity. D.     Judicial investigation 30.     On 3 December 2004 the Meaux Public Prosecutor requested the instigation of a judicial investigation against L.P., Y.F. and O.D.B. on charges of intentional violence having caused over eight days’ total unfitness for work (ITT), aggravated by the following three circumstances: the violence had been jointly, by persons performing public duties, in a place used for acceding to public transport. 31.     On the same day the three persons targeted by the request for an investigation were formally charged. L.P. and O.D.B. were placed under judicial supervision, while Y.F. was placed in preventive detention until 28 July 2005, when he would be released under judicial supervision. 32.     The applicants, assisted by counsel, applied to join the proceedings as civil parties. 33.     On 8 December 2006, in view of the evolution of the first applicant’s state of health, the State Prosecutor requested further investigations, reclassifying the charges as intentional acts of violence have caused a permanent disability. The three SUGE officers were formally charged on this new basis. 1.     Witness statements gathered 34.     A large number of witnesses were heard by the investigators on letters rogatory, and some of them were directly questioned by the investigating judge. 35.     Three train passengers present at the material time stated that they had not seen the first applicant being struck. 36.     Two individuals who had been with the applicant on the day in question, S.M. and S.Gh., were also questioned. S.M. explained that during the afternoon he and the first applicant had drunk alcohol and had been fined for smoking in the railway station. They had then reasoned with a person who had been on the railway tracks throwing stones at the trains. S.M. pointed out that the first applicant had a swollen lip and small scars on his face, around the chin. While they had been together the first applicant had neither fallen nor bumped his head. 37.     S.Gh. told the investigators that the first applicant had been “shoved” by one of the officers involved, who had forced him face-down on to the ground, without his head actually touching the floor. She added that when he had been on the ground an SUGE officer had kicked him, with medium force, on the head or his upper body, although she was unable to say whether the kick had landed on his head. She further stated that when the first applicant refused to get into the vehicle, one of the staff involved had hit him lightly on the back of the head or upper body with a black objet, possible a truncheon, but that the blow had not been violent. The investigating judge summoned S.Gh. four times to appear before him, but she did not attend. Moreover, having subsequently mentioned the violent acts during a TV interview, she had explained that “she had been all over the place”, that she had been “taken by surprise” and that she “had overdone it a bit   in front of the TV cameras”. 38.     Furthermore, on 9 May 2006 an SNCF employee informed the investigators that he had been confided in by a dog-handler, claiming that he had been talking to some of the first applicant’s friends and had discovered that he had been fighting on the afternoon in question and that someone had smashed a bottle over his head. The employee explained that she had not spoken up earlier because her information was only second-hand. Furthermore, she had not considered the dog-handler particularly reliable, as he had previously given her information which she knew to be false. However, this witness statement could not be compared with other evidence or corroborated by the witness as he had died since the material time. On 26 May 2006 the police had telephoned the six dog-handlers who could have made the statements in question. The only one who had worked in the company in question at the material time had stated that he had not heard about the case and had never spoken to any friends of the victim, with whom he was not acquainted. 39.     S.D. and S.G., the two police officers who had first arrived on the scene, gave statements. One said that the arrest had been carried out “robustly” and that the first applicant’s head had possibly hit the ground, as he had “fallen with his whole weight, all at once”, and the other stated that the applicant had fallen “to the ground heavily, face down”, with his head hitting the floor. The latter added, before the investigating judge, that he was virtually sure that the applicant’s head had hit the ground, even though his view was partially blocked by a vehicle. He further added that he had not seen the person being kneed. 40.     The four police officers sent as reinforcements, D.F., N.T. R.D. and A.H., stated that they had witnessed a kneeing incident. R.D. affirmed that when the first applicant had been brought to the ground there had been a loud “bump”. A.H. went back on the statements made during the flagrante delicto procedure, informing the investigating judge that he did not know whether the applicant’s head had “bumped on the ground”. 41.     The two SUGE officers who had been present but had not taken part in the operation explained that there had been no violence, and one of them suggested that if there had been any blows they must have been delivered in the police car or the police station. 42.     As regards the persons formally charged, O.D.B. stated that no blows had been delivered. He said that the episode during which the first applicant had been brought to the ground had been a “textbook example”, explaining that there had been no violence, and that the person had just been placed on the ground. He was sure that his head had not hit the ground. He added that Y.F. had not kneed the first applicant, explaining to the investigating judge that in his view things had gone badly in the police station and the police officers were trying to “shift the blame on to them”. He added that the wound to the first applicant’s chin after his arrival in the detention area bore no comparison to the scratch which they had noted earlier on. He considered that his colleague had used the level of force strictly necessary to bring the arrestee to the ground. 43.     L.P. affirmed that while the first applicant had still been standing, he had deliberately punched Y.F. on the arm. The latter had then seized him by the sleeve to knock him off balance. The applicant had ended up on his knees, and had been laid out on his side and then on his stomach. O.D.B. and he had held him by the ankles while Y.F. was handcuffing him. L.P. stated that the first applicant had been brought to the ground quite normally and that he had neither fallen to the ground nor been struck. He justified the use of that technique by the fact that the arrestee had been struggling and making incoherent statements. He added that he had had traces of blood around his nose, something which he had already noticed when fining him during the afternoon. He told the investigating judge that the first applicant’s head could not have hit the ground, after having stated while in custody that he had not been able to see his head when the person had been brought to the ground. 44.     Finally, Y.F., a former trainer in the field of operational techniques, confirmed that he had fined the first applicant during the afternoon, without any further incidents occurring, even though the latter had already been consuming alcohol. He described the applicant’s annoyance and disgraceful language when they had met up again later. He complained that he had been punched deliberately and violently on his right forearm. He had pulled at the first applicant’s sleeve to bring him to his knees, and had then forced him to the ground with L.P.’s help, laying him on his right side and then turning him on to his stomach. He had personally handcuffed the arrestee by placing his knees on his body, his left knee on the back and his right knee on the posterior. His colleagues had been holding the arrestee’s legs. He specified that the latter had been “brought to the ground” and not “pushed to the ground”. The applicant’s head had not collided with anything and he had not been struck in any way, in the knowledge that he had had a slight cut on his chin and dried blood around his nose. Y.F. said that something must have happened at the police station or during his time in the police vehicle, because the injury to the chin which had been visible during the arrest had nothing in common with the wound which he had displayed at the police station; that wound had been four centimetres deep and bleeding, leaving a pool of blood. If the SUGE officers had noted such a wound on handing him over to the police, they would have immediately called an ambulance. 45.     Y.F.’s administrative file showed that he had repeatedly complained of abuse and threats. 46.     Consultation of the SNCF operational handbooks had shown that the head was singled out as a part of the body which should never be struck. 47.     No images of the handcuffing episode could be obtained from the CCTV footage at the railway station. On the other hand, the footage did show the identity check carried out in the afternoon and the attempts by the first applicant to calm down an individual standing on the railway tracks. 2.     Expert reports a)     Expert report of 25 April 2005 48.     On 29 December 2004 the investigating judge commissioned an expert report on the matter from Dr T., a forensic doctor, and Professor L, a brain surgeon. They submitted their report on 25 April 2005. 49.     The reports concluded that the first applicant had had a subdural haematoma of the left hemisphere which had caused brain damage. 50.     In view of the nature and consequences of that haematoma, the experts considered that the length of time required to constitute it had probably been less than thirty minutes from the time of the head injury, and could not have been less than fifteen minutes. Having regard to the timescale of the events and the witness statements, the experts stated that the shock could not have occurred during the few minutes’ drive from the railway station to the police station, or on arrival at the latter. On the other hand, they found that the injuries could have been caused by the applicant being pushed to the ground, being kneed or falling full length during his arrest. Alcohol or drug consumption could not have had any direct and/or definite influence on the traumatic brain injury. b)     Expert report of 24 January 2006 51.     Dr G., a neurologist, and Ms D., a neuropsychologist, examined the first applicant on 3 January 2006. They submitted their report on 24 January 2006. 52.     They noted a deficiency of all four limbs and a serious deterioration of the cognitive and mental functions. They concluded that the neurological condition was directly responsible for the first applicant’s state of total dependency, and considered that it was too soon to determine the chances of consolidation but that the situation was unlikely to change greatly. c)     Expert report of 19 October 2006 53.     On 26 June 2006 Dr G. and Dr S. examined the first applicant. In their report of 19 October 2006 they noted that he could neither stand nor walk, that he was completely dependent as regards everyday activities and should be placed under guardianship. His total unfitness for work was still being assessed. 54.     They mentioned that the injuries observed could only have been the result of violent trauma, and that if they had been caused by being pushed to the ground, he must have been pushed extremely violently. The hyperextension of the cervical rachis and the fracture of the C2 vertebra could have been caused by a violent blow from a knee, but not the haemorrhagic lesions or the left temporal contusion, the latter having been caused either by direct blows to the skull or by the head violently hitting the ground. They confirmed that alcohol or drug consumption could not have been factors in the injuries, although they explained that the state of intoxication could have diminished the person’s reactivity in attempting to limit the consequences of falling. 55.     The experts considered that the timescale of the events as reported pointed to the conditions surrounding the arrest in the railway station as having very probably, indeed certainly, been the cause of the traumatic cranio-cerebral and rachidial lesions. They pointed out that they had no information at their disposal to rule out the possibility that the first applicant had sustained other violent attacks while in the police vehicle or at the police station, but added that if such violence had indeed occurred, it was conceivable that it had caused injuries. Nevertheless, the lapse of time between the arrest and the arrival at the police station had been so short that that hypothesis was “improbable”. 56.     They further explained that the bleeding in the chin area could not have been caused by the subdural haematoma, but might have resulted from the person having been violently pushed to the ground or having received any other type of blow. 57.     The experts concluded that the first applicant suffered from an infirmity which would leave him with permanent motor, cognitive and mental after-effects. d)     Expert report of 9 Ma   rch 2009 and reconstruction of 23 November 2007 58.     On 6 September and 30 November 2007 the investigating judge appointed four experts, Dr G., Dr S. and Dr L., and also M.F., an expert in “martial arts, combat and self-defence sports and the ballistics of body movements and blows”, to assist in the reconstruction of events and conduct a fresh medical examination of the first applicant. They were also mandated to determine whether the first applicant’s statement as recorded on 22   November   2007 could be deemed reliable. 59.     The reconstruction took place on 23 November 2007. Police officers S.D. and S.G. confirmed that when they had first encountered the first applicant he had been acting rather nervously, seemed to have consumed alcohol, displayed an injury on his chin, and was red in the face. The SUGE officers who had met S.D. and S.G. had informed them that they had already fined the applicant that afternoon. SUGE officer C.A. explained that since the police officers had informed them that they had been insulted the decision had been taken to arrest the person concerned and the SUGE officers had asked him to come with them. C.A. had put him in an armlock. For his part, Y.F. stated that he had seized his left sleeve. 60.     According to the SUGE officers, they had taken the first applicant outside the railway station, and there had been some hesitation when S.D. had told them that this was not the man who had been throwing stones at the trains. O.D.B. pointed out that Y.F. had then released him and stepped back. Y.F. explained that the first applicant had then turned angrily to face him and punched him on the forearm. He had seized the applicant by the collar, forced him to his knees and placed him on his right side. He had then placed him face down on the ground and put his hands behind his back in order to handcuff him. After frisking him, he had taken the first applicant by the right arm, and the latter had stood up otherwise unaided. 61.     A.H. confirmed that the applicant had made a gesture towards Y.F.’s arm, and Y.F. had warned him: “don’t you touch me”. However, he explained that because he was resisting handcuffing, Y.F. had struck him with his left knee. 62.     One of the other police officers, D.F., confirmed that he had seen the person being struck by Y.F.s left knee, while R.D. mentioned a blow from the right knee. N.T. confirmed the action described by A.H., although he was not sure which leg had been used. 63.     The police officers added that the first applicant had been placed in the police vehicle and that when they had almost reached the police station he had said that he was going to vomit. They pointed out that the man had been very calm, but when he was about to leave the vehicle he said that he would need help because his knee hurt. D.G. had helped him out of the car, holding one of his legs. That was when the applicant’s head had slid along the head-rest and hit the car doorframe. D.G., seeing that he had fainted, had asked a colleague to help him. Outside the vehicle the first applicant had vomited liquids and remained inert, mumbling rather than speaking. He had then been dragged into the sobering-up area. 64.     The experts submitted their report on 9 March 2009. They observed that in Y.F.’s version of events there had been no mention of blows or of the first applicant’s head hitting the ground. They also noted that in A.H.’s version, the blow was described as incapable of having had a major impact. They found that during the manoeuvre to bring the first applicant to the ground, he had been in a position to break his fall and, possibly, if he had been kneed, to protect himself. Moreover, they stated that if the kneeing incident was taken on board, the time which had elapsed between the latter and the arrival at the police station, when the first symptoms of the brain damage became evident, would have been between 2 minutes and 10 seconds and 3 minutes and 30 seconds. They concluded that in view of the minimum period of evolution (the “response time”) between the traumatic injury and the first symptoms, that is to say between fifteen and twenty minutes, the kneeing could not be deemed to have caused the brain injury. 65.     The experts considered that the various statements by the persons charged and the witnesses, as well as the reconstructions of the different versions, were “completely incompatible with the forensic medical findings as regards the nature and/or seriousness of the injuries described in the various hospital and forensic reports”, such injuries being “necessarily the outcome of violent traumatic injuries”. 66.     They pointed out that the observations made during the reconstruction meant that it was unlikely, or even impossible, that the fracture had occurred during the events that had taken place at the railway station or the police station, explaining that such a fracture usually caused serious neck pain and stiffness in the cervical rachis, which had not been noted by the victim, the witnesses or the participants. 67.     As regards the hypothesis mentioned during the investigation to the effect that the first applicant might have been hit by a bottle during a fight that had taken place during the afternoon of 30 November 2004, the experts pointed out that they had not received any evidence to support that affirmation, but that a blow with a bottle could have caused an internal contusion which would not have produced any external symptoms on the scalp but would have caused a subdural haematoma such as that discovered on the first applicant’s admission to hospital. The first manifestations felt by the first applicant on his way to the police station had most likely stemmed from just such a traumatic injury. The manifestations in question had therefore reflected the brain’s intolerance of the mounting pressure exerted by the subdural haematoma, which had been tolerated for a few hours and had then decompensated during the transfer to the police station. 68.     The experts emphasised that the lapse of time between the applicant’s arrest by the SUGE brigade and the emergence of the traumatic brain injuries had been too short to conclude that the actions carried out and the blows struck by members of that brigade might have caused the brain damage. Furthermore, the actions of the SUGE officers, as studied in detail on the day of the reconstruction, could not have explained the intracranial lesions. 69.     As regards the first applicant’s condition, the experts considered that his residual rate of permanent partial disability (IPP) could be estimated at 95 %, given his lack of autonomy in respect of all the basic activities of everyday life and his inability to engage in any autonomous occupational activity. His suffering and disfigurement were estimated at 6/7, and his loss of amenity and professional damage were declared absolute, total and definitive. 70.     The experts observed that the first applicant had said that he had been “attacked”. They added, however, that any memory on the applicant’s part had necessarily been “reconstructed”, either through unintentional, spontaneous fabrication or by repeating something overheard from people around him and possibly deformed by himself. He could certainly have had no direct memories of the events. E.     Opinion of the National Security Ethics Committee 71.     The National Security Ethics Committee, which had been contacted by two members of parliament concerning the circumstances of the first applicant’s arrest, assessed the procedural documents and interviewed the SUGE officers, apart from the persons formally charged, and also the police officers. It adopted an opinion on 19 December 2005. 72.     It first of all noted that when the applicant had been arrested in the underground carpark of the railway station he had not been accused of an offence, as the police officers had acknowledged that his profile did not match that of the person sought. It added that the two police officers who had initially been involved had pointed out that they had not wanted to arrest the first applicant, but simply to check his identity, while the head of the SUGE team had stated that he had stopped the applicant for questioning because he had thought that the police officers had been insulted and he had considered them as victims. The committee noted that the head of team had admitted that “it was a bit topsy-turvy”, and that on leaving the railway station he had been unable to understand why the officers had not handcuffed the man and taken him to the police station. 73.     The committee observed that the arrest had been carried out in a confused and confusing manner. The SUGE officers had explained that they had decided to handcuff the first applicant because he had insulted them and had struck Y.F. on the forearm. 74.     The committee noted that A.H. had partly confirmed that version, and pointed out that there had been a kind of confused “stand-off” between the SUGE and the police officers outside the railway station. A.H. had noted that the first applicant had been insulting the SUGE officers, that he had lunged at one of them, hitting him on the arm or the shoulder, and that the officer in question had said “Don’t you touch me!”. After the applicant had been handcuffed, A.H. had decided to apprehend him on charges of violence against persons performing public duties, which violent acts he considered to have been committed in his presence. 75.     The committee observed that S.G., who had taken the first applicant to the police station, had stated that he did not know the reason for the arrest. 76.     The committee noted that even supposing that the head injury might have been caused by one of the SUGE officers, the police officers whom it had interviewed had provided no further information such as to establish its origin or the time of its causation. The only conclusions to be drawn from their statements were that the arrest had been violent, because the first applicant had initially resisted handcuffing. 77.     The committee observed that the police and SUGE involvement in the case had been extremely confused. It stated that the police sergeant, who had been assisted by five police officers, ought to have taken control of the situation as soon as he arrived on the scene. He should have intervened between the SUGE officers and the first applicant, immediately placing the latter under his protection, and have asked the SUGE officers why he had been stopped and questioned, with a view to deciding on the appropriate action to take. The committee noted that instead of shouldering that responsibility, the police officers had passively looked on as the SUGE officers used force which the former’s mere presence had rendered illegitimate. 78.     The committee considered that the lawfulness of the apprehension had been highly questionable. Indeed, the first two police officers arriving on the scene had taken the view that the apprehension had not been justified by the first applicant’s attitude outside the railway station. Interrogation of the various parties involved had not made clear whether a serious act of violence had been committed against Y.F. or whether the first applicant had merely pushed him away. The committee noted that the incident appeared in fact to have amounted to a mere scuffle to which Y.F. had reacted impulsively. 79.     It further noted that the SUGE officers had imposed the decision to apprehend the first applicant on the police officers, who were not in control of the situation. The latter had merely passively accepted the applicant’s handover in order to transport him to the police station. That confusion explained why the injury could not be imputed with any certainty to either of the services in question. The committee further stated that even supposing that the injury had been caused by the SUGE officers during the handcuffing operation, at a time when the first applicant should have been under police protection, it was surprising, at the very least, that none of the police officers present had been able to identify the act of violence which had occasioned the injury. 80.     In the committee’s view, the injury under the applicant’s chin raised issues. Even supposing that it had already been there prior to the apprehension and that the wound had reopened, as the police officers affirmed, it pointed at the very least to a very rough mode of transport of an injured person. Lastly, the committee pointed out that it was not its task to issue an opinion on the origin of the head injury or to attribute it to either of the services. It added that the possibility of a joint police/SUGE operation required the respective competences to be strictly defined. It should be reiterated that the arrival of the police removes the SUGE mandate, immediately placing the operation under the sole authority of the most senior police officer present. Moreover, SUGE officers should also be aware of the conditions for the lawfulness of in flagrante apprehensions and should in fact, like police personnel, undergo compulsory conflict management training. 81.     Lastly, the committee decided to transmit its opinion to the public prosecutor for assessment of the expediency of prosecuting those concerned on charges of failure to assist a person in danger. F.     Outcome of the judicial investigation 82.     On 15 February 2010 the investigating judge of the Meaux Regional Court issued a discontinuance order. 83.     She considered that the serious brain damage suffered by the first applicant had originated in events preceding his questioning by the SUGE officers and his transport to the police station by the police officers. She observed that the investigation had failed to establish the precise circumstances under which the events had occurred and to identify the perpetrator. No further investigation had been possible because all the witnesses identified had been heard and the first applicant was no longer capable of providing further information on the series of events of which he had been the victim. 84.     The investigating judge added that the circumstance surrounding the apprehension had been caused by the first applicant’s insulting and violent behaviour. No proof had been provided of illegitimate violence, since it had transpired from the proceedings and the witness statements that the applicant’s head had not hit the ground, and that even supposing that Y.F. had kneed him, such acts did not fall within the category of deliberate violence. The judge stated that the investigation had shown that, owing to the position in which Y.F. had been standing, the intensity of his action had necessarily been limited, forming part of an operational technique. 85.     The applicants, all of whom had joined the proceedings as civil parties, appealed against the discontinuance decision, seeking: - its annulment pursuant to Articles 184 and 802 of the Code of Criminal Procedure on the grounds that it was identically worded to the public prosecutor’s final submissions; - the appointment of a panel of experts mandated to produce a fresh report under the supervision of a member of the Investigations Division, and; - in the alternative, the committal of the defendants for trial by the criminal court for the acts of violence perpetrated against the first applicant. 86.     By judgment of 3 September 2010 the Investigations Division of the Paris Court of Appeal dismissed all those requests. It held that the civil parties had sustained no damage as a result of the grounds of nullity on which they had relied, since they could have adduced their claims in adversarial proceedings before it; it also pointed out that the entire proceedings had been submitted to it and that it was empowered to deal with all aspects of the case. As regards the request for a new expert report, the Investigations Division noted that the first expert report had been drawn up by a panel of four experts with complementary specialities, who had all attended the extremely long and detailed reconstruction organised by the investigating judge, during which they had seen all those involved in the impugned events repeat several times the gestures which they had described, covering all the different versions presented. It held that another expert opinion, for which all this input could not be replicated, would be of no real value for establishing the truth, and that it was neither necessary nor practicable to repeat such a complex reconstruction, which had at no stage been criticised by the various parties involved in the proceedings. The Division added that in medical terms, the civil parties had provided no scientific evidence capable of contradicting the conclusions of the panel of experts, merely affirming that the extremely serious injuries sustained by the first applicant must have originated in the manner of his arrest. 87.     As regards the violence in question, the Investigations Division noted that the first applicant had suddenly lost his temper and struck Y.F. violently on the arm, which had been a deliberate, aggressive act. They therefore considered that the SUGE officers’ intervention to neutralise him had been amply justified, subject to the operation having taken place under appropriate conditions. It nevertheless noted that the operation seemed to have been more “robust” than the SUGE officers had admitted, the latter having spoken of a “textbook” operation, which evoked a theoretical ideal and seemed “too perfect”. Furthermore, the other parties involved had described a swifter series of events than the “takedown” in three separate stages described by Y.F. As regards the possibility that the first applicant had been kneed in the head, the Investigations Department noted divergences in the various witness statements, and concluded that some uncertainty remained as regards both whether such a blow from the knee had actually been administered and whether it had been intentional. 88.     Finally, as regards the causal link between the arrest and the first applicant’s injuries, the Investigations Division noted the general consensus that the applicant had been “in good shape” on being installed in the police vehicle after his handcuffing, and that neither his position in the vehicle nor the speed of transport had suggested that he had been the target of any violence at this stage of events. Referring to the reconstruction, the Investigations Division considered that by reprising all the descriptions of the actions by all those involved and taking on board the hypotheses least favourable to the SUGE officers in question, the experts had been able to ascertain that the arrestee’s head had not hit the ground in any of the reconstructed actions, that the blow from the knee, if such a blow had ever actually occurred, would have affected the right craniofacial region, that if it had been struck as described it could only have had a minor impact and that the actions carried out could not explain the intracranial lesions noted, especially the cranial fracture on the left side of the head. The Court of Appeal further observed that the experts’ findings had been very clear, considering it highly unlikely, or indeed impossible, that the fracture had been caused during the incidents at the railway station or at the police station. 89.     The Division pointed out that the experts had extensively justified their change of mind on the basis of factors which they had noted from the reconstructions of all the different versions, which they had attended, and that the medical evidence gathered would appear to support the existence of a previous traumatic injury which had taken some time to manifest. Lastly, it noted that the previous findings concerning the first applicant’s physical state during the afternoon had lent credence to that eventuality. Furthermore, the time taken for the symptoms to appear would have been incompatible per se with the short lapse of time between the arrest and the first symptoms, too soon after the operation to have been caused by it. 90.     The Investigations Division concluded that the investigation had failed to gather sufficient evidence that a criminal offence had been committed. 91.     On 27 September 2011 the Court of Cassation dismissed the applicants’ appeal on points of law. It held that the applicants could not complain about the reasons given for the discontinuance decision because, owing to the devolutive effect of the appeal, the Investigations Division had substituted its own reasoning for the original one. Moreover, it considered that that Division had analysed all the facts criticised in the complaint, answered all the main points set out in the civil parties’ memorial and determined, on the basis of sufficient and non-contradictory grounds, that there was insufficient evidence that any individuals had committed the offence of collective assault having caused a permanent disability or any other offence. 92.     In observations received by the registry of the Bobigny Compensation Board for Crime Victims (“CIVI”) on 16 March 2012, the Guarantee Fund against acts of terrorism and other criminal offences requested the reimbursement of provisional awards made to the first applicant to a total of 490,000 euros (EUR), under three CIVI decisions of 30 October 2006, 5 July 2007 and 8 December 2009. ... THE LAW   I.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 95.     The applicants complained that the conditions under which the first applicant had been arrested had infringed Articles 3, 5 and 13 of the Convention. 96.     The Government contested that argument. 97.     The Court, being the master of the characterisation to be given in law to the facts of a case, considers that the case should be assessed only under Article 3 of the Convention, which provides: “No one shall be subjected to torture or inhuman or degrading treatment or punishment.” ... B.     Merits 1.     The substantive limb of Article 3 a)     The parties’ submissions i.     The applicant 105.     The applicant submitted that his arrest had been neither necessary nor legitimate. He attributed the origin of his subdural haematoma to the conditions of his arrest, and more specifically to the way in which he had been brought to the ground and the blow from the knee whi