CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 16 novembre 2017

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AUSTRIA   (Application no. 72126/14)                   JUDGMENT       STRASBOURG     16 November 2017     FINAL   28/05/2018   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ceesay v. Austria, 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. 72126/14) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Gambian national, Mr Lamin Ceesay (“the applicant”), on 14 November 2014. 2.     The applicant was represented by Mr H. Blum, a lawyer practising in Linz. The Austrian Government (“the Government”) were represented by their Agent, Mr H. Tichy, Head of the International Law Department at the Federal Ministry for Europe, Integration and Foreign Affairs. 3.     The applicant alleged that there had been no effective or comprehensive investigation, contrary to Articles 2 and 3 of the Convention, into the death of his brother, Y.C., who had died in detention (pending his expulsion) while on hunger strike. Under Article 3 alone, he complained that the treatment of Y.C. during his hunger strike had not been in accordance with the law and that he had been subjected to inhuman and degrading treatment. 4.     On 6 July 2015 the above-mentioned complaints concerning Articles   2 and 3 of the Convention were communicated to the Government and the remainder of the application was declared inadmissible, pursuant to Rule   54   § 3 of the Rules of Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     Background to the case 5.     The applicant was born in 1969 and lives in Hamburg. He is the brother of the late Y.C., also a Gambian national, who was born in 1987 and applied for asylum in Austria in 2004. 6.     On 4 April 2005, the Vienna Regional Criminal Court ( Straflandesgericht ) convicted Y.C. of drug trafficking and sentenced him to seven months’ imprisonment. Y.C. began serving his sentence at Vienna ‑ Josefstadt Prison ( Strafvollzugsanstalt ). On 2 May 2005 he was transferred to Linz Prison. 7.     On 18 April 2005 the Vienna Federal Police Authority ( Bundespolizeidirektion ) dismissed Y.C.’s asylum application and ordered his expulsion to the Gambia. An appeal lodged by Y.C. was dismissed by the Vienna Federal Asylum Office ( Bundesasylamt ) on 6 June 2005. He did not appeal against this decision and it became legally binding on 5   July 2005. 8 .     On 8 September 2005 the Linz Federal Police Authority issued an order for Y.C. to be placed in detention with a view to his expulsion. 9 .     On 12 September 2005 Y.C. was conditionally released from prison and directly transferred to the Linz police detention centre ( Polizeianhaltezentrum – hereinafter “the detention centre”). 10.     Upon his admission to the detention centre, Y.C. was examined by a police doctor ( Polizeiarzt ), who noted that Y.C. was in a good general state and was fit for detention. His weight was recorded at 76.5 kg and his height at 170 cm. Communication between the authorities and Y.C. took place in English. 11.     On 26 September 2005 the police doctor, while conducting a routine examination which all detainees have to undergo at two-week intervals, again noted that Y.C.’s state of health was good and recorded his weight at 70 kg. 12.     On 27   September 2005 Y.C. went on hunger strike. On 28   September 2005 he informed the authorities thereof. Representatives of Human Rights Association Austria ( Verein Menschenrechte Österreich ), a non-governmental organisation (NGO) who had already been counselling him since the day of his admission to the detention centre, came to talk to him. On the same day Y.C. was subject to an initial hunger-strike examination ( Hungerstreik-Eingangsuntersuchung ). Y.C. was handed an information pamphlet on hunger strikes (in English) and was also orally informed by the public medical officer of the possible consequences of a hunger strike. A medical hunger-strike protocol ( Hungerstreikprotokoll ) was filled out, in which his state of health was described as follows: “Musculature in a good, well-trained state, pronounced muscles of the upper arm, six-pack like someone who practices athletic sports, appears vital, overall.” 13.     On the hunger-strike protocol it was noted that at the outset of his hunger strike, Y.C. had weighed 67   kg. On the basis of this, Y.C.’s “critical weight” was calculated at 54   kg (see paragraph 64 below). Under the heading “reasons given for hunger strike”, it was noted that Y.C. “absolutely wanted to be transferred back to cell no. 36”. He had been placed in a different cell because he and his cellmates had allegedly tried to escape from cell no. 36. 14.     Daily health checks of Y.C. were subsequently carried out, during which his weight was checked, his blood pressure was taken and his oxygen saturation level was measured. Until 1 October 2005, no anomalies were detected. 15 .     On 2 October 2005 the public medical officer noted that Y.C.’s tongue was slightly dry, and on 3 October 2005 that his lips were “barky” ( borkig ). Further, there were occasional comments on the hunger-strike form to the effect that Y.C. resisted examination and was “malingering” ( simuliert ) – for example, he had “pretended to fall”, “refused to be examined”, “needed to be carried by other detainees”, and “tilted over from [his] chair in an ostentatious manner”. 16.     After examining Y.C. during the morning of 4 October 2005, Dr   F.G., the police doctor in charge, noted the following: “Pretends to be weak, has to be physically supported by two detainees – therefore weight check not possible. Dry tongue, barky lips. I request a medical assessment by a specialist. Possibly blood test, ionogram.” 17.     On 4 October 2005 at 9.30 a.m., Y.C. was taken to Linz General Hospital ( Allgemeines Krankenhaus ) for examination and an assessment of whether he was fit enough for further detention. Because Y.C. resisted the examination and kicked out at a nurse, his hands and feet had to be shackled by the police officers who had accompanied him to the hospital. According to a report drawn up by the treating doctor on 4 October 2005, it was “not possible to assess the intake of liquids”, “communication [was] difficult” because Y.C. did not speak German, he had “dry lips” and had his eyes “constantly closed”, but “walking [was] possible if [he was] supported”. The hospital further noted that if his general condition worsened, he would have to be force-fed and taken to a psychiatric ward, because he “lashed out from time to time”. Taking his blood for a blood test had been difficult and risky; nevertheless, with the support of the two police officers, who secured Y.C. in a chair in the examination room, the doctor nonetheless managed to take a small amount of blood. After consulting the senior doctor, the treating doctor formally confirmed Y.C.’s fitness for detention and noted the police doctor’s telephone number in order to contact him after obtaining the results of the blood test. 18.     Y.C. was subsequently taken back to the detention centre and at around 11 a.m. was placed alone in a security cell ( Sicherheitszelle ) because of his behaviour at the hospital. His shackles were removed. The security cell did not contain a water outlet, but Y.C. could request a water bottle at any time. A police officer checked on Y.C. every fifteen to thirty minutes. At 12.30 p.m., Y.C., who was lying on the bed, reacted to the police officer’s presence by lifting his head. When the officer next checked, at 12.50 p.m., he was not breathing anymore and had no pulse. At 1.20 p.m. he was declared dead by an emergency doctor who had been immediately called to the scene. The presumed time of death was 12.40 p.m. His weight was recorded at 59   kg. At 1.42 p.m. the blood test results from the hospital examination (see paragraph 17 above) were produced. They indicated that Y.C. had been dehydrated and that he should have been hydrated intravenously and placed in intensive care. 19.     In a report of 5 October 2005 the doctor from the hospital noted that Y.C. had been uncooperative during his examination. It had been virtually impossible to take a blood sample as the patient had resisted strongly. At that time nothing had indicated that Y.C.’s physical condition could become life-threatening. In a statement given on 14   October 2005 the doctor described Y.C. as not having been weak at all, rather, he had been physically strong and had steadily resisted treatment with all his might ( nach Leibeskräften ), using the whole of his body and kicking out with his legs. After examination of his tongue, pulse, respiration, heartbeat and skin, he had observed Y.C.’s dry lips, but had seen none of the other usual signs of dehydration or other abnormalities. He further stated that even as an experienced emergency unit doctor, a rapid and fatal development of Y.C.’s situation had not at all been foreseeable by him. B.     Criminal investigation 20.     On 4 October 2005, the day of Y.C.’s death, the Linz public prosecutor’s office ( Staatsanwaltschaft – hereinafter “the public prosecutor”) instituted a criminal investigation against “unknown offenders” and requested the Linz Regional Court ( Landesgericht ) to conduct a judicial investigation. The investigating judge ordered that an autopsy be conducted by a sworn and judicially certified expert ( beeideter und gerichtlich zertifizierter Sachverständiger ); the autopsy was conducted on 5   October 2005. On the same day, the investigating judge, in response to a request made by the public prosecutor, delivered a decision ordering the seizure of the blood samples taken from Y.C., together with the pertinent examination report. 21.     On 5 October 2005 the Linz Federal Police Authority submitted a detailed report on the circumstances of Y.C.’s death. 22.     On 6 October 2005 the public prosecutor requested the Office for Internal Affairs at the Ministry of the Interior ( Büro für interne Angelegenheiten des Bundesministeriums für Inneres – hereinafter the “OIA”) for it to carry out an investigation. The request included that interviews be conducted with: the two police officers who had accompanied Y.C. to the hospital on the day of his death; the police doctor who had examined Y.C. on that day; the doctor at Linz General Hospital who had examined Y.C.; the police officers who had been checking on Y.C. when he was placed in the security cell; and Y.C.’s cellmate. 23.     On 12 October 2005 the public prosecutor added to the case file a note regarding a telephone conversation between him and Dr H., the expert who had conducted the autopsy, regarding the preliminary findings of that autopsy. 24.     The OIA subsequently conducted an investigation at the detention centre’s medical service, procured documents from the detention centre, and produced written records of the requested interviews (see paragraph   22 above). The OIA’s report was submitted to the public prosecutor on 18   October 2005. 25.     On 24 October 2005 the investigating judge complied with a request lodged by the public prosecutor for the inclusion in the case file of the results of the investigation up until that date, as well as for Y.C.’s medical history to be obtained from the detention centre, and for these documents to be transmitted to the expert Dr H. It was further decided that the scale used to weigh Y.C. at the detention centre be seized and sent for technical examination. 26.     On 5 November 2005 the OIA submitted a report containing the results of the supplementary investigation. 27.     On 1 December 2005, after being supplied with all pertinent documents by the OIA, the Austrian Human Rights Advisory Board ( Menschenrechtsbeirat – hereinafter “the Advisory Board” – an independent monitoring body established in 1999 at the Ministry of the Interior) issued a report on Y.C.’s death. In that report, the Advisory Board considered several points to be problematic: that Y.C., after his visit to Linz General Hospital on 4 October 2005, had been further monitored only by police officers, rather than by medical professionals; that no interpreter had been present during the said hospital visit; that a blood sample had been taken from Y.C. against his will; and that the calculation of Y.C.’s critical weight had been questionable. The issues of Y.C.’s possible dehydration and carrying sickle cell disease had not been addressed in the report, as it had been drawn up before the delivery of the final autopsy report by Dr H. (see paragraph 30 below). 28.     On 12 December 2005 the applicant, who was represented by counsel, joined the criminal proceedings as a private party. 29.     By an order of 14 December 2005 the investigating judge urged the expert to submit his report. 30.     On 4 January 2006 Dr H., the forensic expert who had conducted the autopsy, submitted his final autopsy report (dated 5 October 2005), as well as his expert report on Y.C.’s death, to the Linz Regional Court. He stated in the autopsy report that Y.C.’s body had not shown signs of “significantly acute malnutrition”, nor had there been signs of “classic dehydration”. 31.     In the more detailed expert report, Dr H. stated that Y.C.’s body had not shown signs of any injuries; therefore, death caused by the use of force could be excluded. Y.C. had been slim, but had not appeared malnourished. His body had weighed 59.3 kg; his height had been 171 cm. No typical external signs of dehydration had been visible, except for the lips appearing to be slightly dry. The results of the internal investigation had recorded a thickening of the blood, which indicated a possible alternation to the blood while Y.C. had still been alive caused by a lack of hydration. Dr H. noted that a hunger strike alone could not lead to a thickening of the blood, as long as enough fluids were consumed. As concerns the hunger strike, Dr H. stated that it was likely that Y.C. had not eaten solid food for several days, but that it was unlikely that he had engaged in a long-term total hunger strike as the large intestine had still been filled with an abundance of stool along its entire length. 32.     Dr H. further stated that neither Y.C.’s external appearance nor the medical reports produced until 4 October 2005 had indicated a life ‑ threatening situation, although there had been a significant reduction in his weight. Rather, it was more likely that a shift in the electrolyte system had commenced over a period of several days, as indicated by the results of the blood test conducted by Linz General Hospital on 4 October 2005. A post-mortem examination of Y.C.’s blood (conducted in the course of the autopsy) had shown that he had been a carrier of sickle cell trait ( Sichelzellanlage ). Dr H. explained that sickle cell disease ( Sichelzellenkrankheit ) was an inherited red blood cell disorder; while red blood cells (containing normal haemoglobin) were disc-shaped, sickle haemoglobin could form stiff rods within the cell, changing it into a sickle shape. Dr H. added that the disease was rare among the white population, occurring mostly among black people. Unlike in the case of people suffering from sickle cell disease, in Y.C.’s blood the trait had been present in the heterozygous form, which is why the disease had remained undetected during his lifetime. In cases like Y.C.’s, symptoms of sickle cell disease only manifested themselves if there were further damaging external factors, such as dehydration or a lack of oxygen. 33.     Dr H. concluded that the cause of Y.C.’s death had been dehydration, combined with the fact that he had been a carrier of sickle cell trait, which had caused a shift in the electrolyte system and had ultimately caused his heart to stop beating. Neither the authorities nor Y.C. himself had been aware that he had been a carrier of sickle cell trait. Dr H. stated that Y.C.’s death could only have been prevented if he had been tested earlier for sickle cell trait, or if he had been aware that he was a carrier thereof. However, the hunger-strike protocol had not indicated any necessity for a blood test in that respect. The test results from the hospital on the day of Y.C.’s death would have given reason for further tests. However, the results had only been produced after Y.C.’s death. 34.     On 12 October 2005 the public prosecutor made a note in the criminal file ( Aktenvermerk ) about a conversation with Dr H. The doctor had expressed the opinion that with hindsight Y.C.’s extraordinarily aggressive behaviour at the hospital on the day of his death had resembled a delirious state caused by advanced dehydration and the consequent disintegration of his blood cells. 35.     On 13 January 2006 the public prosecutor decided to discontinue the criminal investigation into the death of Y.C., as no sufficient evidence could be found to warrant criminal proceedings. The applicant was informed that he had the right to ask the Council Chamber ( Ratskammer ) of the Linz Regional Court to conduct a preliminary investigation. However, he was also informed that he would have to bear the full costs of the criminal proceedings should the Council Chamber grant his request but the proceedings did not result in a criminal conviction. This decision was served on the applicant’s counsel on 19 January 2006. The applicant did not request that a preliminary investigation be instituted. 36.     On 2 March 2006 the applicant submitted the decision of 13   February 2006 issued by the Upper Austria Independent Administrative Panel ( Unabhänigiger Verwaltungssenat Oberösterreich – hereinafter “the IAP”) (see paragraph 46 below) to the public prosecutor and requested him to investigate further. On 13 March 2006 the public prosecutor replied that the documents submitted had already been made available to him, but that they could not change his assessment of the procedural results obtained so far, since every aspect of the legal question to be answered had already been clarified by Dr H.’s autopsy report and his comprehensive expert report. C.     Administrative proceedings 37.     On 15 November 2005 the applicant requested the IAP to review the lawfulness of Y.C.’s detention ( Schubhaftbeschwerde ) and at the same time lodged a complaint about the conditions of his detention ( Maßnahmenbeschwerde ). He submitted in particular that Y.C. should not have continued to be kept in detention because he had no longer been fit to be detained on account of his hunger strike. As regards the conditions of Y.C.’s detention, he submitted that the medical treatment of Y.C. had not been in conformity with section 10(1) of the Detention Ordinance ( Anhalteordnung – see paragraph 59 below). He furthermore claimed that his brother had been placed in a security cell, without access to water, on the day of his death, in contravention of section   5(5) of the Detention Ordinance. 38.     On 13 February 2006 the competent member of the IAP held a hearing during which he examined as witnesses the applicant, a cellmate of Y.C., one of the police doctors who had examined Y.C. during his hunger strike, and the police officers who had been in charge of examining detainees on the day of Y.C.’s death. 39.     Y.C.’s former cellmate, H.C., stated that they had gone on hunger strike together to protest the duration of their detention, and that they had not been treated correctly by the police officers; however, he did not specify how that treatment had not been correct. He said that he did not remember the exact day on which they had begun their hunger strike, but that they had not eaten or drunk anything at all for twelve days. H.C. stated that he had had the impression that Y.C. had been “terribly weak” during the three days before his death. 40.     According to the witness statements by employees of the NGO Human Rights Association Austria who had visited Y.C. on several occasions, Y.C. had not raised any allegations of ill-treatment during their visits. In fact, with the exception of his former cellmate, all other witnesses who had been in contact with Y.C. until his death had also stated during the IAP hearing that he had not appeared to be ill or weak, but that on the contrary, even on the day of his death he had seemed athletic and strong; which had been corroborated by photographs taken of his dead body and its description by Dr H. in the autopsy report (see paragraph 30 above). 41.     One of the police doctors, Dr F.G., gave evidence regarding, inter alia , the reason why the calculation of the critical weight of a detainee on hunger strike was based on his or her weight at the outset of the hunger strike, and not the weight recorded upon admission to the detention centre. He stated that detainees usually lost weight slightly during their detention, but that it was also possible for them to gain weight. He acknowledged that he had not even checked Y.C.’s initial weight, as the 65.5 kg recorded on the day after Y.C. had announced his hunger strike had in principle amounted to a normal weight, given his height. Dr F.G. furthermore stated that on 3   October 2005 Y.C. had walked into the examination room without support. One day later, Y.C. had showed signs of dehydration and had come to the examination room supported by two police officers. Dr F.G. stated that he had accordingly ordered him to be examined at the hospital. 42.     H., the police officer who had accompanied Y.C. to and from the hospital on the day of his death, stated that the reason for Y.C.’s placement in solitary confinement had been that – following Y.C.’s behaviour at the hospital – he and the other officer in charge had feared that Y.C. might harm himself or others. H. confirmed that there had been no water outlet in the security cell, but that Y.C. could have requested a water bottle at any time by ringing a bell. 43 .     B., the police officer who had been in charge of checking on Y.C. while he was being held in the security cell, stated that he had received an order to do so every fifteen to thirty minutes. During the checks, he had had to make sure that the detainee reacted when spoken to. When B. had checked on Y.C. at 12.30 p.m., the latter had moved his head. At the next check at 12.50 p.m., he had showed no reaction and had subsequently been pronounced dead by the emergency doctor, who had immediately been called to the scene. 44.     During the IAP hearing on 13 February 2006 the applicant presented an undated and unsigned three-page statement by Dr   W.G., whom he had engaged himself and who was a general practitioner in Linz with a focus on nutritional medicine. Dr W.G, who had not examined Y.C.’s body, had based his report on the autopsy report and expert report issued by Dr H., the report of the OIA (see paragraph 24 above) and the report by Linz General Hospital, and had come to the following opinion. On 12 September 2005, the day on which Y.C. had been taken into detention with a view to his expulsion, he had weighed 76.5 kg. On 28   September 2005, the day on which Y.C. had announced that he was on hunger strike, he had had a body weight of only 67 kg. The police doctor had made a mistake in taking the latter as the normal weight of Y.C. for the purposes of calculating his critical body weight. The doctor had not taken into account the fact that Y.C. had already lost 9.5 kg between 12 and 28   September 2005, meaning that Y.C. must have already started his hunger strike before he had officially announced it. From 28 September until the day of his death on 4   October 2005, Y.C. had lost a further 8 kg in body weight. However, the doctor had used Y.C.’s weight on 28 September (namely 67 kg) as a starting point, and had established his critical weight as 54 kg, which in Dr W.G.’s view was incorrect. The police doctor should have based his calculations on how much Y.C. had weighed when he had arrived at the detention centre. If he had, the correct critical weight would have been determined at 67 kg, minus 10%. Instead, Y.C. at the time of his death had already lost approximately 18% of his weight in fluids. For an adult person a loss of even 10% in fluids constituted a life-threatening situation. Dr W.G. assumed that Y.C. had died of dehydration resulting from the erroneous calculation of his body weight. He did not deal with the question of how far the sickle cell trait present in Y.C.’s blood had played a role in his death, nor did he provide any scientific source for his calculations. Dr W.G.’s opinion was later not supported by any of the official experts. 45.     The applicant asked the IAP that the second police doctor in charge at the detention centre on the day of Y.C.’s death be questioned, and that another expert report be obtained in order to refute the expert report issued by Dr H. (see paragraphs 30-33 above). The IAP refused these requests. 46.     The IAP, at the end of the hearing of 13 February 2006, ruled that Y.C.’s detention pending his expulsion had been unlawful and that the conditions of detention during his hunger strike had violated Y.C.’s right under Article 3 of the Convention to protection against ill-treatment. Concerning the cause of Y.C.’s death, the IAP reiterated the findings of the autopsy report and the expert report attached thereto (see paragraphs 30-33 above). The IAP argued that the State authorities had not fulfilled their role of guarantor of the applicant’s rights under Articles 3 and 5 of the Convention. It found that given the frequency of sickle cell disease among people from sub-Saharan Africa, the State was under an obligation to offer a test for sickle cell disease to all detainees from that specific geographic area, and in particular to those on hunger strike. 47.     The Ministry of the Interior appealed against that decision. 48.     On 30 August 2007, the Administrative Court quashed the IAP’s decision. It held that the applicant had no locus standi regarding the request for a review of the lawfulness of the detention of his brother because rights under Article 5 of the Convention were not transferable to other persons. Therefore, the IAP had not had authority to issue a decision in that respect. Concerning the complaint under Article 3 of the Convention, it held that the mere fact that a person was detained did not place any duty on the State to take measures (the need for which had not necessarily been foreseeable) because of the genetic disposition of that person without a manifest outbreak of disease in that person. Moreover, it found that the IAP had not respected certain procedural requirements, which is why the Administrative Court referred the case back to the IAP. 49.     On 1 April 2008 the applicant lodged an application with the European Court of Human Rights concerning the above-mentioned judgment of the Administrative Court; it was registered as Ceesay v. Austria (no. 17208/08). Thereupon, the IAP decided to suspend the fresh proceedings until such time as the Court rendered its decision in respect of this complaint. 50.     On 21 May 2010 the Court declared application no. 17208/08 inadmissible, pursuant to Article 35 §§ 1 and 4 of the Convention, as the proceedings were still pending before the IAP and the complaints lodged by the applicant with the Court were therefore premature. 51.     The IAP resumed the proceedings and on 11 June 2010 again issued a decision finding a violation of Article 3 of the Convention in respect of the conditions of Y.C.’s detention. It essentially reiterated the reasoning contained in its previous decision, explaining that the proceedings were not aimed at identifying an individual who could be held culpable for Y.C.’s death but at identifying errors inherent in the detention system – specifically, the lack of a standardised test for sickle cell disease for certain high-risk groups and the lack of clear instructions for the staff of the detention centre concerning detainees on hunger strike. 52.     The Ministry of the Interior again lodged a complaint, arguing that there had been sufficient rules and instructions in place concerning the treatment of detainees. In the present case, there had not been any indications that Y.C. had suffered from sickle cell disease. Not even hospitals conducted standardised tests for this blood anomaly where there was no concrete suspicion in that respect. It added that the death of Y.C. had nonetheless prompted the Ministry of the Interior to issue a directive to detention centre authorities instructing them to (i) inform detainees who were on hunger strike and who belonged to a high-risk group of the possible consequences of sickle cell disease, and (ii) conduct the necessary tests. 53.     On 20 October 2011 the Administrative Court again quashed the IAP’s decision. It reminded the IAP that it was bound by the legal interpretation that the Administrative Court had expressed in its previous judgment concerning the obligations of the State under Article 3 of the Convention towards detainees (see paragraph 48 above). Moreover, it suggested that the IAP order an expert report in order to determine whether the reduced mental and physical condition of Y.C. should have given rise to an investigation into the possibility that he had been suffering from sickle cell disease and whether appropriate medical treatment from that moment onwards could have prevented the death of Y.C. 54.     During the course of the new round of proceedings, the IAP ordered an expert report, as suggested by the Administrative Court. In a report dated 19 May 2012, as well as during the hearing of 21 June 2012, the expert in question, Dr L., confirmed that according to his findings, Y.C. had been a sickle cell trait carrier. He added that this was the case in respect of 30% of the population of countries in sub-Saharan Africa, such as the Gambia (where Y.C. had been from), and that this trait served as a protection from Malaria. The fact that a person was a carrier of sickle cell trait did not mean that he or she was ill or had a lower life expectancy. Nonetheless he or she would face a higher risk of death in the event of engaging in strenuous activities (anstrengungsassoziierte Todesfälle ), and the trait could also cause rapid dehydration in the event of reduced liquid intake. Dr L. explained that sickle cell disease could only be detected through an analysis of blood samples, but that the need for such an analysis had at no point been clearly indicated in Y.C.’s case, even in the light of his reduced mental and physical condition. 55.     The applicant submitted the same unsigned statement that he had already submitted during the hearing of 13 February 2006 (see paragraph 44 above). He did not submit any further requests. When the expert Dr L. was questioned by the IAP regarding the calculation of Y.C.’s critical weight, he stated that he was inclined to believe that Y.C.’s weight had been correctly calculated, but that that calculation had been wrongly recorded. In his opinion, it was unlikely that Y.C. could have lost 9 kg over the course of a sixteen-day hunger strike. 56 .     On 13 July 2012 the IAP dismissed the applicant’s complaint about the conditions of Y.C.’s detention, basing its decision on the finding contained in the expert report of Dr L. (see paragraph 54 above) that the need for an analysis of Y.C.’s blood in respect of sickle cell trait had not been indicated. It reiterated that according to the Administrative Court’s legal interpretation, by which it was bound, the State had no duty to take measures the need for which had not been foreseeable in respect of a person because of a certain genetic disposition without a manifest outbreak of the disease in that person. Therefore, the authorities’ conduct had not constituted a violation of Article   3. 57.     The applicant lodged a complaint with the Constitutional Court, which was dismissed on 22 November 2013. 58.     On 25   April 2014 the applicant lodged a complaint with the Administrative Court, which, referring to its decisions of 30 August 2007 and 20 October 2011, dismissed it. This decision was served on the applicant on 16 May 2014. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.   Domestic law 59.     On the basis of section 68(4) of the 1997 Aliens Act ( Fremdengesetz ) and section 53(c)(6) of the Execution of Sentences Act ( Strafvollzugsgesetz ) – both as in force at the relevant time – the Federal Minister for the Interior issued the ordinance on people held in detention by the police ( Verordnung des Bundesministers für Inneres über die Anhaltung von Menschen durch die Sicherheitsexekutive, Anhalteordnung, Federal Law Gazette II no. 128/1999 – hereinafter “the Detention Ordinance”). Within the context of the present case the following provisions of that regulation are relevant: Scope of the application Section 1 “(1)     The present regulation applies to persons in detention, who are detained after having been arrested by organs of the public security service, or who have started to serve their prison sentence on the basis of a detention order ([that is to say] prisoners). ...” Detention Section 4 “(1)     Prisoners are to be held with regard being had to human dignity and with the greatest possible care [being exercised towards] their person. ...” Solitary confinement Section 5 “(1)     Detention in solitary confinement must take place: 1.     where there are facts justifying the assumption that the detainee is endangering the health of others through [engaging in] violence; ... 3.     where there is a danger of infection from the detainee or where the detainee, on account of his or her appearance or conduct, objectively represents a significant burden for other detainees. (3)     Detention in solitary confinement may [be imposed]: ... 3.     as a disciplinary measure; 4.     where it is necessary for a short time for organisational reasons; 5.     where there are facts justifying the assumption that the detainee is endangering his or her own life or health through [engaging in] violence. ...” Fitness for detention [ Haftfähigkeit ] Section 7 “(1)     Prisoners must not be detained if their unfitness for detention is detected or obvious. ... (3)     All prisoners have to be examined without delay by a medical doctor with regard to their fitness for detention, at the latest within twenty-four hours of their arrest. They must submit to a medical examination, [which is] necessary to establish their fitness for detention. If prisoners refuse to be examined, it must be assumed that they are fit for detention, as long as they do not show any symptoms of disease or injury, and if there are no other reasons to doubt their fitness for detention. ...” Medical care for detainees Section 10 “(1)     The necessary medical care for prisoners is to be ensured by public health officers [ Amtsarzt ] or otherwise by means of precautionary measures [which] ensure that a doctor can intervene without unnecessary delay. Regarding minor cases, medical assistance may be provided by a paramedic [ Sanitäter ]. (2)     Prisoners who have already been declared fit for detention ... shall immediately be seen by a doctor where there are reasons to doubt their continued fitness for detention, in particular if a prisoner alleges that he is unfit. The state of health of injured or ill prisoners who have been declared fit for detention shall be assessed by a doctor in order that any deterioration shall be noted in a timely manner; if such deterioration gives rise to doubt as to his or her fitness for detention, the opinion of a public health officer is to be sought. ... ... (4)     Prisoners who go on hunger strike in order to render themselves unfit for detention must be seen by a doctor without unnecessary delay; the latter has to determine (and inform the prisoner of) what is medically required. In particular, it is to be decided if such prisoners are to be held in single- occupancy medical cells ...” 60.     Article 47 of the Code of Criminal Procedure ( Strafprozessordnung ), as in force at the relevant time, reads as follows: “1     Any person whose rights have been violated by a criminal offence or by an offence that is prosecutable ex officio can join the criminal proceedings [at any time before] the beginning of the trial hearing in the light of claims that he/she may have under private law, thus becoming a private party to the proceedings. 2     Such a private party has the following rights: (1) He/she can provide the public prosecutor and the investigating judge with anything that could be used] to convict the defendant or to substantiate a claim for compensation. (2) He/she can inspect the [material in the case file] during the preliminary investigation and the preliminary examination, unless there are extraordinary reasons to the contrary. (3) The private party is summoned to the trial hearing on the understanding that in the event of his/her non-appearance, the trial will nevertheless take place and the requests contained in the case file lodged by him/her will be read out. He/she can ask the accused, witnesses and experts questions or, in order to make other statements, can speak during the trial. Immediately after the Public Prosecutor has submitted and substantiated his/her final motion, the private party will be entitled to speak at the end of the hearing in order to specify and substantiate his/her claims and to lodge requests intended by him/her to be determined in the main ruling.” 61.     Under Article 48 § 1 (1) of the Code of Criminal Procedure, as in force at the relevant time, a private party was entitled – after being informed to that effect – to bring a charge if the public prosecutor had dismissed the charge and refused to prosecute the offender. 62.     Under Article 129a § 1 (2) of the Federal Constitution, as in force at the relevant time, the Independent Administrative Panels were to decide on any complaints lodged by persons alleging a violation of their rights on account of the administrative authorities exercising their direct authority to engage in coercion. B.     Domestic practice 1.     Domestic practice relating to detainees on hunger strike at the time of Y.C.’s detention 63.     Under an ordinance issued by the Ministry of the Interior on 7   June 2000, a detainee announcing or starting a hunger strike must be given an information sheet ( Infoblatt bei Hungerstreik ) in a language that he or she understands. That information sheet, which was prepared by the Ministry of the Interior’s medical service upon the recommendation of the Committee for the Prevention of Torture (CPT) after a visit that it paid to Austria in 1999, contains information on the dangers of a hunger strike (such as the health risks – including unconsciousness and death – that can result from insufficient fluid intake). 64.     With the aim of securing the uniform and improved medical treatment of detainees on hunger strike, the Ministry of the Interior organised consultations with its medical service and with various NGOs. The resulting recommendations served as a basis for further ordinances issued on 4 January 2002 and of 28 October 2002. These ordinances required police detention centres, after being notified of a hunger strike, to ensure without undue delay the undertaking of a preliminary examination of the hunger striker in question by a police doctor in the presence of an interpreter or an official conversant in the language of the detainee. The individual critical weight of the person on hunger strike had to be determined during such a first examination on the basis of his or her weight at the outset of the hunger strike. In the event that a hunger striker was of normal weight or was overweight and enjoyed good health, the benchmark for determining the critical weight of a hunger striker was to be 20% of his weight, as recorded at the outset of his hunger strike; in the event that a hunger striker was in poor physical condition the benchmark was to be 10%. A urine test was recommended. A documented clinical examination of all the parameters set out in the hunger-strike form – together with a documented assessment of arterial oxygen saturation – had to be carried out on a daily basis. 65.     In the event that a detainee reached his or her individually calculated critical weight, additional checks had to be carried out every other day in respect of blood sugar, packed cell volume, and urine – including measurements of protein and red blood cells. When the critical weight was reached, it was recommended that supplementary blood samples be taken at shorter intervals and that the person concerned be taken to a hospital. 66.     The assistance of a psychiatrist was to be ordered in individual cases if this was considered necessary in the light of the detainee’s mental state, as assessed during the first interview, or because of deterioration in his or her mental health in the course of his or her detention. After fourteen days of a hunger strike, the assistance of a psychiatrist was in any event obligatory. 2.     Domestic practice relating to detainees on hunger strike after Y.C.’s death 67.     After Y.C.’s death, an ordinance was issued on 6 October 2005 reiterating and specifying the measures to be taken in the event of a hunger strike being staged by a detainee in a police detention centre. 68.     On 20 October 2005 all detention centres’ medical services were informed on the basis of the latest findings regarding sickle cell disease that in the event of a hunger or thirst strike being staged by persons from countries where sickle cell disease was endemic, a complete blood count and a differential blood count had to be taken. III.   INTERNATIONAL MATERIAL 69.     The World Medical Association Declaration on Hunger Strikers (adopted by the 43rd World Assembly, Malta, November 1991, editorially revised at the 44th World Medical Assembly in Marbella, Spain, September 1992 and ultimately revised at the 57th WMA General Assembly in Pilansberg, South Africa, October 2006), addresses the conflicting situations faced by doctors in treating hunger strikers and provides guidelines for dealing with them. The relevant provisions of September 1992 “Malta Declaration”, the version in force at the relevant time, can be found in Nevmerzhitsky v. Ukraine , no. 54825/00, §   69, ECHR 2005 ‑ II (extracts). THE LAW I.     THE GOVERNMENT’S OBJECTION TO THE ADMISSIBILITY OF THE APPLICATION 70.     The Government submitted – in respect of both complaints lodged by the applicant under Articles 2 and 3 of the Convention (see paragraphs   74 and 102 below) – that he had failed to exhaust the domestic remedies. After the public prosecutor had decided to discontinue the criminal investigation into Y.C.’s death, the applicant’s counsel had been informed in writing that the applicant had the possibility to take over the prosecution as a subsidiary prosecutor ( Subsidiärankläger ), in accordance with Article 48 § 1 (1) of the Code of Criminal Procedure. This legal remedy had been accessible, suitable and sufficient for the alleged violations of the Convention to be redressed. However, the applicant had not made use of this possibility, and had thus failed to comply with the admissibility requirement stipulated in Article 35 § 1 of the Convention. 71.     The applicant contested this argument. While admitting that he had not made use of this remedy, he explained firstly that to conduct criminal proceedings as a subsidiary prosecutor, he would have had to accept the risk of having to bear the full costs of such proceedings. Secondly, he submitted that at that time he had already raised all relevant arguments in relation to Y.C.’s death during the proceedings before the IAP, and that a positive decision in those proceedings would, in his view, necessarily have led to the reopening of the criminal investigation. Thirdly, the applicant argued that by requiring him to act as a prosecutor in the investigation into his brother’s death, the Government’s obligation to investigate and prosecute criminal acts ex officio in all possible directions would have been shifted to him. He concluded that the remedy of taking over the prosecution as a subsidiary prosecutor had not been one that he could have reasonably been expected to take. 72 .     The Court is not convinced that requesting a preliminary investigation under Article 48 § 1 (1) of the Code of Criminal Procedure would have constituted an effective remedy in the circumstances of the instant case. The Government has not brought forward any convincing arguments in that respect or quoted domestic case-law to demonstrate that in a comparable case this remedy has proven to be effective. In the light of the fact that the public prosecutor did not find any reason to continue the preliminary investigation, and given that there were not even any concrete suspects (since the investigation was directed against “unknown persons”), it appears unlikely that a request to continue the proceedings would have had any prospect of success. The Court agrees in any event with the applicant that requesting him to pursue this remedy would have inappropriately shifted the duty stipulated by Articles 2 and 3 of the Convention to conduct an effective investigation from the Government to the applicant. The procedural obligation to investigate alleged ill-treatment and a death in police custody under these provisions clearly lies with the authorities, who must act of their own motion once the matter has come to their attention. The authorities cannot leave it to the initiative of the next-of-kin either to lodge a formal complaint or to requ