CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 21 juin 2018

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .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 } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .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 } .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 } .sB206C230 { margin-top:12pt; margin-left:68.65pt; margin-bottom:6pt; text-indent:-16.75pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s382C212A { margin-top:12pt; margin-left:61.8pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sBB355983 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s26FF04E7 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt } .s64E792FA { margin-top:0pt; margin-left:39.7pt; 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 } .s2BF44DB3 { width:159.61pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }     FIFTH SECTION         CASE OF SEMACHE v. FRANCE   (Application no. 36083/16)                   JUDGMENT           STRASBOURG   21 June 2018             This judgment has become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Semache v. France, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Angelika Nußberger, President,   Erik Møse,   Yonko Grozev,   Síofra O’Leary,   Gabriele Kucsko-Stadlmayer,   Lәtif Hüseynov, judges,   Jean-Marie Delarue, ad hoc judge, and Claudia Westerdiek, Section Registrar, Having deliberated in private on 29 May 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 36083/16) 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 an Algerian national, Ms Annissa Semache (“the applicant”), on 21 June 2016. 2.     The applicant was represented by Mr S. Maugendre, a lawyer practising in Rosny-sous-Bois. The French Government (“the Government”) were represented by their Agent, Mr F. Alabrune, Head of Legal Affairs, Ministry of Foreign Affairs. 3.     The applicant, relying on Article 2 of the Convention, complained about her father’s death after he was arrested by the police and held at Argenteuil police station. She alleged that the measures required for the protection of his right to life had not been taken. She further submitted that the investigation into these facts had not been effective. In addition, she complained that her father had sustained inhuman and degrading treatment contrary to Article 3 of the Convention while under police supervision. 4.     On 11   October 2016 notice of the application was given to the Government. André Potocki, the judge elected in respect of France, being unable to sit in the case (Rule   28 of the Rules of Court), the President of the Chamber decided to appoint Mr Jean-Marie Delarue to sit as an ad hoc judge (Rule   29 § 1 (b)). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1987 and lives in Argenteuil. A.     The arrest of the applicant’s father and his transfer to Argenteuil police station 6.     On Tuesday 9 June 2009 the applicant’s father, Mr Ali Ziri, who was 69 years old, and A.K., who was 60, set off in the latter’s vehicle after consuming alcoholic beverages. A.K. was driving. At about 8.35 p.m. a police patrol from the Argenteuil station, consisting of officers V.P., B.G. and J.C., having noticed that the car was being driven erratically, waved it down. 7.     In the light of the parties’ submissions and the documents in the file, Mr Ziri was asked to get out of the vehicle but refused and began insulting one of the police officers, who decided to arrest him for resistance. The officer grabbed Mr Ziri by the arm and he fell backwards onto the ground, landing on his backside. Officers B.G. and J.C. lifted him up, each taking one arm, and forcibly handcuffed him. Mr Ziri was then placed in the back of the police car together with A.K. and officer B.G., with V.P. at the wheel and J.C. in the passenger seat. Even before the car set off, A.K. insulted and spat at officer V.P. After telling him three times to calm down, unsuccessfully, officer B.G. immobilised him by bending him over, with his head touching his knees. When he saw this, Mr Ziri tried to strike B.G. Officer J.C. then turned round on his seat, with his back to the windscreen, to force Mr Ziri to bend over by pressing his two hands onto the latter’s back, thus using the so-called “double-seated embrace” technique. Mr Ziri remained in that position for the rest of the journey to the Argenteuil police station, which lasted – according to the time between the first radio call made by officer V.P. and the arrival – between three minutes twenty-five seconds and five minutes. 8.     On their arrival at the police station, at 8.46 p.m., officer B.G. tried to take Mr Ziri out of the vehicle with the assistance of a few colleagues, by pulling him with both hands under his shirt, while pressing one of his feet against the rim of the car. Mr Ziri was thus extracted and he hit the ground. He was then picked up by the officers, who immobilised his four limbs, and was carried, apparently without reacting and with his head hanging down, into the building. 9.     Inside the police station Mr Ziri and A.K. were taken into the transit room and laid out flat, on their stomachs and in a safe lateral position (this is not clear from the file) with their hands cuffed behind their backs. They vomited several times. Referring to the findings of the National Security Ethics Commission of 17   May 2010 (see paragraph 30 below), the applicant added that a large number of police officers witnessed the events. 10.     At 9.15 p.m., half an hour after the arrival at the police station, the officer in charge asked a team of four officers to take both men to hospital. Still in handcuffs, they were allegedly taken on foot to the police van, where they waited for 45 minutes before being driven to hospital. B.     Admission of the applicant’s father to Argenteuil hospital and his death 11.     Mr Ziri and A.K. arrived at the hospital – about 2 km from the police station – between 10.05 p.m. and 10.09 p.m. One of the officers called for a stretcher on which Mr Ziri was laid, on his back, without handcuffs. While waiting for the medical staff, the officers noted that Mr Ziri was vomiting and choking on his vomit. He moved into or was placed in a safe lateral position until the nurses arrived. 12.     A doctor examined Mr Ziri at 10.45 p.m. and noted that he was in a state of cardiac arrest. He was taken to intensive care, where he never regained consciousness. 13.     It can be seen from the judgment of the Investigation Division of the Rennes Court of Appeal of 12 December 2014 (paragraphs 39-41 below) that a certificate drawn up by Argenteuil Hospital on 10 June 2009 at about 12.30 p.m. recorded the following details of Mr Ziri’s condition when he arrived in intensive care: “a reactive coma with non-reactive bilateral mydriasis, abolition of corneal reflexes, no coughing, persistence of spontaneous ventilation, periorbital bruising to right eye with skin abrasion of the right cheekbone, skin abrasion on the right kneecap, bruising on the left side of the lower thorax, 1 cm bruise on the left forearm, and an alcohol concentration of 2.4 grams per litre of blood at 11.30 p.m.” 14.     It can be seen from the same judgment that later that day, on 10 June 2009, at 2 p.m., Mr   Ziri was also examined by Dr R., a forensic medical examiner. He observed that the neurological prognosis was negative owing to a lack of signs of awakening and the duration of the coma, noted the same bruising and skin abrasion as those indicated on the medical certificate, and recorded the hypothesis of the intensive care unit staff that Mr Ziri had succumbed to “hypoxia linked to choking in the context of vomiting with cardio-respiratory arrest then coma”. 15.     Mr Ziri died of a second heart attack at 7.30 a.m. on 11 June 2009. A procedure to establish the cause of death was opened at 10 a.m. that same day and the testimony of the doctor who had examined him on his arrival at the hospital was immediately sought. 16.     The first autopsy, carried out by Dr R. on 11 June 2009 at the request of the public prosecutor of Pontoise, found that the superficial skin injuries were unrelated to the cause of death. The autopsy report indicated the presence of an arrhythmogenic hypertrophic cardiomyopathy of the right ventricle associated with veno-occlusive disease with signs of pulmonary hypertension. It went on to say that Mr Ziri’s death was potentially due to decompensation of pre-existing pulmonary and cardiac conditions in a context of acute alcoholism, stating that each of the pulmonary and cardiac lesions taken separately could have been a cause of sudden death, especially in association with inebriation. He also raised the issue of medical responsibility, noting that a long period had elapsed between the time when Mr Ziri was reported to be unwell and the time he was examined, forty-five minutes later. C.     The preliminary police investigation, discontinuance by the prosecutor, the complaint with an application to join the criminal proceedings as a civil party, and the judicial investigation 17.     On 22 June 2009 a preliminary police investigation was opened against persons unknown on a charge of manslaughter. 18.     At the public prosecutor’s request, Dr D., an expert cardiologist, carried out an examination based on the medical file. In his report of 2 July 2009 he stated that “the most likely hypothesis was that of ventricular arrhythmia on top of undiagnosed cardiomyopathy, decompensated on account of moderate hypoxia, electrolyte disturbance due to alcohol and vomiting”. He added that if Mr Ziri had been treated by a nurse on his arrival at Argenteuil Hospital, the clinical appearance, the constant symptoms and the usual complementary tests would have resulted in his being placed under immediate medical surveillance in order to prevent or remedy the cardiorespiratory failure. He concluded that the delay of forty to forty-five minutes between his admission to hospital and his treatment had contributed to his death. 19.     On 6 July 2009 a confrontation was organised between the nurse and the doctor who had both treated the applicant’s father in the emergency unit. 20.     On 7 July 2009 the public prosecutor discontinued the case on the grounds that no offence had been committed, in the absence of sufficient evidence to engage the liability of the police officers or the hospital staff. 21.     However, a criminal complaint, together with an application to join the proceedings as civil parties, had been lodged by Mr Ziri’s family, including the applicant. According to the complaint, A.K. had stated that both he and Mr Ziri had been subjected to violence and that this could have been the cause of the latter’s death. 22.     A judicial investigation against persons unknown on the same charge of manslaughter was then opened, on the basis of the public prosecutor’s application of 8 July 2009. 23.     On 16 July 2009, at the request of counsel acting for Mr Ziri’s family, the investigating judge ordered a fresh autopsy. It was carried out on 17   July by Dr L. and Dr T., forensic medical examiners. Dated 20 July 2009, their report refers to “multiple hematoma on the right, antero-lateral and posterior half of the body, multiple hematoma on right upper and lower limbs, some of this bruising [possibly] corresponding to restraint-related injuries”. It further found that there had been no fracturing of the skull or any other part of the body, “superficial erosion and hematoma on the front, suggestive of frontal pressure”, “lungs indicating mechanical asphyxia” and “pressure on the right side of the back and thorax, shoulder and right arm”. It thus concluded: “Death from probable anoxia in a multi-factor context. Toxicological and anatomical pathology analyses are indispensable, together with a study of the medical file and procedure for the purpose of any useful synthesis”. 24.     On 17 July 2009 the investigating judge asked the same doctors to carry out an autopsy. In their report of 31 August 2009 they indicated that they had found the following, based on a review of the anatomical pathology slides taken from the autopsy samples, a study of the hospitalisation report and their own observations: the presence of multiple bruises on the back, right side of the chest and lower limbs, some of which may be related to restraint; no traces of alcoholism in the liver; no signs of intra-bronchial regurgitation; absence of Mendelson’s syndrome in anatomical pathological examinations; cardiac lesions consisting of an area of old sub-endocardial fibrosis with some small isolated areas, without recent myocardial ischemia and without significant coronary impairment. They thus concluded: “Ziri Ali, aged 69, died of hypoxic cardiac arrest by multifactorial suffocation (pressure on the back and front and known vomiting).” 25.     On the same day, observing that it could be presumed from the autopsy that the cause of Mr Ziri’s death arose before his arrival at the hospital and could in particular be related to his arrest, the investigating judge ordered the transfer of the file to the public prosecutor. 26.     The prosecutor made a supplemental application on 23 September 2009 for the investigation to be extended to charges of manslaughter by wilful assault committed by a person vested with public authority. 27.     A final forensic assessment was requested of Dr P., anaesthetist and emergency doctor. He was asked, in the light of all the evidence in the judicial investigation file and Mr Ziri’s medical records, to determine the causes of death, to ascertain whether any actions taken by the police during the arrest, transfer and custody could have caused the death, and to indicate whether the hospital treatment and medical procedures had followed the rules or could have contributed to the death. In his report of 15 April 2011, Dr P. observed that the successive expert opinions had ruled out, on the one hand, a medical cause of death – either by decompression of pre-existing pulmonary and cardiac pathologies in a context of acute inebriation, or by an inhalation of the gastric contents into the bronchial system capable of creating acute asphyxia – and, on the other hand, a traumatological cause in spite of the multiple bruising, in the absence of major traumatism, notably cranial. He upheld the hypothesis of a cardiac repercussion of an acute hypoxic episode. He relied in this connection on the statements of the police, who said that they had been forced to immobilise Mr Ziri by acts of restraint. Such restraint was capable of leading to respiratory blockage and therefore a difficulty, or even an impossibility, of oxygenation during a certain period, likely to result, in an elderly person, a greater hypoxic repercussion than in a young person, as well as cardiac arrhythmia. According to the expert, the autopsy data and the anatomical pathology analyses made this hypothesis likely. He also took the view that the treatment of Mr Ziri at the hospital had been “in accordance with normal practice”. He concluded as follows: “... – The electromechanical dissociation observed in the emergency department ... is secondary to a major cardiac rhythm disorder, itself secondary to a hypoxic episode related to being immobilised and repeated vomiting. – Regardless of the extent of Mr Ziri’s aggressiveness, he was a 69-year-old man whose lack of judgment led to conduct that was not without consequences for his state of health. – Given Mr Ziri’s condition upon his arrival at hospital, his reason for admission, the influence [ sic ] at that time, and the cause identified for the cardiac arrest, the treatment was in accordance with standard practice. Under these conditions, it is scientifically impossible to say that the immediate treatment of Mr Ziri, as soon as he arrived in the emergency department, would have changed the prognosis.” 28.     As indicated in the judgment of the Rennes Court of Appeal of 12 December 2014 (see paragraphs 39-41 below) and the documents in the file, A.K. had been questioned the next day, and the day after that, by the police investigators, and also on 20   October 2009 by officers from the National Police Inspectorate ( Inspection générale de la police nationale – “IGPN”). It is also apparent that officers B.G., V.P. and J.C. were questioned on several occasions, in particular by the IGPN, together with other police officers, four individuals who had been present at the arrest of Mr Ziri and A.K. and five individuals who had been at Argenteuil police station at the same time as the latter. In addition, the radio messages exchanged between officers B.G., V.P. and J.C. and Argenteuil police station at the time when they were transferring Mr   Ziri and A.K had been included in the evidence, as had the images of their arrival recorded by the police station’s CCTV system. D.     The 17 May 2010 opinion of the National Commission on Security Ethics 29.     On 17 May 2010 the National Commission on Security Ethics ( Commission nationale de déontologie de la sécurité – “CNDS”) issued an opinion on the facts. 30.     In that opinion the Commission began by indicating that it was not in a position to pursue its investigations concerning the allegations that Mr Ziri and A.K. had been struck, as it had not had access to the report of the second autopsy or to the file of the judge’s investigation. On the other matters, the report reads as follows: “As regards the extraction from the police vehicle: The images recorded by the CCTV camera located in the courtyard of the police station established that the vehicle carrying Mr [Ziri] and Mr A.K. stopped in the yard at 20.46 and 37 seconds, that the constable J.C. first violently pulled Mr [Ziri] by the neck, but clearly he was not moving; she was then joined by five colleagues and all together they got Mr Ziri onto the ground at 20.46 and 52 seconds, so the operation lasted 15 seconds. In view of the charges against Mr [Ziri] (rebellion), his manifest state of drunkenness (2.4 grams of alcohol per litre of blood), his age (69 years), the fact that he was handcuffed behind his back and was sitting in the back of a police vehicle stationed in the yard of a police station, the Commission took the view that he posed no danger, neither for himself nor for the ten officials present around the vehicle. The precipitation and violence with which Mr [Ziri] was removed from the vehicle was disproportionate and constitutes inhuman and degrading treatment. Regarding his restraint on the ground while lying down: The statements of the officers, as contained in the preliminary police investigation file or made during questioning by the commission, are inconsistent as to the state of consciousness of Mr [Ziri]. All the officers questioned by the commission indicated that he had been vociferous and insulting, but the senior police officer who met Mr [Ziri] to notify him of his rights indicated in a report drafted on 9 June at 8.50 p.m. as follows: ‘In response to our questions, he answered only by gurgles. ... let us ask the intervening officers to transfer him immediately to Argenteuil Hospital, for medical examination and issuance or not of a certificate of non-admission’. The same officer, when questioned the next day, on 10 June 10 at 2 p.m. said: ‘The individuals were talking and even insulting us in A.K.’s case’. It is possible that the arresting officers’ collective reading of the interview records before the Commission, in the presence of the Chief Superintendent, Head of District (according to whom ‘those documents being personal, they can use them as they see fit’), in the corridors of the Commission, is not unconnected with the question of the consistency of the accounts made before it. It can be seen from all the testimony gathered during the preliminary police investigation and by the Commission that Mr [Ziri] vomited as soon as he entered the police station. Constable D., when questioned on 10 June at 4.25 p.m., indicated: ‘We put him on the ground, in a safe lateral position. He could not stand up or even stay sitting. What’s more, he was vomiting. I in fact left immediately afterwards as I had vomit on my shoes ...’. The Commission has tried to establish the length of time during which Mr [Ziri] and Mr A.K. remained on the floor, face down, in their vomit, handcuffed behind their back: it was between thirty minutes and one hour and fifteen minutes. In fact, the officers questioned indicated that the order to take the persons concerned to hospital had been given at 9.15 p.m.. Immediately, the officers had put them into their vehicle, apparently waiting there until 10 p.m., arriving at hospital between 10.05 p.m. and 10.09 p.m.. In order to check the times, the Commission asked for a copy of the video-recording of their departure, but was unsuccessful as it had not been kept. According to the police record of 10 June 2009, at 1.50 a.m., of sergeant B.L., his team took charge of Mr [Ziri] and Mr A.K. at 10 p.m. and arrived at hospital at 10.05 p.m.. The Commission considers that it is highly unlikely that the officials considered it necessary to extract Mr [Ziri] from the vehicle that took him to the police station in 15 seconds and then to put him in another vehicle and make him wait there for 45 minutes. The Commission has serious doubts about the statements of the officers who put Mr [Ziri] in the van that would take them to hospital, according to which Mr. [Ziri] was sitting on the back seat, where he had remained without difficulty for the entire journey, while all the officers present at the police station say that he was not able to sit or stand, thus explaining why he was lying on the floor all the time. In these circumstances, the Commission takes the view that the fact of leaving Mr [Ziri] and Mr A.K., aged 69 and 60 respectively, lying on the floor of the police station, handcuffed behind their backs, in their vomit, within sight of all the police officers present, who could see that they were in distress, for approximately one hour, constituted inhuman and degrading treatment. Concerning the care provided in the hospital: The choice to place Mr [Ziri] on his back on a stretcher in the hospital, while he was vomiting, rather than in a safe lateral position, is indicative of a lack of knowledge of first aid rules. as confirmed by Mr A.U., who had not followed such training for twelve years. This unsuitable and dangerous position favoured the occurrence of aspiration and the inhalation of gastric fluid, which probably contributed to the death of Mr A.Z., or even caused it directly. ...” 31.     In conclusion the Commission called, in particular, for “ disciplinary proceedings to be brought against the police officers who used force disproportionately and with precipitation to extract Mr   [Ziri] from the police vehicle on his arrival at the police station, and against those who left two men, aged 60 and 69, handcuffed behind their backs, lying on the floor, with their faces in their vomit, for about one hour, without reacting”. E.     The discontinuance of proceedings 1.     The judge’s decision of 15 October 2012 and the judgment of the Investigation Division of the Versailles Court of Appeal of 18 February 2014 32.     A notice that the judicial investigation had concluded was issued to the parties on 22 June 2011. 33.     On 29 June 2011 the civil parties asked the investigating judge personally to hear testimony from all the witnesses in the case and also, having placed them under judicial investigation, officers J.C., B.G. and V.P (or in the case of the first two, at least as assisted witnesses); they also asked the judge to order, in the presence of all the ordinary witnesses, of any assisted witnesses, of any individuals under judicial investigation, of the public prosecutor, of the lawyers of the civil parties and of Dr L. and T., a viewing of the video of the arrival at the police station and a reconstruction of the events. 34.     Those requests were rejected by the judge’s decision of 22 July 2011, on the grounds that testimony had already been taken in a precise and detailed manner and that the civil parties had not indicated any points which had not been raised, that it was for the investigating judge to decide on the choice of status – whether a person should be placed under judicial investigation or be an assisted witness – without this having any bearing on the establishment of the truth, that the viewing of the video in the presence of witnesses was capable of undermining the sincerity of their testimony, and that, in the absence of any person under judicial investigation or assisted witness, a reconstruction could not take place solely in the presence of witnesses or experts. 35.     A fresh notice of the conclusion of the judicial investigation was issued on 2 September 2011 and on 15 October 2012 the investigating judge decided to discontinue the proceedings, on the grounds that “the investigation [had] not established any acts of wilful violence which might have been the direct or indirect cause of Mr Ali Ziri’s death, or any direct or indirect fault attributable to anyone who intentionally caused the death”. 36.     That discontinuance decision was upheld by the Investigation Division of the Versailles Court of Appeal, on an appeal lodged by the civil parties, in a judgment of 28 February 2013. 2.     Judgment of the Criminal Division of the Court of Cassation of 18   February 2014 37.     Relying in particular on Articles 2 and 3 of the Convention, the applicant lodged an appeal on points of law against the judgment of 28 February 2013. 38.     On 18 February 2014 the Criminal Division of the Court of Cassation set aside the judgment on the grounds that the Investigation Division had failed to “ascertain that the restraint techniques used [against Mr Ziri] had not been excessive in the light of the person’s conduct or whether the assistance provided had been appropriate”. It referred the case and the parties back to the Investigation Division of the Rennes Court of Appeal. 3.     The judgment of the Investigation Division of the Rennes Court of Appeal of 12 December 2014 39.     In a judgment of 12 December 2014 the Investigation Division of the Rennes Court of Appeal held that there was no need to supplement or continue the investigation and upheld the discontinuance decision of 15   October 2012. 40.     It noted that the forensic assessments had set out different hypotheses and had reached diverging conclusions, making it impossible to identify any single definite cause of Mr Ziri’s death. It found, however, that as the death had occurred following his arrest by the police, it had to ascertain “whether the police intervention had played, by acts of wilful violence or at least by wrongful conduct, any causal role in the death”. It observed that “whilst, according to the experts, the marks and bruising that might correspond, in some cases, to wounds caused by restraint could not have caused the death of Ali Ziri, there was no evidence to show, or even to suggest, that Ali Ziri had been struck intentionally at any time by the police officers”. It further noted that the statements of A.K. to the effect that Mr   Ziri had sustained such acts of violence were not only contradictory but also contradicted by those of individuals who had been present at the time of the arrest and by those of a man who had met him in Argenteuil police station. It lastly observed that there was nothing to show that any acts of violence had been committed by the police officers in the van, on the journey between the police station and the hospital. It concluded from this that the only times when Mr Ziri might have been subjected to acts of violence had been during the journey in the police car between the place of arrest and the police station, or on his arrival at the police station. 41.     The court noted in this connection that, in his forensic assessment of 15   April 2011, Dr P. indicated that the restraint techniques applied on Mr   Ziri – the use of the so-called “double-seated embrace” position   – was capable of “leading to respiratory blockage and therefore a difficulty, or even an impossibility, of oxygenation during a certain period, which would not have had any repercussions for a young person but was likely to entail cardiac consequences ... in an elderly person, with a lesser degree of thoracic compliance”. Taking the view that it had therefore to “ascertain whether the treatment of [Mr Ziri] in the police vehicle constituted a fault which had triggered his death”, it found as follows: “It can be seen from the statements [of B.G., V.P. and J.C.], from the audio recording of the messages exchanged during the journey and from the testimony of the police officers who intervened on arrival at the police station, particularly Lieutenant [S.M.], that the journey, lasting five minutes, had been very agitated and that both [A.K.] and Ziri had been behaving dangerously. It was after [A.K.] had spat at the driver that [B.G.], fearing for the safety of all the occupants, forced down his head and chest. In doing so he left space between himself and Ali Ziri, who took advantage of this to try to head-butt him, thus triggering, for the same safety reasons, the intervention of [J.C.] who, turning round on his seat, grasped him under the armpits and held his head down against his knees. Contrary to the assumption made by the National Commission on Security Ethics, in its report, Ali Ziri’s agitation thus described, while he was probably unsuccessful in attempting to head-butt, on account of his corpulence and the fact that he was handcuffed, was likely, in view of his state of drunkenness and restlessness. His state of extreme agitation inside the vehicle is confirmed by the fact that the driver, unusually, placed a call by radio to request the opening of the gate to the police station courtyard, which was normally opened by a member of the patrol who would get out of the vehicle to type in the access code, and it is also confirmed by Lieutenant [S.M.] who was in the porch waiting for the patrol to arrive. The statement of [V.P.], the driver, and the audio recording of the messages enable an estimate of three to four minutes to be made for the time during which [A.K.], then Ziri, were restrained in that manner, as [V.P.] indicated that he had sent the message, at 20.43 before arriving at the police station at 20.46, just after the immobilisation. It can be seen from those particulars that in the light of the state of agitation and rebellion of the individuals arrested, whose conduct, in the confined space of a vehicle, close to the driver, was highly dangerous for the safety of all passengers and other road users, the immobilisation techniques applied for a few minutes by the police officers, whose professional attitude is not in doubt and is attested by the witnesses to the arrest, did not constitute excessive restraint. The police thus made use only of the degree of force strictly necessary to control the individuals and no fault, voluntary or involuntary, can be imputed to them, and in particular not to [JC], the officer who actually immobilised Ali Ziri. The video recording of the arrival at the police station shows, once again, that it was only because of his resistance that he was forced out of the vehicle and then carried onto the premises to be laid on the floor. While the various statements show that he had trouble standing and confirm his state of inebriation, none of them ... mention a state of unconsciousness, this only being noted at the hospital shortly before the intervention of Dr [M.]. In addition, forensic experts dismissed the idea of any repercussion as a result of Ali Ziri’s hitting his head on the ground when removed from the vehicle. Nor is it apparent from the report of the National Commission on Security Ethics, which has been added to the file, that there were any acts of violence that could have led to the death of Ali Ziri. The Commission states that it has not been able to continue its investigations into the direct acts of violence alleged by [A.K.], those allegations having been refuted by the judicial investigation, as indicated above. It is, moreover, at odds with the facts for the Commission to state that Ali Ziri was placed on his back on a stretcher in the hospital, from which it inferred that this unsuitable and dangerous position had favoured the occurrence of aspiration and the inhalation of gastric fluid, which had contributed to the death; whereas, in reality, he had placed himself or had been placed by the police officer, with the approval of the nurse ... in a safe lateral position, and choking by aspiration is not the cause of death. While the Commission expresses the opinion that inhuman and degrading treatment was constituted as a result of the precipitation and violence with which Ali Ziri was extracted from the vehicle, and also by the fact of leaving the two men, aged 60 and 69, lying on the floor of the police station, handcuffed behind their backs, in their vomit, within view of all the officials for about an hour, it does not follow from this opinion, given the circumstances of the arrival at the police station analysed above, that any of the acts in question could have led to the death of Ali Ziri. In addition, according to [the] hospital reception and orientation nurse, Ali Ziri’s condition was not a concern and did not require special attention. He was conscious and responded to basic instructions and his case was not a priority. The expert [P.] indicated that a sound initial assessment of his condition had been made and that the aggravation of this condition within less than one hour was exceptional. While the expert expressed surprise that the police, although they were not in charge of his medical supervision, nevertheless failed to sound the alarm when Ali Ziri’s condition worsened, Dr [M.] indicated that in the absence of medical knowledge the police officers might have thought that he was sleeping. Consequently, as his condition had not caused any concern to the medical professionals upon his arrival at the hospital and had been assessed as normal given his state of inebriation, and as the police might not have realised that his condition had worsened – exceptionally rapidly according to the expert – no negligent failure to provide assistance that could have led to or contributed to the death of Ali Ziri can be imputed to the police. Therefore, in this presence of the evidence from the judicial investigation, the demands of both the civil parties and the public prosecutor’s office that the investigation be continued or that additional enquiries be ordered do not appear useful for the purpose of establishing the truth. The judicial investigation has not revealed sufficient evidence to show that the charges investigated by the investigating judge, or any other charges, are made out, and no additional enquiries would appear useful. In these circumstances, the decision must be upheld.” 4.     Judgment of the Criminal Division of the Court of Cassation of 16   February 2016 42.     Relying in particular on Articles 2 and 3 of the Convention, the applicant appealed on points of law against the judgment of 12 December 2014. 43.     On 16 February 2016 the Criminal Division of the Court of Cassation dismissed the appeal by a judgment giving the following reasoning: “... in upholding the discontinuance decision, the judgment notes that it could be seen from the statements of the police officers who were part of the patrol team, from the recording of the messages exchanged during the journey between the place of the arrest and the police station, and the testimony of the police officers who intervened on arrival at the police station, that this journey had been particularly agitated and that the acts of restraint used against [M. Ziri] had been made necessary by the state of agitation and rebellion of those arrested, whose conduct, in the confined environment of a vehicle, close to the driver, was highly dangerous for the safety of all the passengers and of other road users; the court added that the immobilisation techniques applied for a few minutes by the police, whose professional conduct could not be called into question and was attested by the witness to the arrest, did not constitute an excessive degree of restraint. In the light of the above and the conclusion that the police made use only of the degree of force strictly necessary, and since an assessment of the evidence shows that the investigation has been comprehensive, the Investigation Division justified its decision ...” II.     RELEVANT DOMESTIC LAW 44.     Article L. 141-1 of the Code of Judicial Organisation read as follows (version stemming from Ordinance no. 2006-673 of 8 June 2006): “The State shall be required to make good any damage caused by any inadequate functioning of the justice system. Unless otherwise provided, such responsibility will be engaged only by serious misconduct or by a denial of justice.” III.     R E SOLUTION OF THE COMMITTEE OF MINISTERS OF THE COUNCIL OF EUROPE ON THE EX E CUTION OF THE SAOUD v.   FRANCE JUDGMENT 45.     In the case of Saoud v. France (no. 9375/02, judgment of 9 October 2007), the Court received an application from the mother and the brothers and sisters of a young man who had died from suffocation after being restrained face down on the ground by police officers in the so-called “ventral decubitus” (or prone) position. The Court found in particular that there had been a violation of Article 2 of the Convention in its substantive aspect. 46.     By Resolution CM/ResDH(2015)228 of 9 December 2015, the Committee of Ministers of the Council of Europe declared that the French Government had “exercised its functions under Article 46, paragraph 2, of the Convention in this case”, and decided to conclude its examination. The Resolution referred to the action report provided by the Government indicating the measures adopted in order to give effect to the judgment, including the following (translation): “... In an instruction of 8 October 2008, the Director, Head of the Inspectorate General of the National Police, issued to all police forces the requirements to be met when using force. This instruction reminds them about the main principles of the use of force (discernment and proportionality), prescribing a very controlled use and emphasising that the persons arrested must be placed under the responsibility of the police officers involved. More precisely, as regards the immobilisation technique at issue in Saoud , the so-called ‘prone position’, the police are required, when such immobilisation is necessary, to ensure that any compression on the thorax and abdomen is applied as briefly as possible and released as soon as the person is restrained by regulatory and adapted means. Moreover, prior to any risky intervention, the coordinating doctor in the emergency department must be informed. It will be for that doctor, if necessary, to decide to send a medical team on site. Lastly, the instruction states that the use of force must be recorded in detail in the intervention reports. ... the initial and ongoing training of officers of both the national police and the national gendarmerie have been up-dated, particularly with regard to ethical issues. The control of professional technical intervention actions is presented as having to be based on a gradual and proportionate use of force, and on respect for the human person. The training incorporates an analysis of domestic and European case-law and recommends in particular that, as soon as the immobilisation is applied, the person arrested with the use of restraint should be placed in a safe lateral position as soon as he is under control, and should be subjected to special monitoring. Relying on a skills-based pedagogical approach, these training courses, which are both theoretical and practical, cover professional situations and simulation exercises which put trainees in comparable situations to those that they will face in the course of their professional duties. ...” IV.     THE ACAT REPORT OF 14 MARCH 2016 47.     In a report headed “order and force, an investigation into the use of force by law-enforcement officers in France” published in 2016 (produced by the applicant), the non-governmental organisation “Action des chrétiens pour l’abolition de la torture” (ACAT) emphasises as follows (translation): “... Double-seated embrace: a dangerous technique but still practised. The double-seated embrace technique consists in keeping a person in a sitting position, with his head resting on his knees, to contain that person. It is capable of causing postural asphyxia and has been responsible for several deaths. This practice was banned in France in the context of removal measures after the death, within a short space of time, of two individuals who were being deported from France. ... Following those incidents, a National Police instruction ‘concerning the removal by air of irregular migrants’ prohibited the double-seated embrace. ‘In order to prevent medical risks due to the state of excitation of the deportee and the need to restrain him in the aircraft, the practice of non-regulatory actions, including compression of the chest, bending of the torso, and binding-together of the limbs, is strictly prohibited. However, this text only deals with deportations. During a meeting with the ACAT in June 2015, an advisor from the office of the Minister of the Interior stated that, overall, ‘the double-seated embrace technique is absolutely prohibited because it has irreversible consequences’. He cited by way of reference a 2008 IGPN instruction which purportedly prohibited this technique in any police intervention. However, despite several requests, the ACAT has been unable to gain access to this instruction. In any event, the ACAT has been following several cases in which the double-seated embrace technique is suspected or established to have been used. In at least two cases where deaths occurred, the police admitted to having used it ...” THE LAW I.     ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION 48.     The applicant complained about her father’s death following his arrest by the police and his deprivation of liberty in Argenteuil police station. She argued that the necessary measures for the protection of his right to life had not been taken. She further argued that the investigation into the facts had not been effective. She relied on Article 2 of the Convention, which reads as follows: “1.     Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2.     Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a)     in defence of any person from unlawful violence; (b)     in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c)     in action lawfully taken for the purpose of quelling a riot or insurrection.” 49.     The applicant further argued that her father had been subjected to inhuman or degrading treatment while under police supervision. She relied on Article 3 of the Convention, which provides that: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A.     Admissibility 1.     The parties’ submissions 50.     The Government took the view that, as she had failed to bring proceedings to establish liability for shortcomings in the public service of justice, under Article L. 141-1 of the Code on Judicial Organisation, the applicant had failed to exhaust domestic remedies. They observed that the Court of Cassation had defined as follows the “serious fault” required for that provision to be engaged: “any deficiency established by a fact or a series of facts resulting in the inability of the public service of justice to fulfil its mission” (Plenary Court, 23 February 2001, no. 99-16.165). They produced a judgment of the Paris Court of Appeal of 19 May 2015 which, upholding a judgment of the Paris tribunal de grande instance of 5 June 2013, found the State liable on that basis on account of the death of an individual in his cell while in police custody, noting that he had not been informed of his rights, including his right to request a medical examination, and indicating that the night-time surveillance had been insufficient. They also produced a judgment of the Bastia tribunal de grande instance of 22 March 2016 finding the State liable following the suicide of an individual in police custody, inferring a serious fault from the fact, combined with the lack of effective surveillance, that the person’s shoelaces, which he had used to hang himself, had not been taken away from him. The Government argued that the applicant had sought to engage the responsibility of the State before the Court, and that, unlike the course of action provided for in Article   L.   141-1 of the Code of Judicial Organisation, the remedy that she had used, namely a criminal complaint against the police officers concerned, did not have the purpose of determining such responsibility but rather the criminal liability of the officers. 51.     The applicant replied that the reason why she had not claimed compensation before the domestic courts was because her aim had always been to participate, as a civil party, in the discovery of the truth in the context of the judicial investigation into the death of her father while he was under the supervision of police officers, in the expectation of obtaining sufficient explanations as to the cause of death. She added that she had used the appropriate remedies to challenge the closing of the judicial investigation – whose aim it was to elucidate the causes – and to press for sanctions against those responsible for the death. 2.     The Court’s assessment 52.     The Court refers to the applicable principles as to the requirement to exhaust domestic remedies under Article 35 § 1 of the Convention, as set out in particular in the Vučković and Others v. Serbia ([GC], no.   17153/11, §§   69-77, 25   March 2014) judgment. 53.     It further reiterates that in the area of unlawful use of force by State agents, civil or administrative proceedings aimed solely at awarding damages, rather than ensuring the identification and punishment of those