CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 6 octobre 2022

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display:inline-block } .s44B8752F { width:177.11pt; display:inline-block }     FIFTH SECTION CASE OF B.Ü. v. THE CZECH REPUBLIC (Application no. 9264/15)       JUDGMENT   Art 3 (procedural and substantive) • Ineffective investigation into asylum seeker’s allegations of ill-treatment by police while detained at airport • Court unable to conclude beyond reasonable doubt, partly due to investigation shortcomings, that use of force to restrain applicant was excessive   STRASBOURG 6 October 2022 FINAL   06/01/2023   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of B.Ü. v. the Czech Republic, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Síofra O’Leary , President,   Mārtiņš Mits ,   Stéphanie Mourou-Vikström ,   Lado Chanturia ,   Arnfinn Bårdsen ,   Mattias Guyomar ,   Kateřina Šimáčková , Judges, and Victor Soloveytchik, Section Registrar, Having regard to: the application (no.   9264/15) against the Czech Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr   B.Ü. (“the applicant”), on 17 February 2015; the decision to give notice to the Czech Government (“the Government”) of the complaints raised under Article 3 of the Convention; the decision not to have the applicant’s name disclosed (Rule 47 § 4); the decision not to give notice of the present application to the Turkish Government having regard to the Court’s findings in I v. Sweden (no.   61204/09, 5 September 2013); the parties’ observations; Having deliberated in private on 6 September 2022, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The present application concerns ill-treatment allegedly suffered by the applicant whilst in the hands of Czech police officers and in a detention facility for foreigners, as well as a lack of effectiveness of the subsequent investigation by the domestic authorities. The applicant relied on Articles 3 and 13 of the Convention. THE FACTS 2.     The applicant was born in 1975 and lived, at the time of lodging his application and before being extradited to the Republic of Türkiye in 2016, in the Czech Republic. He now lives in Türkiye. He was represented by Ms   E.   Drhlíková, a lawyer. 3.     The Government were represented by their Agent, Mr V.A. Schorm, of the Ministry of Justice. 4.     The facts of the case may be summarised as follows. INCIDENTS OF 16 OCTOBER 2013 AND DEVELOPMENTS OF THE FOLLOWING DAYS 5.     On 16 October 2013 the applicant was removed from Switzerland to the Czech Republic. Upon his arrival at Prague Airport at 11.30 a.m., the Aliens Police Directorate took him into custody, for the purposes of proceedings regarding his administrative expulsion, and held him on the premises at Prague Airport. 6.     On 16 October 2013 at 11.35 a.m., the applicant was subjected to a   personal search (a “strip search” according to him, which the Government denied) and a search of his belongings. He was found to possess a number of medications which were temporarily seized. 7 .     When first interviewed in the presence of an interpreter, at 1.30 p.m., the applicant stated that his mental and physical health was good and that he did not take any medication. During another interview conducted at 2.30 p.m., he was informed about the opening of proceedings regarding his administrative expulsion; on that occasion, he reaffirmed that he was feeling well but stated that he regularly took sedatives and analgesics. The applicant alleged that after that interview he had been subjected to another strip search on the premises near the toilets, which the Government denied. 8.     Subsequently the Aliens Police issued a decision on the applicant’s expulsion, accompanied by a prohibition on his re-entering the territory of the European Union member States for five years, as well as an order for the applicant’s detention in the Bělá-Jezová Detention Centre for Foreigners (the “DCF Bělá-Jezová”); because of the applicant’s aggressiveness, the Aliens Police proposed that he be placed there under a strict regime. 9.     At 7.30 p.m. the police officers informed the applicant that he would be transferred to the DCF Bělá-Jezová. 10.     The parties differ in their accounts of the following events. The applicant’s version of events 11.     According to the applicant, he feared another strip search, which he tried to explain to the police officer, who told him to shut up and punched him in the jawbone, and then hit him in the belly with a truncheon. When he screamed out in pain, two other police officers arrived and started to kick him and to beat him with truncheons. He managed to escape to the toilets where he locked himself in, which resulted in the police officers using tear gas. Unable to breathe and with his eyes closed, he fell on a mirror and broke it. The police officers then dragged him out of the toilets whilst beating him. He lost consciousness and woke up covered with blood and tightly handcuffed, while the police officers were trying, in front of passing travellers, to put him in a wheelchair in order to get him into an ambulance. When he protested and tried to attract the public’s attention, he was again beaten with truncheons. The police officers again used tear gas and handcuffed him, after which he was transferred to Motol Hospital for medical examination (see paragraph 18 below). 12 .     The applicant’s account of events was supported by an affidavit of Ms   B.S., a lawyer at the Organization for Aid to Refugees, who on 17   January   2014 reportedly overheard a police officer describing the incident involving the applicant at the airport to a social worker and a nurse. According to the affidavit, the police officer had hit the applicant when he had disagreed with another search of his belongings and caused a nasal fracture, a fact about which the police officer seemed to boast. The Government’s version of events 13.     In their description of events, the Government relied on reports drawn up between 16 October 2013 and 5 November 2013 by the police officers involved. Incident no. 1 14 .     According to the Government, when informed at 7.30 p.m. about his transfer to the DCF Bělá-Jezová, the applicant reacted aggressively and started to verbally attack the police officers present at that time, namely J.S., M.S. and P.Š., and that is why he was handcuffed to a belt. After asking the police officers to remove his handcuffs in order to go to the toilets, the applicant ran towards the mirror, broke it with his shoulder (or head, according to M.S.) and tried to injure himself with shards of glass. Following an unsuccessful request to the applicant to stop, J.S. resorted to coercive measures, that is grasping and kicking him, and using tear gas, in order to prevent the applicant from harming himself, and handcuffed him again. No   injuries were caused to the applicant during that incident. Incident no. 2 15 .     At around 7.45 p.m., the police officers already involved, J.S., M.S. and P.Š., were joined by P.M. and P.K. At that moment, the applicant managed to remove his handcuffs, attacking the police officers both verbally and physically. At 7.55 p.m., the police officers therefore resorted to coercive measures such as kicking and grasping the applicant, and managed to handcuff him again. According to the police officers involved, the applicant injured himself when he was struggling and hitting his head on the ground. Incident no. 3 16 .     The applicant’s handcuffs were removed again at 8.15 p.m. upon the arrival of a doctor who provided basic treatment for his visible injuries and bleeding, and decided to take him to the airport medical room. While the applicant was being taken there in a wheelchair, he tried to get out, and attacked the police officers again, trying at one point to bite P.M.’s calf. In reaction, the police officers resorted for a third time to coercive measures, including tear gas applied from a close distance to the applicant’s eyes. The applicant was been handcuffed again, and suffered further injuries as he repeatedly hit his head on the floor. According to P.M., the applicant could have been under the influence of narcotics or psychotropic substances. Medical report of 16 October 2013 17 .     According to the report of the emergency medical service transferring him to Motol Hospital on the evening of 16 October 2013, the applicant behaved in a very aggressive manner. 18 .     At 8.45 p.m. he was taken to the above-mentioned hospital, where he was treated for the injuries suffered during the incidents with the police. An   X-ray examination carried out at 9.32 p.m. revealed a fracture of the nasal bones and bleeding; a CT scan of the brain and the abdomen was negative. The doctor also stated that the applicant was very aggressive, with or without handcuffs, and that he refused to cooperate. According to the medical report issued by another doctor at 10.26 p.m., the applicant suffered a splintering fracture of the nasal bones, a 2 cm wide laceration on the face, and contusions in the chest area; he was very aggressive and did not cooperate. At 11.14 p.m. the applicant received treatment for the nose injury, his state was stabilised and he was able to be escorted to the DCF and detained. Events of 17 – 25 October 2013 19 .     On 17 October 2013 at 2.20 a.m., the applicant was taken to the DCF Bělá-Jezová. The relevant department of the Aliens Police decided at 3 a.m. to place him in the section with a strict regime, under section 135(1) and (4) of the Aliens Act (Law no. 326/1999). Referring to the previous incidents at the airport, including the fact that the applicant had threatened the police officers and himself with shards of glass, the Aliens Police considered that that placement was justified by the applicant’s aggressive behaviour, which called for an increased level of supervision. The decision contained an instruction that it could be challenged by way of an administrative action brought under Article 65 of the Code of Administrative Justice (Law   no.   150/2002). According to the applicant, that decision was never served on him and was not part of his file held by the Aliens Police. The Government provided a copy of the decision signed by the responsible officer and by the interpreter certifying that the proceedings had been interpreted into Turkish; there is a mention on the decision that the applicant refused to sign without giving reasons. 20.     Upon his arrival the applicant underwent a medical examination; the doctor referred to the medical reports from Motol Hospital (see paragraph 18 above). 21.     Under the strict regime, the applicant was kept alone in a cell, separately from persons under the ordinary regime. He was monitored every thirty minutes by police officers. 22.     On 17 October 2013, between 6.30 and 6.57 p.m., the applicant attempted to commit suicide by hanging himself by a towel tied to the top of the bed. Before the emergency services arrived at 7.20 p.m., the police officers managed to resuscitate him and to place him in a stable position; the DCF nurses then arrived and the applicant was subsequently transferred to the district hospital in Mladá Boleslav. There he was examined by a surgeon and an ear, nose and throat specialist. Since he stated that he would attempt to commit suicide again, the doctor decided to send him to a psychiatric hospital for observation and examination with the presence of an interpreter. 23 .     At about 10.30 p.m. the applicant was taken to the psychiatric hospital in Kosmonosy, where he was examined, diagnosed with personality disorders and given calming medication. Owing to the applicant’s serious aggressiveness and lack of cooperation, the hospital was not able to ensure his observation in the hospital, where he might put other patients at risk. The psychiatrist noted in her report that it could not be ruled out that the applicant would repeat his purposeful behaviour, also having regard to his state of stress resulting from nicotine deprivation, and that observation in the DCF Bělá ‑ Jezová was appropriate. 24.     The applicant was then returned to the DCF in Bělá-Jezová and kept under the strict regime until 25 October 2013, on which date he was placed under the ordinary regime, although a psychologist who examined him on 23   October 2013 did not recommend that transfer because of the applicant’s aggressiveness. Given the doctor’s opinion, he was placed in a single cell. He   was given medication which he sometimes refused. THE ENSUING INVESTIGATIONS Investigation of the incidents at the airport within the Aliens Police Directorate 25 .     On 17 October 2013 the use of coercive measures against the applicant, as reported by the police officers involved, was considered lawful and proportionate by the latters’ hierarchical superiors at the Aliens Police Directorate. The camera recordings of the outer premises of the airport were also reviewed, but it appeared that the use of coercive measures was not visible on the recordings, which only showed the escort of an injured person accompanied by medical assistance. 26 .     On 22 October 2013 the General Inspectorate of Security Forces (“the GISF”), referring to the applicant’s allegations made in his statement of 21   October 2013 (see paragraph 31 below), asked the department of internal inspection at the Aliens Police Directorate to examine whether the legal conditions for the use of coercive measures at the airport had been met and whether the conduct of the police officers involved could give rise to a   disciplinary or criminal offence, in particular with regard to the alleged denial of medical assistance. 27 .     On 12 November 2013, the head of the department of internal inspection issued a statement that, on the basis of the material available, the police officers involved had used coercive measures in accordance with the Police Act and had not made any tactical mistakes. 28 .     On 19 November 2013 another superior police commissioner issued a   report, also in response to the above request by the GISF (see paragraph 26 above). That report was based on the reports of the police officers involved, an explanation given by the applicant on 21 October 2013 in which he mentioned the incidents at the airport and alleged a complete denial of medication at the DCF, and a statement of the DCF doctor according to whom the applicant had continued to take his medication in the DCF. It was concluded that no unlawful conduct was identified either on the part of the police officers of the Prague Airport Aliens Police or on the part of the police officers of the DCF Bělá-Jezová. According to the report, the use of coercive measures was well documented, and reported by the relevant officers to their supervisors, who considered it lawful and proportionate, and the prosecutor was also informed; thus the use of coercive measures was lawful and the intervention of the police officers was found to be flawless. Investigation of the attempted suicide 29.     Following the applicant’s suicide attempt on 17 October 2013, several police officers from the criminal police division of the regional police directorate arrived at the DCF at 8.50 p.m. in order to interview the DCF officers who had supervised the applicant that day and had found him hanging in his cell. They also conducted an on-site inspection and took photos of the applicant’s cell. An official report was drawn up on 18 October 2013. 30.     On 18 October 2013 two GISF officials started the investigation of the applicant’s suicide attempt by questioning a police officer from the department of internal inspection and several officers from the DCF, and by collecting official reports about the supervision of the applicant on 17   October 2013, as well as medical reports. The first conclusion was that no offence had been committed by the police officers and that the department of internal inspection should examine the police officers’ conduct from a   disciplinary point of view. 31 .     On 21 October 2013 the applicant was questioned by a commissioner from the criminal police division of the regional police directorate. As well as mentioning the conflict with the police officers at the airport, he stated that he had been under psychiatric treatment for ten years and had already attempted to commit suicide several times. On 17 October 2013 he had decided to hang himself because he felt lonely and because he wanted to ask for asylum. He added that if he had to stay alone in the cell any longer, he would do it again. 32.     In a report of 22 October 2013 a GISF official present at the applicant’s interview on the previous day concluded that no offence had been committed by the DCF police officers with regard to the applicant’s attempted suicide and that the matter could be terminated without further measures, which was approved by his superior. The report also noted that the applicant had mentioned an incident at the airport; and that although, according to the information available, the use of coercive measures was under investigation by the department of internal inspection of the Aliens Police, there should also be an investigation into the alleged denial of medical assistance to the applicant after the incident (see paragraph 26 above). 33.     By a decision of 25 October 2013, a commissioner from the criminal police division of the regional police directorate discontinued an investigation, initiated following a notice by the DCF, into the matter of suspected assistance with the applicant’s suicide attempt. It was concluded that the applicant had attempted suicide without pressure or help from any other person. Criminal investigation initiated by the applicant 34 .     On 27 November 2013 the applicant lodged a criminal complaint with the GISF. He complained about his ill-treatment in police custody at the airport, namely about having been repeatedly beaten and kicked by the police officers who had also used tear gas against him, which had resulted in him suffering a fracture of the nose and a rib, and in numerous bruises. He asked for the investigation of the whole incident at the airport and proposed evidence such as his testimony, the questioning of the police officers concerned and the interpreter, the video recording from the airport security camera, and medical reports. The applicant also stated “for context” that at the recommendation of the Aliens Police at the airport, he had been placed in the DCF under a strict regime, despite his being in a bad health and in a bad mental state, and he had attempted to commit suicide there. 35 .     On 10 January 2014 the applicant was informed that the GISF had ended its investigation without finding any elements leading to a conclusion that the police officers had committed an offence or had acted unlawfully. The file was thus closed without any further measures being taken. 36 .     On 21 January 2014 the applicant asked the prosecutor to review the proceedings before the GISF, under Article 157a § 1 of the Code of Criminal Procedure. He claimed that the GISF had not taken any steps to establish the facts and had not even questioned him; no reasons had been given for the conclusion that the police officers had not committed any offence. 37.     On the same day the applicant’s representative requested that the GISF give her access to its file; the same request was then sent to the prosecutor’s office to which the file had been transferred. 38 .     By a letter of 20 February 2014, the Prague Municipal Prosecutor refused to give the applicant access to the file, noting that since there were no criminal proceedings in this case, the complainant (even if he considered himself a victim) did not enjoy the rights set out in Article 65 § 1 of the Code of Criminal Procedure; moreover, the prosecution file was internal material not accessible to third parties. The applicant was also informed that, following his request for review, the GISF had been asked to complete the case file by 5 April 2014. It appears from a letter from the prosecutor addressed to the GISF that the latter was asked to supplement the file with the applicant’s statement mentioned in the report of 19 November 2013 (see   paragraph 28 above), the reports of the police officers involved about the use of coercive measures, and any available camera recordings made on the airport premises where the applicant was present on 16 October 2013. 39 .     On 9 April 2014 the GISF noted that the camera recordings were kept by the airport security department for the period of two weeks. It was not therefore possible to take into account the camera recordings of 16   October   2013, and this would not have been possible on 29   November   2013 either, when the applicant’s criminal complaint had been received. 40.     On 14 April 2014 the GISF decided to close the file concerning the investigation of the incidents of 16 October 2013 since it had not been established that an offence had been committed by a specific person. It was noted that the events had already been investigated by the department of internal inspection of the Aliens Police Directorate, and that according to the latter’s file the use of coercive measures had been lawful. According to the internal document submitted to the Court by the Government, the applicant was to be informed about the closure of the file. 41 .     On 24 April 2014 the Prague Municipal Prosecutor informed the applicant that the prosecutor did not have jurisdiction to review the conduct of the GISF as the applicant had not initiated any criminal proceedings. Furthermore, on the basis of the facts as alleged by the applicant and established by the GISF (in particular the fact that disproportionate use of force by the police officers had not been objectively proven), the prosecutor did not find any reasons for taking any measures for the purposes of Article   157 § 2 of the Code of Criminal Procedure. However, this did not prevent the applicant from claiming damages by means of a civil action. OTHER PROCEDURAL STEPS TAKEN BY THE APPLICANT Constitutional appeal 42.     On 11 March 2014 the applicant lodged a constitutional appeal. Relying on Articles 3 (both substantive and procedural aspects), 5, 8 and 14 of the Convention, he challenged the alleged ill-treatment by the officers of the Prague Airport Aliens Police, the latter’s decision to detain him under a strict regime in the DCF Bělá-Jezová and the response given by the GISF to his criminal complaint. In that connection he pointed out that it was not clear what steps had been taken by the GISF before reaching its conclusions (see   paragraph 34 above), that he had not been contacted or questioned at any point nor had he been informed whether the GISF had questioned any witnesses, for example the interpreter present at the airport. In his view, such an investigation could hardly be considered effective, and no redress had been provided by the prosecutor to which he had turned with a request for review (see paragraph 41 above), even his request to access the prosecution file having been rejected (see paragraph 38 above). 43 .     By decision no. IV. ÚS 936/14 of 4 August 2014 (served on 20   August   2014), the Constitutional Court dismissed the applicant’s constitutional appeal as being manifestly ill-founded. It noted that it appeared from the investigation that after being taken into custody the applicant had had self-destructive tendencies and had fractured his nasal bones by hitting a   mirror. He had sustained other injuries while being pacified by the police officers and had attempted to commit suicide the following day. The applicant’s aggressiveness and the need to keep him under constant supervision, together with the psychiatric hospital’s recommendation, had led to him being temporarily isolated from others. The Constitutional Court further observed that the GISF had not found the applicant’s version of events to be credible as a result of its investigation, and the Prague Municipal Prosecutor had not found any failings in the GISF’s conduct. The applicant’s mere disapproval of the conclusions of the relevant authorities did not prove that his fundamental rights had been interfered with by the State authorities. Compensation proceedings 44 .     On 15 April 2014 the applicant requested under the State Liability Act (Law no. 82/1998) that the Ministry of the Interior award him compensation for non-pecuniary damage caused by the authorities’ unlawful conduct, namely the ill-treatment at the airport resulting in him suffering several injuries and his placement under a strict regime in the DCF before and after his attempted suicide. 45.     On 6 October 2014 the Ministry rejected the request, reasoning that the conduct of the police officers in the applicant’s case had been investigated by the police inspection authorities, the Aliens Police Directorate, and the GISF, without any irregularities being found. 46.     On 8 October 2014 the applicant applied to the courts for compensation. According to the applicant, hearings were held by the Prague 7 District Court in March, August and October 2017, after several years of inactivity. 47 .     By a judgment of 19 October 2017, the District Court dismissed the applicant’s application. Based on the reports drawn by the police officers involved and their statements made at the hearing, the result of the police internal inspection and criminal investigation and the submissions by the DCF, the court considered that the police officers’ actions did not amount to official misconduct for which the State could be held liable. On 10   November   2017 the applicant appealed to the Prague Municipal Court. The Court has not been informed about the outcome of the appellate proceedings. RELEVANT LEGAL FRAMEWORK AND PRACTICE CODE OF ADMINISTRATIVE JUSTICE (LAW NO. 150/2002) AS IN   FORCE AT THE MATERIAL TIME 48 .     Under Article 65 and subsequent provisions, an individual could ask the court to quash an administrative decision that violated his or her rights. 49 .     Under Article 82, a judicial action could also be brought in order to seek protection against an unlawful interference by an administrative authority or to have such interference declared unlawful. ALIENS ACT (LAW NO. 326/1999) AS IN FORCE AT THE MATERIAL TIME 50.     Under section 132(2) the area of a detention facility under the strict regime was separated from the area under the ordinary regime and consisted of accommodation premises and an open-air space. 51.     Under section 135(1), aliens were placed under the strict regime in the event that (a) they were aggressive or required increased supervision for other important reasons, (b) they repeatedly and seriously breached internal rules of the facility, or (c) they repeatedly and seriously breached an obligation or prohibition provided for by the law in question. Under section 135(4), if the detained alien was placed under the strict regime for more than 48 hours, a   decision had to be issued by the police. GENERAL INSPECTORATE OF SECURITY FORCES ACT (LAW   NO. 341/2011; IN FORCE SINCE 23 NOVEMBER 2011) 52 .     In accordance with section 1, the GISF is an armed security corps, headed by a director. The director is appointed and dismissed at the request of the Government and after examination by the security committee of the Chamber of Deputies and by the Prime Minister, to whom he is responsible. The GISF forms part of the organisation of the State and a budgetary unit whose receipts and expenses constitute an independent part of the State budget. 53 .     Section 2 provides that the GISF is responsible for looking for, revealing and verifying facts showing that a criminal offence has been committed by a police officer, and for investigating that offence. POLICE ACT (LAW NO. 273/2008) AS IN FORCE AT THE MATERIAL TIME 54.     Under section 53(1) and (3), police officers were entitled to use coercive measures to protect their own or another person’s safety, property or public order and to choose the coercive measure which would enable them to achieve the objective of the intervention and which was necessary to overcome the resistance or attack of the person concerned. Under section 53(5), when using coercive measures police officers had to make sure not to cause harm to the person concerned which would be disproportionate to the nature and dangerousness of that person’s unlawful conduct. 55.     Under section 54 police officers were also entitled to use handcuffs and methods that impaired spatial orientation in order to restrain a person deprived of liberty if there was a well-founded fear for the safety of persons, property or the protection of public order or if that person attempted to escape. Means impairing spatial orientation could be used only when it was not otherwise possible to achieve the objective of the intervention. 56.     Under section 57 police officers had to provide a person who had been injured because of the use of a coercive measure with immediate medical assistance. They were also obliged to report on the use of coercive measures to their supervisor and to produce an official report stating why and how the coercive measure was used and the result thereof. 57.     Section 58 provided that certain measures, including hitting, kicking and tear gas, could not be used against a person with an apparent illness, unless an attack by that person directly put at risk the life or health of the police officer or another person, or unless there was no other way to avoid a   risk of significant property damage. STATE PROSECUTION ACT (LAW NO. 283/1993) AS IN FORCE AT THE MATERIAL TIME 58.     Section 12d of the Act provided that a higher prosecutor’s office was to supervise the acts of the lower prosecutors’ offices under its territorial jurisdiction and was entitled to give them written instruction on the procedures to be followed. CODE OF CRIMINAL PROCEDURE (LAW NO. 141/1961) AS IN FORCE AT THE MATERIAL TIME 59.     Under Article 2 § 3 public prosecutors had to prosecute all criminal offences of which they became aware. 60 .     Article 65 § 1 provided, inter alia , that the charged person, the victim and the participating person, their counsel and representatives had the right of access to the files except for the record of any votes and the personal data of an anonymous witness, to make excerpts and notes therefrom, and to have duplicates of the files and the parts thereof made at their own expense. Article 65 § 2 provided that during the pre-trial procedure the prosecutor or the police authority could, for serious reasons, deny access to the files and the exercise of other rights set out in paragraph 1. 61.     In accordance with Article 157 § 2, public prosecutors could ask the police to perform acts which were necessary to elucidate the case or to identify the perpetrator. In order to verify whether a criminal offence had been committed public prosecutors were entitled, inter alia , to ask the police to submit the files, including those in which no criminal proceedings had been initiated, documents, materials and reports on action taken. 62.     Article 157a § 1 provided that the person subject to the criminal proceedings and the victim were entitled, throughout the preliminary phase of the proceedings, to request the prosecutor to eliminate delays or flaws in the conduct of the police. 63.     Under Article 159a § 1, when no suspicion arose that a criminal offence had been committed, the prosecutor or the police had to issue a   decision to discontinue the case, unless there was a different means for its resolution. THE CONSTITUTIONAL COURT’S CASE-LAW 64 .     It is the Constitutional Court’s case-law as from 2015 (see, for example, judgments nos. I. ÚS 1565/14 of 2 March 2015 and I. ÚS 860/15 of 10 November 2015) that, with regard to an alleged violation of Article 3 of the Convention under its procedural limb, the applicants have to request a   review not only by the prosecutor under Article 157a of the Code of Criminal Procedure but also by the supervising prosecutor under section 12d of the State Prosecution Act. When a case has been terminated without criminal proceedings being initiated, the criminal authorities are not prevented from reopening an investigation at the instruction of the supervising prosecutor. DOCUMENTS OF THE EUROPEAN COMMITTEE FOR THE PREVENTION OF TORTURE AND INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT 65.     In its Standards (CPT/Inf (2002) 1 - Rev. 2015, p. 80), the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) expressed very serious reservations about the use of incapacitating or irritant gases to bring recalcitrant detainees under control in order to remove them from their cells and transfer them to an aircraft. The use of such gases in very confined spaces, such as cells, entails manifest risks to the health of both the detainee and the staff concerned. Staff should be trained in other control techniques (for instance, manual control techniques or the use of shields) to immobilise a recalcitrant detainee. 66 .     In its reports pertaining to its visits carried out in a number of member States of the Council of Europe, the CPT has made the following recommendations: -     Regarding the use of means of restraint in Slovakia, the CPT stressed that whenever a person in custody is or becomes highly agitated, the police should immediately contact a doctor and act in accordance with the doctor’s opinion (CPT/Inf (97) 2, paragraph 45); -     In a report on a periodic visit to Austria, the CPT observed that in a   custodial setting the police should call in a medical doctor whenever it is found necessary to restrain an agitated or violent detainee, and act in accordance with the doctor’s opinion. If recourse is had to means of physical restraint vis-à-vis such a detainee, those means of restraint should be removed at the earliest opportunity; means of restraint should never be applied, or their application prolonged, as a punishment (CPT/Inf (2005) 13, paragraph 16); -     In a report on a visit to Denmark, the CPT emphasised that every   instance of the use of force and special means   (such as pepper spray, handcuffs and shields) should be recorded in a dedicated register, established for that purpose. The entry should include the times at which the use of force or special means began and ended, the circumstances of the case, the reasons for resorting to force or special means, the type of means used, and an account of any injuries sustained by prisoners or staff. Without such a record, it would be impossible to analyse accurately the overall situation in a prison and to draw the appropriate conclusions as regards use of force or special means (CPT/Inf (2019)35, paragraph 100); -     Regarding the use of pepper spray in prisons in Bosnia and Herzegovina, the CPT stated (CPT/Inf (2009) 25): “Pepper spray is a potentially dangerous substance and should not be used in confined spaces. Even when used in open spaces the CPT has serious reservations; if exceptionally it needs to be used, there should be clearly defined safeguards in place. For example, persons exposed to pepper spray should be granted immediate access to a   medical doctor and be offered an antidote. Pepper spray should never be deployed against a prisoner who has already been brought under control.” -     Similar observations as to the use of pepper spray in prison were made by the CPT explicitly towards the Czech Republic (CPT/Inf (2009) 8, paragraph 46; similarly in CPT/Inf (2015) 18, paragraph 38): “There can be no justification for the use of pepper spray against a single prisoner locked in his cell. Pepper spray is a potentially dangerous substance and should not be used in confined spaces. Further, if exceptionally it needs to be used in open spaces, there should be clearly defined safeguards in place. For example, persons exposed to pepper spray should be granted immediate access to a medical doctor and be offered measures of relief. Pepper spray should never be deployed against a prisoner who has already been brought under control. Further, it should not form part of the standard equipment of a prison officer.” -     Recently, the CPT made the following observations as to the use of pepper guns in Slovak prisons (CPT/Inf (2019)20, paragraph 94): “The Committee welcomes the fact that, at   Banská Bystrica Prison, the previously used tear-gas canisters have been abolished. They were replaced by so-called ‘ pepper ‑ guns ’ which were considered safer as they disperse the tear-provoking substance in a more targeted manner than spray canisters and are thus less likely to be harmful, especially within confined spaces ... The CPT must emphasise that only exceptional circumstances can justify the use of such devices, and that such use should be surrounded by appropriate safeguards. In particular, persons exposed to a pepper-gun discharge should be supplied immediately with the means to alleviate the effects and be granted rapid access to a medical doctor. Further, a pepper-gun should never be deployed against a prisoner who has already been brought under control.” -     As to the use of pepper spray against foreign nationals deprived of their liberty, the CPT stated in a report on a visit to Malta (CPT/Inf (2021)1, paragraph 19): “... pepper spray is a potentially dangerous substance and should not be used in confined spaces and should never be deployed against any person who has already been brought under control. Indeed, the CPT underlines that   staff working within immigration detention facilities should not be equipped with batons, handcuffs or pepper spray as standard equipment. ” International regulations on RIOT CONTROL CHEMICALS and further information 67.     Under the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction of 13 January 1993 (“the CWC”), tear gas or so-called “pepper spray” are not considered chemical weapons (the CWC contains an annex listing the names of prohibited chemical products). The use of such methods is authorised for the purpose of law enforcement, including domestic riot control (Article   II   §   9   (d)). The CWC entered into force with regard to the Czech Republic on 29   April 1997. 68 .     In its judgment Oya Ataman v. Turkey , no. 74552/01, § 18, ECHR 2006-XIV, the Court noted that it is recognised that the use of pepper spray” can produce effects such as respiratory problems, nausea, vomiting, irritation of the respiratory tract, irritation of the tear ducts and eyes, spasms, chest pain, dermatitis or allergies. In strong doses, it may cause necrosis of tissue in the respiratory or digestive tract, pulmonary oedema or internal haemorrhaging (haemorrhaging of the suprarenal gland). THE LAW ALLEGED VIOLATION OF ARTICLE 3 IN RELATION TO THE CONDITIONS OF DETENTION IN THE DCF BELA JEZOVA 69.     The Court notes at the outset that, relying on Article 3 of the Convention, the applicant complained, firstly of ill-treatment at the airport and secondly, about the conditions of his detention in the DCF Bělá Jezová where he was placed under a strict regime and denied appropriate medical care, without any regard to his psychological problems and self-destructive tendencies. He also challenged the lack of effectiveness of the investigation in general. 70.     The Government observed that the applicant did not complain about being wilfully ill-treated or humiliated at the DCF but about his placement under the strict regime and the conditions thereof. In that regard, however, he had not exhausted available domestic remedies. The Government were of the view that in line with the Court’s judgments in Ananyev and Others v. Russia (nos. 42525/07 and 60800/08, § 98, 10 January 2012) and Gorbulya v. Russia (no. 31535/09, § 54, 6 March 2014), the applicant had at his disposal both preventive and compensatory remedies which, taken as complementary, could be considered effective. It was irrelevant in that context whether he had mentioned the issue in his criminal complaint, which moreover was made after his release from the strict regime. 71.     In particular, the Government argued that the conditions of the applicant’s placement in a supervised cell separated from others were linked to the strict regime of his detention, as set out in the decision of 17   October   2013 based on the Aliens Act (Law no. 326/1999), which the applicant could have challenged by way of an administrative action brought under Article 65 of the Code of Administrative Justice (see paragraphs 19 and 48 above). Furthermore, the applicant could have complained about the actual conditions in the cell, with regard to his state of health, by means of an action based on Article 82 of the above-mentioned Code (see paragraph 49 above), and requested a preliminary measure. None of those preventive remedies aimed at ending the situation complained of had, however, been used by the applicant. The Government admitted that the applicant had lodged a   constitutional appeal which had been dismissed as manifestly ill-founded without the Constitutional Court having examined his objections in detail; it contended, however, that the constitutional appeal did not appear as an adequate remedy from the preventive point