CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 27 mai 2025

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sDC0F5DF3 { margin-top:42pt; margin-bottom:14pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s2E1B62A9 { margin-top:0pt; margin-bottom:6pt; text-align:center } .s39E5096F { margin-top:0pt; margin-bottom:14pt; text-align:center } .s24E6874 { margin-top:0pt; margin-bottom:18pt; text-align:center } .s780F5245 { border:0.75pt solid #000000; clear:both } .sE77B86B8 { margin-top:0pt; margin-bottom:0pt; text-align:justify; padding-top:1pt; padding-right:4pt; padding-left:4pt } .s440A90EC { margin-top:0pt; margin-bottom:0pt; text-align:center; padding-right:4pt; padding-left:4pt; font-size:10pt } .sF9E8C072 { margin-top:0pt; margin-bottom:0pt; text-align:center; padding-right:4pt; padding-left:4pt; padding-bottom:1pt; font-size:10pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .s28F0D84C { margin-top:14pt; margin-left:11.67pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:6.78pt; font-family:Arial; text-transform:uppercase } .sDA7B489D { margin-top:14pt; margin-left:15pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:3.45pt; font-family:Arial; text-transform:uppercase } .s8B983D37 { text-transform:none } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s5C5C410E { margin-top:14pt; margin-left:18.34pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.11pt; font-family:Arial; text-transform:uppercase } .s67CAFE05 { margin-top:14pt; margin-left:18.45pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; text-transform:uppercase } .s7C22C014 { margin-top:14pt; margin-left:16.34pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:2.11pt; font-family:Arial; text-transform:uppercase } .sB95D6361 { font-family:Arial; color:#c00000 } .sDECD9755 { margin-left:11.67pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:6.78pt; font-family:Arial; text-transform:uppercase } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .s879C130D { margin-left:7.05pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-weight:bold; text-transform:none } .s3A692EA6 { margin-top:14pt; margin-bottom:6pt; text-align:center; page-break-after:avoid; font-size:10pt } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s2044A09A { margin-left:6.51pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-weight:normal; font-style:italic } .sAE6FB95D { margin-top:14pt; margin-left:32.01pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-family:Arial; font-style:italic } .sB25A0399 { margin-top:14pt; margin-left:24.84pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.66pt; font-family:Arial; font-weight:bold } .s807BA660 { margin-top:14pt; margin-left:24.16pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.34pt; font-family:Arial; font-weight:bold } .sADAE7E8B { margin-top:6pt; margin-left:55.95pt; margin-bottom:6pt; text-align:justify; padding-left:8.4pt; font-family:serif; font-size:10pt } .s802DE29A { margin-left:-38.85pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-size:12pt; font-weight:bold } .sB347DD04 { text-transform:none; color:#c00000 } .s7ED160F0 { text-decoration:none } .sC36A6361 { font-family:Arial; color:#000000 } .sF54F3725 { margin-top:0pt; margin-left:42.55pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sDBC81028 { width:4.83pt; font:7pt 'Times New Roman'; display:inline-block } .s65DDED6B { margin-top:14pt; margin-left:42.55pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s7AE800C3 { width:4.28pt; font:7pt 'Times New Roman'; display:inline-block } .sCD82236A { margin-top:14pt; margin-left:51.05pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; line-height:113%; font-size:10pt } .s3970C00F { width:8.17pt; font:7pt 'Times New Roman'; display:inline-block } .s320E5A8E { width:5.95pt; font:7pt 'Times New Roman'; display:inline-block } .sD051EF8 { width:3.72pt; font:7pt 'Times New Roman'; display:inline-block } .s4196892D { width:3.17pt; font:7pt 'Times New Roman'; display:inline-block } .sBD165FDE { width:5.39pt; font:7pt 'Times New Roman'; display:inline-block } .sCD7D0356 { margin-top:14pt; margin-left:15pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:4.85pt; font-family:Arial; text-transform:uppercase } .s448F0C15 { margin-top:14pt; margin-left:18pt; margin-bottom:12pt; text-indent:-18pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sD11CFAB7 { margin-top:14pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .sFBC99493 { font-style:italic } .s51DFF5CF { margin-top:0pt; margin-left:34pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sE5BF05B1 { width:2.33pt; font:7pt 'Times New Roman'; display:inline-block } .s7F175FE6 { margin-top:0pt; margin-left:51.05pt; margin-bottom:0pt; text-indent:-17.05pt; text-align:justify } .sE5C1F6E3 { width:3.33pt; font:7pt 'Times New Roman'; display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s3E39F0D2 { width:24.22pt; display:inline-block } .sA0993303 { width:139.09pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }   FOURTH SECTION CASE OF KALKAN v. DENMARK (Application no. 51781/22)     JUDGMENT Art 2 (substantive) • Positive obligations • Life • Death of applicant’s son in prison after being restrained in a prone position leg lock for about thirteen minutes, following which he suffered a heart attack • Domestic authorities’ failure to transmit to the prison authorities known updated information on the additional risks associated with the prone position or review and update their instructions and training until after the incident • Failure, at the relevant time, to issue clear and adequate instructions for prison guards and to train them on the use of the prone position when restraining prisoners • As a result, prison officers involved in the present case lacked the high level of competence required when dealing with a risk-to-life situation   Prepared by the Registry. Does not bind the Court.   STRASBOURG 27 May 2025   FINAL   27/08/2025   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kalkan v. Denmark, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Lado Chanturia , President ,   Tim Eicke,   Lorraine Schembri Orland,   Ana Maria Guerra Martins,   Anne Louise Bormann,   Sebastian Răduleţu,   András Jakab , judges , and Simeon Petrovski, Deputy Section Registrar, Having regard to: the application (no.   51781/22) against the Kingdom of Denmark lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Danish national, Ms Nermin Kalkan (“the applicant”), on 3 November 2022; the decision to give notice to the Danish Government (“the Government”) of the application; the observations submitted by the respondent Government and the observations in reply submitted by the applicant; the comments submitted by a non-governmental organisation, Dignity - Danish Institute against Torture, which had been granted leave to intervene by the President as a third party in the proceedings (Article 36 §   2 of the Convention and Rule   44 § 3 of the Rules of Court); Having deliberated in private on 6 May 2025, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     Relying on Articles 2 and 3 of the Convention, the applicant complained that her son, E., had been restrained while in prison in a prone position leg lock ( brystvendt benlås ) for about thirteen minutes, following which he suffered a heart attack. He died in hospital a few days later. THE FACTS 2.     The applicant was born in 1968 and lives in Vejle. She was represented by Mr Tobias Stadarfeld Jensen, a lawyer practising in Aarhus, and Mr   Jacques Hartmann, a professor at the University of Dundee. 3.     The Government were represented by their Agent, Ms   Vibeke   Pasternak Jørgensen, of the Ministry of Foreign Affairs, and their co-Agent, Ms   Nina Holst-Christensen, of the Ministry of Justice. 4.     The facts of the case may be summarised as follows. THE INCIDENT ON 11 JANUARY 2011 THAT GAVE RISE TO THE APPLICANT’S COMPLAINT UNDER THE CONVENTION 5.     It is not in dispute between the parties that on 11 January 2011 between 10.01   a.m. and 10.14 a.m. the applicant’s son, E., was restrained while in prison in a prone position leg lock, following which he suffered a heart attack. He died on 14   January   2011. 6.     The following facts were found by the domestic courts on the basis of documentation and testimonies in subsequent civil proceedings for compensation for E.’s death. 7.     At the relevant time E. was 23 years old and was serving a prison sentence of two years and sixty days for robbery and making threats against prison staff during a previous term of imprisonment. 8.     On 29 November 2010, he had been transferred to a local prison ( Kolding Arresthus) because of his violent behaviour towards a fellow inmate and threats against a prison officer in another prison. 9.     On 11 January 2011 at 7 a.m., there was a changeover of shifts at the local prison. E., who was in his cell, was agitated and speaking loudly in a language which the staff did not understand. Fellow inmates told the prison officers that E. had played loud music in his cell during the night. The prison officers tried to calm E. down, but he pounded on the cell walls and continued playing loud music. 10.     At the morning meeting at around 9.30 a.m., it was decided that E. would be temporarily moved to an observation cell to avoid his harming himself by pounding his head, legs and/or arms against the wall, and for the sake of maintaining order in the prison. It was also decided to ask for E. to be transferred to another prison more suitable to his agitated behaviour. 11.     After the morning meeting, before 9.50 a.m., four prison officers entered E.’s cell to move him to the observation cell. E. behaved in a threatening manner towards the officers and knocked one of them to the ground. The other prison officers took hold of E., placed him in a prone position leg lock on the bed and handcuffed him. The prison officers released the hold and brought E. to his feet while he was handcuffed. E. shouted and resisted. The prison officers then removed E. from the cell using a transport hold. They carried E. out of the cell, down the stairs and into the observation cell in the basement. 12.     In the observation cell, the prison officers placed E. in a prone position on the bed. In total six prison officers were either inside or just outside the observation cell. E. calmed down and his left hand was uncuffed. Then E. kicked out and hit one of the prison officers in the chest, making the prison officer fall backwards and hit her chest and head against the wall. E. shouted, and his behaviour was violent and fiery. One of the prison officers was sent to the office to call the police to request assistance in transferring E. to another prison ( Enner Mark ) as soon as possible. The prison officers moved E. to the floor of the observation cell, placed him in a prone position leg lock and handcuffed him. In the meantime, at around 9.50 a.m., the senior duty officer of the local prison had called the other prison in order to have E. transferred there immediately. At 9.54 a.m. the senior duty officer at the local prison requested police assistance in transferring E. to the other prison. At 9.56 a.m. a police car was sent to the local prison. At around 10.01 a.m. two police officers arrived at the local prison, where E. was lying on the floor of the observation cell handcuffed in a prone position leg lock. E. tried to get free and he shouted and screamed, and the prison officers tried to keep him in the prone position leg lock. At 10.06 a.m., the police officers who had arrived requested a bigger car to transport E. in. After a while, E. began to calm down somewhat, but he was still shouting. The prison officers released the leg lock, and instead placed cable ties around his legs. Shortly after that, E. stopped shouting and a prison officer who had been observing E. throughout the time that the officers had been using force against him could no longer feel E.’s pulse. The prison officers immediately removed the handcuffs and cable ties, turned E. over, placed him in a supine position and gave him first aid. At 10.14   a.m. the police and prison staff contacted the emergency operations centre to request an ambulance. The ambulance arrived at the local prison at 10.18   a.m., followed by an emergency response doctor who arrived at 10.20   a.m. At 10.26 a.m. the medical staff attempted to resuscitate E., but he remained unconscious. The emergency response doctor discontinued the emergency treatment at 10.45 a.m. and E. was transferred to the hospital.   E.   died three days later, on 14 January 2011 at 11.39 p.m., without having regained consciousness. THE CAUSE OF DEATH 13 .     A post-mortem examination of E. was performed on 14   January   2011. The National Post-Mortem Examination Centre for Funen and South Jutland issued a report on 17   January   2011, a supplementary report on 21   February 2011 and an additional report on 29 September 2011. The medical professionals concluded in those reports that the cause of E.’s death could not be determined with certainty on the basis of the information available. However, the following appears in the supplementary post-mortem examination report: “Deaths of this type are relatively rare, but by now many cases have been described in the medical literature. The deceased are described as having been extremely physically hyperactive, having been loud, having had superhuman strength and having had a reduced pain threshold immediately prior to their deaths. ... The cause of such deaths is probably a pathological process involving an acute stress response, which is a physiological mechanism involving the activation of the autonomic nervous system and the release of a series of hormones from the pituitary gland and adrenal glands into the bloodstream, including the ‘fight-or-flight’ hormones adrenalin and noradrenalin (known as catecholamines). ... The mechanism described above was most likely the cause of death in the present case. No other external factors of relevance to the death were found. No signs of neck holds were found. Such a hold would cause bruises to the neck and petechiae in the conjunctiva of the eye and the facial skin. Furthermore, no basis was found for concluding that pressure had been applied to the deceased’s back. Scientific studies have shown that the rest position (lying in a prone position while handcuffed behind one’s back) does not lead to significantly impaired respiration and cannot in itself lead to oxygen deficiency. ...” 14 .     In an opinion of 2 April 2012, the Medico-Legal Council ( Retslægerådet ) [which make   medico-forensic and pharmaceutical assessments for public authorities for the purpose of cases concerning the legal circumstances of individuals] said the following about whether the cause of E.’s death could be presumed to be excited delirium syndrome (ExDS): “According to the information available, E. was extremely agitated and was resisting violently. In that situation, his oxygen demand would have been high. Because he was kept in a prone position, his breathing may have been impeded, which could have been a contributory cause of his death. ExDS is a much-debated phenomenon, but multiple observations of E correspond to what have been described in the literature as symptoms of that condition. It therefore cannot be ruled out that ExDS was also a factor. ...” 15 .     A supplementary opinion was issued by the Medico-Legal Council on 10   August 2012 and another opinion was issued by the Copenhagen University Hospital on 9 August 2012. As with the reports referred to in paragraphs 13 and 14 above, neither of these could determine the cause of E.’s death with certainty. E.’S MENTAL HEALTH 16.     Prior to the incident, E. had undergone psychiatric examinations in 2003 and 2009. On both occasions the psychiatrists concluded that E. did not suffer from a chronic mental illness. 17 .     Following the incident, the Department of Prisons and Probation ( Direktoratet for Kriminalforsorgen ) requested an assessment of E.’s mental state prior to and on 11 January 2011. The following appears in a consultant psychiatrist’s report of 4 July 2014: “... Based on an overall assessment of the above, I find it most likely that E. was mentally ill, suffering from chronic schizophrenia, and that the illness had developed gradually since 2008-2009. ... As stated above, I find it most likely that E. suffered from schizophrenia and that he was therefore mentally ill at the time when force was used against him – but that the local prison staff had no way of knowing that. It should be added that the post-mortem examination showed that E. was not under the influence of controlled substances at the time when force was used against him. ...” 18.     A Department of Prisons and Probation memorandum of 4 June 2015 says that during the six weeks of his incarceration in the local prison E. was attended by doctors and nurses on six occasions because he complained of physical pain. THE CRIMINAL INVESTIGATION AFTER THE INCIDENT 19.     A criminal investigation was initiated by the South Jutland Police to ascertain whether the conditions were met for bringing criminal charges against the prison officers involved. The police conducted interviews with the prison officers who had been present at the incident on 11 January 2011 as well as with all the inmates, emergency response doctors, and others involved. 20 .     On 18 April 2013, the Prosecution Division for Special Cases of the South Jutland Police decided to discontinue the investigation as it could not reasonably be thought that a criminal offence had been committed. 21 .     On 14 June 2013, the State Prosecutor of Viborg upheld that decision. THE EXAMINATION OF THE CASE BY THE OMBUDSMAN 22.     The case was also examined by a High Court judge acting in the capacity of Substitute Ombudsman ( sætteombudsmanden ). The Substitute Ombudsman concluded in his report of 20 April 2015, inter alia , that the use of force applied by the prison officers had not been contrary to the directions that were (then) in force, nor had the use of force exceeded the extent necessary. THE CIVIL COMPENSATION PROCEEDINGS 23.     On 20 April 2018, the applicant lodged compensation proceedings in the City Court ( Københavns Byret ) claiming compensation from the Department of Prisons and Probation for the death of E. The applicant claimed, inter alia , that the course of events and the force used against E. were in violation of Articles 2 and 3 of the Convention. The applicant also claimed that the Department of Prisons and Probation had failed to fulfil its positive obligation under those articles to oversee and update the rules governing the use of force by its officers. The applicant further argued that the prison officers had placed and kept E. in a prone position in the observation cell unlawfully because the restraint had been performed without taking into account the danger of the hold, which was contrary to the directions that then applied; that the use of force was disproportionate given the behaviour exhibited by E.; and that the means used had not been adapted to E.’s behaviour. 24 .     The City Court had before it various written statements made to the police by people who had been involved in the incident on 11 January 2011. It appeared from those statements that, among other events, four named prison officers, A.K., C.S., F.M. and K.R., had restrained E. in the prone position leg lock from 10.01 a.m. to 10.14 a.m. Prison officer C.S. explained on 17 January 2011 that prison officer A.K. had established the leg lock and that he [C.S.] had pushed against A.K.’s back to help her maintain it. Prison officers F.M. and K.R. had held E.’s arms and shoulders to keep him down on the floor. Subsequently, senior duty officer P.P. had put cable ties around E.’s ankles. In a supplementary interview on 17   August 2011 C.S. explained that F.M. and K.R. “had held their knees against E.’s upper arms to keep him still in the prone position. Neither of the two prison officers placed their knees higher than on the upper arms. Accordingly, they had been nowhere near E.’s back or shoulders”. 25 .     The City Court heard the applicant and the witnesses A.K., P.P., and M.G. The prison officers A.K. and P.P. explained that they had been trained in how to apply holds and not to put pressure on the back of a detainee in the prone position, but they had not otherwise been trained on the risks of using the prone position. M.G. had been a senior training consultant at the Prison and Probation Service since 1997 and became the secretary of the task force set up after E.’s death (see paragraph 63 below). He explained among other things that the training material used prior to the applicant’s death only contained information on how to apply holds. During practice sessions, students were instructed not to put pressure on the inmate’s back. M.G. added the following: “However, it was okay to place a knee on an inmate’s shoulder because that would not make it feel like the respiratory passage was blocked in the same way”. He further stated that the purpose of the prone position leg lock was to make it possible to handcuff the inmate but, if possible, one should opt not to use handcuffs. M.G. stated: “If a knee was pressed down on a handcuffed person’s shoulder, that person would feel as though his or her breathing was impeded, but direct pressure would not be being put on the back. The instructions did not say that the prison officer should place a knee on the inmate’s shoulder. That should only be done in cases where it would calm the situation. The last step after a situation had settled down would be that the inmate would be handcuffed and brought to a standing position”. The task force (see paragraph 63 below) had obtained advice from the other Nordic countries and from Morocco, Jordan and Germany. M.G. was unfamiliar with a British Prison Service Order on the use of Force from 2005 (see paragraph 51 below). 26 .     On 17 October 2019 the City Court found against the applicant for the following reasons: “...   This court therefore finds that at around 10.01 a.m., E. was restrained in the hold called a prone position leg lock and that he was released from that hold at some point before 10.14 a.m. Even though the cause of death cannot be determined with certainty on the basis of the post-mortem examination reports, the medical opinions or the opinions of the Medico-Legal Council, the opinion issued on 2   April 2012 by the Medico-Legal Council does not rule out the placing of E. in a prone position as having possibly contributed to his death. During the procedures that followed, several inquiries were made, and the incident became the subject of a police investigation. No criminal or disciplinary proceedings have been instituted against any of the prison officers involved. The court observes that [the applicant] has not claimed that the authorities failed to investigate the matter appropriately. Article 2 of the Convention guarantees individuals the right to life and Article 3 prohibits torture and inhuman or degrading treatment. The authorities are required to provide a plausible explanation of why persons in the custody of the authorities have died, and the authorities must show that sufficient efforts are made to prevent such deaths. It is also a requirement that the use of force must be regulated. In addition, persons with mental conditions belong to a particularly vulnerable group, to which the authorities must pay special attention. It appears from the report issued on 4 July 2014 by K., a consultant psychiatrist and the consulting psychiatrist for the Department of Prisons and Probation, that it is highly probable that E. suffered from schizophrenia. It is stated in the report that the prison staff could not have known this. The enforcement of sentences is governed by the Sentence Enforcement Act and the executive orders and regulations made under it. Under section 62(1) of the Sentence Enforcement Act as then in force (Consolidation Act no. 1162 of 5 October 2010), institutions may use force against inmates if it is necessary to prevent imminent violence, to overcome violent resistance or to prevent suicide. Subsection (2) provides that force may be applied through the use of holds, shields, batons and CS gas. Subsection (3) provides that no force may be used if it would be disproportionate to its purpose or would cause excessive indignity and discomfort. Subsection (4) provides that any use of force must be applied as gently as circumstances permit. The explanatory notes to the Bill on enforcement of sentences and related matters (Bill no. 145/1999 of 8 December 1999) confirmed that the provisions of clause 62(2) include a list of the means by which force may be applied against inmates. When choosing a specific means of force, the principles of proportionality and gentleness set out in subsection (4) must be observed. In Executive Order no. 382 of 17 May 2001 (subsequently Executive Order no. 547 of 27 May 2011 and Executive Order no. 588 of 30 April 2015), the Ministry of Justice laid down detailed rules on the use of force under section 62 of the Sentence Enforcement Act. Section 2 of the Executive Order says that force may be applied by means of holds, shields, batons and CS gas only and that it must be applied in accordance with any directions from the Department of Prisons and Probation, which is part of the Ministry of Justice. Letter no. 87 of 16 May 2001 on the Executive Order on the Use of Force against Inmates in State and Local Prisons says, inter alia , that force may be applied by means of holds, shields, batons and CS gas only and that it must be applied in accordance with any directions from the Department of Prisons and Probation under the Ministry of Justice. It appears, particularly in respect of holds, that the use of handcuffs would normally be a more appropriate and gentle means of restraint than arm locks when moving inmates from one location to another. The prone position leg lock is described in further detail in a recommendation of January 1994 on the prevention and resolution of conflicts. This was made by the task force for the training of uniformed staff in the use of lawful means of force and restraint, which had been set up by the Department of Prisons and Probation under the Ministry of Justice. It further appears that, in the basic prison officer training programme, physical conflict resolution has been taught by reference to holds such as the prone position leg lock [illustrations from 2005 were submitted to the City Court]. From the statements and the other circumstances of the case, the City Court is not convinced that the prison staff members used force contrary to the directions that were (then) in force when handling E. Moreover, the City Court is not convinced that force was used to a greater extent than absolutely necessary, given the urgency of the situation and the violent behaviour exhibited by E. throughout the incident. It is observed in that connection that the initial reasons for the prison staff members’ involvement were that they were concerned that he might harm himself and wanted to take care of him during his imprisonment in the local prison. It is further observed that the statements and the medical information about marks and so on that were found on the deceased do not suggest any reason to think that the prison officers sat on top of E. at any point while he was in a prone position. It was not in breach of the directions that (then) applied that E. was kept in a prone position for a short time after he had slowly calmed down or that the leg lock was replaced by cable ties around his ankles. It appears from the statements, inter alia , that a prison officer continuously observed E., including taking his pulse, and that E. was turned over and placed in a supine position immediately when the observing prison officer started to suspect that something was wrong. It further appears that the prison officers immediately initiated first aid when they noticed that E. was not breathing. Accordingly, there is no basis for finding that the incident and its fatal outcome constitute a violation of Article 2 of the Convention, nor that force was used contrary to Article 3 of the Convention. [The applicant] has submitted that the Prison and Probation Service has failed to fulfil its duty, inter alia , to update and keep updated the rules governing the use of force and that the Prison and Probation Service has consequently failed to observe its positive obligations under Articles 2 and 3 of the Convention, for which reasons those rights have been violated. Material about the prone position leg lock has been available in addition to the rules laid down in the Act and the Executive Order and regulations made under it. According to the prison staff, they received both theoretical and practical training in the use of the hold. On the basis of the evidence, including the statements made by [A.K.] and [M.G.], the court further accepts that the training provided about the prone position leg lock included the instruction that no pressure may be applied to a restrained person’s back while the person is in a prone position. At the time of the incident, directions and instructions for use of the prone position leg lock therefore did exist. The questions are whether those directions must be considered to have been inadequate at the time and, if so, whether that was a cause that contributed to the cardiac arrest suffered by E. and his subsequent death. It must be assumed that the presentation about pepper spray dated 2009 by the Police College and 2011 by the Prison and Probation Service, in which instructions for dealing with persons in a prone position are also provided, was not shown to the staff of the Prison and Probation Service until after the incident. In the years leading up to the incident, Denmark and Norway saw the deaths of several persons who had been placed in a prone position leg lock, but the circumstances of those cases are inconsistent with those of the case at hand. In Benjamin , see the Eastern High Court judgment, published in the Danish weekly law reports, ref. U.1996.353Ø, considerable pressure was applied to Benjamin’s back while he was placed in a ‘fixed leg lock’ hold. Considerable pressure was also applied to the applicant in Obiora v.   Norway , in which the ECtHR delivered its judgment on 21   June   2011. In Løgstør , see the Supreme Court judgment published in the Danish weekly law reports, ref.   U.2011.2510H, the medical opinions emphasised the severe obesity of the detainee combined with his intense level of activity and possible use of controlled substances. Although a recommendation was made on 15 May 2014 to replace the leg lock with a different hold, there is still no basis for finding that the directions for use of the prone position leg lock and other restraints that were in force at the time were inadequate or did not sufficiently take into account the risks associated with the use of the hold. Particular reference is made to the fact that in November 1997 the Health Authority ( Sundhedsstyrelsen ) had made no objection to the Prison and Probation Service’s catalogue of photographs and detailed descriptions of the holds and techniques taught to and used by uniformed staff in state and local prisons. It cannot lead to a different outcome, based on the reasons submitted by the defendant, that experience from the UK and the opinion issued by the Norwegian Ombudsman have not been taken into account to a wider extent. It has therefore also not been proved that the defendant violated Articles 2 and 3 of the Convention by the use of inadequate directions. In summary, the City Court finds on the basis of the foregoing that neither the prison staff nor the Department of Prisons and Probation have acted in violation of Article 2 and Article 3 of the Convention, for which reason the City Court finds in favour of the defendant.” 27.     The applicant appealed against the City Court judgment to the High Court of Eastern Denmark ( Østre Landsret ), which heard the witnesses M.G., F.M. and K.O. [an employee at the Department of Prisons from 1981 to 2020]. The prison officer F.M. explained that he had been instructed in the use of the prone position leg lock and that it was important not to put too much pressure on the bent leg as that would risk causing a knee injury. 28 .     M.G explained, inter alia : “that the combination of the prone position leg lock and handcuffs was often used on inmates refusing to cooperate after having been either placed in a ‘simple’ leg lock or having been handcuffed as the only measure. Inmates who had only been handcuffed could put up a violent resistance and, for example, head-butt others. Also, those inmates might injure themselves. As an element of a leg lock, where the inmate was very agitated, you could place one knee on the inmate’s shoulder or upper arm to keep the inmate on the ground. That would not affect the inmate’s breathing to any significant degree”. Moreover: “until the task force was set up in 2011, it had not been thought that holding persons in a prone position leg lock applied in accordance with the [previous] regulations might present a risk of asphyxiation”. 29.     In a decision of 24 March 2020 the High Court refused the applicant’s request for the commission of an additional opinion by the Medico-Legal Council as to whether the pressure put on E.’s arms while he was handcuffed behind his back and placed in the prone position could have impeded his breathing. The High Court found that since extensive investigations into E.’s injuries had already been carried out and many statements had been taken, a further report from the Medico-Legal Council would not be able to assist the court in reaching its decision. 30 .     On 2 November 2021 the High Court found against the applicant for the following reasons: “Basing its conclusions on the evidence produced to the High Court – including the witness evidence, the information about the times of phone calls, and the accounts and reports prepared – the High Court agrees that the actual sequence of events relative to the incident that took place in the morning of 11   January 2011 in the Kolding Local Prison was as described by the City Court. Further, the High Court accepts as established fact that the testimony given by witness [F.M.] – combined with the post-mortem examination reports and the statements produced from the other staff members at the local prison – shows that E. was restrained by means of the hold called a prone position leg lock in combination with the use of handcuffs and that none of the local prison staff members involved in the incident in the observation cell sat on E. or applied any pressure directly on his back. That conclusion is supported by the evidence given by witness [M.G.] who stated that, even prior to 2011, the Prison and Probation Service emphasised in its staff training that when using the hold called the prone position leg lock there must be no application of any kind of pressure on the back of a restrained person. It is observed that, based on the evidence produced, it cannot be considered a fact that E. was restrained using the hold called the fixed leg lock or a TARP position. Furthermore, the High Court agrees that the cause of E.’s death cannot be determined with certainty on the basis of the information available. In its opinion of 2 April 2012 one of the things the Medico-Legal Council said in its answer to question 4 was that E.’s breathing might have been impeded because he had been kept in a prone position, which may have contributed to his death. The Medico-Legal Council also said that the excited delirium syndrome (ExDS) is a much-debated phenomenon but that multiple observations about E. corresponded to what have been described in the literature as the symptoms of that condition, and that it cannot be ruled out that ‘ExDS was also a factor’. As to the City Court’s judicial review under Articles 2 and 3 of the Convention, the High Court agrees with the reasoning and decision of the City Court. As stated above, the High Court is not convinced that the local prison staff members involved in the incident in the observation cell sat on or applied any pressure directly on E.’s back. On the specific question of whether the Prison and Probation Service had sufficiently updated its directions for the use of the prone position leg lock, the High Court agrees with the City Court’s finding, which is also supported by the evidence given by witness [M.G.] in the High Court. It also observes in this regard that the rules on the use of force must be assessed in conjunction with the training and instructions actually provided to prison staff. As to the directions prior to 2011 – when they are assessed in conjunction with the training and instructions then given to the staff – the evidence produced shows them to have been clear and it appears that they served to warn staff members, to a sufficient extent and at the high professional level necessary, about the potential risks involved in using the prone position leg lock. That must be looked at in the light of the information provided about what was then known on the subject and in the light of the testimony of witness [M.G], which was partly about the ongoing updating of the directions and the training, partly about the 2012 revision process, and partly about the training on the general principles of the use of force and on conflict prevention. Separately, the initiation of a revision of the conflict management tools that took place after E.’s death resulted in a recommendation that an alternative be found to the prone position leg lock, but that could not by itself lead to a different outcome in this case. The information produced to the High Court on other countries’ specific decisions or general directions on the use of force by means of the prone position leg lock cannot simply be compared with the background and circumstances of the case at hand and therefore cannot lead to a different outcome. On the basis of these observations, the High Court upholds the earlier judgment in favour of the respondent.” 31.     On 4 July 2022, the Appeals Permission Board ( Procesbevillingsnævnet ) refused to grant leave to appeal to the Supreme Court ( Højesteret ). RELEVANT LEGAL FRAMEWORK AND PRACTICE DOMESTIC LAW AND PRACTISE The Sentence Enforcement Act 32 .     The enforcement of sentences is governed by the Sentence Enforcement Act ( straffuldbyrdelsesloven ) (at the relevant time, Act no.   1162 of 5 October 2010), which in so far as relevant read as follows: Section 62 “An institution may use force against an inmate if necessary: (i)     to avert imminent violence, to overcome violent resistance or to prevent suicide or other self-harm; (ii)     to prevent escape or to apprehend escaped inmates; or (iii)     to enforce a direction when prompt compliance is necessary and the inmate refuses or fails to comply with instructions from staff members. (2)     Force may be applied through the use of holds, shields, batons and CS gas. (3)     No force may be used if it would be disproportionate in view of the purpose of the measure and the indignity and discomfort presumably caused by the measure. (4)     Any force must be applied as gently as circumstances permit. A doctor must attend the inmate following the use of force if it is suspected that the inmate has fallen ill or sustained any injury in connection with the use of force or if the inmate himself requests medical assistance. (5)     The Minister of Justice shall make the rules on the use of force against inmates. (6)     The Minister of Justice may launch a pilot scheme introducing the use of force by means of pepper spray in certain institutions of the Prison and Probation Service.” 33.     The preparatory notes to the Sentence Enforcement Act (Bill no.   145 of 8 December 1999) described section 62(2) as follows: “Subsection (2) includes a list of the means through which force may be applied against inmates. When a specific means of force is being chosen, the principles of proportionality and gentleness set out in subsection (4) must be observed.” 34 .     The Sentence Enforcement Act is supplemented by a number of executive orders, notably the Executive Order on the Use of Force against Inmates in Prisons (Executive Order no. 382 of 17 May 2001), of which the relevant provisions read as follows: Section 2 “Force may be applied through the use of holds, shields, batons and CS gas only and must be in accordance with directions from the Department of Prisons and Probation under the Ministry of Justice. ...” Section 7 “If an institution has used force against an inmate, a report on the use of force must be made as soon as possible. ...” Section 8 “(1)     The director of the relevant institution or the person so authorised shall make the decision on the use of force. (2)     If, because of the circumstances in the individual case, it is impossible to await a decision from a person authorised under subsection (1) of this section, the decision must be made by the officer present who is in charge. In such cases, a person authorised under subsection (1) of this section must be notified of the incident as soon as possible.” Directions from the Department of Prisons and Probation about the prone position at the time of the incident 35 .     At the time of the incident, the directions of the Department of Prisons and Probation were to be found in Letter no. 87 of 16   May 2001 on the Executive Order on the Use of Force against Inmates in State and Local Prisons. The relevant text of the Letter read as follows: “Please find enclosed the Executive Order on the Use of Force against Inmates in State and Local Prisons (Copenhagen Prisons). The Executive Order enters into force on 1 July 2001. The Executive Order applies to all inmates in State and local prisons. Section 62 of the Sentence Enforcement Act and the Executive Order says that those provisions do not apply to inmates in the halfway houses of the Prison and Probation Service. In addition to the rules provided in the Act and the Executive Order, the institution may use force under the general rules of Danish law on self-defence. Section 2 of the Executive Order provides that force may be applied by means of holds, shields, batons and CS gas only in accordance with directions from the Department of Prisons and Probation under the Ministry of Justice. In connection with any use of force, a report must be made using the special report form of the Department of Prisons and Probation ...” 36.     The directions above were supplemented by specific instructions given to prison officers as part of their initial and in-service training. Prison officers were taught how to use the approved holds, including the prone position leg lock, as well as general conflict management and de-escalation skills. 37.     Additional directions for the use specifically of the prone position leg lock hold were given during the initial basic training of prison officers and in-service training courses. 38.     As from January 1994, conflict management training in the Prison and Probation Service was centralised. The basic training programme and the in ‑ service training courses were essentially the same. The training provided on holds included information on the risks that might be associated with the use of individual holds, including the prone position leg lock. For the purpose of the training, the list of permitted holds, including written descriptions and photographs, was handed out to the participants (the prone position leg lock was entitled benlås 2 ). At the time of the incident, the basic training programme lasted three years, and there were eighty hours of training in self ‑ defence, the use of force and conflict management theory. The conflict management theory training focused on, inter alia , conflict prevention to avoid the need to use force against inmates. In addition to the basic training programme, prison officers received regular in-service training in the use of force and holds. Prior to 2011, it was a requirement for prison officers to participate in a conflict management refresher course every seven years. This four-day course included thirty-six   hours of training in self-defence, the use of force and conflict management theory. 39 .     The training in the use of approved holds was based on the so-called “list of permitted holds” in the Recommendation on the Prevention and Resolution of Conflicts ( Indstilling om konfliktforebyggelse og -løsning ) made in January 1994 by the Staff Training Centre of the Prison and Probation Service. The recommendation, including the list of permitted holds, was approved by the Health Authority in 1997. The recommendation further included the following description on how to apply the prone position leg lock: “10.     Prone position leg lock, variant 1 Technique: The starting position here is standing next to a person lying in a prone position. Bend down to start applying the leg lock. Grasp the instep and a toe of one foot of the person lying prone with your hands. Raise the person’s leg to make it point upwards at an angle of about 70 degrees. Twist your leg that is further away from you around the knee joint of the person lying prone, and then bend his or her leg around your instep. Lastly, let go with your hands and lean over the person lying prone, so bending his or her leg and placing his or her foot against your chest. At the same time, use your free hand to grasp the person’s shoulders. Principle: This hold is based on the principle of raising the leg around a point. At the same time, it uses the principle of the lever in that the toe and instep of the person lying prone are grasped, making it as easy as possible to push the leg up towards the person’s bottom. Assessment: For this hold, as for hold 9, the technique for pacifying the person is the infliction of sufficient pain to make the person choose to stay down. The hold is rather difficult to apply and, as with hold 9, it will normally require more than one person to apply it. 11.     Prone position leg lock, variant 2 Technique: The starting position here is to stand between the legs of a person lying in a prone position. Grasp the tip of a toe of the pers