CEDH · CASELAW;COMMUNICATEDCASES;ENG — 10 mai 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both }   Communicated on 10 May 2016   SECOND SECTION Application no. 46779/15 Sergei KONDRATJEV and Vladislava KONDRATJEVA against Estonia lodged on 21 September 2015 STATEMENT OF FACTS The first applicant, Mr Sergei Kondratjev, is an Estonian national born in 1989. The second applicant, Ms Vladislava Kondratjeva, is the first applicant’s mother. She is a Lithuanian national born in 1966. The applicants live in Pärnu. They are represented before the Court by Mr P. Järve, a lawyer practising in Pärnu. A.     The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. On 18 September 2007 the first applicant visited the second applicant at her workplace in Pärnu police station. The second applicant worked for the police as a civil servant. Without giving any clear explanation, a police officer demanded that the first applicant (who was then 17 years old) undergo a drug test and prove his identity. The first applicant refused, considering that there were no legal grounds for carrying out a drug test or for the request to prove his identity. The police officers then used physical force on the first applicant. The applicants state that four police officers grabbed and twisted the arms of the first applicant, led him to another office, threw him to the ground and stamped on his back. Handcuffs were also used for some of the time. According to the first applicant, he was not permitted to contact a lawyer when he was arrested. The second applicant was present during the use of force against the first applicant and his arrest. The police initiated misdemeanour proceedings against the first applicant, accusing him of failing to obey the lawful orders of a police officer and of not proving his identity when asked to do so by the police. The misdemeanour proceedings were terminated on 22 October 2007 by Pärnu County Court because the acts in question did not constitute the elements of a misdemeanour. That decision was upheld by the Tallinn Court of Appeal on 29 January 2008. The first applicant’s drug test was also later found to be negative. On 13 November 2008 the applicants applied to an administrative court for a ruling on whether the measures used by the police against the first applicant had been unlawful and for an award of compensation for the damage caused. The first applicant made a claim for pecuniary and non-pecuniary damages, the latter amounting to 2000 euros (EUR), as regards the suffering caused by the illegal use of force against him. The second applicant also made a claim for pecuniary and non-pecuniary damages related to the illegal use of force against her son which she had been compelled to witness in person and which had allegedly damaged her health, including physical and emotional distress and suffering. The Tallinn Administrative Court and the Tallinn Court of Appeal found in decisions of 17   January 2011 and 16   June 2011 respectively, that the courts had no jurisdiction to resolve the question of the lawfulness of the measures used by the police on the first applicant. Without establishing the lawfulness of the behaviour of the police, the courts could not assess any claims for damages. The Supreme Court en banc on 11 December 2012 annulled the judgments of the Administrative Court and the Court of Appeal and returned the matter to the Administrative Court for a new hearing. Following a new hearing, on 23 January 2014 the Tallinn Administrative Court granted the claims of the first applicant in part. The court established that the use of force and handcuffs on the first applicant had been unjustified. Although the first applicant’s refusal to follow the orders of the police and his physical resistance to the police had been proven, that had not given the police any grounds to use force on him. The court found that the actions of the police officers against the first applicant had been disproportionate and unlawful and that the police had been guilty of degrading the human dignity of the first applicant. The court established that the police had caused physical and emotional distress and suffering to the first applicant. The court ordered the police to pay the first applicant EUR   200 in respect of non-pecuniary damage, plus EUR 25 for procedural expenses. It dismissed the second applicant’s claims. On 4 December 2014 the Tallinn Court of Appeal partly varied the Administrative Court’s decision. This court found that there had been no confirmation of the fact that the behaviour of the first applicant had posed a danger to the police officers. It emerged from the statements of the police officers that physical force had been used because the first applicant had refused to comply with procedural measures that he had considered unlawful. When the conflict had escalated, he wished to leave the police station, but had not attacked the police officers. The Court of Appeal did not agree with the arguments of the police that their behaviour had been judged on an ex post facto basis. Since the use of force against the first applicant had been unlawful (for the lack of any legal basis), the Court of Appeal found that there was no need separately to address the question of whether the force had been excessive. However, the Court of Appeal established that there was no proof that the use of force against the first applicant had damaged his physical health. The Court of Appeal ordered the police to pay EUR 40 in respect of pecuniary damage and a total EUR 80 for procedural expenses, in addition to the EUR 200 in respect of non-pecuniary damage. The Supreme Court upheld the Court of Appeal’s judgment on 9 April 2015, refusing to open proceedings for a cassation appeal (administrative case no 3-08-2280). B.     Relevant domestic law The State Liability Act, as in force at the material time, provided as follows: Article 9 (Compensation for non-pecuniary damage) ”(1) A natural person may claim financial compensation for non-pecuniary damage upon wrongful undermining of dignity, damage to health, deprivation of liberty, violation of the inviolability of the home or private life or of the confidentiality of messages or defamation of honour or the good name of the person. (2) Compensation for non-pecuniary damage shall be in proportion to the gravity of the offence and take into consideration the form and gravity of the fault.” Article 13 (Limitation of liability) “(1) The following shall be taken into account when determining the amount of compensation: 1) the extent to which the damage was unforeseeable; 2) objective obstacles to preventing damage; 3) gravity of the violation of rights; 4) limitations, provided for in private law, regarding the contribution of the injured party had in causing the damage; 5) other circumstances which would render full compensation for damage unfair.” COMPLAINT The first applicant complains under Article 3 of the Convention that the compensation of EUR 200 which he was awarded in respect of non-pecuniary damage after his ill-treatment at Pärnu police station was not proportionate to the actual damage caused.     QUESTIONS TO THE PARTIES 1.     Has the first applicant been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention, having regard to his treatment by the police at the police station on 18 September 2007?   2.     Did this same incident amount to a disproportionate interference with the first applicant’s right to respect for his private life (in particular of his physical and moral integrity) in violation of Article 8 of the Convention?   3.     Considering the facts established by the Estonian courts, notably that the use of physical force (including handcuffs) by the police on the first applicant was unlawful, unnecessary and “degraded” the human dignity of a person who was at the time 17 years of age, was the 200 euros compensation in respect of non-pecuniary damage awarded to the first applicant a sufficient remedy in the context of Articles 3 and 8 of the Convention?