CEDH · CASELAW;CLIN;ENG — 30 juin 2020

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Switzerland - 23405/16 Judgment 30.6.2020 [Section III] Article 2 Positive obligations Article 2-1 Life Effective investigation Failure to prevent a suicide committed in an unusual way by a vulnerable detainee, left unguarded in a police cell for forty minutes, with a refusal to prosecute: violations Facts – In 2014 the applicant’s son, D.F., caused an accident in a car belonging to his employer when he was under the influence of alcohol and antidepressants. The police officers sent to the scene of the accident, R.B. and A.S., complied with the standard procedure for this type of accident. Meanwhile, the applicant had arrived on the scene, having been called by her son, who had been talking about committing suicide. D.F. was subsequently taken to hospital by the two police officers for blood and urine tests. He once again mentioned suicide. The two police officers called the traffic police post to inform them that they were on their way and that a medical officer would be required. D.F was taken to the police post, accompanied by the applicant, and was left unguarded in an individual cell for forty minutes. He committed suicide in the cell by hanging himself with his jeans, which he had attached to a ventilation grid. The public prosecutor’s office conducted a preliminary investigation. The domestic authorities found that there was insufficient evidence of the commission of a criminal offence by the police officers. For that reason, at the prosecutor’s request, the Cantonal Supreme Court did not authorise the commencement of criminal proceedings in 2015. The Federal Court then dismissed the applicant’s appeal against that decision. Law – Article 2 (substantive limb) (a)     The authorities’ knowledge of the risk of suicide and the particular vulnerability of D.F. – At the scene of the accident, police officer A.S. had immediately discussed D.F.’s talk of suicide with the applicant in order to take the requisite action. At the traffic police post police officer C.R. had been informed of the suicide risk prior to D.F.’s arrival. Right from his first contact with the police, D.F. had displayed unusual behaviour indicating emotional dependence on his mother in what he considered as a frightening situation. He had caused an accident under the influence of alcohol and prescription drugs. Furthermore, A.S. and the applicant had discussed the possibility of a compulsory care order. Finally, D.F. had been left alone in a cell at the traffic police post. In its autopsy report, the Institute of Forensic Medicine (IRMZ) stated that D.F.’s isolation in an individual cell, his “ongoing” suicidal ideas, past attempts at suicide and an “alcohol problem” were recognised risk factors vis-à-vis suicide in detention, and that at least two of those factors had been present in his case. At the material time, the authorities had, or ought to have, known that D.F. was liable to commit suicide, and that there was therefore a definite and immediate risk to his life. Moreover, the authorities had had sufficient evidence at their disposal to be aware of D.F.’s particular vulnerability. Consequently, they should have realised that close supervision was an absolute necessity. (b)     Failure to take the requisite action to prevent the suicide risk – The police officers had implemented the standard procedure regarding security and preventive measures in the cell at the traffic police post, including removing his shoes, his leather belt and a light chain, thus blocking his access to items he might have used to strangle or otherwise harm himself. However, D.F. had committed suicide in an unusual manner. And yet five police officers had been present at the traffic police post, and D.F. could have been held in an office, accompanied by the applicant. Moreover, the police officers had not followed up their plan to transfer D.F. to a cell equipped with video surveillance cameras. The fact that the authorities had left D.F. alone and unguarded in a cell for forty minutes had automatically breached his right to life within the meaning of Article   2. The authorities could, with a reasonable and non-excessive effort, have prevented the risk of D.F. committing suicide, of which risk they had, or ought to have, known. The authorities’ responsibility had stemmed from the fact of having treated D.F. as someone capable of withstanding the stress and the pressure occasioned, and had failed to pay sufficient attention to his personal situation. Regardless of whether or not the police officers had acted in accordance with the rules applicable in such situations, by failing to recognise D.F. as a person requiring special treatment they had engaged their State’s responsibility under the Convention. Conclusion : violation (unanimous). Article 2 (procedural limb): According to the Federal Court, there must be “minimum evidence” of the commission of a punishable act for the Supreme Court in order to authorise the commencement of full criminal proceedings. Such authorisation necessitates a lower level of probability of criminal responsibility than is required in order to initiate a criminal investigation. That is particularly true in the case of serious offences and, in particular, where the criminal trial concerns a person’s death. When assessing the substantive limb of Article   2, the Court had concluded that the authorities had been responsible for violating D.F.’s right to life. Neither the Cantonal Supreme Court nor the Federal Court had referred to the autopsy report drawn up by the Institute of Forensic Medicine describing the risk factors associated with suicide in detention and, in particular, those courts had failed to take into account the observations concerning both the criteria which had been present in D.F.’s case. The Institute had also pointed out that it would have been better to bring in an emergency psychiatrist rather than an ordinary emergency doctor. The Federal Court had dismissed the argument put forward by the applicant on that subject on the grounds that the doctor’s specialisation had been irrelevant as he had arrived after D.F.’s death. The Court deemed fairly cogent the applicant’s submission that an emergency psychiatrist could have given the police officers precise instructions over the telephone in order to limit or even eliminate the risk of suicide. In that connection the Federal Court had considered that plea immaterial because there had at no stage been direct contact between the police officers and the emergency doctor. Nevertheless, it was incumbent on the Contracting States to organise their services and train their staff in such a way as to enable them to satisfy the requirements of the Convention. Finally, the minutes of the 2011 meeting of the Cantonal State Council recommended that a person voicing suicidal intentions should be placed in a double-occupancy cell or, if necessary, kept under constant surveillance. Moreover, they pointed out that it was preferable to have recourse to an emergency psychiatrist, while accepting that an ordinary emergency doctor might suffice under certain circumstances. Those two recommendations had not been complied with in the case of D.F. Thus the Court was not convinced that there had been no “minimum evidence” of the commission of a punishable act by the officers involved in the events leading to D.F.’s death. Consequently, it could not be considered that the manner in which the Swiss criminal justice system had reacted to the credible allegation of a violation of Article   2 in the impugned situation of an individual who had expressed clear and repeated suicidal intentions, had successfully established the State agents’ responsibility in the impugned events. Accordingly, the system in place had not guaranteed the effective implementation of the provisions of domestic law ensuring respect for the right to life, particularly the deterrent function of criminal law. It followed that in a situation of particular vulnerability on the part of the applicant’s son, there had been no adequate protection “by law” capable of safeguarding the right to life or of preventing any similar future incidents endangering a person’s life. Conclusion : violation (unanimous). Article 41: EUR 50,000 in respect of non-pecuniary damage; EUR 5,796 in respect of pecuniary damage. (See also Keenan v. the United Kingdom , 27229/9, 3   April 2001, Information Note 29   ; Anguelova v.   Bulgaria , 38361/97, 13   June 2002, Information Note 43   ; Trubnikov v.   Russia , 49790/99, 5   July 2005, Information Note 77   ; Mikayil Mammadov v.   Azerbaijan , 4762/05, 17   December 2009, Information Note 125 ; and Keller v.   Russia , 26824/04, 17   October 2013, Information Note 167 )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes