CEDH · CASELAW;CLIN;ENG — 9 octobre 2007

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France - 9375/02 Judgment 9.10.2007 [Section II] Article 2 Positive obligations Article 2-2 Use of force Use by police of a face-down immobilisation technique to arrest a deranged man: violation   Article 2 Positive obligations Death by gradual asphyxia of a young man who was handcuffed and held face down to the ground by police officers for over thirty minutes: violation   Article 6 Civil proceedings Article 6-1 Fair hearing Grant of legal aid for proceedings before the Court of Cassation after the time-limit for lodging submissions had expired: violation   Article 35 Article 35-1 Exhaustion of domestic remedies Effective domestic remedy Remedy under the Judicature Code for breach of duty by the police: preliminary objection dismissed   Facts : The application was lodged by the mother, brothers and sisters of the late Mohamed   Saoud. Mohamed   Saoud suffered from schizophrenia and was recognised as 80   % disabled. He requested admission to hospital, but was told that there were no places available and he could not be admitted before 23 November 1998. On 20   November 1998 the police received a telephone call asking them to intervene at the Saoud family home, where the 26-year-old Mohamed was attacking his mother and two sisters. The young man had tied the legs of one of his sisters together and was kicking her. According to the applicants, one of the sisters informed the police officers of her brother’s illness and disability and of the need to call a doctor. No doctor was called. Mohamed Saoud refused to open the reinforced door to the flat when requested to do so by the police, but agreed to free one of his sisters. Shouting abuse at the police officers, he then attacked his other sister, striking her several times with an iron bar. The police officers entered the flat by the balcony. Two rubber bullets hit the young man in the abdomen. During the intervention Mohamed Saoud managed to strike the officers several times with the iron bar and to seize one officer’s hand gun and fire four shots at floor level before he was disarmed. The first contingent of officers, who were injured, were replaced by colleagues who, unable to handcuff Mohamed Saoud’s arms behind his back, handcuffed them in front of his body and used their body weight to keep him pinned to the ground on his stomach. Two police officers held him by the wrists and ankles while a third placed his outstretched arms on the young man’s shoulders and his knee in the small of his back. Mr Saoud’s ankles were bound. On their arrival at the scene, members of the fire service administered first aid to the injured police officers while waiting for the emergency medical service (SAMU) to arrive and administer a tranquiliser to Mohamed Saoud in view of his continuing resistance. Shortly afterwards, the young man developed a sudden weakness, which turned out to be cardiorespiratory arrest, and died. An autopsy and other tests revealed signs of possible “slow mechanical asphyxia”. The two pathologists appointed by the investigating judge confirmed suffocation as the cause of death, as a consequence of the victim being held face down, with his limbs bound and held down and pressure exerted on his shoulders and the small of his back for several minutes. In January 1999 the applicants lodged a complaint for murder of an especially vulnerable person and sought leave to join the proceedings as a civil party, alleging in particular that no doctor had been called at the time of the events. The investigating judge ordered that the proceedings be discontinued. That order was upheld on appeal. The applicants appealed on points of law. On 24 July 2001 the delegate of the President of the Court of Cassation granted full legal aid following an appeal against the refusal of aid by the Legal Aid Office.   However, the reporting judge had already filed his report over a month earlier, and the time-limit for filing further pleadings had now expired. A lawyer practising in the Conseil d’Etat and the Court of Cassation was appointed on 10 September 2001. On 18   September 2001 the Court of Cassation declared the appeals inadmissible. The lawyer assigned to the applicants informed them that, as the decision of 24 July 2001 had not been served on him until 10 September 2001, he had been unable to file pleadings with the Court of Cassation before it ruled on the appeals. Law : Article 2 – Preliminary objection of non-exhaustion rejected : Article L. 781-1 of the Judicature Code introduced a system of direct State responsibility which did not, in principle, exclude negligence by police officers in the course of their duty. However, the Government supplied only one decision along those lines which was relevant to the instant case, which had been delivered subsequent to the material events, the criminal proceedings and the application to the Strasbourg Court. The police officers’ intervention had been justified under Article 2 § 2 (a) and (b), as they had had to protect the physical safety of the young man’s mother and sisters. He had inflicted injuries on his sisters and some police officers had also been seriously injured during the struggle. The injuries sustained by the young man in the struggle with the police had not been the cause of his death.   Accordingly, the conditions of his arrest and, in particular, the use of force by the police had been proportionate to the violence of his conduct. With regard to the events following the arrest, namely Mohamed Saoud’s being held to the ground by the police officers, the authorities had an obligation to protect the health of persons who were in detention or police custody or who, as in the case of Mohamed Saoud, had just been arrested. That entailed providing prompt medical care where the person’s state of health so required. The police officers had not been unaware of Mohamed Saoud’s vulnerable state, having been told about it by one of his sisters. Despite the young man’s illness, his obvious injuries and the fact that, with his hands and feet bound, he no longer presented a danger to others, the police officers had not relaxed their hold on Mohamed Saoud at any time and no medical examination, however superficial, had been carried out on him to ascertain his state of health. The only measure apparently contemplated by the police and fire officers at the scene was the administration of a tranquiliser by a doctor, which meant waiting for the emergency medical service to arrive. Mohamed Saoud had been pinned to the ground for 35 minutes, in a position identified by medical experts as likely to cause death by asphyxia. No precise instructions had been issued by the French authorities with regard to this type of immobilisation technique and, despite the presence at the scene of professionals trained in first aid, no treatment had been given to the young man prior to his cardiac arrest. Conclusion : violation (unanimously). Article 6 § 1 – By 24 July 2001, when legal aid was granted, on appeal, for the proceedings before the Court of Cassation, the time allowed for filing further pleadings had already expired. However, the decision of 24   July 2001, implicitly recognising the existence of arguable grounds of appeal, had offered an opportunity to have the appeal on points of law presented by a specialist member of the legal profession. The proceedings before the Court of Cassation had not been fair on account of the fact that it had been materially impossible for the specialist lawyer assigned to the applicants to file pleadings before the Court of Cassation ruled on their appeals. Conclusion : violation (unanimously). Article 41 – EUR 20,000 jointly to the seven applicants, for non-pecuniary damage.   © 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