CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 22 décembre 2009

.s800EAC49 { font-size:12pt } .sA678F94A { margin-top:0pt; margin-bottom:0pt; text-align:right; font-size:11pt } .s29100277 { font-family:Arial; font-weight:bold } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s7ED160F0 { text-decoration:none } .s11AD46B1 { font-family:Arial; font-size:7.33pt; vertical-align:super; color:#0069d6 } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sE202B2ED { font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline; color:#0069d6 } .s4BAE41EE { font-family:Arial; font-size:11pt } .sBB9EE52A { font-family:Arial } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s99A63BFE { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:11pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sBACB3E60 { font-family:Arial; font-size:11pt; text-decoration:underline; color:#800080 } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sF6A12959 { width:33%; height:1px; text-align:left } .s5FFF0A7E { margin-top:0pt; margin-bottom:0pt; font-size:8pt } .sCC018295 { font-family:Arial; font-size:5.33pt; vertical-align:super; color:#0069d6 } 988 22.12.2009   Press release issued by the Registrar   CHAMBER JUDGMENT [1]   Palushi v. Austria (application no. 27900/04)   ASYLUM SEEKER STABBED BY PRISON OFFICERS WITH BALLPOINT PENS, INJURED WHEN DRAGGED DOWN SOME STAIRS AND, PLACED IN SOLITARY CONFINEMENT, REFUSED ACCESS TO A DOCTOR FOR THREE DAYS   Unanimously:   Two violations of Article 3 (prohibition of inhuman and degrading treatment) of the European Convention on Human Rights       Principal facts   The applicant, Naser Palushi, born in 1972, was previously a national of the former Socialist Federal Republic of Yugoslavia; he is now an Austrian national and lives in Vienna.   On 28 April 1994, his request for asylum refused, Mr Palushi was detained and held in custody in Vienna Police Prison with a view to his expulsion for illegal stay. Two days later he went on hunger strike.   Mr Palushi alleged that on 21 May 1994, three weeks into his hunger strike, prison officers called to his cell by his cellmates because he had slipped and hit his head while going to the toilet had pulled him out of his cell by his feet, kicked and beaten him and stabbed him behind the ears with ballpoint pens. He had then been dragged down some stairs – causing injuries to his back – and was placed in solitary confinement. He claimed that his requests to see a doctor were refused until 24 May 1994 when a representative of an NGO, a journalist and a friend visited him and, noticing abrasions on his back and hip and small bruises behind his ears, insisted that he be taken to the prison doctor. The doctor’s report of the same day noted several abrasions in the middle and lower parts of the applicant’s back; one of the abrasions, being substantial, was treated with a spray and bandaged.   On 26 May 1994 Mr Palushi was seen again by a prison doctor; the ensuing report confirmed that he had scabs behind his ears and on his back and that the remaining abrasion on his back required a new bandage.   In June 1994 Mr Palushi filed a complaint with the Vienna Administrative Panel ( Unabhängiger Verwaltungssenat ) about his ill-treatment while in detention. His case was heard in July 1994 and January 1995; evidence was given by the applicant, two of his former cellmates and two of the prison officers concerned. The former cellmates claimed that they had heard screaming and noises of beating coming from behind the closed cell door where the applicant had been taken by the prison officers. The officers denied the applicant’s allegations stating that, on the day in question, the applicant had been causing unrest by shouting and banging against his cell door. Finally, when called to the cell by the other inmates, the paramedic prison officer ascertained that the applicant was pretending to be unconscious. They had therefore had no other choice but to take him to an individual cell as a disciplinary measure and, as he could not be made to walk on his own, had to be dragged there. In March 1995 the Administrative Panel dismissed the case as it concerned a disciplinary measure and was a matter for the Police Prison Internal Rules.   The Constitutional Court subsequently quashed that decision and remitted the case to the Administrative Panel. Further hearings were held during which the NGO representative, journalist and applicant’s friend testified that they had seen injuries behind the applicant’s ears and abrasions on his back. The Panel dismissed, however, the applicant’s complaint on 3   September 1999. The additional testimonies were rejected on the grounds that the witnesses, not experts and only having seen the injuries a while after they had occurred, could not comment on their origin. The Panel concluded that the applicant’s submissions as a whole had been inconsistent and that the police officers’ actions had been justified by his recalcitrant behaviour. The Panel further dismissed the applicant’s claims about being denied medical assistance as both during his hunger strike and while in solitary confinement the applicant had been under the constant supervision of a qualified paramedic.   In the meantime, Mr Palushi, found unfit for detention, had been released on 28 May 1994. His request for asylum was subsequently granted.     Complaints, procedure and composition of the Court   Relying on Article   3 (prohibition of inhuman or degrading treatment), Mr Palushi complained about the ill-treatment to which he had been subjected by prison officers and the ensuing lack of medical care in solitary confinement.   The application was lodged with the European Court of Human Rights on 16 July 2004 and declared partly admissible on 27 November 2008.   Judgment was given by a Chamber of seven judges, composed as follows:   Nina Vajić (Croatia), President , Anatoly Kovler (Russia), Elisabeth Steiner (Austria), Khanlar Hajiyev (Azerbaijan), Giorgio Malinverni (Switzerland), George Nicolaou (Cyprus), Sverre Erik Jebens (Norway), judges , and also Søren Nielsen , Section Registrar .     Decision of the Court   Article 3   Ill-treatment   Firstly, the Court found that it could not be established beyond reasonable doubt that the applicant had been kicked and beaten by prison officers. There was no medical evidence which clearly corresponded to that part of the applicant’s allegations and his two former cellmates had only heard, not actually seen, the applicant having been kicked and beaten.   However, as concerned the allegations with regard to the stabbing with ballpoint pens and the back injuries caused by the applicant being dragged down some steps, the Court found that his injuries were established beyond reasonable doubt. The medical reports of 24 and 26 May 1994 confirmed the presence of scabs behind the applicant’s ears and abrasions on his back, one of which had taken time to heal. Those reports were later corroborated by the NGO representative, journalist and friend who testified before the Administrative Panel. In the absence of any other explanation as to how the applicant could have sustained such injuries, other than having been stabbed with pens and improperly carried down the stairs, the Court concluded that they had been caused by ill-treatment as alleged.   Nor could the Court accept the argument that the applicant’s behaviour had made such treatment necessary. Referring to a report by the Council of Europe’s European Committee for the Prevention of Torture and Inhuman or degrading Treatment or Punishment (the “CPT”) following a visit to the Vienna Police Prison in 1994, the Court underlined that it was for the respondent State to ensure that prison staff were properly trained to deal with difficult prisoners and/or supervise detainees held under aliens legislation without resorting to excessive physical force.   The Court considered that the treatment to which the applicant, on hunger strike for three weeks and in a physically and mentally weakened state, had been subjected had to have caused him physical and mental pain and suffering and had been such as to arouse in him feelings of fear, anguish and inferiority capable of debasing him and possibly breaking his physical and moral resistance. That treatment therefore had to be considered inhuman and degrading, in violation of Article 3.   Lack of medical care   The applicant, a hunger-striker (with the risks that that implied such as loss of consciousness), had been placed in solitary confinement based on the assessment of a paramedic, who, according to the 1994 CPT report received only basic training, and had been refused access to a doctor until 24 May 1994. Taken together, those factors had to have caused him suffering and humiliation going beyond what had been inevitable in a situation of detention. In the Court's view the applicant had therefore been subjected to degrading treatment on account of the lack of medical care provided in solitary confinement until 24 May 1994, in further violation of Article 3.   Article 41 (just satisfaction)   The Court awarded the applicant 10,000 euros (EUR) in respect of non-pecuniary damage and EUR 20,000 for costs and expenses.   ***   The judgment is available only in English. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its   website ( http://www.echr.coe.int ).   Press contacts Tracey Turner-Tretz (telephone : 00 33 (0)3 88 41 35 30) Stefano Piedimonte (telephone : 00 33 (0)3 90 21 42 04) Kristina Pencheva-Malinowski (telephone : 00 33 (0)3 88 41 35 70) Céline Menu-Lange (telephone : 00 33 (0)3 90 21 58 77) Frédéric Dolt (telephone : 00 33 (0)3 90 21 53 39) Nina Salomon (telephone: 00 33 (0)3 90 21 49 79)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.   [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.