CASE OF TEKIN AND ARSLAN v. BELGIUM
Violation of Article 2 - Right to life;Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström
5. The applicants were born in 1961 and 1960 respectively and live in Charleroi and Antwerp. 6. The applicants are the parents of Michael Tekin, who was born in 1978. 7. The latter was detained in the psychiatric wing of Jamioulx Prison on two occasions, from 1 February 2007 to 11 July 2007 and from 17 May 2008 to 7 July 2008, that is to say for a total period of about seven months. On both occasions he benefited from discharges on probation. 8. On 19 January 2009 Charleroi Criminal Court, sitting in private session, once again ordered the detention of the applicants’ son under the 9 April 1930 Social Protection in respect of Mental Defectives, Habitual Offenders and Specific Sexual Offenders Act as amended by act of 1 July 1964 (“the Social Protection Act”). During his detention in the psychiatric wing of Jamioulx Prison he was the subject of several disciplinary measures owing to his aggressive attitude to staff and other detainees. 9. On 3 July 2009 the Jamioulx Prison’s Social Protection Commission (“the CDS”) ordered his discharge on probation and made him subject to medico-social supervision by attaching a number de conditions to his provisional discharge. 10. By order of 7 August 2009, owing to his non-compliance with his conditions of discharge, the Public Prosecutor with the Charleroi Court of First Instance decided to return the applicants’ son to the psychiatric wing of Jamioulx Prison. Michael Tekin was arrested on that same date and detained for insulting and threatening two police officers. 11. On his arrival at the police station later the same day, he was examined by a general practitioner before being transferred in the evening to Jamioulx Prison, where he was examined by Dr S., who prescribed a sedative and a sleeping tablet. 12. The applicants’ son was then placed in an individual cell in an ordinary section of Jamioulx Prison. 13. The course of events as set out below was established following the judicial investigation and proceedings and is undisputed by the parties. 14. At around 9.30 a.m. on 8 August 2009 Michael Tekin was presented before the Deputy Director of Jamioulx Prison for his interview as a new arrival. After the interview, the Deputy Director decided to implement special security measures for a week. Those measures were adopted owing to Michael Tekin’s nervous, agitated state and because he considered his detention to be arbitrary and was demanding his release. The following special security measures were ordered: placement in an individual cell, individual access to the prison yard, receiving visits in a booth rather than in the collective visiting area, use of plastic knives and forks, opening of the cell only by heads of section accompanied by two prison officers, accompaniment by a member of staff during the detainee’s movements and implementation of special surveillance involving checks on the cell by a prison officer every fifteen minutes to ensure that nothing abnormal was happening. 15. Prison officer R., who had accompanied Michael Tekin since his return to prison, was instructed to inform him of those special security measures in his capacity as head of section acting as a prison assistant. He was accompanied by two other officers, L. and D. 16. On their arrival in the cell at about 11.30 a.m., Michael Tekin was just finishing his lunch. R. read out the special security measures ordered by the Director. According to R. – as confirmed by L. and D. – Michael Tekin provoked him by deliberately sneezing (or “spitting”, according to the Government) on him. When R. told the detainee to stop his provocative behaviour, otherwise he would be moved to an isolation cell, Michael Tekin moved up to him and placed his head so close to R.’s that all three officers thought that they was about to be attacked. 17. In view of Michael Tekin’s reaction and his previous history, R. decided to place him in an isolation cell. He seized Michael Tekin by the scruff of his neck and D. grabbed his shoulder in order to whisk him out of the cell. 18. R. explained that owing to the exiguity of the cell, he was unable to maintain his grip on the back of the detainee’s neck and he decided to resort to a different stranglehold technique, which involved an “armlock” around the detainee’s neck, while forcing him down to the ground. When Michael Tekin was face-down on the floor, he was still immobilised in an armlock by R., who was also leaning his full weight on the upper part of his back. Michael Tekin had allegedly then complained that he could not get any air and was suffocating. L. blocked the detainee’s right arm; his left arm was already blocked under L’s body. Finally, D. squatted on top of the detainee. 19. Reinforcements were called in, and several more officers arrived on the spot. A total of about ten officers were now present. Some of them helped with keeping Michael Tekin under control while others remained passive. Michael Tekin was handcuffed and shackles were placed on his ankles. 20. He was then lifted to his feet to be transported by two officers, including D., to the isolation cell. The officers’ witness statements diverge on Michael Tekin’s ability to talk and breathe on his way to the cell. However, they all agree that they had to drag him along, supporting him under the shoulders and then carrying him, and that his head was hanging down. The officers noted that he had urinated on himself. They had to carry him down twenty or so steps to reach the isolation cell. 21. On arrival at the door to the isolation cell, the officers placed Michael Tekin face down on the floor owing to the narrowness of the door, and dragged him inside. Once they were inside the isolation cell they turned him over, only to note that his face was cyanotic. 22. At about 11.50 a.m. the prison nurse received a telephone call to inform her that Michael Tekin was unconscious. She alerted the duty doctor and prepared the medical equipment. 23. When the nurse and the duty doctor arrived at the inner security gate of the prison, an officer, who had been a witness to the events, informed them that the “service 100” (the medical emergency service) and the SMUR (emergency ambulance service) had been called at about 11.54 a.m. A transcription of the call is included in the case file. 24. Pending the arrival of those services, the duty doctor and the prison nurse began a cardiac massage at 12 noon, having noted that Michael Tekin was not breathing and had no pulse. 25. The “service 100” paramedics arrived at 12.15 p.m. However, they noted that the SMUR had not been contacted, and decided to request its emergency intervention. A “service 100” nurse subsequently stated that they had been called for a straightforward assault and had therefore not been informed of the gravity of the situation. 26. The SMUR arrived at 12.35 p.m. and Michael Tekin was immediately intubated and put on a drip. However, the doctor could only note that in the absence of electrical activity it was pointless to continue the attempts at resuscitation. 27. Michael Tekin’s death was recorded at 12.50 p.m. 28. An inquiry was immediately instigated ex officio. The forensic pathologist instructed by the Public Prosecutor travelled to the scene of the events at 2.20 p.m. on the same day and noted very extensive cyanosis of the face and the neck region, and the presence of food products in the region of the nostrils and mouth. 29. All the main witnesses were heard on the same day or in the ensuing days. 30. At his first hearing on 8 August 2009, R. stated the following, as regards the prison officers’ intervention: “Michael Tekin arrived in prison yesterday in a state of high nervous tension. In fact the police officers accompanying him described him as very dangerous. On arrival Michael Tekin was very worked up against the police. We took over and he calmed down. We knew Michael Tekin from his previous detention, and so, for security reasons we placed him in an individual cell in the 9th section, cell no. 9229. According to my information he didn’t cause any trouble during the night. This morning Michael Tekin went to see Director [H.] for the ‘incomer’s report’, as for every new arrival. I was present during this interview in the office used for that purpose. Michael Tekin started shouted about the police officers, calling them disabled and claiming it was their fault he was there. The Director explained that he had to visit the CDS (the Social Protection Commission). Michael Tekin replied that he did not have to wait around and that he was going to fetch his keys in the cloakroom and leave. When we told him that was impossible, he threatened us with the words ‘you’ll get what’s coming to you’. Knowing that Michael Tekin had a capricious and unforeseeable character and had already attacked officers in the past, the Director imposed special measures on him such as an individual cell, opening the cell door by several officers, using plastic knives and forks, etc. He was taken back to his cell by a number of officers, without incident. Where special measures are ordered, they must be entered in writing and signed by the detainee. At about 11.45 a.m. I went to his cell accompanied by [L., D. and C.]. Michael Tekin was eating when we went in. When I explained the measures to him, Michael Tekin got up and pretended to sneeze, spitting some of his dinner (vol-au-vent) in my face. I stepped back. Michael Tekin moved towards me and started sneezing again. I immediately told him to calm down and to spit somewhere else. He moved towards me again. I told him that if he did not calm down he would be moved to the isolation cell. He came right up to me, with his head against mine, and said ‘I’d like to see you doing that’. I then grabbed him by the neck in order to force him to the ground and take him to the isolation cell. I should point out that I got him in an armlock before pushing him off balance. My colleagues were holding him by the arms and legs. We called for reinforcements. While I was holding him I spoke to him and he answered ‘I’m choking’. I relaxed my hold and told him that if he could talk he was not choking. Michael Tekin was gesticulating with his arms and legs. I would specify that I fell to the ground with Michael Tekin and he was on his side. In the end I was no longer holding him around the neck but exerting pressure on his head. The reinforcements arrived and we managed to handcuff him. We lifted him to his feet in order to take him to the isolation cell. The reinforcements took charge of Michael Tekin, and I started following them up near the rotunda after I’d got my breath back. Michael Tekin was no longer protesting, relaxing to the extent that the officers had to carry him. Arriving at the cell I realised that Michael Tekin was not pretending, as his face was turning blue. We called the infirmary and also the SMUR. Dr [L.] was at the prison, and Tekin was given first aid, including artificial respiration, for at least 15 minutes. He was also defibrillated. I stayed beside the doctor the whole time. The ambulance arrived and I stayed in the cell to help them. When the SMUR arrived I left the cell and waited in the corridor. From what I heard it was already too late. They hadn’t managed to resuscitate him.” 31. Later on the same day R. was questioned again, and he added the following statement: “I would point out that during my explanation of the reasons for the [special security] measures I noticed the expression in Michael Tekin’s eyes changing and becoming more threatening, such that I was already on my guard when he got up. When he was there with his forehead pressed against mine, I moved aside and got him in an armlock, that is I placed my right arm around his neck and fell to the ground with him. You ask me if I exerted pressure on his neck, and I would reply that I did not press on the front of his throat. Once we were on the floor on the corridor side of the cell door I reduced the pressure. When he started to struggle again I exerted a small amount of pressure and slackened it immediately. In any case he was talking to me, as I mentioned in my first statement. ... We have not been trained in restraining detainees in critical situations. Following the events at Lantin we were given ‘conflict management training’, learning how to manage a conflict by talking, and especially how to prevent things getting out of hand. My answer to your question is that in the event of an attack by a detainee we just have to do our best to restrain him.” 32. Officer D. made the following statement: “We pinned Michael Tekin to the ground. ... I didn’t hear Michael Tekin speaking, but I think he was trying to talk but nothing came out. ... On the way to the isolation cell I didn’t hear him talking or complaining. ... I think he was still alive because several times I felt resistance in his arm.” 33. Dr B. carried out the autopsy the next day, on 9 August 2009. The autopsy report of 14 August 2009 concluded that the manoeuvres on his neck had caused injuries deep enough to fracture the right upper horn of the thyroid cartilage and that those injuries had been prolonged, because symptoms of asphyxiation had been observed. The report added that the loss of urine reported by the investigators pointed to the moment when the loss of consciousness became so deep as to inhibit the sphincter reflex mechanism. Such an inhibition could be observed, for instance, during the unconscious phases occurring in epileptic episodes. As regards the “armlock” restraint technique, the autopsy report stated: “During the compression exerted by a forearm (acting as a lever, with the person standing behind the victim), the lethal mechanism is virtually identical to traditional manual strangulation. Such particularly severe compression causes a bilateral vascular obstruction and a flattening of the upper respiratory channels against the cervical vertebrae.” 34. An investigation was instigated on 10 August 2009 against persons unknown on charges of grievous bodily harm having led to unintentional death. The applicants applied to join the proceedings as civil parties. 35. The reconstruction of the events led Dr B., who had carried out the autopsy, to the conclusion that the cervical manoeuvres had been caused by the armlock applied by R., while the weight applied by L. on Michael Tekin’s thorax had had a negative effect on the latter’s respiratory mechanism and been conducive to asphyxia, his respiration being further hindered by the manner in which he had been transported to the isolation cell. 36. By judgment of 20 March 2012 the Indictments Division of the Mons Court of Appeal committed the three accused, that is to say R., L. and D., for trial before the Charleroi Criminal Court on charges of grievous bodily harm having led to unintentional death. 37. At the 24 October 2012 hearing before the Charleroi Criminal Court, Dr B. submitted that it was not impossible that the detainee’s fall to the ground had produced the force leading to the fracture of the right upper horn of the thyroid cartilage and that it had been quite possible that the armlock had on its own been sufficient to bring about the fatal outcome. He was, however, unable to affirm that if the strangulation had ceased after the thyroid cartilage had been broken Michael Tekin would have been able to breathe again normally and survive, since the outcome would have depended on the injuries sustained previously. Furthermore, Dr B. took the view that the compression of the thorax and the fact that Tekin had been carried to the isolation cell were not, in themselves, sufficient to have caused his death. Finally, he confirmed that the version of events provided by R. during the reconstruction had been compatible with the medical findings. 38. On 28 November 2012 the Charleroi Criminal Court acquitted R. The court held that R.’s intervention had indisputably been a matter of self-defence, which ruled out any responsibility on his part. Having regard to Michael Tekin’s personality and his nervous, agitated state, R. could reasonably have feared an imminent serious attack against L. and himself. The accused’s reaction had therefore been absolutely necessary. The court accordingly considered that R. had react proportionately to the attack by applying a hold which he had learnt during training in the management of that kind of incident, and in respect of which nothing in the case file suggested that it had been wrongly executed. Subsequently, the continuation of the armlock had been equally justified and proportional in view of the fact that Michael Tekin had continued to struggle. According to the court, there was no objective evidence to suggest that the accused’s actions had been dangerous, or that R. had used force not strictly necessary for the execution of the restraint technique. There was no indication that R. had known, or should have known, about the risk of fracture of the thyroid cartilage since that risk was not mentioned in the training programmes included in the case file; nor could he have been aware that in maintaining the hold he had been exacerbating the decrease in the oxygenation of Michael Tekin’s blood, particularly since R. had not known what his colleagues were doing. Moreover, the court considered that R. must not have been alarmed by the detainee’s reactions since he had continued to struggle and R. had regularly relaxed his grip to let him breathe. There was no evidence that the accused had noticed any change in the detainee’s voice resulting from the fracture of the thyroid cartilage, nor, in any event, that they could have connected that putative change with any risk to Michael Tekin’s physical integrity. L. and D. were also acquitted under the rules on co-perpetration. Moreover, the Criminal Court relinquished jurisdiction for determining the applications for civil-party status owing to the accused’s acquittal. 39. The applicants, as civil parties, appealed against the judgment as regards its civil-law provisions. The prosecution did not follow suit. The appeal has been pending before the Mons Court of Appeal since December 2012. The Government submitted that the applicants had not requested notification of the hearing such as to facilitate adjudication of the civil-law interests. 40. On 28 July 2014 the applicants lodged a criminal complaint, together with an application to join the proceedings as civil parties, against the three acquitted prison officers and three of their colleagues for failure to assist a person in danger. On 9 May 2016 the Charleroi Court of First Instance, sitting in private session, declared inadmissible the application to join the proceedings as civil parties to the extent that it concerned the three prison officers acquitted by judgment of the Criminal Court on 28 November 2012 on the grounds that the facts were identical to those of the first set of criminal proceedings, and gave a discontinuance decision in respect of the other three accused on the grounds that the investigation had not uncovered sufficient evidence against them. 41. On 1 August 2014 the applicants further filed an action for damages before the Brussels Court of First Instance seeking a finding that the Belgian State had been responsible for Michael Tekin’s death and for the suffering which he had sustained owing to his placement in an ordinary cell instead of in the psychiatric wing of the Jamioulx Prison. By judgment of 19 February 2016 the Brussels Court of First Instance declared the claim inadmissible as being time-barred. 42. Furthermore, the Government submitted that the applicants had complained about the same facts in Turkey, Michael Tekin’s country of origin, and that that complaint had given rise to letters rogatory addressed to the Belgian Public Prosecutor’s Office by the Turkish public prosecutor of the town of Sivas. On 6 May 2015 the Belgian authorities had allegedly sent a scanned copy of the criminal case file to the Turkish judicial authorities. The applicants, however, denied ever having brought proceedings in Turkey. ...