OBIORA v. NORWAY
Inadmissible
Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Zdravka Kalaydjieva
The applicant, Mr Nzimirro Adam Obiora, is a Norwegian national who was born in 1994. He lives in Oslo with his mother, Mrs E. S. Obiora, who has acted on behalf of her under-age son in the national proceedings and in lodging an application under the Convention. The applicant was represented before the Court by Ms A.H. Aarø, a lawyer practising in Oslo. The Norwegian Government (“the Government”) were represented by Mrs F. Platou Amble, Attorney, Attorney-General’s Office (Civil Matters), as Agent. The facts of the case, as submitted by the parties, may be summarised as follows. On 7 September 2006 the applicant’s father, Mr Eugene Ejike Obiora (born in 1958), died in connection with his being arrested by police officers at the Østbyen Social Services Office (servicekontor) in Trondheim. Mr Obiora had been visiting the Social Services Office to complain about the refusal of a social security allowance. The police were called as employees of the Office had found his behaviour disturbing and threatening. Upon arrival at around 1.30 p.m. the officers had observed Mr Obiora inside the public area of the premises. He had approached them and asked whether he had been responsible for their presence. After the employees in the presence of the police had given Mr Obiora an explanation for the refusal of the allowance and had informed him of the possibility to lodge an appeal, the police officers had ordered him to leave the premises and warned him that should he fail to do so he would be arrested. The decision of 4 May 2007, referred to below, described the events which followed. Since Mr Obiora had refused to comply with the police officers repeated orders to leave the premises, the police decided to arrest him. Police officers V. and M. had taken hold of Mr Obiora’s arms in order to escort him from the building. Mr Obiora had immediately and vigorously resisted. Officer V. explained that when he tried to grab Mr Obiora’s left hand, the latter had struck V. very hard in the chest with his elbow. After having tried in vain to grab Mr Obiora’s left hand in order to avoid further blows, Officer V. jumped on Mr Obiora’s back, gripped Mr Obiora by the throat using his right hand and remained in that position. The police officers felt that the situation was out of control and that they needed to pacify Mr Obiora, or else they or other persons in the Services Office might possibly get hurt. After Mr Obiora had circled a few times with Officer V. on his back and with Officer M. gripping his right arm, all three had fallen to the ground in the public area of the office premises. When falling, Officer V. had kept his grip around Mr Obiora’s throat, and continued to do so until he and M. handcuffed Mr Obiora. Finding it undesirable and wrong to let Mr Obiora remain on the floor of where they were hindering access and movement of the many people around them, Officers V. and M. decided to take Mr Obiora outside. They had pulled him by his arms to the landing outside the front door. On the landing Officers V. and M. had used considerable force to keep Mr Obiora down as he was struggling hard to free himself. V. had used his own body weight while bending Mr Obiora’s wrist in order to keep him down. Officer M., standing to the right of Mr Obioera, had pushed him to the ground. When Officer B. had arrived at the scene, he had noted that Mr Obiora had tried to free himself from V. and M. and was kicking out. Since Mr Obiora risked kicking passers-by, Officer B. had tried to immobilise his feet by applying a so-called leglock (benlås). He had been prevented by Mr Obiora from doing so since the latter was trying to get up and was kicking Officer B. While on the landing, Mr Obiora had screamed loudly and repeatedly. After struggling for a while he had calmed down completely. He had fainted and had been placed in a lateral position. The officers had ensured that he could breath. At 2.12 p.m. Officer B reported that Mr Obiora’s resistance had been so vigorous that he had fainted and that he had had to call an ambulance. At 2.16 p.m. the officers reported that they would bring Mr Obiora by police van to St. Olavs Hospital. In view of the location of the nearest ambulance, it was felt that the police vehicle (of which Officer H. was the driver) could transport Mr Obiora to the hospital as fast, or even faster, than an ambulance. Mr Obiora was placed on the floor of the police cell at the rear end of the vehicle. Because of its restricted space, 1.35 metres in length, his knees were bent upwards. The journey took approximately seven minutes. Upon arrival at the hospital, a nurse and a doctor detected a weak pulse in Mr Obiora’s throat. Medical appliances were connected to Mr Obiora’s body and it was established that his heart had stopped. The Special Unit for Investigation of Police Matters (Spesialenheten for politisaker – hereinafter referred to as the Special Unit) carried out an investigation of the four police officers of Sør-Trøndelag Police District who had taken part in Mr Obiora’s arrest. The investigation was based on suspicion of offences having been committed under Article 228 (1) and (2), second alternative, (bodily infringement resulting in death) of the Penal Code, Article 229, third alternative (bodily injury resulting in death), Article 239 (manslaughter committed by negligence) and Article 325 (1) (aggravated neglect in the performance of official duties). None of the officers was indicted. On 4 May 2007 the Special Unit decided to discontinue (henlegge) the proceedings. As regards the three officers who had been in contact with Mr Obiora, the decision was based on the state of the evidence; regarding the fourth officer, the decision to discontinue had been taken on the ground that no criminal offence had been proved. The deceased’s next-of-kin, including the applicant, complained about the above decision to the Director of Public Prosecutions (Riksadvokaten). They disputed that it had been necessary for the police to restrain Mr Obiora and to do so in the manner they did, notably by means of a strangulation grip around his throat, placing him on his stomach while exerting considerable pressure on his back, holding his head and legs and handcuffing him. They further complained of the officers’ omission to carry out life-saving measures when they realised that he was unconscious. The plaintiffs moreover complained about the procedure, namely that the first three police officers had been represented by the same lawyer and had been interrogated at intervals, enabling them to coordinate their versions of events. They also requested that further evidence be obtained on officer V.’s previous use of strangulation grips. They asserted that on two previous occasions officer V. had used a strangulation grip when arresting a coloured person, once in the so-called “Baidoo case”, and on another occasion when arresting an Iraqi, which had led to police misconduct complaints being filed against him. On at least three occasions he had used strangulation grips “in a dramatic way”. The Director of Public Prosecutions requested the Special Unit to take further investigative measures with a view to clarifying certain matters that could be of importance for the assessment of whether a criminal offence had been committed by the police “in a situation that had ended tragically in Mr Obiora’s death”. On 24 September 2007 the Special Unit, after having taken the measures requested, reported back to the Director of Public Prosecutions. In this connection the Unit provided particulars of the two police misconduct complaints referred to above and stated that it could not be concluded that V. had previously used strangulation grips “in a dramatic manner”. In the Baidoo case the Director of Public Prosecutions had not found proof of unlawful or excessive use of force. In the other case, the arrestee had allegedly experienced breathing problems due to pressure being applied to his chest after being placed on the ground. V. had conceded that he had gripped him around his neck. The Director of Public Prosecutions had in that case upheld the decision to drop the complaint against V., finding that no more force had been used than had been required by the situation. The Special Unit also provided details of a third complaint where the case had been dropped as no criminal offence had been proved. The Special Unit concluded that no weight could be attached to earlier complaints against V., including those instances where he might have gripped an arrestee around the throat or neck, in the assessment of whether V. could be held criminally liable in the present case. The information did not appear to have any significance for the assessment of the facts in the present case and in the Special Unit’s view no clear behavioural pattern on V.s part emerged from this information regarding the use of force against persons from a minority background. The use of force appeared on the whole to have been situational. The number of complaints had to be seen against the background of the fact that over a long period he had been assigned to operational service. It should also be emphasised that the complaints against V. seemed to have been dealt with sufficiently thoroughly and had been dropped. The Special Unit also considered previous complaints against officer M. but found none of these to be relevant. It informed the Director of Public Prosecutions that no previous police misconduct complaints had been made against officers B. and H. In his final comments of 25 October 2007 on the supplementary investigative measures taken by the Special Unit, the applicant did not specifically address the latter’s findings regarding previous police misconduct cases. On 21 December 2007, the Director of Public Prosecutions rejected the appeal against the Special Unit’s decision of 4 May 2007. By way of a preliminary observation he endorsed the Special Unit’s findings that the information obtained about previous police misconduct complaints was not capable of shedding light on the sequence of events and the question of guilt in the present case. He found inter alia as follows. A combination of factors had caused Mr Obiora’s death. To all appearances his death had occurred as a result of asphyxia and his reactions to this. The asphyxia had been caused by Mr Obiora’s own efforts when resisting arrest, combined with breathing problems when pressure had been exerted on his throat and, not least, with his having been placed by the police on his stomach for a certain period of time and being subjected to the use of force by the police while in this position. Forensic experts had documented the fact that restraining agitated persons by placing them on their stomach entailed a risk of positional asphyxia (leiebetinget kvelning). This position could hinder movements in the chest and could over time lead to a dramatic reduction in lung capacity, heart palpitation frequency, blood pressure and blood volume, and could lead to death if the person’s craving for oxygen or oxygen deficit was not compensated in time. There had been reason to believe that the factors described had played a significant role in Mr Obiora’s death. The circumstances surrounding the arrest were obviously not such as would have justified the use of methods that could have put Mr Obiora’s life in danger. A central question was whether the officers could or ought to have been aware of the possibility that placing him on his stomach together with the other means of restraint used could lead to Mr Obiora’s death. The Director of Public Prosecutions found it beyond doubt that neither the police officers involved nor the Sør-Trøndelag Police District had known of the dangers of restraining persons by placing them on their stomach on the ground. Nor had employees of the Norwegian Police Academy or of the Police Directorate possessed such knowledge prior to the present case. Awareness of the risk had not been particularly widespread among health personnel either. The Norwegian Police Academy had reported that the type of restraint at issue had been standard procedure for the arrest of obstructive persons. Academy students had been taught that every person arrested, if placed on the ground, should end up flat on the stomach and that the person was to be immobilised by inter alia bending his arms and shoulders from this position. Accordingly, the officers who had put Mr Obiora on his stomach in this position had applied the method which they had been taught to use in such situations. Even though the Norwegian Police Academy’s and the Directorate of Police’s practices had been deficient with regard to the collection of information about the risks involved in using the impugned restraining method, the Director of Public Prosecutions found no ground for qualifying the omissions as gross neglectNorwegian Police Academy and the Directorate of Police liable pursuant to Article 325 of the Penal Code. In making this assessment, regard had been had to the submission by medical experts that knowledge about the dangers of asphyxiation connected with the relevant restraint measures had not been particularly widespread among health personnel. The Director of Public Prosecutions emphasised that he presumed that the Special Unit would quickly place all relevant material at the disposal of the Norwegian Police Academy and the Directorate of Police so as to promote education, training and the dissemination of information as well as the introduction of central directives and control measures for preventing asphyxiation caused by the position of the arrestee during arrest. The Directorate would presumably review Circular 2007/011 of 26 June 2007 in light of the experience gained from the present case and consider whether it sufficiently fulfilled the need to have directives on situations in which restraining a person by placing him on the stomach could be justified, the length of time a person could be kept in such a position and, not least, checking the situation of the arrestee during and after his being kept in such a position. Of central importance was the further elaboration of guidelines on the manner in which continuous checking of the arrestee’s situation was to be carried out and on how to move rapidly to other less dangerous methods while maintaining the necessary control. In the course of the autumn of 2008 and winter of 2009 several attempts were made on behalf of the deceased’s children to obtain compensation from the State but to no avail. On 7 September 2009 the applicant and another son of the deceased, Mr Prince Wallace Obiora, born in 1988 and resident in Lagos, Nigeria, instituted civil compensation proceedings against the State before the Oslo City Court. They claimed compensation for loss of their father’s financial support and for non-pecuniary damage under, respectively, sections 3-4(1) and 3-5(2) of the Damage Compensation Act 1969. On 16 February 2010 the Parliamentary Ombudsperson (Civil Matters) gave of his own motion an opinion (case 2007/2439) on Mr Obiora’s death and on the issue of responsibility for police practices in respect of techniques of use of force on arrest, in particular restraining a person by placing him on the stomach. The Ombudsperson endorsed the Director of Public Prosecutions and the Special Unit’s findings mentioned above. After carrying out a detailed review of the Court’s case-law in relation to Article 2 of the Convention, he observed that the question whether at the time of Mr Obiora’s death the Norwegian authorities ought to have been aware of the risk of death as a result of placing an arrestee on the stomach, depended on a concrete assessment of the circumstances. Among other factors, regard ought to be had to whether the police officer had done all that could reasonably be expected to reduce the risk, bearing in mind the seriousness of the risk, its probability and immediacy, whether it was for the State to assess the risk and the vulnerability of the victim. Considering the matter as a whole, the Ombudsperson found that Norway had not sufficiently complied with its obligations under the Convention in respect of the use of restraint by placing the arrestee on the stomach upon arrest. The State ought to have been aware of the health hazards involved in the use of this technique. Such knowledge would have provided the requisite basis for regulating its use and ensuring adequate training of the police with a view to avoiding loss of life or serious injury. Against the background of the information available regarding the dangers of restraining a person by placing him on the stomach, it would not have entailed an excessive burden for the Norwegian authorities to acquire by the time of Mr Obiora’s death the necessary knowledge about the health hazards of the technique. The necessary knowledge could have been acquired without considerable expense. The Norwegian authorities’ lack of knowledge appeared to have been caused by deficient practices for updating medical and police knowledge about techniques of arrest. The risks accompanying restraint of an arrestee by placing him on the stomach could clearly have been reduced if the State had been aware of such risks, and death resulting from using this technique could have been avoided. The responsibility for violation of the obligations to protect human rights lay with the State. This followed directly from public international law and was stated expressly in Article 1 of the Convention. In this connection it was unnecessary to consider further where to place the responsibility for the violation of Article 2 of the Convention. In light of the information provided by the Ministry it seemed that the principal responsibility for the lack of regulation of the use of the impugned restraint method lay primarily with the Directorate of Police. However, this case also showed that the Police Academy had failed in its role by not developing and updating techniques of arrest for the purposes of training. On the same date – 16 February 2010 - that the Ombudsperson issued his opinion, the State concluded a friendly-settlement agreement with the applicant and his brother. By virtue of this agreement, the applicant was to be paid NOK 400,000 (and his brother NOK 100,000) in respect of their above-mentioned compensation claims and payment of these amounts was to constitute “full and final settlement of any claim against the State in connection with Mr Eugene Obiora’s death”. The proceedings before the City Court were discontinued. On 19 April 2010 the Registry invited the applicant to clarify whether in light of the above friendly-settlement agreement he wished to maintain his application to the Court. On 24 April 2010 his lawyer replied in the affirmative, pointing out that the agreement had settled the financial aspects of the case but did not imply that the State accepted criticism or acknowledged responsibility for Mr Obiora’s death or a human rights violation in this respect. On 26 May 2010, the President of the Section to which the case had been allocated decided, under Rule 54 § 2 (b) of the Rules of Court, that notice of the application should be given to the Government of Norway and that the Government should be invited to submit written observations on the admissibility and merits of the case. On 6 October 2010 the Government’s observations of 21 September 2010 were transmitted to the applicant’s representative, who was requested to submit any observations together with any claims for just satisfaction in reply by 17 November 2010. The applicant did not respond. By a letter dated 13 January 2011, sent by registered post, the applicant’s representative was notified that the period allowed for submission of the applicant’s observations had expired on 17 November 2010 and that no extension of time had been requested. The applicant’s representative’s attention was drawn to Article 37 § 1 (a) of the Convention, which provides that the Court may strike a case out of its list of cases where the circumstances lead to the conclusion that the applicant does not intend to pursue the application. On 30 January 2011 the applicant’s representative replied enclosing a letter to the Court dated 14 September 2010 (which had not been received). It stated that the applicant had “no further comments to the application”, that he agreed with the respondent State that the parties had settled the financial dispute, that there was no financial loss in the case and that “due to the amicable settlement of the case the State did not admit [to] any responsibility for the death of Mr Obiora.” The settlement agreement had not covered his legal costs incurred in the Convention proceedings. He would therefore maintain his application. The applicant submitted large quantities of documents relating to a number of previous complaints of police misconduct, involving allegations of excessive use of force, filed with a former police complaints authority – SEFO (Det særskilte etterforsknngsorgan) - notably against officers M. and V. This included the so-called “Baidoo case” where Officer V. had been charged for swearing (“svarte faen” – normally meaning “bloody hell”, literally “black devil”) in the presence of a coloured woman, perceived by her as a racist attack, but had been acquitted by Trondheim City Court in 2001 finding that it had been a spontaneous reaction to his having been bitten by the woman. V. had been expressing his frustration and his remark had not been specifically aimed at the woman or linked to the colour of her skin. The investigation into the woman’s complaints of excessive use of force was apparently dropped on the ground of the state of the evidence.