CASE OF BOUKROUROU AND OTHERS v. FRANCE
No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Gabriele Kucsko-Stadlmayer
5. The first applicant is a French national who was born in 1970 and lives in Mouroux. He is the brother of the victim, M.B. born in 1968. The second, third, fourth, fifth and sixth applicants, who were born in 1977, 1973, 1972, 1939 and 1951 respectively, are the victim’s sister, widow, brother, father and mother. They live in Mouroux, Massy, Valentigney and Thulay respectively. 6. On 12 November 2009, at about 4.30 p.m., M.B., who was 1 m 80 tall and weighed about 100 kilos, went into a pharmacy in Valentigney. He was known to the staff there, where he habitually went to collect the medicine prescribed for his psychiatric disorders. 7. M.B. asked to exchange some medicine dispensed without a prescription, saying he was not satisfied with it. A pharmacist’s assistant, Ms R., and the owner of the shop, Mr F., explained to him that the effects of the medicine had diminished because he had become addicted to it. M.B. started to become angry, throwing the medicine boxes on the floor, raised his voice and started speaking incoherently: “I’m fed up with your night visits, with your assistant and with you!” 8. M.B. told Mr F. that he intended to file a complaint against him. Mr F asked Ms R. to call the police. M.B. sat down on one of the chairs for customers at the pharmacy. 9. At 4.53 p.m. four police officers arrived on the scene after receiving a call from the incident room instructing them to intervene in an incident involving an individual with psychiatric disorders. 10. Deputy police sergeant L. and police constable M. asked M.B. several times to accompany them out of the pharmacy. When he vehemently refused, sergeant L. and constable D. seized him by the arm in order to remove him from the pharmacy. Constable M. seized M.B. by his right leg. M.B. struggled and called for help. 11. At the doorstep up to the pharmacy M.B. found himself on the ground. Constable M. attempted to handcuff him behind his back while he continued to struggle and appeal to the police for help. Constable M. punched M.B. twice in the solar plexus but still did not succeed in handcuffing him. 12. M.B. was then turned onto his right side and constable D. was able to handcuff him in the front with two pairs of interlinking handcuffs. 13. Deputy police sergeant P. went to get the police vehicle to move it closer to the pharmacy. Two police officers seized M.B. by the arm in order to put him in the van. Despite putting up resistance, M.B. was forced inside the police van. 14. M.B. continued struggling and shouting in the police van and pushed one police officer against the luggage holder above and another against a shelf before falling face downwards. Deputy police sergeant L. positioned himself above his shoulders in order to fasten another pair of handcuffs attaching M.B. to the fixed part of the back seat in the van. Constables D. and M. positioned themselves on top of him, on his legs and on his buttocks. 15. At 4.58 p.m., that is, exactly five minutes after they had arrived, the three police officers present in the vehicle contacted their headquarters requesting assistance from the fire brigade and the mobile emergency medical service (SAMU). 16. According to the incident room’s telephone log, at 5.07 p.m. the fire brigade asked the police to transfer M.B. to their vehicle. Deputy police sergeant L. refused to do so on grounds of M.B.’s extremely agitated state. 17. The firemen then drew up a record of M.B.’s condition. He had calmed down, but his heart rate could not be measured with the pulse oximeter because the sensors were not working. One of the firemen constantly monitored his breathing, which stopped at one point. A fireman noted the absence of blood circulation. 18. The team of firemen brought M.B. inside the pharmacy. One of them alerted the ambulance service by radio. The firemen inserted a semi-automatic defibrillator and started carrying out cardiac massage. 19. An emergency doctor from the mobile emergency and intensive care service (SMUR), called out by the firemen, administered specialist cardiopulmonary resuscitation. He recorded M.B.’s death at 6.02 p.m. 20. An investigation into the cause of M.B.’s death was commenced immediately. 21. Of the three pharmacists who gave a statement that day, on 12 November 2009, two were present when the police officers had asked M.B. to leave the premises. They confirmed that when M.B. had refused to comply, the police officers had approached him and seized him. They said that M.B. had begun shouting and struggling at that point and had continued shouting and struggling when he had got into the police van, handcuffed. None of the three witnesses had seen what had happened in the police van. 22. One of them stressed the fact that M.B. had been a customer at the pharmacy for a year and a half and had always been very pleasant during his monthly visits to collect his neuroleptics prescription. 23. On the same day Mr S., a volunteer firefighter, was also questioned. He stated that on his arrival M.B. had still been in a highly agitated state, lying face down in the van, with the police officers restraining him: one either sitting or kneeling on the victim’s buttocks, and the other holding his legs; his hands were outstretched and fastened by several handcuffs to the back seat of the van; the victim’s head was on the driver’s side, and his right cheek face down on the floor. He explained that he had requested medical reinforcements and that then, when they observed that his heart had stopped beating, the firemen had decided to take him back into the pharmacy to continue carrying out cardiac massage. 24. On 13 November 2009 one of the pharmacists was questioned a second time. He stated that M.B. had been a regular customer at the pharmacy. He said that the police officers had not hit M.B. 25. Constable M. was questioned the same day. He stated that deputy sergeant L. had introduced himself to M.B. and had asked him to come outside “to explain the problem, as in this type of intervention the aim is to separate the parties”. He explained that M.B. had refused to leave the pharmacy several times despite repeated requests by the police, who had finally dragged hm towards the door. He said that he had then seized M.B.’s right leg and that, just in front of the entrance to the pharmacy, M.B., who had lost his balance, had fallen down. He added that the police officers had then attempted to handcuff him and that when he had resisted attempts to put him in the police van constable D. had pulled his legs, which had unbalanced him and caused both of them and deputy police sergeant L. to fall over in the police van. He said that L. had managed “I don’t know how to pin him back down on the ground”. He also said that in order to finish handcuffing him deputy sergeant L. had squatted down on M.B.’s shoulders while constable D. remained at leg level; as M.B. had continued struggling, he himself had stood on his buttocks. He stated that they had remained “like that for a while, but I cannot tell you how long, it felt like a long time, with me on his buttocks, my colleague on his shoulders and the third officer on his feet, assisted by P., who had crossed his legs to stop him moving. It was then that the fire brigade arrived”. 26. Deputy sergeant L. was also questioned on 13 November 2009. He stated that he had received instructions from his headquarters to go to a pharmacy and had been informed that M.B. “suffered from psychiatric disorders”. He confirmed that M.B. had put up a violent struggle before letting himself slide to the ground in front of the entrance to the pharmacy. He explained that constable M. had administered two punches to the abdomen, using a technique known as “diversionary blows”. As regards the rest, he confirmed the above-mentioned conditions in which M.B. had been handcuffed in the police van. 27. An autopsy was carried out on 13 November 2009. The forensic doctor described and explained the traumatic injuries observed: the injury to the left eyebrow and the associated swelling did not suggest injuries following a blow but were related to an impact by that part of his face on a ridged surface. The other facial injuries suggested close contact on a rough surface. The injuries to the wrists were characteristic of handcuffing. Those to the lower part of the chest and in the abdominal cavity could have been incurred as a result of two violent blows to that area. The forensic doctor specifed that the injuries had caused neither internal bleeding nor fractures. He mainly noted marks on the lungs and 70% stenosis on a heart artery. Dr H.’s report, drawn up on 16 November 2009, contained the following conclusions: “Death in all likelihood occurred as a result of heart failure. An atheromatous attack observed on an artery of the heart exposed him to a severe risk of cardiac rhythm disorders and sudden death. The state of stress and agitation presented by the victim on his arrest may have contributed to heart failure. Restriction of chest expansion may have occurred when the victim was restrained, but it cannot be affirmed that mechanical asphyxiation was the cause of death. ... Recent traumatic injuries consistent with action by third parties were observed. In any event, the various injuries did not directly contribute to the death; nor is there any injury consistent with blows to the face.” 28. On 14 and 23 November 2009 Ms S., a shopkeeper, was questioned and stated that she had heard shouts from her shop opposite the pharmacy. She said that she had seen four police officers with a man lying face down with his arms behind his back being punched and kicked. Through a side window of the police van she stated that she had seen a female and a male police officer trampling on the spot while hanging on to the roof of the van, one administering three punches in a downwards movement and lifting his knee up very high before bringing it down in one sharp movement. 29. On 23 November 2009 the shopkeeper’s minor son was questioned and stated that he had seen two police officers trampling on M.B. in the road and that a female police officer had hit him several times with a truncheon in the stomach, back and face. 30. On 3 December 2009 a judicial investigation for manslaughter was opened in respect of a person or persons unknown and assigned to two investigating judges. 31. On an unknown date the applicants applied to join the proceedings as civil parties. 32. On 7 January 2010 Ms C., a neighbour next to the pharmacy, stated that she had seen M.B. struggling, face downwards, outside the pharmacy. She said that the police officers had “thrown him into the van” and that she had left after the doors were closed. She stated that the police officers had not hit M.B. 33. On 21 January 2010 chief brigadier M. D., an instructor in defence and arrest techniques and in the psychological and behavioural aspects of police intervention, was heard as a witness. He stated that in the event of a dispute between people, “the opposing parties should in so far as possible be separated”: the police officers, in attempting to induce the M.B. to leave the pharmacy, had sought to avoid a fight in the shop. He said that the blows administered by constable M. and described as “two punches to the suspect’s abdominal area with the aim of distracting and and securely handcuffing him [were] among the priority areas for attempting to weaken the resistance of the person concerned. They [the police officers] had not been over zealous and had completed the handcuffing in the front. The officers had also acted in an emergency situation. The technique used by constable M. appear[ed] the most appropriate in the context of the intervention”. He added that all the techniques taught were designed to weaken resistance to arrest. He specified that, with regard to the immobilisation of M.B. in the van, standing on a person’s buttocks was not among the techniques taught and that positioning oneself across M.B.’s shoulders, as sergeant L. had done, was one of the procedures taught. That technique enabled the officer to prevent the suspect from moving while avoiding postural asphyxiation. He concluded that the intervening officers, having regard to the context of the intervention, had acted with pragmatism and discernment. 34. Reports were produced by several experts appointed by one of the investigating judges. On 23 June 2010 Dr L., professor of forensic medicine, and Dr R., lecturer in forensic medicine, provided a forensic medical report after examining M.B.’s body on 18 December 2009. They stated that their examinations had revealed “a series of cutaneous lesions that could not have contributed to the death”. They did not indicate evidence of any “factor suggesting death by chest compression”. There was thus no evidence of “petechial subconjunctival injuries or of facial petechial injuries”. They stated as follows: “our examination of the sealed evidence has not revealed any elements indicating the cause of death of [M.B.]. The sealed evidence shows that he was receiving psychiatric treatment for psychosis with several episodes of hallucination requiring the regular ingestion of antipsychotic medicines. ... At the levels measured, the ingestion of psychoactive drugs revealed by the toxicological investigations does not appear capable of explaining the victim’s death by a process of direct toxicity. ... In conclusion, the death of [M.B.] ... is in all likelihood the result of myocardial failure. The death is due to natural causes.” 35. On 10 December 2010 Dr T. and Dr F. produced their anatomopathological expert report after examining a copy of the autopsy report of 16 November 2009, a copy of the interviews with the members of the police patrol team who had arrested M.B., a copy of the record of examination of two witnesses, various sealed samples collected both by Dr H. and by Professor L. and Dr R.: “[M.B] died suddenly of cardiac rhythm disorders owing to a coronary spasm triggered by a context of intense and prolonged emotional and physical stress. ... In conclusion, the intense and prolonged emotional stress, and the prolonged and severe agitation, which started in the pharmacy and contined during the arrest explain the series of physiopathological phenomena which caused the death: (1) intense stimulation of the sympathetic nervous system (adrenergic neuro-hormonal system), (2) coronary-ischemic spasm, (3) fatal cardiac rhythm disorders.” 36. On 14 and 16 December 2010 and 19 January 2011 the four police officers appeared for the first time as assisted witnesses. 37. On 8 April 2011 a reconstruction was organised, by the two investigating judges in charge of the case, in the presence of the civil parties’ lawyers and the assisted witnesses. During the visit to the scene the forensic doctor stated that he had not noted any traumatic injury consistent with the violence described by the witness Ms S, the only injuries suggesting direct action by a third party being those corresponding to the punches administered to the stomach. 38. On 5 July 2011 Dr C., university professor, neurologist and psychiatrist, and head of a forensic medical department, examined M.B.’s medical file at his psychiatrist’s surgery, his medical file at the casualty department of Montbéliard Hospital, and the medical file kept by M.B.’s general practioner. He stated that M.B., who had been receiving psychiatric care for many years, had been admitted to a hospital psychiatric unit several times and presented a psychotic disorder characterised by delusional notions of a betwitching, persecutory and interpretative type During his most recent hospital consultation he had been diagnosed with paranoid psychosis, which is related to schizophrenia. Dr C. concluded his report as follows: “[M.B.] presented a serious psychiatric disorder, namely, delusional psychosis, which explains the initial altercation with the pharmacist and his subsequent state of extreme agitation when the police officers attempted to induce him to leave the pharmacy. It is also possible that the intervention by the police was interpreted in a delusional manner. When the SMUR [mobile emergency and intensive care service] intervened the criterion of seriousness was ... the fact that [M.B.] had been suffering from heart failure for approximately twenty minutes. The superficial injuries observed, during the autopsy, to the right-hand side of the face and the front of the knees [appear to him] compatible with immobilisation on the floor of the van and the petechial injuries to the upper abdomen and the left abdominal region are compatible with punches administered as described in the autopsy report.” 39. On 25 November 2011 the Ombudsman, an institution independent of the State, having the task, inter alia, of ensuring compliance by the police with their code of professional ethics, to whom a member of parliament had submitted the case, produced a report. He found that whilst the police officers had been very quick to seek the assistance of the fire brigade and the emergency medical service, it was regrettable that the situation had been inaccurately described by the incident room to the firemen prior to their intervention (the latter had been informed of M.B.’s “withdrawal symptoms”). He considered that there had been no imminent danger to people or property in the pharmacy and thus no urgent need to remove M.B. as soon as possible. He stated that the immobilisation and compression procedures carried out in the van had been dangerous and disproportionate. He described as “amouting to a serious infringement of human dignity and to inhuman and degrading treatment within the meaning of Article 3” the techniques used by constables D. and M. to pin M.B. to the floor of the police van. The Ombudsman also noted conflicting statements by the police officers regarding whethere there had been physical violence other than the two diversionary blows and pointed out that no witnesses had been present throughout the entire incident. The Ombudsman concluded that the precipitation with which the police had acted had led them to make an erroneous assessment of M.B.’s situation and to react in a stereotypical manner rather than adjust their conduct during the intervention, despite the fact that they knew that M.B. was receiving treatment for psychiatric disorders and that they had been able to observe abnormal behaviour on his part. He recommended reinforcing the initial and continuous training of police officers with regard to dealing with persons suffering from a mental disorder. Lastly, he recommended that disciplinary proceedings be brought against the four police officers who had arrested M.B. for “disproportionate use of force or failing to cease using such force”. 40. On 18 January 2012 Dr T. and Dr F. supplemented their expert report of 10 December 2010. They confirmed the conclusion of their earlier report and ruled out mechanical asphyxia: “M.B. died suddenly of cardiac rhythm disorders, with no occurrence of mechanical asphyxia.” They reiterated the part played by extreme stress in the death, stating that “the adrenergic stimulation was related to the extreme and prolonged emotional and physical stress. The stress lasted approximately one hour and thirty minutes, starting in the pharmacy and continuing throughout the arrest”. 41. On 26 March 2012 the four police officers who had arrested M.B. were charged with manslaughter as a result of the manifestly wilful violation of a legal or statutory duty of caution and security. 42. On 5 November 2012 the the public prosecutor at the Montbéliard tribunal de grande instance filed submissions recommending that the charges be dropped. 43. On 21 December 2012 the investigating judges ruled that there was no case to answer. They found that whilst it was true that M.B. had been in a relatively calm state, the pharmacist had nonetheless considered his behaviour sufficiently disturbing to inform the police of the presence in his establishment of a person in an agitated state and suffering from psychiatric disorders. They observed that the police officers had not immediately used force and that, on being informed of M.B.’s pyschiatric pathology, they had called the emergency medical service. The judges found that the evidence given by Ms S. had been invalidated by the observations made during the reconstruction, the statements made by the pharmacists and the conclusions of the forensic doctor. The investigating judges observed as follows: “ ... pinning [M.B.] to the ground was not identified by the medical experts as the direct cause of the death. Whilst the intervention by the police inevitably generated stress, the victim had already been stressed well before their intervention. As the police did not know about [M.B.’s] heart disease, of which he himself was unaware, they could not foresee that the combination of these two factors [stress and heart disease] could create a risk for the victim.” 44. The judges considered that the force used by the police officers had been necessary and proportionate “even if being pinned down in the van, by L. and P. and M.’s position – standing on [M.B.’s] legs – may appear objectionable in absolute terms”. 45. The applicants appealed against that ruling. On 16 October 2013 the Investigation Division of the Besançon Court of Appeal upheld the decision finding no case to answer on the following grounds: “[M.B.’s death was due] according to the forensic doctor who carried out the initial autopsy ... to heart failure in circumstances of stress and effort acting on a predisposed heart condition; the second forensic report supported the finding of cutaneous injuries that could not have been a contributory cause of death and ruled out death due to chest compression; the experts indicated that the death of [M.B.] was, in all likelihood, the result of myocardial failure and natural causes; the anatomopathological report ... [led] the experts to conclude that [M.B.] had died suddenly of cardiac rhythm disorders owing to a coronary spasm triggered by a context of intense and prolonged emotional and physical stress, and formally ruled out mechanical asphyxia; lastly, the forensic and psychiatric expert ... concluded that [M.B.] presented a serious psychiatric disorder ... which explained the initial altercation with the pharmacist and the ensuing state of extreme agitation when the police officers attempted to induce him to leave the pharmacy, as their intervention could have been interpreted in a delusional manner”. 46. With regard to the conditions of arrest, the Investigation Division found that the agitated state and the “recalcitrant, not to say violent, behaviour of [M.B.] had obliged the police officers to use force and intervention techniques, which they had been taught, to restrain him”, including the two punches administered by constable M. “who explained that he had used a technique taught to police officers to assist in handcuffing suspects by creating a surprise effect, that explanation being confirmed by his colleagues and instructor”. The Investigation Division found that M.B. had been pinned to the floor of the van in conditions that had been “admittedly unusual, or even objectionable”, but that these had preserved the respiratory capacity and ventilation of a person who “was continuing to oppose strong resistance to the police officers”. It concluded that “no inadvertence, lack of care, inattention, negligence or breach of a statutory or legal duty of protection or care, or gross negligence [could] be attributed [to the police officers] in the death of [M.B.]”. 47. The applicants appealed on points of law. On 18 November 2014 the Court of Cassation dismissed their appeal on the following grounds: “ ... the Court of Cassation is satisfied on the basis of the grounds of the judgment being appealed that in upholding the decision finding no case to answer the Investigation Division, after analysing all the facts referred to it and addressing the main grounds in the statement of appeal, gave sufficient and coherent reasons for their finding that the investigation had been thorough and that there was insufficient evidence on which to convict the persons charged with of manslaughter or any other offence ...” ...