CEDH · CASELAW;CLIN;ENG — 16 novembre 2017

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Austria - 72126/14 Judgment 16.11.2017 [Section V] Article 2 Article 2-1 Effective investigation Death of detainee during hunger strike: no violation Article 3 Degrading treatment Inhuman treatment Treatment of detainee during hunger strike: no violation Facts – The applicant’s brother, Y.C., died in detention while on hunger strike. On the day of his death, he had been taken to hospital for examination and his fitness for detention had been confirmed. On his return at around 11   a.m. he was placed alone in a security cell, which did not contain a water outlet. A police officer checked on him every fifteen to thirty minutes. At 1.20   p.m. he was declared dead by an emergency doctor. The autopsy concluded that Y.C. had died of dehydration, combined with the fact that he had been a carrier of sickle cell trait, a fact of which he had been unaware. The applicant alleged that there had been no effective or comprehensive investigation into his brother’s death. He further complained that the treatment of his brother during his hunger strike had not been in accordance with the law and that he had been subjected to inhuman and degrading treatment. In particular, he alleged that the doctor at the detention centre had inaccurately calculated his brother’s critical weight. Law Article 2 ( procedural aspect ): There was no indication of shortcomings in the public prosecutor’s investigation, which had been closed as no sufficient evidence had been found to indicate misconduct on the part of the persons in charge. The public prosecutor had relied on the comprehensive autopsy report and expert medical report, which had clearly stated that death through the use of force could be excluded, and that Y.C. had died of dehydration, combined with the fact that he had been a carrier of sickle cell trait. The applicant had instituted administrative proceedings before the Independent Administrative Panel (“IAP”), in the course of which several witnesses and experts were questioned. The IAP examined the evidence and delivered three decisions, two of which were quashed by the Administrative Court. While the IAP found that the authorities should have known that Y.C. came from a country whose inhabitants bore a high likelihood of being a carrier of sickle cell disease and therefore should have informed Y.C. of this potential risk after he had started his hunger strike, the Administrative Court held that the mere fact that a person came from a country with a high rate of such disease did not mean that the State had a duty to test every person from a certain area for that genetic predisposition. After obtaining a second expert report, the IAP dismissed the applicant’s complaints, in accordance with the legal opinion of the Administrative Court. The IAP also considered an expert report submitted by the applicant, focusing on the calculation of Y.C.’s critical weight and mistakes allegedly made in that respect, but preferred the evidence of other experts who had concluded that the calculation of the critical weight had had no bearing on Y.C.’s death. Conclusion : no violation (unanimously). Article 3 ( substantive aspect ): As regards the steps to be taken in the event of a hunger strike, clear instructions had been issued by the Ministry of the Interior to the authorities, which had been prepared after consultations with its medical service and various NGOs. There was no indication that those instructions were in themselves insufficient or unclear, or that overall in the instant case they were not sufficiently followed. Furthermore there had been no indications that Y.C. suffered from sickle cell disease and he had not been aware of it himself. At the time, even hospitals did not conduct standardised tests for that blood anomaly. The authorities could not be blamed for not having given appropriate instructions at the outset to conduct such a test for the applicant’s late brother. On the morning of his death, Y.C.’s external appearance had been that of a physically fit man who was aggressive because he did not want to be examined. While his behaviour might, with hindsight, be considered a sign of already advanced dehydration and a consequent disintegration of his blood cells owing to sickle cell disease that was not foreseeable at the time of the events. The doctor who drew up the autopsy report, found no signs of classic dehydration in Y.C.´s body and, moreover, no malnutrition and no long-term abstinence from food. As regards the calculation and registration of Y.C.’s weight, the Court considered the possible mistake in recording particularly regrettable as the correct recording of a detainee’s weight could be critical for determining when and what medical care was made available during detention in the course of a hunger strike. Given the protocol in place in Austria for the treatment of detainees on hunger strike, it fell to the competent authorities to follow the instructions it contained with due diligence. However, on the basis of the experts’ reports, which were examined in detail by the domestic investigative authorities, the Court could not discern any causal link between the possible mistake in recording Y.C.’s weight and his death. In the light of those facts and the witness and expert statements there was no reason to question the domestic courts’ conclusion that the authorities could not have been aware that Y.C. was in a life-threatening situation requiring urgent medical attention. It was not foreseeable that, if his health declined, the rate of decline would be precipitous due to the undetected sickle cell disease. Further, the Court observed that while it was true that Y.C. could have requested a water bottle at any time, it would clearly have been advisable given the situation to provide him with direct access to water in the cell and to advise him to take in fluids. However, as it was not possible either for the hospital or the authorities at the detention centre to detect the critical state of the applicant’s health and the fact that he might go into rapid decline due to the sickle cell disease, the failure to take such measures could not, under the circumstances, be considered as inhuman or degrading. Conclusion : no violation (unanimously).   © 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