State has a positive obligation to protect those in custody from harm and fully and independently investigate deaths in custody

Eremiasova and Pechova v The Czech Republic [2012] ECHR Application No 23944/04 (16 February 2012) Summary

In this case the European Court held that the Czech Republic had violated Article 2 (right to life) of the European Convention on Human Rights. The Court clarified the positive duty of States to take active measures to protect those in their custody from harm, including self-harm, and reiterated the importance of providing an adequate, impartial and independent investigation into deaths in custody. It also commented upon the admissibility requirement that all domestic remedies be exhausted, noting that applicants will not be required to pursue domestic remedies which can only result in compensation when the efficiency of an investigation into a death possibly caused by the State is brought into question. The Court held that the State should pay compensation to the applicants.

Facts

On 18 June 2002, VP, a man of Roma origin, was arrested by Czech police and taken to a local police station. At the police station, VP requested to use the bathroom. He was escorted by two policemen. VP was said to be in a calm state. On the way back from the bathroom, one policeman walked ahead of VP while the other held VP by the wrist. Upon reaching a mezzanine with an unbarred window, VP allegedly broke free of the officers and jumped through the window into the yard below. VP was taken to the hospital and died the next morning.

Four different entities were involved in the investigation into VP's death: the District Police Department, the Technical Criminal Unit, the Complaints and Monitoring Unit, and the Supervision Department of the Minister of the Interior. The Supervision Department, basing its conclusions on the preliminary findings of the District Police Department, found no grounds for suspecting the police officers had committed a crime. The District Police Department later reached the same conclusion.

VP's partner and mother (the applicants) brought proceedings identifying factual inconsistencies and flawed procedures used in the investigations; their appeals were ultimately dismissed by district and regional prosecutors. The applicants then brought an application before the European Court, alleging the Czech Republic had breached VP's right to life.

Decision

Admissibility – exhaustion of domestic remedies

The State submitted that the application was inadmissible because the applicants had not exhausted all domestic remedies. The State argued that Czech law provided for a set of remedies in respect of the right to life, consisting of a constitutional appeal in which the Constitutional Court had the capacity to remedy an 'arbitrary' investigation, and actions under the Police Act, the State Liability Act and the Civil Code for compensation.

The Court acknowledged it is possible for an aggregate of remedies to satisfy the requirement that an 'effective' domestic remedy be available, and that it is not necessary that one single remedy provide an effective result. However, the Court found that the aggregate remedies identified by the State did not provide an effective remedy.

First, there were limits on the Czech Constitutional Court's ability to intervene in the investigator's decision which meant that it would not look into the independence, impartiality or adequacy of the investigation; rather, it would only intervene in “the most extreme cases of arbitrary decisions”. Accordingly, the Czech Constitutional Court's decision could not have had any effect on the 'structural' complaint that there was no independent investigation into VP's death.

Secondly, the ability to seek compensation, as provided by the other avenues identified by the State, could not on its own be a sufficient remedy for the right to life given the circumstances of VP's death. The Court observed that “where the efficiency of an investigation into a death possibly caused by police officers is questioned, any award of compensation cannot be regarded, on its own, as a sufficient remedy”.

Accordingly, there were no further domestic remedies which the applicants were required to pursue before bringing their application to the Court.

Notably, the Court observed:

• Article 35 of the Convention does not require applicants to seek domestic remedies where those remedies are inadequate or ineffective.
• The State claiming non-exhaustion of domestic remedies bears the burden of proof of satisfying the Court that “an effective remedy was available in theory and practice at the relevant time, namely, that the remedy was accessible, capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success”.
• Whether domestic remedies have been exhausted requires the Court to “take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies”.
• Applicants may not need to pursue domestic remedies if they can show that they had a negligible prospect of success.
• Applicants are not obliged to pursue an avenue which is unable to bring about any independent investigation and is incapable, without the benefit of conclusions of a criminal investigation, of making any meaningful findings as to the perpetrators of the death and their responsibility.
• Where an individual is taken into police custody in good health but is later found dead, it is of the utmost importance that the circumstances of the death are sufficiently elucidated. The right to life requires an investigation which is able to lead to the identification and punishment of those responsible for the death. This obligation cannot be satisfied by merely awarding damages.
• Where the circumstances of a death are largely confined within the knowledge of State officials or authorities, 'appropriate' domestic proceedings will be conditioned by the availability of an adequate, official investigation which must be independent and impartial.

Substantive obligation arising under the right to life

Article 2 imposes a positive obligation on a State to take appropriate steps to safeguard lives within its jurisdiction. The substantive limb gives rise to two questions:

• Did the State authorities provide a plausible explanation concerning the injury or death?
• Did the State authorities sufficiently protect the individual?

In relation to the first question, the Court noted that where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how the injuries occurred. This obligation is particularly stringent where an individual dies. In the case of death, a strong presumption of fact arises against the State authorities, and the burden of proof rests of the authorities to provide a satisfactory and convincing explanation beyond reasonable doubt.

Although it did not rule definitively on the point, the Court observed that it was not satisfied that the circumstances surrounding VP's death had been fully explained.

In relation to the second question, the Court observed that in certain circumstances the State may be under an obligation to take “preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual or even where such a risk derives from self-harm”. Such an additional obligation only arises where authorities knew or ought to have known at the time of the existence of a 'real and immediate risk' to the life of the individual. It requires that authorities take measures “within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.”

However, even where it is not established that authorities knew or ought to have known about such a risk to life, there are certain basic precautions which police officers and prison officers should be expected to take in all cases in order to minimise any potential risk to the health and well-being of an arrested person.

In the present circumstances, the Court found that the police did not take basic precautions to minimise potential risks to VP: he was not handcuffed on his trip to the bathroom, his wrist was held with a loose grasp, and the other escorting officer was quite far away at the time when VP broke free. While the Court considered it would be excessive to request the State to put bars on all windows at a police station, the Court found that more care should have been taken to prevent the 'foreseeable danger' of VP jumping through the window. The State therefore failed to provide VP with sufficient and reasonable protection as required by the substantive limb of Article 2.

Procedural obligation arising under the right to life

Where a State is potentially responsible for a death, it is obliged to carry out an expeditious, effective and impartial investigation which sheds light on the incident for the victim's relatives and for the public at large.

The Court commented that an unexplained failure to undertake indispensable and obvious investigative steps “is to be treated with particular vigilance” and a State's failure to provide a plausible explanation may lead to a particularly serious violation of the procedural limb.

The Court identified the following inadequacies in the investigation:

• The initial investigations did not contemplate alternative explanations for the cause of VP's death other than suicide, which led to prejudiced conclusions.
• Those initial investigations were then relied upon almost entirely by subsequent investigations, as were the statements of the officers implicated in VP's death.
• Adequate steps were not taken by the investigating authorities to establish the exact reasons for the officers' actions.
• There were no attempts to avoid collusion by suspect officers and no reconstruction was conducted. The Court commented that "where the true circumstances of a death are known only by a limited number of police officers, a separate questioning of the officers and a reconstruction of the incident promptly after the event may well be an essential element in determining the course of the fatal events". It also noted that the mere fact that appropriate steps are not taken to reduce the risk of collusion between police officers amounts to a significant shortcoming in the investigation (ie, even without any evidence that there was in fact collusion).
• Certain important evidence was secured only after complaints were filed by the applicants, and after the Supervision Department had already decided to discontinue the proceeding.
• The applicants were denied access to the case-file without reason.

Moreover, the investigation was found to have lacked independence and impartiality. While the four investigating entities were hierarchically independent of each other, they were not practically independent: all four bodies depended directly or indirectly on the Minister of the Interior. So, while there was no indication of actual collusion or bias by the investigating authorities, the investigation lacked a sufficient appearance of independence and guarantees against pressure from hierarchical superiors. The investigation was therefore neither institutionally nor practically independent.

The inadequacy of the investigation, as well as its lack of independence and impartiality, were found to be in violation of the procedural limb.

Relevance to the Victorian Charter

This decision suggests that the right to life (enshrined in s 9 of the Victorian Charter) gives rise to an obligation on police officers to take steps to protect individuals taken into custody from harm, including self-harm. It indicates that the State bears the evidentiary burden of providing a satisfactory explanation beyond reasonable doubt of the causes of deaths which occur in police custody. To discharge this burden, an independent investigation must be conducted which is capable of identifying the circumstances of the death and establishing the responsibility, if any, of individuals involved in the death.

The decision is available online at: http://cmiskp.echr.coe.int/tkp197/view.asp?item=3&portal=hbkm&action=html&highlight=&sessionid=89090028&skin=hudoc-en

Michael Gubieski is a lawyer and Verity Quinn is a Senior Associate with Allens Arthur Robinson.