On 3 October 2023, the European Court of Human Rights (‘ECtHR’) unanimously concluded that Denmark’s treatment of a prisoner violated Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the ‘Convention’). The ECtHR found that the treatment of the applicant, who was pepper sprayed by two guards whilst being held in an observational cell, constituted an excessive use of force in violation of Article 3 of the Convention, and that the absence of an effective investigation regarding the incident constituted a further violation of Article 3.
The application lodged with the ECtHR was submitted by a Danish national who had been arrested in March 2017 for a violation of the Danish Weapons and Explosives Act. In April 2017, the applicant was pepper sprayed by two prison guards whilst he was being held in an observational cell. The applicant alleged that this use of pepper spray was excessive and unwarranted, given that he was compliant and not exhibiting any aggressive behaviour. In contrast, the guards at the centre of the incident claimed that the applicant was aggressive and non-compliant. When the applicant reported the incident to the police and requested to see a non-prison doctor, his request was denied and the Danish authorities failed to initiate a criminal prosecution. The applicant launched domestic proceedings claiming that the investigation by police was insufficient on several grounds, including on the ground that there was a substantial delay in interviewing the guards involved in the incident. The Danish courts upheld the State’s decision not to prosecute the guards, at which point the applicant brought his case to the ECtHR (alleging that a breach of Article 3 had occurred, primarily on the basis that excessive force had been used against him in an unlawful manner).
The ECtHR found that a violation of Article 3 had occurred in relation to both an excessive use of force, and the absence of an effective investigation. The ECtHR held that the use of pepper spray was neither necessary nor urgent, and that national legal safeguards relating to the use of pepper spray had not been complied with (and in particular, the required advance warning regarding the use of pepper spray had not been given and the necessary notification regarding the incident had not been entered into a register). The ECtHR also considered the concerns of international human rights organisations regarding the use of pepper spray in confined spaces, in determining that there had been an excessive use of force in violation of Article 3.
The ECtHR further held that no attempt was made by Danish authorities in the course of their investigation to determine whether the use of pepper spray was strictly necessary and urgent in the circumstances, nor did the investigation consider whether a risk assessment regarding the use of pepper spray had taken place prior to the incident or whether the legal procedural safeguards for the use of pepper spray had been complied with. Given that the investigation had failed to address these core elements, the ECtHR held that the Danish authorities had failed to carry out an effective investigation in violation of the procedural limb of Article 3.
The ECtHR, exercising its power under Article 41 of the Convention to award just satisfaction to a party injured by a violation of the Convention, awarded the applicant €10,000 in respect of non-pecuniary damage and a further €10,000 in respect of costs and expenses.
Click here for the judgment in Case of EL-Asmar v Denmark App No 27753/19 (ECHR, 3 October 2023).