Use of pepper spray on prisoner

A.E.A., Danish national, was arrested and charged with breaching the Weapons and Explosives Act and detained on remand, first in a local prison and then in Enner Mark Prison. After arrival there, he was repeatedly placed in observation and security cells because of his aggressive and threatening behaviour. While being held in one such observation cell, A.E.A. was pepper sprayed by two prison guards. The prison authorities maintained that the prison staff had had to resort to pepper spray as A.E.A. had been agitated and aggressive, had shredded his mattress to bits, had urinated on the floor and had lashed out at a prison officer. A.E.A. acknowledged that he had ruined his mattress but maintained that he had been passive when the guards had entered the cell and that, after being sprayed, he had lost consciousness and had been dragged to a security cell. A.E.A. reported the two prison guards to the police and asked to be seen by a non-prison doctor. A few days later the police asked him to see a prison doctor so that a medical report could be drawn up. A.E.A. refused and via his lawyer, made a separate complaint to the Department of Prisons and Probation (Direktoratet for Kriminalforsorgen), complaining that he had been exposed to pepper spray, and had subsequently been placed in a security cell, where he had been confined to a restraint bed.
The police decided not to initiate criminal proceedings against the prison officers. They noted that the reports of events were contradictory; that A.E.A. had refused to be examined by a prison doctor; that there were no video-recordings of the incident, no other witnesses to what had happened in the observation cell and no other evidence which could support one version of events or the other. A.E.A. appealed against that decision to the Regional Prosecutor. He maintained that the investigation had been ineffective because: (1) the investigation period had been protracted; (2) the parties involved had not been interviewed until several months after the incident; (3) no video-surveillance footage from the corridors in the prison had been secured; and (4) he had not been attended to by a non-prison doctor. The decision to discontinue the criminal proceedings against the police officers was upheld as the use of force had perhaps been lawful.
A.E.A.’s complaints about the investigation had been forwarded to the Management Secretariat of the police on 12 September 2018. A year later, it agreed that the length of the proceedings, seven months from April to November 2017, during which no investigation steps had been carried out, was excessive and regrettable. It dismissed however the remainder of A.E.A.’s procedural complaints, noting that all relevant evidence had been gathered, that A.E.A. had refused to assist in procuring a medical report, that no video-recording existed and that A.E.A. had not pointed to any other evidence which could and should have been obtained. That decision was upheld after appeal.
Relying on Article 3 (prohibition of inhuman or degrading treatment), A.E.A. complained that excessive force had been used on him in an unlawful manner. The prison guards had immediately resorted to pepper spray, despite his being locked in an observation cell and under their control. Referring to recommendations by bodies such as the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) and the United Nations Committee against Torture (UNCAT), he submitted that pepper spray should never be used in confined spaces. He also contended that the investigation had been ineffective, in that it had been protracted; that the parties involved had not been interviewed promptly after the incident; that he had not been attended to by a doctor from outside the prison; that no video-surveillance footage from the corridors in the prison had been secured; and that only two of the four prison guards involved had been interviewed. The application was lodged with the European Court of Human Rights, which noted several shortcomings in the investigation.

In particular, no assessment had been made as to whether the use of force, in the form of using pepper spray on A.E.A. in the observation cell, had been strictly necessary, nor any attempt to clarify why exactly the prison guards had gone into the cell. It had not been established whether entering the observation cell had been imperative and urgent, had been necessary but not specifically urgent, or whether it had even been necessary at all. The investigation had not looked at whether any risk assessment or preparation had taken place beforehand, or whether the national legal safeguards for the use of pepper spray had been complied with. In particular, the Court noted that Executive Order no. 296 of 28 March 2017 on the Use of Force against Inmates in Prisons expressly required that a prisoner be warned before pepper spray was used and that he/she be given a chance to obey orders. It also set out that any use of pepper spray had to be recorded in a register, that relief had to be provided for any symptoms caused by it and that the prisoner had to be told of any possibility to appeal. In this case, it was not clear whether the investigation had established that A.E.A. had been offered relief for any symptoms, nor whether the incident had been recorded in a dedicated register and reported to the Prison and Probation Service. The Court reiterated the concern expressed by international bodies about pepper spray being used by law enforcement in confined spaces, in particular that voiced by the CPT and the UNCAT that pepper spray is a potentially dangerous substance which should not be used in confined spaces and never deployed against a prisoner who has already been brought under control. Moreover, in its 2019 report to the Danish Government (CPT/Inf (2019) 35), the CPT had observed that since its 2014 visit, a number of texts had been adopted or amended to reinforce the safeguards surrounding the use of pepper spray, including that prisoners should receive prior warning that pepper spray would be used if they failed to comply with the instructions of staff. On that basis it recommended that “the necessary steps be taken to guarantee that the texts governing the use of pepper spray are correctly applied … throughout Denmark’s prisons. It should also be ensured that all cases in which pepper spray is deployed are systematically recorded as such in the establishments concerned and reported (with the sending of a written report) to the Prison and Probation Service”. In the light of these recommendations, the Court considered that the investigation should have carefully addressed whether the legal procedural safeguards for the use of pepper spray had been complied with. As it had not done so, the Court considered that the Danish authorities had failed to carry out an effective investigation into the applicant’s allegations of ill-treatment. There had, consequently, been a violation of the procedural aspect of Article 3 of the Convention. At the same time, the Court fully acknowledged the difficulties that States might encounter in maintaining order and discipline in penal institutions. This was particularly so in cases of unruly behaviour by dangerous prisoners, a situation in which it was important to find a balance between the rights of different detainees or between the rights of detainees and the safety of prison officers. However, the Court noted that the Regional Prosecutor had used the wording that “it could not be ruled out that the use of force had been lawful” and that the investigation had focused on deciding whether or not to bring criminal charges against the prison guards rather than taking a stand on whether there had been a breach of Article 3 of the Convention and whether the use of force had been “made strictly necessary by the applicant’s conduct”, which is the Convention standard for determining such a matter. The burden of proof had lain with the Government to provide a satisfactory and convincing explanation. However, due to the investigative flaws, several important questions, which could and should have been addressed by the authorities had remained unanswered  in particular whether the prison guards’ actions and, in particular, the use of pepper spray without prior warning, had been strictly necessary, and whether the operation had been prepared adequately and in compliance with the Executive Order and the recommendations of the CPT. There had therefore also been a violation of the substantive aspect of Article 3. The Court held that Denmark was to pay A.E.A. 10,000 euros (EUR) in respect of nonpecuniary damage and EUR 10,000 in respect of costs and expenses.

21. November 2023

HUDOC 27753-19
  • Decision: 3 Oktober 2023
  • Comm: HUDOC