Shchiborshch And Kuzmina v Russia (Legal Summary): ECHR 16 Jan 2014

ECHR Article 2
Positive obligations
Article 2-1
Effective investigation
Death of man suffering from psychiatric disorder as a result of police attempts to hospitalise him by force: violation
Facts – The applicants’ son suffered from a psychiatric disorder. In 2006 his father obtained a referral for his in-patient treatment and asked the police for assistance with his hospital placement. As the son was in a delirious state, he mistook the police for burglars and threatened them with a knife. The police tried to knock the knife out of his hand using their truncheons and the butt of a rifle, but he son ran to the kitchen and barricaded the door. After unsuccessful attempts to negotiate, the police ‘stormed’ the kitchen where the son put up resistance and was seriously wounded. He was taken to hospital in a coma and died shortly afterwards without regaining consciousness. The findings of the forensic examinations were conflicting as to the cause of his death: according to some reports, it was caused by craniocerebral trauma, according to others, by a slash wound to the neck. The criminal investigation was closed in 2010 on the grounds that the use of force had been in accordance with the law and that, given the conflicting findings of the forensic reports, there was insufficient evidence to hold the police responsible.
Law – Article 2
(a) Substantive aspect – While the craniocerebral trauma and slash wound to the neck were life-threatening injuries whose combination might have led to the lethal outcome, there was insufficient evidence to conclude that the injuries were directly caused by the police.
As regards the planning and control of the police operation, dealing with mentally disturbed individuals clearly required special training, the absence of which was likely to render futile any attempted negotiations with a person with a mental disorder as grave as that of the applicants’ son. This understanding was reflected in the domestic law, which while providing for police assistance to medical personnel when carrying out involuntary hospitalisation did not empower the police to act independently. No explanation had been presented to the Court as to why the police had taken action without being accompanied by qualified medical personnel. Emergency psychiatric assistance had only been called after several unsuccessful attempts to apprehend the applicants’ son. No explanation for the delay had been provided to the Court. The use of special equipment, such as rubber truncheons, in such circumstances did not comply with the police’s duty to minimise risks to the life and health. No evidence had been submitted to show that the son had posed such an immediate danger to himself or others as to require urgent measures, especially while he remained barricaded in the kitchen. In so far as he had wounded three police officers, the Court considered this to have been the result of the police’s own actions. Given that the applicant’s son was delirious and therefore unable to comprehend who the police officers were or what they wanted, the only appropriate course would have been to await the arrival of psychiatric assistance. However, the officers had persisted in their attempts to apprehend him as if they were dealing with a typical armed offender. The Court was particularly struck by the order to shoot to kill should he try to leave or attack the police, which, though not executed, was clearly excessive and demonstrated the officers’ inability to assess the situation and react appropriately. Moreover, there was no evidence that the storming operation had resulted from any kind of preliminary planning and consideration. There was nothing to show that the imminent arrival of the psychiatric emergency services had been taken into account, that the use of less violent means had been considered, or that the use of force had been given any prior consideration or assessment. The applicants’ son had a history of involuntary hospitalisation requiring police assistance, as on each occasion he had resisted his placement in hospital. Therefore, the situation had not been new and the police should have been able to foresee that they would be faced with resistance and should have prepared accordingly.
In sum, even assuming that the lethal injuries were the consequence of the applicants’ son’s own actions, the Court considered that to be the result of the uncontrolled and unconsidered manner in which the police operation had been carried out. The measures taken by the police had lacked the degree of caution to be expected from law-enforcement officers in a democratic society. The operation had not been organised so as to minimise to the greatest extent possible any risk to the life of the applicants’ son.
Conclusion: violation (unanimously).
(b) Procedural aspect – The investigating authorities had not addressed the issue of the planning and control of the operation. In particular, they had not investigated why the police had acted on their own authority in the absence of qualified medical personnel, contrary to domestic law. While the investigation had assessed the use of force and special equipment, like the police officers the investigating authorities appeared to have considered the situation as though it had involved a typical armed offender, with no regard to the mental condition of the applicants’ son. Furthermore, the investigating authorities had made no assessment of the manner in which the decision to storm the flat had been taken. Given the investigation’s failure to address such crucial points, despite the large volume of investigative measures carried out, it had fallen short of the thoroughness required by Article 2.
Conclusion: violation (unanimously).
The Court also found a violation of Article 13 since the applicants had been denied an effective remedy in respect of their complaint under Article 2.
Article 41: EUR 45,000 jointly in respect of non-pecuniary damage; EUR 2,550 jointly in respect of pecuniary damage.

5269/08 – Legal Summary, [2014] ECHR 175
European Convention on Human Rights
Human Rights
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Legal SummaryShchiborshch And Kuzmina v Russia ECHR 16-Jan-2014
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Human Rights

Updated: 01 December 2021; Ref: scu.521858