SECOND SECTION
CASE OF T.V. v. CROATIA
(Application no. 47909/19)
 
JUDGMENT
 
This version was rectified on 2 July 2024
 under Rule 81 of the Rules of Court
Art 2 (substantive and procedural) • Use of force • Positive obligations • Failure to protect life of applicant’s partner who had a history of mental health problems and died during a police intervention • Police failure to inform or request assistance from medical professionals as required under domestic guidelines for police interventions involving mentally disabled persons • Use of pepper spray despite its use being excluded under domestic law in cases of “passive resistance” such as the present one • Lack of requisite special care towards a person in mental distress • Use of prone position at the scene as well as in the ambulance for a prolonged period of time • Inadequate surveillance of applicant’s state during transportation in the ambulance • Lack of adequate training and experience • In case-circumstances force used not “absolutely necessary” • Ineffective criminal investigation
 
Prepared by the Registry. Does not bind the Court. STRASBOURG
11 June 2024
 
FINAL
 
11/09/2024
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of T.V. v. Croatia,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
 Arnfinn Bårdsen, President,
 Jovan Ilievski,
 Pauliine Koskelo,
 Lorraine Schembri Orland,
 Frédéric Krenc,
 Davor Derenčinović,
 Gediminas Sagatys, judges,
and Hasan Bakırcı, Section Registrar,
Having regard to:
the application (no. 47909/19) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Ms T.V. (“the applicant”), on 5 September 2019;
the decision to give notice of the application to the Croatian Government (“the Government”);
the decision not to have the applicant’s name disclosed;
the parties’ observations;
the fact that the Slovenian Government did not express a wish to intervene in the present case (Article 36 § 1 of the Convention and Rule 44 § 1 (a) of the Rules of Court);
Having deliberated in private on 21 May 2024,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the death of the applicant’s partner in the course of a police intervention and the alleged ineffectiveness of the ensuing criminal investigation. The applicant relied on Articles 2, 3 and 13 of the Convention. THE FACTS
2. The applicant was born in 1980 and lives in Celje, Slovenia. She was represented by Ms L. Horvat, a lawyer practising in Zagreb. 3. The Government were represented by their Agent, Ms Š. Stažnik. 4. The facts of the case may be summarised as follows. 5. On 11 November 2017 the applicant’s partner, Mr V.D., who suffered from schizophrenia, left a psychiatric institution in Slovenia where he was being treated and entered Croatia. V.D. had previously lodged two other applications with the Court concerning his ill-treatment by the authorities and the ineffectiveness of the ensuing investigation (see V.D. v. Croatia, no. 15526/10, 8 November 2011, and V.D. v. Croatia (no. 2), no. 19421/15, 15 November 2018). Events of 16 November 2017
6. On 16 November 2017 the Croatian border police in Varaždin were informed by the Slovenian border police that V.D. had left the institution in Slovenia where he had been undergoing psychiatric treatment and had allegedly travelled to the town of Opuzen in Croatia, and that he posed a threat to himself and others. That information had been provided by V.D.’s father, who wanted to make sure that his son was safe. 7. On the same day, V.D. got into a fight with another guest at a hotel in Opuzen. A hotel employee called the Metković Police to intervene, informing them that a man in mental distress had been causing problems and attacking guests at the hotel. According to the Government, the police officers who responded to the call had received the Varaždin Police’s report prior to their departure and had been aware that the man in question could be V.D., a mentally disabled person who posed a danger to himself and others. 8. According to the official police report on the intervention, upon their arrival at the hotel carpark around 2.20 p.m. four police officers had approached V.D., who was sitting on his car; they noted that he was in a state of evident mental distress and mumbling incoherently. One of the police officers ordered him to empty his pockets, which he did, but he refused to follow the officer’s subsequent order to turn around and spread his legs. Instead, he took out his telephone and shouted “Do not come any closer, [or] I will press a button on my phone, and you will all blow up”, and continued to mumble incoherently. Soon after, V.D. sat down on the ground, still holding his phone and mumbling. Officer G. ordered him several times to drop his phone and warned him that he would use force, but to no avail. Officer G. then used pepper spray on V.D., who lay down on his side holding his face and started to bite his lips and tongue and to spit out blood. At that point three of the police officers used physical force to turn V.D. onto his stomach and to put his hands behind his back. V.D. resisted them by trying to get up, hitting his head against the pavement and biting his fingers – he bit off a part of his little finger before the police officers could handcuff him with his hands behind his back. Around 2.35 p.m. the police called an ambulance to assist them with their intervention. The four police officers, joined by a fifth one who happened to be passing by, continued to use force to hold V.D. in the same position until the ambulance arrived some ten minutes later, at around 2.47 p.m. 9. Once the ambulance arrived the doctor gave V.D. a sedative shot, noting that he was bleeding and blue in his face and that he had bitten off and swallowed a part of his little finger. A nurse bandaged the stump of his little finger. V.D. was then placed on the ambulance stretcher in the same position (face down) and restrained using three straps. 10. During the journey to the Dubrovnik General Hospital, which was about an hour and a half’s drive away and reportedly the closest hospital able to admit a person in V.D.’s condition, the doctor and the nurse sat in the front, while three police officers sat in the back with V.D. Since he continued to be restless, the doctor stopped the ambulance, came to the back and gave him another sedative. After a while, she established that V.D. had died. The coroner noted that V.D. had died of natural causes and that his cause of death was cardiac arrest. Investigation into V.D.’s death
11. Once it became known that V.D. had died, an inspection team was sent to the scene of the incident, the hotel carpark, which had been washed by the hotel staff in the meantime. Some blood traces were recorded. 12. Several hotel employees and a guest were interviewed, and security camera footage was reviewed by the police. The doctor and the nurse who had intervened at the scene were also interviewed. 13. On 16 November 2017 the Dubrovnik County State Attorney’s Office opened a case file following receipt of the police report on V.D.’s death. The State Attorney ordered an autopsy. 14. On 20 November 2017 an autopsy was carried out on V.D.’s body. It found no evidence of a violent death. A few scratches were found on his body and piece of his little finger was found in his oesophagus. It was also established that five of his ribs had been broken, most likely as a result of a fall on a hard surface. On the whole, as confirmed in the detailed written autopsy report dated 27 December 2017, V.D. had died a natural death as a result of cardiac arrest. The injuries found on his body, which together amounted to a grave bodily injury, had had no causal link with his death. 15. On 20 November 2017, a police report established that the use of force on V.D. had been lawful and proportionate, and in line with sections 84 and 85 of the Police Duties and Powers Act. 16. On 21 November 2017 the Metković Police delivered a special report to the Dubrovnik County State Attorney’s Office concerning the event. 17. On 18 December 2017 the applicant arranged for a second autopsy by the Ljubljana Medical Faculty, which stated that, in addition to the injuries recorded in the official autopsy, V.D. had suffered from inflammation of his mucus membrane, terminal swelling of his lungs, acute swelling in his brain, focal fibrosis of the myocardium and sudden acute cardiac arrest. Two of his front teeth had also been knocked out not long before. 18. On 13 November 2018 the applicant lodged a criminal complaint with the Dubrovnik County State Attorney’s Office against the police officers who had responded at the scene for serious bodily injury resulting in death and against the doctor and the nurse from the ambulance for medical negligence. 19. On 25 February 2019 the State Attorney rejected the applicant’s criminal complaints because the autopsy report had established that V.D. had died of natural causes, that is, of acute cardiac arrest, and that the injuries he had sustained had had no causal link with the fatal outcome. 20. Following a complaint by the applicant, on 11 July 2019 the State Attorney’s Office of the Republic of Croatia ordered the Dubrovnik County State Attorney’s Office to conscientiously and carefully, taking into account the Court’s case-law, re-examine the case file, review the correctness of the decision rejecting the criminal complaint and, if necessary, take appropriate investigative measures. 21. On 30 June 2020 the Dubrovnik County State Attorney’s Office issued a summons to the defendant police officers and medical staff for a first interview. They were questioned between 10 July and 17 September 2020. 22. On 2 October 2020 the Dubrovnik County State Attorney’s Office took statements from witnesses who had been at the hotel. 23. On 12 October 2020 Dubrovnik County State Attorney’s Office formally opened an investigation into the incident. 24. On 1 February 2021 the Dubrovnik County State Attorney’s Office ordered a forensic medical expert opinion, which was ultimately delivered on 28 May 2021 by the Medical Faculty in Split. According to that report, V.D. had a violent death as a result of mental trauma. He had sustained a grave bodily injury by resisting the police while lying face down on the ground, by self-harming and by the police officers’ pressing hard on his back while he was in such a position. His self-harming coupled with the actions of the police and medical staff had aggravated his already agitated mental state, bringing him to a state of shock and to cardiac arrest, which was the mechanism of dying but not the cause of his death. The report also concluded that no medical negligence had taken place in his treatment, but that in view of the therapy he had received the medical staff should have been sitting next to him during his transportation in the ambulance. 25. On 10 August 2021 the Dubrovnik County State Attorney’s Office again rejected the applicant’s criminal complaint, holding that the force used had been proportionate in view of V.D.’s behaviour, that the police officers had not caused him fatal bodily injuries and that the medical staff had not been negligent. 26. Following another complaint by the applicant, the State Attorney’s Office of the Republic of Croatia upheld the conclusions of the Dubrovnik County State Attorney’s Office, finding that the force used by the police had been lawful and proportionate in the circumstances and aimed at protecting the victim as well as others. As for certain documents which the applicant complained had not been taken into account by the forensic medical expert opinion – such as the autopsy report from Ljubljana or the documents from V.D.’s previous psychiatric treatment in Slovenia – the State Attorney’s Office reiterated that only an officially obtained autopsy report could be considered as evidence and that it had not been necessary to consider the deceased’s psychiatric documentation. 27. Meanwhile, in 2021 the applicant lodged a constitutional complaint complaining of the ineffectiveness of the investigation as well as of her late partner’s ill-treatment by the police, which had allegedly led to his death. 28. On 12 July 2023 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s complaint, finding that the investigation had been independent and thorough. Although the investigation had been protracted and the Dubrovnik County State Attorney’s Office had obtained a forensic medical expert report only three years after the incident, that fact had had no bearing on the quality of the investigation or the conclusion that V.D. had died from a serious mental trauma stemming from his extreme mental agitation and physical resistance towards the police officers, who had used lawful and proportionate coercive measures. Subsequent developments
29. On 23 February 2021 the applicant brought civil proceedings against the State seeking non-pecuniary damages for the death of her partner. Those proceedings are still pending before the first-instance court. RELEVANT LEGAL FRAMEWORK
Domestic legislation
30. The relevant provision of the Criminal Code (Kazneni zakon, Official Gazette no. 125/11, with subsequent amendments), as in force at the material time, reads as follows:
Article 118
Serious bodily injury
“(1)  Whoever inflicts a serious bodily injury on another person, or severely impairs his or her health, shall be punished by imprisonment from six months to five years. (2)  Whoever commits the offence from paragraph 1 of this Article out of hate; towards a close person or a person particularly vulnerable on account of his or her age, severe physical or mental disorder or pregnancy; or as an official person in the performance of his or her official duty, or a responsible person in the exercise of a public authority, shall be punished by imprisonment from three to eight years.”
Article 120
Serious bodily injury resulting in death
“If the criminal offence referred to in Article ... 118 ... results in the death of another person, the perpetrator shall be punished by imprisonment from three to fifteen years.”
Article 181
Medical negligence
“A doctor of medicine, doctor of dental medicine or other health care worker who, in providing health care services, applies an obviously inadequate means or method of medical treatment or in some other way obviously fails to follow the rules of the health care profession or acts obviously negligently, thereby causing the deterioration of an illness or the impairment of the health of another person shall be punished by a term of imprisonment not exceeding one year.”
31. The relevant provisions of the Police Duties and Powers Act (Zakon o policijskim poslovima i ovlastima, Official Gazette nos. 76/09 and 92/14), as in force at the material time, read as follows:
Section 81
“Within the meaning of this Act, means of coercion shall include:
1.  physical force,
...
4.  means of restraint ...”
Section 84
“(1)  A police officers is authorised to use physical force for the purpose of:
1.  overcoming the resistance of a person who disturbs public order and peace or who needs to be brought somewhere, apprehended, detained or arrested,
2.  preventing a person from self-harming,
3.  preventing attacks on oneself or another person or on the object or space [the police officer] secures,
4.  preventing arbitrary removal of a person from a certain place. (2)  A police officer is authorized to use an irritant spray when the conditions for the use of physical force are met, except in cases of overcoming passive resistance.”
Section 85
“A police officer is authorised to use means of restraint for the purpose of preventing:
1.  resistance by a person or warding off an assault on a police officer,
2.  a person’s escape,
3.  the infliction of self-injury or injury to another person.”
32. The relevant provisions of the Code of Conduct for Police Officers (Pravilnik o načinu postupanja policijskih službenika, Official Gazette nos. 89/10 and 76/15), read as follow:
The use of means of coercion
a)  Use of physical force, irritant sprays and batons
Section 129
“A police officer is authorised to use physical force in order to overcome resistance from a person disturbing public peace and order, or a person who needs to be brought somewhere, apprehended, detained, arrested or prevented from inflicting self-injury, in order to prevent an attack on himself or herself or on another person, object or secured premises, and in order to prevent a person from wilfully leaving a certain place. The use of physical force includes: blows with body parts, manoeuvres and other defence or attack techniques used to force a person into obedience when the requirements prescribed by law have been met. A police officer shall apply the form of physical force that enables him or her to achieve the desired aim with the least harmful consequences.”
Section 130
“Within the meaning of this Code, resistance is considered to be any resistance to or failure to obey a warning or order of a police officer issued for the purpose of performing police duties or while exercising police powers. Within the meaning of this Code, an attempt to escape is also considered resistance. Resistance can be active or passive. Active resistance exists when a person resists [a police officer] by using weapons, tools, other objects, or physical force and thus prevents a police officer from performing police work. Encouraging resistance is also considered active resistance. Passive resistance exists when a person does not obey a warning or order by putting himself in such a position that he prevents the execution of police work (lying down, kneeling, holding onto a person or an object, and so on). Physical force will be used with particular care and with prior consultation with a medical doctor against a pregnant woman in a visible stage of pregnancy, a person whose movement is significantly impaired, a child, or an obviously ill person when they offer passive resistance.”
Section 131
“When the conditions for the use of physical force to overcome active resistance are met, the police officer can also use a[n irritant spray] if he judges that the use of this means would achieve the desired goal with the least harmful consequences. A police officer shall not use an irritant spray on a person who is passively resisting.”
Section 133
“Restraining equipment limits the mobility of a person’s body by the person having his or her arms tied behind his or her back with the prescribed restraining equipment (handcuffs) or other appropriate equipment (belts, ropes, cable ties, and so on). A police officer shall restrain the person he or she is apprehending or taking into custody or an arrested person if there is a risk that the person in question may escape, resist or assault the police officer, injure himself or herself or injure another person.”
33. The relevant provisions of the Protection of Persons with Mental Disorders Act (Zakon o zaštiti osoba s duševnim smetnjama, Official Gazette no. 76/2014) provide:
Section 7
“(1)  The dignity of a person with mental disorders must be protected and respected in all circumstances. (2)  A person with a mental disorder has the right to protection from all forms of exploitation, abuse and inhuman or degrading treatment.”
Forced detention and forced accommodation
Section 27
“A person with severe mental disorders who, because of those disorders, poses a serious and direct danger to their own life, health or safety or to those of others, shall be placed in a psychiatric institution in accordance with the procedure for confinement and forced accommodation prescribed by this Act.”
Section 28
“(4)  When the police bring a person to a psychiatric institution [in response to an emergency] call or in the course of their duties in the cases referred to in subsection 3 of this section, they shall act with special care to protect the dignity of the person with mental disorders and shall follow the doctor’s instructions. An instruction on police behaviour in bringing a person with mental disorders to a psychiatric institution shall be issued by the minister responsible for health affairs in cooperation with the minister responsible for internal affairs.”
Section 61
“(1)  Coercive measures against a person with severe mental disorders may be applied only exceptionally if they are the only means to remove an immediate danger arising from behavior that seriously and directly endangers his own or another person’s life or health. (2)  Coercive measures will be applied only to the extent and degree absolutely necessary to remove the danger referred to in subsection 1 of this section. (3)  Coercive measures may continue only as long as necessary to eliminate the danger referred to in subsection 1 of this section. (4)  Coercive measures may be applied only after non-coercive measures have not eliminated the danger referred to in subsection 1 of this section.”
34. The relevant parts of the Instruction on police procedure for bringing persons with mental disorders to a psychiatric institution (Naputak o postupanju policije u dovođenju osobe s duševnim smetnjama u psihijatrijsku ustanovu, Official Gazette no. 50/15) read as follows:
Section 2
“(1)  When police officers, acting in the course of their duties or [in response to an emergency] call, determine that there is a danger that a person with mental disorders will pose a serious and direct danger to their own life or to the health or safety of others, they will request that medical personnel come to the scene of the incident so that they undertake the necessary action. (2)  In particularly urgent cases, when a person with a mental disorder poses a serious and direct danger to his own life or to the health or safety of others, and it is not possible to ensure the timely action of medical personnel as referred to in subsection 1 of this section, police officers will apply force, as carefully as possible and to the slightest degree necessary to eliminate the immediate danger with the least harmful consequences, while preserving the dignity of the person involved.”
International law
35. In the document CPT/Inf/E (2002) 1 – Rev. 2010, published on 8 March 2011, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) noted, in respect of the deportation of foreign nationals, that in cases where resistance was encountered, escort staff usually immobilised the detainee concerned completely on the ground, face down, in order to place him or her in handcuffs. Keeping a detainee in such a position – in particular in the event that escort staff put their weight on various parts of the body (for example, exerting pressure on the ribcage, placing their knees on the back, immobilising the neck) after the person concerned has put up a struggle – entails a risk of positional asphyxia. According to the CPT, the use of force and/or methods of restraint capable of causing positional asphyxia should be avoided whenever possible and any such use in exceptional circumstances must be subject to guidelines designed to reduce to a minimum the risks to the health of the person concerned. THE LAW
ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
36. The applicant complained, under Articles 2, 3 and 13 of the Convention, that her partner had died as a result of an excessive and disproportionate use of force by police officers and that the State had failed in its positive obligation to protect his life by providing him with adequate emergency medical assistance. She further submitted that the investigation into the relevant circumstances had not been effective. 37. As master of the characterisation to be given in law to the facts of the case before it (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 124, 20 March 2018), the Court considers that the case falls to be examined under both the substantive and the procedural limbs of Article 2 of the Convention, the relevant part of which reads as follows:
“1. Everyone’s right to life shall be protected by law.”
Admissibility
38. The Government submitted that the application had been premature because, at the time of lodging of the application with the Court, the investigation by the domestic authorities into V.D.’s death had still been underway. They also argued that the applicant had failed to exhaust an effective domestic remedy in that she had failed to lodge a constitutional complaint before lodging her application with the Court. 39. The applicant disagreed. She pointed out that while the domestic investigation had ended in 2021 and that she had lodged a constitutional complaint in the same year, the latter had been decided upon only after a significant delay of two and a half years. 40. The Court has previously accepted that the last stage of a particular remedy may be reached after the application has been lodged but before its admissibility has been determined, as is the situation in the present case (see Karoussiotis v. Portugal, no. 23205/08, § 57, ECHR 2011 (extracts); Şahin Alpay v. Turkey, no. 16538/17, § 86, 20 March 2018; and M.H. and Others v. Croatia, nos. 15670/18 and 43115/18, § 139, 18 November 2021). 41. In the present case the criminal investigation came to an end in 2021, when the applicant’s criminal complaint was dismissed for the second time. Furthermore, the Court notes that the applicant raised her complaint under both the substantive and the procedural limbs of Article 2 of the Convention with the competent domestic authorities, including the Constitutional Court (see paragraph 27 above), thereby affording them the opportunity of putting right the alleged violation of the Convention. It follows that the Government’s objections must be dismissed. 42. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsSubstantive limb of Article 2 of the Convention

(a)   The parties’ arguments
(i)      The applicant
43. The applicant maintained that the force used by the police against her late partner had been greater than necessary. Despite being aware of his mental disorder, five strong police officers had used disproportionate force against him, beating him up and causing him serious bodily injuries resulting in death, thereby failing to protect the life of a vulnerable individual under their control. 44. V.D. had had no pre-existing heart or other health conditions; his death had been caused by the excessive use of force coupled with inadequate medical care. The applicant maintained that, despite having a very low systolic blood pressure, V.D. had been given inappropriate medicine that lowers blood pressure. Although they had been aware that V.D. had bitten off part of his finger and that his face was turning blue, the police and medical personnel had laid him on his stomach on the ambulance stretcher and he had not been observed by the doctor or the nurse, both of whom had sat in the front of the ambulance. (ii)    The Government
45. The Government maintained that V.D. had not been hit by the police officers, which they submitted had been confirmed by three eyewitnesses to the incident. They were unwilling to comment any further on the case because a criminal investigation was still underway at the time when their observations were lodged. (b)   The Court’s assessment
(i)      General principles
46. Together with Article 3, Article 2 of the Convention enshrines one of the basic values of the democratic societies making up the Council of Europe. of the Convention. The object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective (see, among many other authorities, Salman v. Turkey [GC], no. 21986/93, § 97, ECHR 2000-VII; Giuliani and Gaggio v. Italy [GC], no. 23458/02, §§ 174 and 177, ECHR 2011 (extracts); and Boukrourou and Others v. France, no. 30059/15, § 54, 16 November 2017). 47. In the light of the importance of the protection afforded by Article 2, the Court must subject allegations of a breach of this provision to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances – including such matters as the relevant legal or regulatory framework in place and the planning and control of the actions under examination (see Makaratzis v. Greece [GC], no. 50385/99, §§ 57-59, ECHR 2004‑XI; Tekin and Arslan v. Belgium, no. 37795/13, § 84, 5 September 2017; Boukrourou and Others, cited above, § 55; and Machalikashvili and Others v. Georgia, no. 32245/19, § 99, 19 January 2023). 48. As regards, in particular, the use of lethal force by police officers, the Court has held that unregulated and arbitrary action by State agents is incompatible with effective respect for human rights. This means that, in addition to being authorised under national law, policing operations must be sufficiently regulated by it, within the framework of a system of adequate and effective safeguards against arbitrariness and abuse of force, and even against avoidable accident (see Makaratzis, cited above, § 58, and Tekın and Arslan, cited above, § 84). 49. The Court further reiterates that the authorities have an obligation to protect the health of persons who are in detention or police custody or who, as was the case of V.D., have just been arrested and whose relationship with the State authorities is therefore one of dependence. That entails providing prompt medical care where the person’s state of health so requires, in order to prevent a fatal outcome (see Tekin and Arslan, cited above, § 85). Any such positive obligation is to be interpreted in such a way as not to impose an impossible or disproportionate burden on the authorities. In other words, only the fact that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life can constitute a possible violation of a positive obligation on the part of those authorities (see Osman v. the United Kingdom, 28 October 1998, § 116, Reports of Judgments and Decisions 1998-VIII, and Scavuzzo-Hager and Others v. Switzerland, no. 41773/98, § 66, 7 February 2006). 50. Finally, Article 2 of the Convention also imposes on the State the positive obligation to train its law-enforcement officials in such a manner as to ensure that they have a high level of competence and to prevent any treatment that runs contrary to that provision (see V v. the Czech Republic, no. 26074/18, § 87, 7 December 2023, and, mutatis mutandis, Tekin and Arslan, cited above, § 95). (ii)    Application in the present case
51.

Article of the Convention at issue: Article 2
Outcome: violation