SECOND SECTION
 
CASE OF JERET v. ESTONIA
(Application no. 42110/17)
 
 
 
 
 
JUDGMENT
 
STRASBOURG
9 June 2020
 
 
 
 
This judgment is final but it may be subject to editorial revision. In the case of Jeret v. Estonia,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
 Egidijus Kūris, President,
 Arnfinn Bårdsen,
 Darian Pavli, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having deliberated in private on 12 May 2020,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 42110/17) against the Republic of Estonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Estonian national, Mr Peeter Jeret (“the applicant”), on 9 June 2017. 2. The applicant was represented by Mr R. Paas, a lawyer practising in Tallinn. The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs. 3. On 3 September 2018 notice of the complaints under Article 3, concerning the handcuffing of the applicant to a hospital bed, was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. 4. The President of the Section acceded to a request by the Government to grant confidentiality to their observations as well as to Annex 5 of these observations (Rule 33 § 1 of the Rules of Court). THE FACTS
THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1959 and is detained in Jõhvi. The applicant’s stay in hospital
6. On 18 September 2016 at 10.50 a.m. a member of the medical department at the Tallinn prison was asked to go to the applicant’s cell to check his health. As, based on a visual examination, the applicant seemed to have the symptoms of a heart attack, he was transported to a medical procedure room in the next building. The necessary medical indicators were recorded and an ambulance was called. At 11.46 a.m. the applicant arrived at East Tallinn Central Hospital (hereinafter “ETCH”). From 12.47 p.m. to 1.23 p.m. a coronary artery expansion procedure was performed. The applicant was then taken to an intensive care ward on the fifth floor. On 21 September 2016 the applicant was taken to a regular ward on the same floor. 7. On the same day, a duty officer (peaspetsialist-korrapidaja) of the Tallinn prison issued an order in respect of escorting the applicant out of prison. In the order, under the section of means of restraint (ohjeldusmeetmed), use of handcuffs was indicated. Under the headline “The explanation of the use of the means of restraint and other relevant information”, a general reference was made to sections 69, 70(1) and 70-1 of the Imprisonment Act (Vangistusseadus), which allow for the use of various means of restraint when a prisoner is escorted outside the prison. It was also stated, in general terms, that escorting a prisoner out of prison entailed a serious security threat both for the prison as well as for society at large, and that the risk of escape increased when under escort. An escort plan (saateplaan) was attached to the order, according to which the escort would consist of two prison officers, one of whom was ordered to stay in close proximity to the applicant, in order to ensure constant supervision. Under the section entitled “Circumstances relevant to the escort task” (Saateülesande täitmiseks olulised asjaolud) it was noted that the applicant had been imprisoned since 2010 for a drug-related crime and that it was his first imprisonment. His age, height, physical build, eye and hair colour were noted and it was added that the applicant had a 6-cm-long scar and a large burn scar measuring 10 by 4 cm on the left inner forearm. It was also noted in that section that “in order to ensure the safety of the prison officers and the security of the surrounding people, it is expedient (otstarbekas) to use handcuffs as a means of restraint on the prisoner and to present him with the conditions of being escorted for his signature.” Under the heading “Special requirements for the escort task” (Saateülesande täitmise erinõuded) it was noted that the task of escorting the prisoner involved taking him for medical procedures. It was repeated that at least two prison officers were to stay within the near vicinity of the prisoner. No reference was made to the applicant’s behaviour in prison. In the second part of the escort plan, details of an incident which took place on 22 September 2016 were subsequently recorded (see paragraph 9 below). 8. The applicant remained in hospital until 22 September 2016. Handcuffs were applied throughout his stay. However, the handcuffs were taken off every day when the escort teams changed (for a couple of minutes each time, on a total of nine occasions during his stay), during breakfast, lunch and dinner (lasting approximately ten to fifteen minutes each), when going to the toilet, when undertaking hygiene procedures (between ten and thirty minutes in the mornings or evenings), in order to change his clothes, once when changing wards and also during medical procedures (which lasted between five and twenty minutes). To avoid an unnatural and forced position, two pairs of handcuffs were used together, attached to each other in a chain. The officers varied which hand was handcuffed and the applicant always had one hand free. The handcuffs were attached to the rails of the hospital bed, midway down the bed, so that when lying down, the applicant’s hand and arms could rest in a normal position. 9. On the morning of 22 September 2016 the applicant refused to be handcuffed when he returned from the toilet. According to the reports submitted after the incident by the two prison guards involved (see paragraphs 10-11 below), after being repeatedly warned that if he continued to refuse, coercion might be used, the applicant still refused to comply and used offensive and threatening language towards the prison officers. Two prison officers grabbed the applicant by his arms and one of them handcuffed him while the other tried to hold him down by his other arm and chest. In the subsequent criminal proceedings against the applicant (see paragraphs 27-30 below) it was established that during that process, the applicant kicked and hit one of the prison officers repeatedly with his fists in the facial and chest area. 10. On the same day, a prison officer drew up a report about the use of force, describing the circumstances leading to the use of force and the use of force itself (Füüsilise jõu, teenistusrelva, erivahendi või ohjeldusmeetme kasutamise ja õiguserikkuja terviseseisundi kontrollimise protokoll). According to the report, the use of force had lasted for about five minutes from 7.15 a.m. to 7.20 a.m. The report stated that after the force had been used, the applicant’s health had been checked by a medical worker. 11. Also on that day, the prison officers who had been present during the incident involving the use of force submitted further written reports (ettekanne) to the acting director of the Tallinn prison, again describing the events leading up to the use of force and explaining how the applicant was eventually handcuffed. 12. According to the information provided by the ETCH in the course of the criminal proceedings against the applicant (see paragraphs 27–30 below), on the morning of 22 September 2016, the doctor on duty (K.K.) carried out a medical check of the applicant. The following entry was made in the applicant’s records (päevikukanne): “Left hand attached to the bed with handcuffs. Some subcutaneous haematomas on the wrist and redness of skin from the handcuff. ... Approximately 1 mm abrasion at the third to fourth [metacarpophalangeal] joint on the left hand, where a drop of blood was visible. No other visible physical injuries. The patient complains of pain in the right wrist, claiming that it was twisted – objectively no swelling or redness is visible, can freely move the hand from the wrist.” According to ETCH, the entry was made at 7.10 a.m. Despite this time reference, it is not entirely clear from the documents and arguments provided by the parties whether this medical check preceded the use of force or was carried out directly after that (compare paragraphs 22 and 51 below). 13. The applicant’s attack on the prison officer was also noted in the applicant’s medical file under his case history (epikriis). It included a comment to the extent that the applicant had been very aggressive and had not understood his condition, although it had been repeatedly explained to him. 14. In connection with the incident of 22 September 2016, criminal proceedings were initiated against the applicant and he was convicted by a judgment of the Harju County Court on 16 October 2017 (see paragraphs 27-30 below). 15. The applicant was returned to the Tallinn prison at 11.23 a.m. on 22 September 2016. The handcuffs were removed. The doctors had not prescribed any special care regime for him. 16. On 23 September 2016 the applicant wished to document the injuries sustained after the use of force. According to the applicant’s medical file at the prison, two haematomas on the left wrist with a diameter of 6 cm were recorded. On a request by the applicant, the prison also took photographs of his injuries. The photographs show haematomas around the applicant’s left wrist and on the inside of his right wrist, a small abrasion on one of the knuckles on the left hand and abrasions on one of his legs. Other than the photograph showing abrasions to the applicant’s leg, the injuries shown on the photographs match the description provided by the ETCH (see paragraph 12 above). 17. It appears from the materials submitted to the Court that on 30 September 2016 the applicant requested the prison to take a photograph of a haematoma on his chest. He claimed not having noticed it before. The prison responded that the injuries relating to the use of handcuffs in prison had already been recorded on 23 September 2016 at which time the applicant had made no mention of a haematoma on his chest. The prison did not consider it necessary to take more photographs of the applicant’s chest. Criminal proceedingsApplicant’s attempt to initiate criminal proceedings

18. On 23 September 2016 the applicant lodged a criminal complaint with the Tallinn prison, arguing that handcuffing him between 18 and 22 September 2016 had been unlawful and disproportionate and that the prison officers had caused him physical pain and mental suffering by using that means of restraint. 19. On 3 October 2016 the applicant lodged a criminal complaint with the Northern District prosecutor’s office, repeating his claims about the unlawful and disproportionate use of handcuffs on him. 20. On 6 October 2016 the Tallinn prison refused to initiate criminal proceedings, explaining that the use of handcuffs had been based on a lawful order of the duty officer on 18 September 2016. Against that background, none of the statutory elements constituting the criminal offences laid down in Articles 290-1 (torture), 291 (abuse of authority) and 324 (unlawful treatment of prisoners) of the Penal Code (Karistusseadustik) had been present (see paragraphs 34 below). In particular, with regard to Article 324, the prison noted that the statutory offence presupposed – as a subjective element – direct intent on the part of the alleged perpetrator. In the instant case, the prison officers (who had been following the orders given to them) had not had a direct intention to degrade or discriminate against the applicant or to unlawfully restrict his rights. As for the other two offences, the prison noted that – as an objective element of the offence – they required unlawfulness, whereas the use of the means of restraint and the use of force had had a legal basis. Moreover, the use of force had not exceeded the acceptable level of intensity. 21. On 12 October 2016, the Northern District prosecutor’s office refused to initiate criminal proceedings. It referred to the applicant’s criminal complaint which included a thorough description of the events, the order authorising the escort, the escort plan (see paragraph 7 above), the reports drawn up by the prison officers who had been involved in the incident of 22 September 2016 (see paragraphs 10 and 11 above), and the photographs taken of the applicant on 23 October 2016, and gave a day-by-day account of the number of times and the length of time that the applicant had been without handcuffs (see paragraph 8 above). It also noted that the applicant’s medical condition had been checked by a medical worker at the ETCH. The Northern District prosecutor’s office concluded that there had been a legal basis for the use of handcuffs and that neither the objective nor the subjective elements of the above-mentioned criminal offences (see paragraph 20 above) had been present. As for the use of force, the Northern District prosecutor’s office considered that it had been minimal and justified. 22. A further appeal lodged by the applicant on 19 October 2016 before the Office of the Prosecutor General was dismissed on 24 October 2016. In addition to the information relied on by the Tallinn prison and the Northern District prosecutor’s office, the Prosecutor General referred to the witness statements given by the prison officers in the criminal proceedings against the applicant (see paragraph 27 below). 23. According to the statement of the first officer, a medical worker had checked the applicant in the morning, at the beginning of the prison officer’s shift, and had stated that the haematomas on the applicant’s wrists had been caused by the treatment, namely by the attachment of a cannula. A medical worker who had checked the applicant after the use of force had stated that there had been no resultant injuries. 24. The second prison officer explained in detail how they had handcuffed the applicant, and how he had in the process used aggressive and threatening language and had hit and kneed the officer in the face. The Prosecutor General concluded that in the event that the applicant had suffered any pain or sustained an injury when being handcuffed, it had been as a result of his own unlawful behaviour. The Prosecutor General agreed that, based on the established facts, no elements of any of the criminal offences referred to above nor of any other criminal offence set out in the Penal Code could be ascertained and that the decision not to initiate criminal proceedings had been justified. As for the applicant’s claim that the Northern District prosecutor’s office had not been impartial in the proceedings as he had not been questioned, the Prosecutor General explained that the applicant had had ample opportunity to submit his account of the events in writing and to provide evidentiary documents and that in such circumstances there was no obligation under the law for the prosecutor’s office to ask additional questions. In any event, the applicant had not explained what aspects he considered had not been sufficiently elucidated, nor had he raised any new issues in his appeal. 25. As an appeal against the decision of the Office of the Prosecutor General had to be submitted by a lawyer (advokaat), on 31 October 2016 the applicant lodged a request with the Tallinn Court of Appeal for state legal aid. The Tallinn Court of Appeal, by a decision of 16 November 2016, dismissed the request. The court examined the materials concerning the refusal not to initiate criminal proceedings and found that in the light of the detailed analyses provided by the Office of the Prosecutor General in its decision, the prospects of success of the applicant’s appeal were negligible. The Tallinn Court of Appeal considered that under the circumstances handcuffing the applicant to a bed did not qualify as torture in the sense of the Penal Code. Moreover, the use of force on 22 September 2016 was not punishable as any other criminal offence as the applicant himself had actively resisted the lawful orders of the prison officers. The latter had shown no intention to cause pain or damage to the applicant’s health. 26. On 21 November 2016 the applicant lodged a request for state legal aid with the Supreme Court, in order to appeal against the decision of the Tallinn Court of Appeal. The Supreme Court dismissed this request by a decision of 10 January 2017, finding that the prospects of success in the applicant’s case were negligible. Criminal proceedings against the applicant
27. In 2016, while serving his sentence in prison, criminal proceedings concerning four separate instances of inflicting “health damage” between February and September 2016 were initiated against the applicant. The instances involved kicking another prisoner, attacking prison officers in prison and attacking a prison officer in hospital on 22 September 2016. As to that final incident, according to the applicant’s statements given in the course of the proceedings, he had resisted when the prison officers had tried to handcuff him, there had been a scuffle and he had hit a prison guard with his fists. According to a statement by one of the prison officers, the applicant had also kneed him in the face. The injuries of the prison officer were recorded at the ETCH. 28. The applicant was convicted of physical abuse and use of violence against a representative of a state authority by the Harju County Court in a judgment of 16 October 2017. In relation to the incident of 22 September 2016, the court relied on, inter alia, the statement of one of the prison officers about the use of force and the applicant’s injuries allegedly sustained as a result of that (see paragraph 22 above) and examined the response provided by the ETCH which reflected the content of an entry by a medical professional on the morning on 22 September 2016 (see paragraph 12 above). It also noted that, based on the case file, there was no information to show that the use of handcuffs on the applicant had been contraindicated. The court noted that the use of handcuffs in the hospital, as an additional means of security, had been justified as the applicant’s previous conduct had been problematic and unpredictable. 29. By a judgment of 12 December 2017 the Tallinn Court of Appeal dismissed an appeal lodged by the applicant. 30. On 11 April 2018 the Supreme Court denied the applicant leave to appeal. Administrative proceedings
31. On 4 May 2018 the applicant lodged an application with the Tallinn prison seeking compensation for non-pecuniary damage sustained as a result of, inter alia, his treatment at the hospital between 18 and 22 September 2016. 32. On 4 July 2018 the Tallinn prison dismissed the applicant’s request, but noted that an appeal against the decision could be lodged within thirty days. The applicant did not appeal. RELEVANT DOMESTIC LAW AND PRACTICEDomestic lawImprisonment Act

33. Sections 69, 70, 70-1 and 71 of the Imprisonment Act (Vangistusseadus), as in force at the material time, provided as follows. Section 69 – Additional security measures
“(1) Additional security measures shall be imposed on a prisoner who systematically violates the requirements of this Act or the internal rules of the prison, damages his or her health or is likely to attempt suicide or escape, or to a prisoner who poses a threat to other persons or security in the prison. Additional security measures may also be imposed for the prevention of serious offences. (2) The following additional security measures shall be permitted:
...
5. use of means of restraint. (3) The application of additional security measures shall be terminated if the circumstances specified in subsection (1) of this section cease to exist. ...”
Section 70 – Use of means of restraint
“(1) It is permitted to use physical restraint, handcuffs, ankle cuffs or a restraint jacket as the means of restraint provided for in section 69(2)(5) of this Act. Means of restraint may also be used when a prisoner is being escorted. Ankle cuffs may be used as a means of restraint only while escorting a prisoner or placing a prisoner inside the prison. (2) A means of restraint shall not be applied for longer than twelve hours.”
 
Section 70-1. Special equipment and service weapons used in prisons
“(1) The following are special equipment used in prisons:
1. handcuffs, ankle cuffs, bindings, restraint jackets, restraint chairs and beds used as a means of restraint;
...”
 
Section 71. Use of special equipment and service weapons in prisons
“... (2) A prison officer has the right to use self-defence equipment and physical force when performing his or her service duties or for ensuring his or her own safety.
... (7¹) After use of direct coercion with regard to a prisoner, a healthcare professional shall examine the state of health of the prisoner as soon as possible. The circumstances of the use of direct coercion and the results of the medical examination shall be recorded. (7²) Where means of restraint are used with regard to a prisoner, the provisions of subsection (7¹) of this section are mandatory only in the following cases:
1. where physical force was used in order to employ a means of restraint;
2. where means of restraint are used continually for more than fifteen minutes, unless the operation has been performed on the basis of a pre-issued administrative order or in the case that handcuffs and ankle cuffs are used during an escort task;
3. where a prisoner files a complaint relating to his or her state of health;
4. in other cases if the need to check the state of health of a prisoner becomes evident.
...”
Penal Code
34. Articles 290-1, 291 and 324 of the Penal Code (Karistusseadustik), as in force at the material time, provide as follows:
 
Article 290-1. Torture
“(1) The act of an official causing a person great or consistent physical or mental pain without legal grounds and with the intention of receiving statements from him or her or third persons, punishing, frightening, coercing or discriminating, as well as the act of an official instigating such an act or consenting to such an act is punishable by one to seven years’ imprisonment.
...”
Article 291. Abuse of authority
“Unlawful use of a weapon, special equipment or physical force by an official is punishable by a fine or by one to five years’ imprisonment.”
 
Article 324. Unlawful treatment of prisoners
“Degrading the dignity of a prisoner, a person in detention or custody or taken into custody to recover from intoxication, discriminating against such a person or the unlawful restricting of his or her rights by an official of a custodial institution while taking advantage of his or her official position, if it does not contain the necessary elements of an offence as set out in Article 290-1 of this Code, is punishable by a fine or up to one year’s imprisonment.”
Regulation no. 17 of 30 May 2006 of the Minister of Justice, “Prisoner Escort Duties and Procedures”
35. The relevant provisions of the Regulation no. 17 of 30 May 2006 of the Minister of Justice, “Prisoner Escort Duties and Procedures” (Vangla saatemeeskonna ülesanded ja töökord) have been cited in the case A.T. v. Estonia (no. 23183/15, §§ 32-34, 13 November 2018). Relevant domestic case-lawUse of means of restraint

36. In a judgment dated 13 November 2009 in administrative case no. 3‑3-1-63-09, the Supreme Court assessed the use of handcuffs on a prisoner while under escort. The Supreme Court stated that when escorting prisoners outside the premises of the prison, means of restraint were applied as a preventive measure in order to avoid an escape or to mitigate the risk to the life and health of others (such as the escort team or other people being escorted). When applying preventive measures, the harm feared did not definitely have to occur, but such harm had to be probable. It was considered that the opportunities to reduce risks were more limited in an escort vehicle than in a prison (as the latter had closed premises, different accommodation wings, increased security and surveillance possibilities and different supervisory measures). 37. In a judgment of 2 June 2010 in case no. 3-3-1-33-10 the Supreme Court assessed the lawfulness of additional security measures (restrictions on freedom of movement and communication and placement in locked isolation cells). First, the court explained that when the grounds listed in section 69(1) of the Imprisonment Act existed, it was at the discretion of the prison as to whether to apply any additional security measures and, if needed, to choose a specific measure. In the light of that, the court’s control was limited to deciding whether mistakes had been made in the exercise of that discretion. The court found that additional security measures served a preventive or deterrent purpose and, in deciding to apply them, the prison authorities were anticipating a future situation. In the light of that, it was not always necessary to first verify the circumstances serving as the basis for applying additional security measures within disciplinary, misdemeanour or criminal proceedings. In order to apply such security measures, it was sufficient that the prison had developed a justified fear of potential harm. The same principles were also reiterated in the Supreme Court judgment of 23 May 2013 in administrative case no. 3-3-1-19-13, where the court underlined that when deciding on the use of any means of restraint, the administrative authority had to assess a person’s propensity to escape, his or her prior behaviour and potential behaviour during the escort, the general security threat based on the specific nature of the need to be escorted, and the sufficiency of any other measures that could be taken to reduce the threat. Compensatory remedies
38. By a judgment of 26 November 2007 in administrative case no. 3‑07-1558, Tartu Administrative Court declared unlawful a measure taken by Tartu prison where the prison had used handcuffs on the complainant while escorting him outside the prison. The court ordered the prison to pay the complainant damages compensating for the non-pecuniary damage suffered in the amount of 3000 kroons (equivalent to 191.73 euros). In the course of judicial proceedings, it was ascertained that the complainant had been handcuffed for the whole time that he was being escorted, that is to say while going to the escort vehicle, while in the vehicle and while exiting the vehicle, even though the escort team had been authorised to use handcuffs only outside the compartment of the escort vehicle. Thus, the complainant’s rights had been excessively restricted. 39. By a judgment of 3 October 2013 in administrative case no. 3-3-1-47-13, the Supreme Court’s Administrative Law Chamber ordered the Tallinn prison to pay the complainant damages in respect of non-pecuniary damage in the amount of 1,275 euros. The Supreme Court underlined that in accordance with the section 70(1) of the Imprisonment Act, the use of means of restraint was discretionary and that the necessity and the proportionality of the measure had to be established. The Supreme Court found that keeping the complainant in a restraint bed for two hours had been lawful, but it had been unlawful to continue restraining him in that manner for longer than that. THE LAW
ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
40. The applicant complained of the use of handcuffs throughout his stay in hospital and the use of force in order to handcuff him as well as the subsequent inadequate investigation of his complaints. He relied on Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
41. The Government contested that argument. AdmissibilityThe parties’ submissions

42. The Government contended that the applicant had not exhausted the domestic remedies. Although he had tried to initiate criminal proceedings against the prison officers, this had not been an adequate remedy. In the present case, all the relevant levels of jurisdiction had refused to initiate criminal proceedings, coming to the conclusion that the activities of the prison officers had lacked the characteristics of a criminal offence. Against that background, an adequate remedy in the applicant’s case would have been an action for damages in the administrative court, where the outcome would not have been determined by the findings of the criminal proceedings. This was supported by the domestic case-law under which Estonian courts had established the unlawfulness of certain restraint measures taken by prisons and had awarded compensation to the relevant complainants (see paragraphs 38-39 above). Although the applicant had lodged an application with the Tallinn prison for compensation in respect of non-pecuniary damage, he had not pursued it further after the prison had dismissed his request. 43. Alternatively, the Government argued that the application was inadmissible as manifestly ill-founded. 44. The applicant contended that in the circumstances a criminal remedy had been an appropriate one. He referred to the Court’s position in Julin v Estonia (nos. 16563/08 and 3 others, 29 May 2012) where the Court had considered that as physical abuse and unlawful treatment of prisoners constituted criminal offences under the Penal Code, the applicant’s choice of resorting to a criminal procedure had not been unreasonable and that he had not been required to embark on another set of proceedings before the administrative courts (see Julin, cited above, § 115).

Outcome for Article 3: violation