Case of El-Asmar v. Denmark, (Application no. 27753/19)

A selection of key paragraphs can be found below the judgment.

68. Finally, it would have been relevant to question more thoroughly why, as part of the preparation, despite their prior knowledge and the passage of some 20 minutes between the applicant’s conduct being first recorded and the prison guards entering his cell the latter could not have forewarned the applicant, before entering the observation cell, that pepper spray would be used against him if he did not obey orders, or why, for example, they did not enter his cell with the pepper spray visibly drawn ready to be used. This is particularly so as the Executive Order no. 296 of 28 March 2017 on the Use of Force against Inmates in Prisons, and Circular Letter no. 9315 (see paragraph 30 above), expressly requires that “before pepper spray or CS gas is used, the relevant inmate must be notified, if possible, that pepper spray or CS gas will be used in case of failure to obey staff orders. It must be ensured, if possible, that it is possible for the inmate to obey the order” (section 6 of the Executive Order). In this context, it might also have been appropriate to examine whether in respect of preparing to enter his cell there had been sufficient “assistance” available (see paragraph 34 above, point 99), and whether provision could or should have been made for specific evidence about the operation to be gathered.

71. In this connection, the Court reiterates 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 should never be deployed against a prisoner who has already been brought under control (see paragraphs 33 and 35 above). Moreover, in its 2019 report to the Danish Government (CPT/Inf (2019) 35) (see paragraph 34 above), the CPT observed that since its 2014 visit, a number of instruments had been adopted or amended to reinforce the safeguards surrounding the use of pepper spray, including that prisoners should receive a warning that pepper spray will be used if they fail 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 considers that the investigation should have carefully addressed whether the procedural safeguards laid down in domestic law for the use of pepper spray had been complied with, seeing that these would be elements to be taken into account in assessing whether the use of pepper spray in the present case had amounted to ill-treatment contrary to Article 3 of the Convention.

78. In particular, the prosecution authorities failed to examine whether, despite their prior knowledge of the applicant’s repeated threats and physical attacks on the prison guards and the passage of some 20 minutes between the applicant’s conduct being first recorded and the prison guards entering his cell, their actions and, in particular, the use of pepper spray without prior warning, had been strictly necessary, and whether in these circumstances, the operation had been prepared adequately and in compliance with the Executive Order and the recommendations by the CPT (see paragraph 70 above).