From IJRC News Room <[email protected]>
Subject International Justice Resource Center
Date November 22, 2019 7:55 AM
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IJRC News Room

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ECtHR Holds Violent Arrest in front of Child Constitutes Ill-Treatment

Posted: 21 Nov 2019 04:13 AM PST
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Delivery of Judgment, European Court of Human Rights
Credit: ECtHR
In its first judgment to directly consider the issue, the European Court of
Human Rights (ECtHR) has held that violently arresting a parent in front of
a child may constitute inhuman or degrading treatment of the child, in
violation of the Article 3 of the European Convention on Human Rights. See
ECtHR, A v. Russia, no. 37735/09, Judgment of 12 November 2019. In the case
of A v. Russia, Russian police beat and arrested A’s father in front of her
when she was nine years old, leaving her with post-traumatic stress
disorder (PTSD) and a neurological disorder, among other health
complications. See id. The Court found that the State authorities violated
Article 3 when they violently arrested A’s father outside her school, in
spite of knowing she was likely to be present (and was present), and when
they failed to effectively investigate the family’s allegations that the
police used excessive force. See id. at paras. 75-82. The judgment has
implications for other situations where authorities arrest parents by force
in front of their children, and comes as the Convention on the Rights of
the Child, which has been ratified by every country in the world except the
United States of America, celebrates its 30-year anniversary this month.

Summary of the Facts
The applicant’s father, a police officer, was arrested during an undercover
operation organized by Russia’s Federal Service for Drug Control (FSKN)
following a drug purchase. See id. at para. 6. The applicant’s father was
arrested outside of her school on May 31, 2008 while A was waiting for her
father in their car. See id. at para. 8. The applicant alleged that the
police officers knocked her father to the ground and began kicking and
beating him, while the State argued that the police officers did not use
physical force to arrest the applicant’s father. See id. at paras. 8, 17.
The applicant ran away from the scene and her uncle found her on the street
shortly after. See id. at para. 8. She was later diagnosed with PTSD,
neurogenic hyper-reflective urinary bladder, anxiety, a neurological
disorder, and other health complications after the incident. See id. at
paras. 18-22.
In July 2008, the applicant’s mother complained to the authorities about
her daughter’s health complications, requesting that the prosecutor’s
office conduct an investigation. See id. at para. 23. The prosecutor opened
a pre-investigation inquiry, but did not open an investigation or initiate
criminal proceedings, concluding that physical force was not used during
the arrest and that A had not been threatened with physical or
psychological violence. See id. at paras. 23, 32. The applicant’s mother
unsuccessfully appealed the results of the pre-investigation before
domestic courts and then submitted a complaint to the European Court, which
an ECtHR chamber found admissible. See id. at paras. 41-42, 51.
Inhuman or Degrading Treatment Analysis
The ECtHR chamber reiterated that Article 3, which prohibits torture or
inhuman or degrading treatment under all circumstances, is “one of the most
fundamental values of democratic society” and clarified that States have a
duty to investigate any “credible assertion that [an individual] has
suffered treatment infringing Article 3” at the hands of State agents. See
id. at paras. 52-53. States must investigate allegations of torture or
inhuman treatment in an effective manner that is capable of leading to the
identification and punishment of those responsible. See id. at para. 53.
With respect to children, the ECtHR summarized its understanding that
Article 3 requires States to implement “effective” measures to protect
children from inhuman treatment, including taking “reasonable steps to
prevent ill-treatment of which the authorities had, or ought to have had,
knowledge” as well as “effective deterrence.” See id. at para. 55. These
steps must protect the best interest of the child. See id. In cases
regarding scenes of arrest, the ECtHR noted that States must take into
account the presence of children at the scene when conducting these
operations given that children’s “age makes them psychologically
vulnerable.” See id. at para. 56. In this regard, the Court referred to a
prior case in which it held that the early morning arrest of a father in
his home by masked special officers, that was planned without taking into
account the presence of his wife or young children, violated all four
family members’ rights under Article 3. See id. (citing Gutsanovi v.
Bulgaria, no. 34529/10, § 132, ECHR 2013 (extracts)).
In A’s, it was undisputed that she was present at the time of her father’s
arrest and that she was diagnosed with several medical health conditions
shortly thereafter, including PTSD, enuresis, anxiety, and depression. See
id. at para. 17. While the State disputed the use of force during the
arrest, the ECtHR chamber found A’s allegations regarding the violent
arrest credible, citing sufficient evidence based on witnesses’ statements
indicating that A’s father was knocked to the ground and beaten during the
arrest. See id. at paras. 58-65.
Thus, the ECtHR chamber concluded that A’s interests as a nine-year-old
child were not taken into consideration during the State’s operation,
finding that the police officers, knowing that she was present at the
scene, continued with the operation and exposed her to a “scene of violence
against her father in the absence of any resistance on his part.” See id.
at para. 67. The severe impact that this had on the applicant’s health,
which the chamber found amounted to ill-treatment, combined with the
State’s failure to meet its positive obligation to prevent it, resulted in
a violation of Article 3 of the Convention. See id. at paras. 67-68.
Separately, the ECtHR found that the State did not meet its procedural
obligations under Article 3, which requires that the State conduct an
effective investigation into credible allegations of ill-treatment. See id.
at para. 69. The chamber noted that the authorities only conducted a
pre-investigation inquiry, rather than a “fully-fledged” investigation
capable of challenging Ms. A’s credible allegations with regard to her
exposure to the violent arrest, and refused to begin criminal proceedings.
See id. at para. 66.
Finding a violation of Article 3, the ECtHR chamber did not find necessary
to examine the applicant’s complaint under articles 8 (respect for private
and family life) and 13 (right to effective remedy) of the Convention. See
id. at paras. 70, 74.
Additional Information
See the IJRC’s thematic research guide on Children’s Rights and the ECtHR’s
thematic factsheets, including on Protection of Minors, for explanations of
States’ human rights obligations with regard to children. For more
information about the European Court of Human Rights, and other regional
and universal human rights bodies, visit IJRC’s Online Resource Hub. To
stay up-to-date on international human rights law news, visit IJRC’s News
Room or subscribe to the IJRC Daily.



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