Use of much-needed force by police during the arrest of a mentally ill person. The ECtHR did not find any inhuman or degrading treatment or punishment
JUDGMENT
Tenenbaum v. France 16.12.2021 app. no. 68260/17)
SUMMARY
The case concerns a complaint by the applicant that he had been subjected to acts of violence during
his arrest by gendarmes, together with allegations of bias and other defects in the ensuing
investigation.
Under the procedural head of Article 3, the Court noted that the investigations prompted by the
applicant’s criminal complaint had been carried out expeditiously and carefully by independent
authorities, which had made serious efforts to establish the facts, while allowing for adversarial
debate, before ruling in the form of detailed and duly reasoned decisions. The domestic authorities
had thus fulfilled their obligation to conduct an effective investigation.
As to the substantive head of Article 3, the Court found it established that the applicant had
forcefully resisted arrest by the gendarmes when they tried to handcuff him. He was suffering from
mental and neurological disorders, as a result of which the Criminal Court had declared that he
lacked criminal responsibility for the offences of robbery and resisting arrest. In view of the case file
as a whole, the Court acknowledged that the gendarmes’ use of force during his arrest had thus
been strictly necessary and proportionate to the conduct of the applicant, who had proved difficult
to restrain.
PROVISION
Article 3
PRINCIPAL FACTS
The applicant, Yaniv Tenenbaum, is a French national who was born in 1984 and lives in Nice.
On the evening of 3 June 2012, at around 10.30 p.m., while Mr Tenenbaum was in a fast-food
restaurant, a fight broke out between him and an employee from whom he had tried to steal a bag.
Three other employees joined in. Four gendarmes arrived on the scene at around 11 p.m., having
been called by the manager. By that time the brawl had stopped and Mr Tenenbaum was outside
the premises. Three of the gendarmes used force to restrain him.
The Bourg-en-Bresse Criminal Court found, in a judgment of 17 October 2012, that Mr Tenenbaum
had committed the offences of robbery and resisting arrest. However, it decided that the applicant
was not criminally responsible for his actions.
In the meantime, on 16 July 2012, Mr Tenenbaum had lodged a complaint for acts of violence by
persons vested with public authority against the four gendarmes who had arrested him. On 8
October 2012, the public prosecutor of Bourg-en-Bresse decided not to act upon the complaint, as
“the investigations conducted by the commanding officer of the Gex gendarmerie, following the
complaint …, did not reveal any questionable behaviour by these gendarmes at the time of the
arrest”.
On 15 April 2013 Mr Tenenbaum filed a criminal complaint, with an application to be joined to the
proceedings as a civil party, alleging violence by persons vested with public authority. The investigating judge discontinued the case on 29 December 2014 and that decision was upheld on 4 September 2015 by the Criminal Investigations Division of the Lyon Court of Appeal.
His appeal on points of law was declared inadmissible on 13 December 2016.
The application was lodged with the European Court of Human Rights on 7 September 2017.
Relying on Articles 3 (prohibition of torture and inhuman or degrading treatment) and 6 (right to a
fair hearing) of the Convention, the applicant complained about alleged acts of violence during his
arrest and he also alleged bias and other defects in the investigation into those acts.
THE DECISION OF THE COURT…
Article 3
The Court, being the master of the legal characterisation of the facts, considered that the complaints
should be examined solely from the standpoint of Article 3 of the Convention.
With regard to the procedural aspect, the Court began by noting that the investigation prompted by
the applicant’s criminal complaint had been properly conducted by an investigating judge, who was
“an independent judicial authority which had no hierarchical or structural connection with the
police” (Semache v. France) or the gendarmerie, and that the investigative acts carried out under a
warrant had been entrusted to the General Inspectorate of the National Gendarmerie, whose
independence and impartiality had not been questioned by the applicant.
Noting that the applicant had not been questioned about his allegations and that the investigating
judge had not considered it useful to hold a confrontation between him and the gendarmes in
question, the Court nevertheless found that, taken as a whole, the judicial investigation met the
requirement of effectiveness.
The Court observed that the investigations prompted by the applicant’s criminal complaint had been
carried out expeditiously and carefully by independent authorities, which had made serious efforts
to establish the facts, while allowing for adversarial debate, before ruling in the form of detailed and
duly reasoned decisions. The domestic authorities had thus fulfilled their obligation to conduct an
effective investigation.
As to the substantive aspect, the Court noted that the gendarmes had intervened after a violent
brawl during which the applicant had been struck several times. It had not been possible, as the
Criminal Investigations Division of the Lyon Court of Appeal had observed, to determine the
proportion of injuries caused by the blows received during the scrap and those caused by the
gendarmes’ use of physical force when he was arrested. It had also been established that the
applicant had shown forceful resistance to the gendarmes when they had tried to handcuff him, and
that at the time he had been suffering from mental and neurological disorders, as a result of which
the Bourg-en-Bresse Criminal Court had declared him not to be criminally responsible for the
offences of robbery and resisting arrest. The Court was convinced by the investigating judge’s finding
that the applicant’s state of insanity at the time of his arrest had made it difficult to restrain him.
The use of force by the gendarmes during the arrest had therefore been strictly necessary and
proportionate to the applicant’s conduct.
The application was manifestly ill-founded and had to be rejected.
