The first applicant, Abdullah Yasa, was struck in the face by a tear gas canister which he claimed had been fired directly into the crowd by a law enforcement officer during a demonstration. The public prosecutor decided to take no further action, and refused to examine whether the force used had been proportionate, on the grounds that law enforcement agencies had acted in the interests of maintaining public order and to defend themselves against a hostile crowd.
Violation of Article 3 and failure to comply with requirements under Article 46
The injuries suffered by Yasa were unquestionably serious and were considered by the court under Article 3 of the convention, the prohibition of inhuman or degrading treatment. Video evidence showed the demonstrations had not been peaceful, and as such the use of tear gas to disperse the gathering could be justified. However, this did not justify firing tear gas canisters directly at the protesters. The firing of tear gas canisters using a launcher entailed a risk of causing serious injury, as in the present case, or even of killing someone if the launcher was used improperly. Consequently, given the dangerous nature of the equipment used, the court considered that its case-law on the use of potentially lethal force should apply mutatis mutandis in the present case. As well as being authorized under national law, policing operations—including the firing of tear gas canisters—had to be sufficiently regulated by it, within the framework of a system of adequate and effective safeguards against arbitrariness, abuse of force, and avoidable accidents. Under Article 46 (binding force and execution of judgments), the court held that the safeguards surrounding the proper use of tear-gas grenades needed to be strengthened in order to minimize the risk of death and injury resulting from their use. The court held there had been a violation of Article 3 (prohibition of torture and inhuman or degrading treatment) of the European Convention on Human Rights.
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