This is the first of two posts on the case from the European Court of Human Rights, Shalyavski v Bulgaria  ECHR 564; (App no. 67608/11) 15.6.17, concerning breaches of Articles 3 and 8. This first one concerns damages for (arguably) detention contrary to Article 3. Where a disabled person, unable to mobilise himself, was kept by the police in a car for between eleven and twelve hours as a result of the arrest of his carer, this amounted to a breach of Article 3. Monetary damages were awarded but were typically modest.
The Claimant suffered from muscular dystrophy. On 7th April 2011, at around 11.00, the Claimant and his care assistant were stopped and told to follow the police to the police station. On their arrival, the care assistant was arrested.
As a result of the care assistant’s arrest, the Claimant remained sat in his car for several hours. He was moved to another car, due to its being seized as evidence, at around 15.00 – his care assistant being brought out to assist. It was said that on two or three occasions, the Claimant’s partner was allowed to come to help him with his physical needs. During this time, the police searched his home, office, cars and the homes of his parents.
At 19.30 the Claimant was taken to court for an application that he be placed under house arrest but could not exit the car. At around 21.30, he was assisted in getting out the car by his care assistant, who was brought out from detention for this.
The Claimant claimed that he had suffered inter alia humiliating conditions in which he had to relieve his physical needs and the public exhibition of his physical weakness.
The court found a violation of article 3 for the following reasons:
- No reason was offered why the Claimant had to remain immobilised in the car for such a period of time. No reason was given as to why he could not have returned home whilst awaiting the bringing of charges. It had not been claimed that his presence could have obstructed the search .
- It had not been claimed that no other person could have assisted the Claimant. The arrest had been part of a pre-planned operation and the authorities had never claimed that they were unaware of the Claimant’s condition .
- Another carer could have assisted the Claimant but no effort was made to provide one, with the result that the Claimant was left for many hours in a state of helplessness, causing anger and humiliation .
The Claimant claimed €20,000 in damages. The court awarded €3,000.
It is the lack of evidence in this case that is surprising. This was part of a pre-planned operation, that later resulted in the Claimant’s being placed under house arrest and charged with criminal offences. It was not, therefore, as a result of an impromptu and immediate police action where there was little time to prepare.
However, no thought appeared to have been given as to the Claimant’s condition and how to deal with him. As the judgment said – there was no explanation as to why he could not be taken home or why a suitably qualified carer could not have been provided.
If this situation arose here, there might have been other causes of action involving the Equality Act 2010 section 29. This provides that a person must not in the exercise of a public function do anything that constitutes discrimination (which would include indirect disability discrimination) or harassment and must make reasonable adjustments.