Strasbourg Observers

And the question still remains: when is it allowed to use tear gas or pepper spray?

March 04, 2014

This post was written by Sophie Forrez. Sophie is a Ph.D. Researcher at the Human Rights Centre of Ghent University. She works on a project on the impact of the European Convention on Human Rights in the Belgian legal order in the early years of the Convention.

In two recent cases, Tali v. Estonia and Gramada v. Romania, the European Court of Human Rights dealt with the use of pepper spray and tear gas. In both cases, the Court found a violation of article 3 of the Convention. The first case concerns the use of pepper spray and the practice of strapping prisoners to a restraint bed in penal institutions. The second case deals with a police officer using tear gas and shooting the applicant in the thigh during an ordinary arrest of an individual who was on the run and took refuge in the applicant’s home. Although in both cases a violation was found, both judgments missed a perfect opportunity to create more clarity on the ground.

The facts

In the first case, Tali v. Estonia, the applicant is serving a life sentence. In prison he was known as a dangerous person, since he had been disobeying orders and threatening and attacking prison officers and other prisoners on a regular basis. On 3 July 2009, when prison officers came to take him to a punishment cell, where he had to serve a disciplinary punishment, he objected. The prison guards pressed his neck so strongly that he lost his breath and they allegedly broke his rib. The next day, the applicant refused to hand over his mattress – which he was told by the nurses he was entitled to keep due to his broken rib. One guard unexpectedly sprayed pepper spray in his face without warning, and hit him on the back, allegedly after he had been handcuffed. The applicant was then strapped to a restraint bed for three and a half hours.

The second case, Gramada v. Romania, concerned the police pursuing an individual who was trying to avoid a breathalyzer test. The individual took refuge in the home of Gramada and his father, both of whom tried to intervene. The pursuing agent first used tear gas on Mr Gramada and later he shot Mr Gramada in the thigh. In the following legal proceedings, the County Court acquitted the police agent on the grounds that he had acted in self-defense. The County Court based its judgment on the agent’s statement that the applicant and his father had been aggressive and that they had been threatening him with knives.

Earlier cases involving tear gas or pepper spray

Of course, this was not the first time the Court had to deal with the use of tear gas or pepper spray. In a couple of earlier cases, like Oya Ataman v. Turkey (74552/01), Abdullah Yasa v. Turkey (44827/08), Ali Gunes v. Turkey (9829/07), Petrus Iacob v. Romania (13524/05), the Court already dealt with cases involving  the use of gasses.

There are different circumstances where the use of tear gas or pepper spray can occur. Mostly it is used for the purposes of law enforcement (Petrus Iacob v. Romania, Ali Gunes v. Turkey); including domestic riot control (Oya Ataman v. Turkey, Abdullah Yasa v. Turkey). Tear gas or pepper spray is also used in prison.

In different earlier cases the Court recognized that the use of pepper spray or tear gas could produce “effects such as respiratory problems, nausea, vomiting, irritation of the respiratory tract, irritation of the tear ducts and eyes, spasms, chest pain, dermatitis and allergies. In strong doses it may cause necrosis of the tissue in the respiratory or digestive tract, pulmonary oedema or internal hemorrhaging” (Oya Ataman v Turkey).

Also in earlier cases, the Court observed that, according to the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (the CWC), tear gas is not considered a chemical weapon and its use is authorized for the purpose of law enforcement, including domestic riot control.


In Tali v. Estonia, the Court refers to the concerns expressed by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the CPT) that pepper spray is a potentially dangerous substance and should not be used in confined spaces. The CPT furthermore states that pepper spray should never be deployed against a prisoner who has already been brought under control.

The Court then reiterates the dangerous effects pepper spray can have, and concludes that

“having regard to these potentially serious effects of the use of pepper spray in a confined space on the one hand and the alternative equipment at the disposal of the prison guards, such as flak jackets, helmets and shields on the other, the Court finds that the circumstances did not justify the use of pepper spray”

Thus, using the less restrictive alternative test and stressing that the use of pepper spray in confined spaces is unacceptable, the Court decides that the use of pepper spray in this case was not justified.

Additional to that, the Court also ruled on the practice of the restraint bed. In 2012, the Court had to deal with a similar case, also against Estonia, of a prisoner who was strapped to a restraint bed for nine hours (Julin v. Estonia, 16563/08). The Court noted that the events giving rise to the complaint about the use of the restraint bed in the case of Julin and those of the present case took place at approximately the same time and under the same domestic law. In Julin the Court found a violation of article 3 of the Convention.

In the concluding paragraph the Court finds that considering the cumulative effect of the measures used in respect of the applicant it rules that the applicant was subjected to inhuman and degrading treatment in violation with article 3.

In Gramada v. Romania, the applicant lodged his complaint under article 6; he complained of the ill treatment to which he had been subjected and of the lack of an effective investigation in that regard. However, the Court considered that the issues raised should be examined under article 3.

The Court considers that the agent who first sprayed and then shot Mr Gramada did not hesitate a second to use his weapons. However, the incident with the tear gas is only examined indirectly. The Court states that “bien que ces actes particuliers ne fassent pas l’objet de l’examen de la Cour dans la présente affaire, elle ne saurait pas les ignorer dans le contexte qui a conduit à l’usage d’une arme à feu”. The Court thus remarks that the use of tear gas is not under its scrutiny, but that it will take it into consideration when assessing the use of the firearm.

The Court nevertheless observes that

Même à supposer qu’elle accepte la version du policier selon laquelle I.C. l’aurait repoussé, il n’apparaît pas que le comportement de ce dernier représentait un risque grave et sérieux pour l’ordre public ou pour l’intégrité physique des agents publics, qui aurait pu justifier l’usage qui a été fait du spray irritant à son encontre (Petruş Iacob c. Roumanie). Le policier a ensuite fait usage de son spray à l’encontre du père du requérant qui l’aurait également repoussé dans un premier temps de sa cour afin d’empêcher l’interpellation d’I.C. Le comportement du père du requérant ne semblait pas non plus constituer un danger important contre l’intégrité physique des agents publics.”

The Court thus refers to Petrus Iacob and notes that it is not established that the subjects’ behavior represented a serious risk for the public order or for the police’s physical integrity.

In the concluding paragraph the Court decides that « dans les circonstances particulières de l’affaire, et compte tenu de ce qui précède, la Cour parvient ainsi à la conclusion que l’enquête pénale litigieuse n’a pas offert un redressement approprié de l’atteinte portée à la valeur consacrée dans l’article 3». The Court thus decides that the criminal investigation at the national level did not provide appropriate redress for the infringement of the principle enshrined in the Article 3, and that there had been a violation of article 3.


It is a pity that the Court did not use these two recent opportunities to clearly set out the modalities and conditions in which pepper spray or tear gas can be used.

In the first case, the Court concludes that the cumulative effect of the pepper spray and the restraint bed constituted a violation of article 3. This means that it is unclear whether the use of pepper spray alone or the practice of strapping a prisoner to a restraint bed would constitute a violation of the Convention. In Tali v. Estonia, the Court notes that it is aware of the difficulties the States may encounter in maintaining order and discipline in penal institutions. The Courts understands that this is particularly so in cases of unruly behavior by dangerous prisoners, since this is a situation in which it is important to find a balance between the rights of different detainees or between the rights of the detainees and the safety of the prison officers. It is precisely to tackle these difficulties that the Court should have made a clearer statement in this judgment.

In the second case, the issue of the tear gas is only discussed very briefly and indirectly. The Court states that the use of tear gas is not under scrutiny, but nonetheless, it would have been a great opportunity for the Court to, by way of an obiter dictum, state clearly whether or not the use of pepper spray in this case would have been a violation of article 3.

The legal status of tear gas and pepper spray still remains unclear. However, it is a relevant question that arises in different settings and situations, it could be important for police offers confronted with popular protests like in Turkey, Ukraine, …

In these two recent judgments, the Court does not remedy the lack of clarity on the ground. As long as the Court does not shed light on when the use of tear gas and/or pepper spray violates human rights, in a clear and unambiguous manner, police officers, prison guards, and other individuals working on the ground, will still have to deal with the same question in a manner they deem appropriate.

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  • Eva Brems says:

    mooie eerste post, Sophie! Eva


  • Stuart Wallace says:

    It strikes me that this is part of a broader failure by the ECtHR to deal with regulation of the use of force holistically. It often focuses on a single issue and fails to consider broader issues related to how the use of force is regulated, which results, as you clearly identify, in a lack of clarity concerning the rules on when and how certain weapons can be used. Have you considered the ECtHR’s case in Finogenov v Russia at all in your research? The ECtHR effectively excused the use of a gas on a mixture of civilian and terrorist targets and failed to criticise the lack of regulations governing the use of the gas. The ECtHR stated that the ‘legislative framework for the use of the gas in the present case remains unclear’ and that the law ‘does not indicate what type of weapons or tools can be used and in what circumstances’, but nonetheless failed to find a violation of Article 2 on the grounds that the State had not sufficiently regulated the use of force.