February 06, 2026
By Victor Van Steendam
While it is difficult to collect accurate numbers on drug use in prisons, European studies do show that a significant number of prisoners continue using or even start using drugs in prison. The increased prevalence of drugs in society is furthermore a well-established phenomenon that has received increasing attention in the past decades. Consequently, drug overdoses in prison, both accidental and induced, are more likely to occur. This raises the question of how far the positive obligations of the prison officers reach regarding the right to life of drug-addicted prisoners. The case of Rasmussen and Others v. Denmark focused on two aspects related to that obligation: the establishment of when prison officers know or ought to know that the life of a prisoner is in danger; and the scope of the basic precautions that they must take regardless.
The case concerns a complaint alleging a violation on behalf of the Danish prison authorities of Kragskovhede Prison of their positive obligations under the right to life and of the prohibition of torture, resulting in the accidental death of a prisoner by a drug overdose (articles 2 and 3 ECHR). On the morning of 16 November 2017, the prisoner, a known addict, attended the infirmary and is said to have taken a bottle of methadone tablets during a brief moment when the nurse left. Later that evening, after a fellow inmate voiced concern, prison staff observed the prisoner in an intoxicated state. He was taken to the medical unit, the nurse who had earlier treated him was consulted, and he was moved to a provisional observation cell out of precaution. Guards carried out regular welfare checks throughout the night, where the victim was heard snoring or seen moving up to 23:55 but was found unresponsive at 00:15. At that point, prison staff attempted to give first aid and called an ambulance. However, the victim was shortly thereafter declared dead. Autopsy reports later confirmed that the cause of death was drug poisoning from both methadone and other opioids. Both the Prison and Probation Service and the Parliamentary Ombudsman (in a broader assessment of suicide attempts in the prison) noted several critical points related to the incident in 2020, after which the procedures surrounding the dispensary were changed (para 15-17).
The family brought a compensation claim in November 2020, arguing that inadequate supervision and medical care had resulted in a failure to protect the prisoner’s life. In first instance, the District Court ruled in their favour. It concluded that available evidence, including a fellow inmate’s testimony and the autopsy, sufficiently established a course of events where it should have been clear to prison staff that a significant risk of overdose on methadone existed and the calling of a doctor was required to meet their obligations (para 18-22). This ruling was subsequently reversed on appeal by the High Court. The latter emphasised the prisoner’s habitual intoxication, the absence of signs of suicidal intent, the precautions and regular checks performed by staff that night, and the prisoner’s own refusals of additional medical intervention. As such, it concluded that, given the information available to prison staff at the time, they had no reason to presume that his condition was worsening and thus their actions did not amount to a breach of Article 2 (para 23-29).
Upon appeal to the European Court of Human Rights, the applicants argued that prison staff underestimated the real and immediate risk to the victim despite evidence from another prisoner, conversations with the nurse, and his severe intoxication. They also relied on the Prison and Probation Service’s 2020 report identifying avoidable mistakes, failures to follow internal rules, the absence of a proper medical examination or doctor call, and the lack of naloxone (para 53-55). The Danish Government meanwhile countered that staff took all reasonable steps given the information available, that only minor administrative lapses occurred, that no formal search or urine test (or proven theft) would have altered matters, and that toxicology pointed to multiple illicit drugs which had to have been obtained in violation of criminal law (para 56-62).
Firstly, the Court decided to consider the application only under the substantive limb of Article 2 of the Convention (para 49). It then assessed the State’s duty through two distinct lenses. First, the specific positive obligation to intervene when authorities know (or should know) of a ‘real and immediate’ risk to life (para 65). Second, the general obligation to provide ‘basic precautions’ and prompt medical care that applies to all prisoners due to their inherent vulnerability (para 66-67).
The Court noted that the applicants chose not to complain about the availability of drugs in Danish prisons, nor about the investigations and autopsy that followed the victim’s death (para 69-70). Thus, the Court focused on its two-fold test to examine whether the prison authorities knew or ought to have known that there was a real and immediate risk that the victim would lose his life, and, if this were the case, whether they failed to take measures available to them that might have been expected to avoid the risk from materialising. Regarding the former, the Court followed the reasoning of the High Court that his routine state of intoxication, the practical tests carried out by prisoner officers and the observations with documented intention to call a doctor if he deteriorated (regardless of his continued refusal to see one) show that the prison authorities did not know of a particular danger to his life. At least not a danger potentially greater than that of other drug-addicted prisoners (para 76 and 89). The Court added to this conclusion by pointing out the uncertainty of whether the bottle of 100 tablets had actually gone missing. It took particular note of the bottle never being found, the uncertainty regarding the number of methadone tablets he had ingested and the fact that the autopsy reports had also found other opioids, such as oxycodone and fentanyl, in his system, whose origins are even more unclear (para 77-78). For the Court, the two-fold test for a positive obligation under Article 2 to exist thus already fails on the first prong (para 89).
Regarding the basic precautions that are always required in the context of detention, the Court was satisfied with the national assessment that certain measures were taken when prison staff became aware of his intoxication (para 89). Any regulatory shortcomings and further potential measures, such as those established in various reviews by national instances, were set aside by the Court as it was unclear how they would have affected the outcome (para 83-86).
In conclusion, the Court unanimously found that no violation of Article 2 had occurred, as the prison authorities did not know or could not have known that the victim was so intoxicated that there was a real and immediate risk that his life would be lost and as they provided the basic precautions necessary in the specific context of detention.
In the context of drug use in prison, it is foremost important to highlight that the Court has developed a subset of case law under Article 2 that specifically deals with the protection of persons deprived of their liberty and of vulnerable persons under the care of the State. The Court has thereby emphasised that persons in custody find themselves in a vulnerable position (see Dzieciak v. Poland, 2009, para 90; Keenan v. UK, 2001, para 91). A position that is even more vulnerable where the person concerned is a drug addict (see Ainis and others v. Italy, 2023, para 58). Concretely, the Court has long held that prisoners have a right to two specific forms of protection under a combined reading of Articles 2 and 3 of the Convention. First, the State is obligated to provide for detention conditions which respect the human dignity of prisoners. The Court has interpreted this as an obligation to limit the level of suffering inherent in detention to the unavoidable, meaning that the manner and method of how the sentence is carried out is not allowed to subject prisoners to distress or hardship beyond that which is unavoidable. Second, the State also has an obligation to adequately secure the health and well-being of prisoners. This includes providing them with the necessary medical assistance (see Dzieciak v. Poland, 2009, para 91). Where a death occurs under suspicious circumstances while the individual concerned is in custody, the Court considers it a general rule that this should raise red flags regarding the State’s compliance with its obligation to protect that person’s right to life (para 64; Ainis and others v. Italy, 2023, para 54; Slimani v. France, 2004, para 27).
As this case dealt with the accidental overdose of a prisoner, the Court applied its interpretation of the positive obligation that Article 2 imposes on the authorities to protect individuals from themselves. To assess whether such a positive obligation exists, the Court has long relied on its well-established two-fold test. A test which it has used both in cases resulting in self-harm and cases concerning harm due to acts by third parties (Keenan v. UK, 2001, para 90; Osman v. UK, 1998, para 116). First, the Court will thereby assess whether the authorities knew or ought to have known that the life of a particular individual was subject to a real and immediate risk. The Court typically takes several factors into account to make this determination. These range from the person’s history of mental health issues, the gravity of their mental condition and past suicide or self-harm attempts to current suicidal thoughts and signs of physical or mental distress (Boychenko v. Russia, 2021, para 80; Fernandes de Oliveira v. Portugal [GC], 2019, para 115). Only when this knowledge-condition has been established will the Court assess whether the authorities actually failed to take measures within the scope of their powers which reasonably might have been expected to avoid the risk.
It is regarding this knowledge-condition that the Court determines the outcome of this case and therefore where it expounds on the practicalities of its determination. Considering the factors mentioned above, the Court took particular note of the mental state of the victim at the time of the events. As such, the victim’s past threats to commit suicide were neglected in favour of his current state of mind and the lack of specific alarming signs towards self-harm (para 26 and 81). Similarly, the Court explicitly focused on his own behaviour (para 88). On the one hand, the Court gave significant weight to his history of far-reaching drug abuse that made him regularly appear under the influence of one drug or another and allowed the Court to conclude that he could have been considered to have acquired a certain tolerance for it. On the other hand, his abuse of multiple illegal substances on the day of his death and his persistent denial thereof, as well as his refusal to see a doctor, were considered to have significantly contributed to the perception of prison staff, resulting in a limitation of their knowledge and the accompanying obligations (para 81,82 and 88). Interestingly, the Court consistently makes this entire assessment against the two alternative benchmarks of whether the prisoner in question found himself to be in a particularly dangerous situation on the day of his death or whether he had faced a potentially greater risk of death than any other drug-addicted prisoner (para 76; Patsaki and others v. Greece, 2019, para 95). While this reasoning is pragmatic and realistic, it does raise the question of whether this entails a normalisation of risk for addicts. As their ‘state of crisis’ becomes their baseline, this seemingly affords those in a position of significantly heightened vulnerability the least amount of protection.
As a result of the knowledge-condition not being fulfilled, the Court concluded that the prison staff’s obligations were limited to providing basic precautions. In line with earlier case law regarding the specific context of detention or custody, this is always required to minimise potential risk to the health and well-being of prisoners (Daraibou v. Croatia, 2023, para 84; Mižigárová v. Slovakia, 2010, para 86 and 89). On this point, the Court concluded that the prisoner officers made several choices of measures to monitor him, test his level of intoxication and induce him to tell the truth (para 83). This satisfied the Court, despite explicitly noting that one or more of the measures not taken might have mitigated the risk of the victim dying by overdose (para 80 and 86). In particular, the Court passed by the rapport of the Prison and Probation Service, which noted that instructions and regulations required a stock management system and allowed for a formal search, a urine sample, a doctor’s visit and a sample analysis (for what was found in his cell). According to the Court, if a stock management system had been available, a missing bottle would have been detected quickly but with the cabinets already being locked, human error would not have been prevented by it. While this is once again a logical and pragmatic approach, it also establishes a ‘regulatory loophole’ for states and lowers the incentive for strict safety protocol compliance.
Regarding the other available measures, it was unclear to the Court how they would have cast a light on the amount of drugs that he had taken and how this would have given a clear image, given his suspected tolerance level. If the knowledge-condition had been met, the Court would have examined these options more in detail. It would nevertheless have remained difficult to square the coercive nature and invasiveness on the victim’s personal autonomy of many of them with the uncertainty of their impact (para 86). For example, the Court did find the lack of an intimate body search problematic, given the intoxication and behavioural signs in Ainis and Others v. Italy(para 62). However, this case lacked such indicators to suspect the victim of smuggling more drugs with him (para 86).
As there was no argumentation on the availability of naloxone during the proceedings before the domestic courts, the Court did not examine this point. Nonetheless, it did include part of the report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, which established that naloxone was prohibited in Danish prisons at the time of the events and pointed out the ‘denial of reality’ that this entails (para 47). It would have been interesting to see whether this would have changed the Court’s determination, given that this is a well-known antidote for opioid overdoses, and the use of various drugs was seemingly well known in the prison (para 26-27).
Overall, the Court took quite a pragmatic and realistic view. The difficulties in dealing with drug addicts and the behaviour of the victim were given their fair weight in the assessment of the facts available to prison staff, while the intent and efforts taken by the officers were concluded to be enough despite certain shortcomings in regulatory compliance and the non-usage of more invasive measures. In this way, the traditional two-fold test for the existence of a significant, occasion-bound positive obligation remains intact. Additionally, the specific positive obligation to provide basic precautions in a context of detention remains quite limited. Where a choice in measures is available, a certain margin of appreciation is given to the authorities in determining how they fulfil this obligation. The most significant aspect of this judgment may be the Court’s explicit confirmation that a lack of regulatory compliance is in and of itself insufficient to automatically result in a violation of the obligations incumbent upon the prison authorities under Article 2 of the Convention, requiring the concrete assessment of the impact that compliance could have had before a violation can be established.
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