45008/22

FIFTH SECTION CASE OF ROUX v. SWITZERLAND (Application no. 45008/22) JUDGMENT STRASBOURG 12 November 2026 This judgment is final but it may be subject to editorial revision. In the case of Roux v. Switzerland, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Mykola Gnatovskyy, President, Andreas Zünd, Vahe Grigoryan, judges, and Martina Keller, Deputy Section Registrar, Having regard to: the application (no. 45008/22) against the Swiss Confederation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 15 September 2022 by a French and Swiss national, Mr Aymael Roux (“the applicant”), who was born in 1988, lives in Geneva and was represented by Ms D. Bazarbachi, a lawyer practising in Geneva; the decision to give notice of the complaint concerning Article 3 to the Swiss Government (“the Government”), represented by their Agent ad interim, Mr A. Scheidegger, of the Federal Office of Justice, and then by their Agent Mr Xavier-Baptiste Ruedin; the parties’ observations; Having deliberated in private on 15 October 2026, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1. The applicant alleges that he was subjected to ill-treatment by the police and that the investigation into his allegations failed to comply with Article 3 of the Convention. The applicant’s version of the events 2. On 9 April 2018, during a random identity check in a park in Geneva, he was stopped by three plainclothes police officers from the drug squad. Although he presented his identity card, the applicant, due to his mental state and past assaults, questioned the officers’ authenticity. Becoming agitated, he called his mother. Noticing his distress, the officers decided to handcuff him. 3. Still suspicious, the applicant attempted to flee, kneeing one of the officers, Mr L., in the groin before running off. He got into the back seat of a car which had pulled over. It was driven by his mother’s neighbour, Ms. B., who had seen the applicant running away and believed he was being pursued by attackers. The police officers caught up with the vehicle and tried to pull the applicant out, shouting that they were law enforcement. Ms. B. then stopped and exited the car. 4. When the applicant refused to leave the car and resisted, Officer S. punched him multiple times in the face, resulting in injuries and blood splatter on the rear window. In front of Ms B. the officers then pulled the applicant from the car. While Officer L. immobilised his legs, Officer S. continued to punch him, even after the applicant had been handcuffed and was lying face down on the ground. Ms B. yelled at the officers asking them to stop beating the applicant and stating that she personally knew him. Then the applicant was taken to the police station. 5. Later that day, Officers S. and L. filed a complaint against the applicant for violence against public servants. The applicant was found guilty of the charge and was fined, a decision upheld by the Geneva Court of Justice in July 2021. THE GOVERNMENT’S VERSION OF THE EVENTS 6. On 9 April 2018, during a patrol, the police inspectors S., L. and B.S. noticed the applicant leaving a well-known heroin dealing spot and decided to check him for drugs. They had identified themselves, but the applicant initially refused to show an identification document and attempted to flee. Officer S. grabbed him by the arm, and, only then, the applicant produced some form of identification. Given the applicant’s aggressive attitude towards the officers, they decided to handcuff him for safety. To do so, Officer L. grabbed the applicant’s arm before taking out his handcuffs. The applicant then knelt officer L.’s groin, causing the latter to lose his balance. Then the applicant punched officer S. in the forehead before fleeing. Officers S. and L. pursued the applicant while Officer B.S. called for reinforcements. After several hundred metres, the applicant opened the rear door of a passing vehicle and got inside. Officers S. and L. stopped the vehicle and attempted to pull him out. The applicant struggled and kicked. Officer S. punched the applicant in the face and torso several times in an attempt to subdue him. Then Officer S. managed to grab the applicant, enabling L. to grip his neck. After being subdued, the applicant was taken out from the vehicle, put on the ground and handcuffed by Officer B.S. after several more seconds of fighting, as the applicant refused to give up his hands. During this time, the driver of the vehicle Ms. B. had gotten out of the car and observed the incident. 7. Afterwards the applicant was taken to the police station, where the police spoke to his parents, who told them that their son suffered from schizophrenia. The doctor contacted by the police was unable to examine him due to his state of agitation and it was decided to take him to the hospital. The applicant said he was extremely distressed "at the idea of being raped", but finally agreed to be hospitalised, reassured by the presence of his father at the police station and then his mother at the hospital. 8. According to the Geneva University Hospital’s report of 10 April 2018, the applicant had a fractured nose, simple head trauma and a left orbicular hematoma. Relevant proceedings 9. On 9 July 2018, the applicant filed a complaint against Officers S. and L. for abuse of authority and assault. On 12 July 2018 the General Inspectorate of Services (IGS) initiated an inquiry into the allegations. On 14 January 2020, the IGS, concluded that actions of the police officers were justified by the applicant’s resistance. 10. On 18 May 2020, a criminal case was opened against the Officer S. for abuse of authority and bodily harm. The investigation gathered statements from the applicant, his mother, Ms. B., and the police officers involved. On 30 June 2021, the prosecutor’s office closed the case, determining that the use of force was necessary and justified. 11. The applicant appealed against that decision. In November 2021, the Geneva Court of Justice upheld the discontinuance of the criminal proceedings against Officer S. It found, in particular, that it was undisputed that the applicant had sustained injuries. The sole issue was whether those injuries were inflicted in circumstances rendering the Officer’s conduct lawful. The court found that the applicant had refused to comply with the Officers’ request to identify himself and adopted a violent and evasive demeanour. He had disregarded police instructions, attempted to flee, and entered a vehicle occupied by a female driver. In light of his agitated behaviour, the Officers had been entitled to regard him as presenting a continuing risk, including to the safety of the vehicle’s occupant. The applicant had continued to resist arrest forcefully inside the vehicle. In those circumstances, the use of force to effect his arrest was justified. The confined nature of the vehicle rendered the use of pepper spray impracticable, as it would have affected the driver. Equally, the spatial constraints had made it unfeasible to strike any part of the appellant’s body other than his face. Having regard to the situation confronting the Officer, the force employed, including its intensity, was necessary and proportionate. No less intrusive means had been realistically available to secure the applicant’s arrest. The injuries sustained by the applicant resulted from lawful and proportionate measures taken in the exercise of police duties. 12. Subsequently, on 17 May 2022, the Federal Supreme Court endorsed the findings of the Geneva Court of Justice. It found that it was undisputed that the police officers had been unable to handcuff the applicant after he failed to comply with their instructions. Their attempt to remove him from the vehicle, in which he had taken refuge after fleeing, proved unsuccessful because he resisted arrest and repeatedly kicked the officers. It was only after Officer S. had struck the applicant in the face that his resistance was overcome, enabling the officers to remove and restrain him. The lower court explained why the use of pepper spray was not feasible given the presence of Ms B., and the applicant failed to demonstrate that this assessment was arbitrary. The court also set out the reasons why striking another part of the applicant’s body was not a viable option. As regards the force used, the applicant merely asserted that the extent of the bleeding demonstrated that the force applied was disproportionate. However, this argument did not undermine the lower court’s finding that the force used was necessary in light of the applicant’s agitated state and determined resistance. In those circumstances, having regard to the applicant’s conduct from the moment he was approached by the police and, in particular, his violent resistance inside the vehicle, the Geneva Court of Justice was entitled to conclude that the blows delivered to his face, including their intensity, were proportionate to the legitimate aim of effecting his arrest. THE COURT’S ASSESSMENT ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 13. The applicant complains under Article 3 of the Convention that he was subjected to ill-treatment by the police, who used unnecessary and disproportionate force, and that investigation into his allegations was inadequate. 14. The Government contested the allegations stating that the investigation complied with the procedural requirements of Article 3 and that the use of force against the applicant, which was necessary and proportionate, did not attain the minimum level of severity under Article 3. 15. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. Procedural obligation under Article 3 16. The Court is satisfied that the applicant presented an “arguable claim” of ill-treatment by State officials. He furnished medical documents, consistent and detailed statements and the documents showing his attempts to have his allegations investigated by the domestic authorities. The latter were therefore under obligation to carry out an effective investigation into those allegations. 17. The summary of principles pertaining to an effective investigation into allegations of ill-treatment could be found in El - Masri v. the former Yugoslav Republic of Macedonia ([GC] no. 39630/09, §§ 182 - 185, ECHR 2012), and Mocanu and Others v. Romania ([GC] nos. 10865/09 and 2 others, §§ 316-326, ECHR 2014 (extracts)). 18. Turning to the circumstances of the present cases, the Court notes that the overall duration of the investigation into the applicant’s allegations comprised almost three years. Considering the seriousness of the charges against Officer S., the very few witnesses who had to be questioned and the limited number of investigative steps taken, the investigation appears protracted. However, despite its length, no steps, such a confrontation, were taken to resolve the opposing statements of Ms B., who witnessed the entire incident and stated that Officer S. continued to hit the applicant while the latter was already handcuffed, immobilized and on the ground, with the contradicting statements of the implicated police officers. 19. Furthermore, the two pieces of evidence - photos of the applicant’s bloodied face and the splash of his blood on the car windows - were taken by his mother and her neighbour. Without their initiative, this evidence would have not made it to the investigation file. A thorough investigation should have gathered and included all relevant evidence, both incriminating and exculpatory. 20 . In such circumstances, the Court concludes that no effective investigation, as required by Article 3 of the Convention, was carried out into the applicant’s allegations of ill-treatment by police officers. Accordingly, there has been a violation of Article 3 of the Convention. Substantive obligation under Article 3 21. The Court notes that Article 3 does not prohibit the use of force in certain well-defined circumstances. However, such force may be used only if indispensable and must not be excessive (see Anzhelo Georgiev and Others v. Bulgaria, no. 51284/09, § 66, 30 September 2014, Mihhailov v. Estonia, no. 64418/10, § 104, 30 August 2016, Kuchta and Mętel v. Poland, no. 76813/16, § 88, 2 September 2021, and Kursish and Others v. Russia [Committee], no. 62003/08, 5 July 2022, §§ 84-86). 22. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim. Regard must also be had to the context in which the ill-treatment was inflicted, such as an atmosphere of heightened tension and emotions. Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of these aspects, where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition set forth in Article 3 (see Bouyid, §§ 86-90, cited above). 23. The Government submitted that the ill-treatment of the applicant did not attain the minimum level of severity and compared the case at hand to Gürü Toprak v. Turkey, no. 39452/98, 20 February 2007 (where the applicant’s two bruises did not attain the threshold of severity) and Tenenbaum c. France (dec.) no. 68260/17, 25 November 2021 (where the applicant had received several blows in a brawl shortly before his arrest and then his shoulder was dislocated as a result of handcuffing). 24. Both parties agree that the applicant sustained a fractured nose, minor head trauma and a left orbital haematoma during the altercation with the police officers. However, for the reasons set out above (see paragraph 21), the investigation into the circumstances in which those injuries were inflicted failed to meet the procedural requirements of Article 3. The Court has nevertheless examined the reasoning of the domestic courts, which concluded that the force used against the applicant had been lawful, necessary and proportionate. In particular, they relied on the applicant’s refusal to comply with police instructions, his attempts to flee, his violent resistance within the vehicle, and the practical difficulties confronting the officers. They further found that the use of pepper spray was not feasible while Ms B. remained inside the vehicle and that, given the confined space, striking another part of the applicant’s body was not a realistic option. While the Court accepts that the applicant actively resisted arrest and that some use of force may have been necessary, it is not persuaded that the domestic courts provided a sufficiently convincing justification for the level of force employed. In particular, they did not adequately explain why repeated blows to the applicant’s face, resulting in a fractured nose, head trauma and an orbital haematoma, were strictly necessary to immobilise him and effect the arrest. Nor did they convincingly address whether less harmful means, such as pepper spray, could have been used once the immediate danger to Ms B. had ceased, notably after she had exited the vehicle. The domestic courts were not convincingly able to exclude, that the applicant after having been pulled out of the vehicle, laying on the ground and immobilised, was subjected to further beatings, while in handcuffs (compare to Dzwonkowski v. Poland, no. 46702/99, § 55, 12 April 2007). Having regard to the seriousness of the injuries sustained, the deficiencies in the investigation, and the evidence indicating that the applicant was struck both inside the vehicle and after he had been brought to the ground, the Court concludes that the force used exceeded what was strictly necessary in the circumstances and was therefore disproportionate. Accordingly, the Court finds that the applicant was subjected to inhuman and degrading treatment by the police officers, in violation of Article 3 of the Convention. 25. There has accordingly been a violation of Article 3 of the Convention under its substantive limb. APPLICATION OF ARTICLE 41 OF THE CONVENTION 26. The applicant claimed 10,000 Swiss francs (CHF) (approximately 11,000 euro (EUR)) in respect of non-pecuniary damage and CHF 9,200 euros in respect of costs and expenses incurred before the domestic courts and CHF 9, 729 for those incurred before the Court. 27. According to the Government, the applicant should be awarded CHF 4,000 for non-pecuniary damage and up to CHF 10,000 for costs and expenses. 28. Having regard to the documents in its possession, the Court considers it reasonable to award 11,000 euro (EUR) in respect of non-pecuniary damage and EUR 15,000 for costs and expenses in the domestic proceedings and for the proceedings before the Court, plus any tax that may be chargeable to the applicant. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the application admissible; Holds that there has been a violation of Article 3 of the Convention under substantive and procedural limbs; Holds that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: EUR 11,000 (eleven thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 12 November 2026, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Martina Keller Mykola Gnatovskyy Deputy Registrar President