Use of pepper spray and restraints on a prisoner amounts to inhuman and degrading treatment

Tali v Estonia (European Court of Human Rights, Chamber, Application No 66393/10, 13 February 2014)


The European Court of Human Rights has held that the use of restraints and pepper spray on a prisoner in Estonia amounted to inhuman and degrading treatment, in violation of the European Convention on Human Rights. Pepper spray should never be used in confined spaces or against prisoners who have already been brought under control. Restraints can only be justified to avoid self harm or serious danger to other individuals or prison security.


The applicant, Mr Tali, is serving a life sentence in Estonia. Since being in prison he has amassed several convictions for attacking prison officers and other prisoners. He has also incurred a number of disciplinary punishments for disobeying orders and threatening prison officers. The applicant, prior to the events below, was characterised as a dangerous person lacking in self-control and capable of physically attacking others.

On 3 July 2009 the applicant was informed he would be transferred to a punishment cell in the evening. The applicant questioned the legality of this. When the prison officers came to collect him they arrived with flak jackets, a plastic shield and helmets. The applicant resisted and the prison officers used force to bring him under control. The applicant claimed a broken rib, although this could not be confirmed. The applicant was, however, given a mattress that evening.

On 4 July 2009 the prison officers came to collect the mattress. The applicant, believing he was allowed to keep the mattress, resisted. The applicant was then struck on the back with a baton, handcuffed and then pepper sprayed. Neither the domestic courts nor the European Court could determine whether the pepper spray was deployed before or after the Applicant was handcuffed. The applicant was then restrained on a bed for over three hours. It was claimed that he was checked regularly and only released once he was calm. A subsequent medical examination would show significant bruising to the applicant’s back and arm.

On 7 July the Prisons Department of the Ministry of Justice started a criminal investigation into the applicant’s allegations of abuse. The investigation lasted over a year and did not result in a prosecution. The guards had argued that the use of pepper spray was necessary to subdue the prisoner, as were the beatings with the baton. The investigator found that it couldn’t be established that the force had been excessive. The applicant appealed to the State Prosecutor’s Office but the appeal was dismissed, as the Office considered the use of force, special equipment and means of restraint had been caused by the applicant’s behaviour: his failure to comply with orders and physical and verbal aggressiveness towards the prison officers. A claim for damages was also dismissed.


The Court found that there was insufficient evidence of ill-treatment to proceed with the first incident, that of removing the applicant from his cell. The Court therefore focused on the use of pepper spray, beatings with a baton and restraints.

The Court referred to the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment’s (CPT) concerns over the use of pepper spray. The CPT noted that pepper spray could lead to respiratory problems, nausea, vomiting, irritation of the respiratory tract, irritation of tear ducts and eyes, spasms, chest pain, dermatitis and allergies. Strong doses can have longer lasting and more damaging effects. The CPT recommended that there should be guidelines outlining:

  • clear instructions as to when pepper spray may be used, which should state explicitly that pepper spray should not be used in confined spaces;
  • the right of prisoners exposed to pepper spray to be granted immediate access to a doctor and to be offered an antidote;
  • the qualifications, training and skills of staff members authorised to use pepper spray; and
  • an adequate reporting and inspection mechanism with respect to the use of pepper spray.

Article 3 of the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s conduct. In order for the punishment or treatment to inhuman or degrading “the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment”. The court noted that violence is often present within prisons and that disobedience by detainees may quickly cause a situation to degenerate. However, force may only be used if indispensable and must not be excessive. “Recourse to physical force which has not been made strictly necessary by the detainee’s own conduct diminishes human dignity and is in principle an infringement of … Article 3”.

Having regard to the recommendations of CPT, the potentially serious effects of pepper spray in a confined space, and the fact that there was alternative equipment at the disposal of the prison guards, such as flak jackets, helmets and shields, the Court found that the circumstances did not justify the use of pepper spray.

In regards to the restraint bed, the Court noted that “restraint should never be used as a means of punishment, but rather to avoid self-harm or serious danger to other individuals or to prison security”. The Court held that there was insufficient evidence to prove that, at the end of the confrontation, the applicant posed a threat to himself or others that would have justified restraining him, particularly as he had just been in a single-occupancy disciplinary cell. The length of time – three hours and 40 minutes – would have caused him physical distress and discomfort.

The Court held that the cumulative effect of the measures used amounted to the applicant being subjected to inhuman and degrading treatment in violation of article 3 of the Convention.


Despite the potential short and long term health effects, pepper spray is used widely by police in Australia, and prison guards in some Australian states also carry it. It also continues to be used, and misused, by prison officers and police around the world. In November 2013 a video was released showing prison officers using pepper spray on mentally-ill prisoners to get them to leave their cells. Public outcry has forced California to change its practices.

The use of pepper spray by police in Australia differs between jurisdictions and has made the news on a number of occasions. In the ACT, a police officer was sacked in 2012 for using pepper spray to subdue a drunken man before putting him in a headlock and into a police vehicle cage. He sprayed the pepper spray 30cm from the man’s face. The officer lost his appeal in February 2014.

In 2011 there was a push by the Human Rights Law Centre for Victoria to create stricter rules regulating the use of pepper spray. Reports by the Office of Police Integrity reported in 2009 that the use of pepper spray has been increasing steadily among police.

This decision is available online at:

Emily Christie is a human rights lawyer on secondment from DLA Piper at the Human Rights Law Centre.