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UA_EPLN_Newsletter22_EUROPE-no.X_Jan-Jun2022

REVIEW OF THE ECtHR AND CJEU PRISON CASE-LAW

19 JANUARY 2023

This roundup gathers the most important judgments and decisions on prison issues handed down by the European Court of Human Rights and the Court of Justice of the European Union. By reporting on the main trends in European prison case-law, it aims to support legal practitioners in the prison field in their research and litigation, as well as to identify blind spots in the European case-law to build strategic litigation avenues.

OVERVIEW OF CASES

NOVEMBER – DECEMBER 2022

COURT OF JUSTICE OF THE EUROPEAN UNION

E. D. L. (Case C-699/21) Opinion of Advocate General Campos Sánchez-Bordona
A serious risk to the health of the person whose surrender is requested may justify the postponement of a European arrest warrant, but not the refusal, with no further justification, to execute it.

EUROPEAN COURT OF HUMAN RIGHTS

SANCHEZ-SANCHEZ v. UNITED KINGDOM [GC] Application no. 22854/20
No evidence showing a real risk of a sentence of life imprisonment without parole in the event of the applicant’s extradition to, and conviction in, the USA: no violation of Article 3.

McCALLUM v. ITALY [GC] Application no. 20863/21
No risk of irreducible life sentence in the event of extradition to the USA, the applicant becoming eligible for parole after reduction of charges: inadmissible.

KUPINSKYY v. UKRAINE Application no. 5084/18
Conversion, upon prisoner’s transfer, of a foreign reducible life sentence into an irreducible one due to unavailability of parole for life prisoners in his home State: violation of Article 3.

ZAKHAROV v. UKRAINE Application no. 52784/19
Life sentence with no prospect of release: violation of Article 3.

GABIDULLIN AND OTHERS v. RUSSIA Applications nos. 43125/17 and 7 others
Restrictions on family visits in pre‑trial detention facilities: violation of Article 8.

KALDA v. ESTONIA (NO.2) Application no. 14581/20
Thorough assessment by domestic courts of the proportionality of statutory blanket voting ban as applied specifically to applicant, life prisoner convicted of several serious offences: no violation of Article 3 of Protocol No. 1.

SUBAŞI AND OTHERS v. TÜRKIYE Applications nos. 3468/20 and 18 others
Prisoners denied permission to receive visits from their school-age children and to make telephone calls at the weekends: violation of Article 8.

VLAD v. ROMANIA Application no. 122/17
Failure to exhaust a remedy that became effective only after the application was lodged, as a result of new case-law following a pilot judgment concerning a systemic issue: inadmissible.

YAKOVLYEV v. UKRAINE Application no. 42010/18
Force-feeding of prisoner on hunger strike, in protest against prison treatment, without medical necessity and sufficient procedural safeguards, subjecting him to excessive physical restraint and pain: violation of Article 3.

G.T. v. GREECE Application no. 37830/16
Refusal to allow a prisoner to visit his sick mother and later attend her funeral solely because an escort was required and the maximum period of prison leave would have been exceeded: violation of Article 8; lack of effective remedy in this regard: violation of Article 13.

AZMATGIRIYEV AND MENKOV v. RUSSIA Applications nos. 26683/18 and 9122/19
Permanent video surveillance of detainees in post-conviction detention facilities: violation of Article 8; lack of effective remedy in this regard: violation of Article 13.

Repetitive cases

TRANSPORT 9 committee judgments in cases against Russia
Inadequate detention conditions during transport of prisoners (including lack of or inadequate hygienic facilities, insufficient number of sleeping places, lack of fresh air, overcrowding, poor quality of food, inadequate temperature, restricted access to potable water, passive smoking etc.): violation of Articles 3 and 13.

CONDITIONS OF DETENTION 2 committee judgments in cases against Russia
Inadequate conditions of detention under strict imprisonment regime: violation of Article 3.

COURT OF JUSTICE OF THE EUROPEAN UNION

E. D. L. (Case C-699/21) Opinion of Advocate General Campos Sánchez-Bordona 1 December 2022
Reference for a preliminary rulingJudicial cooperation in criminal mattersFramework Decision 2002/584/JHAEuropean arrest warrantSurrender of sentenced or suspected persons to issuing judicial authorities Serious, chronic and potentially irreversible disease Serious risk to the health of the person whose surrender is requested
Facts In September 2019, the Zadar Municipal Court (Croatia) issued an EAW in the context of a criminal procedure initiated against E.D.L., who was charged with the offence of possession of drugs with intent to distribute and sell, committed on Croatian territory in 2014. E.D.L. resided in Italy at the time the EAW was issued. His lawyers presented to the Court of Appeal of Milan (Italy) medical evidence attesting he was suffering from psychiatric disorders, including a psychotic disorder and a high risk of suicide associated with the possibility of imprisonment. The Court of Appeal held that the transfer of E.D.L. would halt the provision of his treatment and lead to a worsening of his state of health. It also decided to stay the proceedings and referred a preliminary question to the Italian Constitutional Court, which, in turn, seized the CJEU.

The Constitutional Court sought to clarify whether the authority executing the EAW is required to request from the issuing authority information enabling it to rule out the risk of serious harm to the requested persons’ health following their transfer, and whether it should refuse to surrender the persons in question, if it does not obtain assurances to that effect within a reasonable period of time.

In its request, the Italian Constitutional Court asked whether the Aranyosi and Căldăraru jurisprudence, which established a new ground for refusal to execute an EAW in specific situations where requested persons’ fundamental rights could be breached as a result of their transfer, should be extended to situations where the requested persons’ health is at risk (joined cases C‑404/15 and C‑659/15 PPU, Aranyosi and Căldăraru, 5 April 2016).

Law The Advocate General’s (AG) Opinion suggested not to extend the list of grounds for refusal to execute an EAW, which are exhaustively enumerated in the Council Framework Decision 2002/584. It recommended to resort instead to the mechanism enabling for the temporary postponement, by the executing authority, of a surrender for serious humanitarian reasons, such as the risk for life or health of the requested person (Article 23(4)). This solution presupposes that the execution of the EAW has been authorised.

The AG considered that the case at hand does not correspond to the situation envisaged by the Aranyosi and Căldăraru jurisprudence. First, while the latter applies to specific cases where the risk to the requested person’s fundamental rights stem from systemic deficiencies in the issuing Member State, none of the parties involved in the case at hand complained about such generalised deficiencies in Croatia’s prison healthcare. Second, the requested person’s situation was also not considered to be serious enough to suggest that the surrender itself might cause an irreversible deterioration of his health – which would constitute a ground for refusal even in the absence of systemic deficiencies in the issuing state.

The decision to postpone the surrender establishes a communication channel between the authorities, enabling the issuing authority to provide the executing authority with information “regarding the medical treatment available in places of detention or imprisonment, in line with the medical needs of the requested person” (para. 83). In the light of the requested person’s medical needs, the issuing authority shall assess the proportionality of the execution of the EAW and decide to withdraw or maintain it. The execution of the EAW shall take place immediately after the grounds for postponement cease to exist.

Conclusion In case the executing judicial authority considers that the execution of the EAW may expose a person suffering from a serious chronic disease to the risk of serious harm to their health and life, it should request the issuing authority to provide information on the existence of the measures that would rule out such a risk (adequate medical care for the health condition of a person), and is entitled to exceptionally postpone on a temporary basis the surrender of a person for as long as the serious risk is still in place.

N.B.: The Opinion of the Advocate General does not bind the CJEU. The judgment of the Court of Justice will be delivered at a later date.

EUROPEAN COURT OF HUMAN RIGHTS

SANCHEZ-SANCHEZ v. UNITED KINGDOM [GC] Application no. 22854/20■ Grand Chamber ■ 3 November 2022
Art 3 No evidence showing a real risk of a sentence of life imprisonment without parole in the event of the applicant’s extradition to, and conviction in, the USA Contracting States not to be held responsible under the Convention for deficiencies in the system of a third state when measured against the full Vinter and Others standard comprising both a substantive obligation and procedural safeguards Court’s judgment in Trabelsi v. Belgium overruled Adapted two-stage approach developed for extradition cases 1) Assessment whether the applicant has adduced evidence capable of proving that there were substantial grounds for believing that, in the event of conviction, there was a real risk of a sentence of life imprisonment without parole 2) Assessment whether, as from the moment of sentencing, there is a review mechanism in place allowing the domestic authorities to consider the prisoner’s progress towards rehabilitation or any other ground for release based on his or her behaviour or other relevant personal circumstances Availability of procedural safeguards for serving “whole life prisoners” in the requesting State not a prerequisite for compliance by the sending Contracting State with Art 3 Applicant not facing a mandatory sentence of life imprisonment
Facts The applicant is a Mexican national currently being detained in the United Kingdom. He faces extradition to the USA where he is wanted on federal charges of drug dealing and trafficking. If convicted, his sentencing level would be Level 43 in the US Sentencing Guidelines, which has a sentence range of life imprisonment.
The applicant appealed unsuccessfully to the High Court against his extradition order. In its decision, the High Court considered itself bound, by an earlier decision of the House of Lords, to hold that to extradite a claimant to the USA to face, if convicted, a life sentence without parole, would not breach Article 3. The High Court considered that, following the European Court’s judgment in Trabelsi v. Belgium, there was no “clear and consistent” jurisprudence from the European Court about the application of Article 3 to sentences of life imprisonment without parole in the extradition context. It was also satisfied that the life sentence was not irreducible, noting the two routes by which a prisoner could seek a reduction in sentence under the US federal system: compassionate release and executive clemency.
On 19 October 2021 a Chamber of the Court relinquished jurisdiction in favour of the Grand Chamber.


LawArticle 3

(a) General principles concerning sentences of life without parole in the extradition context – In Vinter and Others v. the United Kingdom [GC], the Court, in relation to whole life orders in the domestic context, had held that the penological justification for a life sentence had to be subject to review after the passage of a certain period of time. Subsequently, in Trabelsi v. Belgium, the Court had applied the Vinter and Others criteria to the extradition context, and had found that the applicant’s extradition would violate Article 3 because none of the procedures provided for in the requesting State had amounted to a review mechanism requiring the national authorities to ascertain, on the basis of objective, pre-established criteria of which the prisoner had precise cognisance at the time of imposition of the life sentence, whether, while serving his sentence, he had changed and progressed to such an extent that continued detention could no longer be justified on legitimate penological grounds.

However, Vinter and Others had not been an extradition case. This distinction was important. Within the domestic context, the applicant’s legal position, having already been convicted and sentenced, was known. Moreover, the domestic system of review of the sentence was likewise known, both to the domestic authorities and the Court. In the extradition context, on the other hand, in a case such as the present where the applicant had not yet been convicted, a complex risk assessment was called for, a tentative prognosis that would inevitably be characterised by a very different level of uncertainty when compared to the domestic context. This called – as a matter of principle, but also out of practical concerns – for caution in applying the principles flowing from Vinter and Others, which had been intended to apply within the domestic context, to their fullest extent in the extradition context.

In this connection, the Court would first observe that the principles set down in Vinter and Others embraced both the substantive obligation on Contracting States to ensure that a life sentence did not over time became a penalty incompatible with Article 3, and also related procedural safeguards (Murray v. the Netherlands [GC]), which were not ends in themselves but served in their observance by Contracting States to avoid a breach of the prohibition of inhuman and degrading punishment. Regarding the substantive obligation, exposing an individual to a real risk of inhuman and degrading treatment or punishment would be contrary to the spirit and purpose of Article 3. On the other hand, the procedural safeguards would appear to be better suited to a purely domestic context and consequently did not arise in relation to an individual whose extradition had been requested by a third State, as this would be an over extensive interpretation of the responsibility of a Contracting State in such a context. It followed that Contracting States were not to be held responsible under the Convention for deficiencies in the system of a third state when measured against the full Vinter and Others standard. To require a Contracting State to scrutinise the relevant law and practice of a third State with a view to assessing its degree of compliance with those procedural safeguards might prove unduly difficult for domestic authorities deciding on extradition requests.

Moreover, in the domestic context, in the event of a finding of a violation of Article 3, the applicant would remain in detention pending the application or introduction of a Convention-compliant review mechanism which could – but would not necessarily – lead to his release earlier than initially intended. Thus, the legitimate penological purposes of incarceration would not be undermined. In contrast, in the extradition context the effect of finding a violation of Article 3 would be that a person against whom serious charges had been brought would never stand trial, unless he or she could be prosecuted in the requested State, or the requesting State could provide the assurances necessary to facilitate extradition. Allowing such a person to escape with impunity was an outcome which would be difficult to reconcile with society’s general interest in ensuring that justice was done in criminal cases. It would also be difficult to reconcile with the interest of Contracting States in complying with their international treaty obligations, which aimed to prevent the creation of safe havens for those charged with the most serious criminal offences.

Therefore, while the principles set out in Vinter and Others had to be applied in domestic cases, an adapted approach was called for in the extradition context. The adapted approach comprised two stages: at the first stage it had to be established whether the applicant has adduced evidence capable of proving that there were substantial grounds for believing that, if extradited, and in the event of his conviction, there was a real risk that, a sentence of life imprisonment without parole would be imposed on him. In this regard, it was for the applicant to demonstrate that such a penalty would be imposed (López Elorza v. Spain, Findikoglu v. Germany (dec.)). Such a risk would more readily be established if the applicant faced a mandatory sentence of life imprisonment.

If it was established under the first limb of the inquiry that the applicant ran a real risk of a sentence of life imprisonment, then the second limb of the inquiry, having regard to the principles set out in Vinter and Others, would focus on the substantive guarantee which was the essence of the Vinter and Others case-law and was readily transposable from the domestic to the extradition context. At the second stage, it had to be ascertained by the relevant authorities of the sending State prior to authorising extradition that there existed in the requesting state a mechanism of sentence review which allowed the competent authorities there to consider whether any changes in the life prisoner were so significant, and such progress towards rehabilitation had been made in the course of the sentence, as to mean that continued detention could no longer be justified on legitimate penological grounds. In sum, it had to be ascertained whether, as from the moment of sentencing, there was a review mechanism in place allowing the domestic authorities to consider the prisoner’s progress towards rehabilitation or any other ground for release based on his or her behaviour or other relevant personal circumstances.

As for the procedural safeguards afforded to serving “whole life prisoners”, the availability of those in the legal system of the requesting State was not a prerequisite for compliance by the sending Contracting State with Article 3. It followed that in an extradition case the question was not whether, at the time of the prisoner’s extradition, sentences of life imprisonment in the requesting country were compatible with Article 3, by reference to all of the standards which applied to serving life prisoners in the Contracting States.

In Trabelsi the Court had not addressed, as a preliminary step, the question of whether there had existed a real risk that the applicant would be sentenced to life without parole. It had also examined, at the moment of extradition, whether the Vinter and Other criteria had been satisfied in their entirety. For those reasons, the Court considered that Trabelsi should be overruled.

The Court would emphasise that the prohibition of Article 3 ill-treatment remained absolute. In this regard, it did not consider that any distinction could be drawn between the minimum level of severity required to meet the Article 3 threshold in the domestic context and the minimum level required in the extra-territorial context. Furthermore, nothing in the preceding paragraphs undermined the now well-established position that the extradition of a person by a Contracting State would raise problems under Article 3 where there were serious grounds to believe that he would run a real risk of being subjected to treatment contrary to Article 3 in the requesting State.

(b) Application of the aforementioned principles to the facts of the present case – The applicant had not yet been convicted and the offences with which he had been charged did not carry a mandatory sentence of life imprisonment. For the purposes of the first stage of the two-stage test applied by the Court, he had to demonstrate that, in the event of his conviction, there existed a real risk that a sentence of life imprisonment without parole would be imposed without due consideration of all the relevant mitigating and aggravating factors.

The Court took as its starting point the assessment carried out by the national courts. While the Court’s assessment was ex nunc, the extradition having not yet taken place, the national courts had the opportunity to conduct a detailed assessment of the evidence in proceedings to which the US had been a party. Having considered the evidence, the District Judge had found that if the applicant were to be convicted, his sentencing level would be Level 43 in the US Sentencing Guidelines, which had a sentence range of life imprisonment. She had accepted that there had been a “real possibility” he would receive a sentence of life imprisonment, since one of his co-conspirators had died from a fentanyl overdose. However, while she had found that he had been likely to receive concurrent rather than consecutive sentences if convicted of more than one offence, in her view it had not been possible to determine what sentence he would receive if convicted. In sum, the findings of the District Judge were inconclusive, although she had clearly not found it “likely” that the applicant would be sentenced to life imprisonment. It was therefore necessary to examine the evidence submitted to the Court on that issue.

In this regard, according to the February 2015 report of the US Sentencing Commission, entitled “Life Sentences in the Federal System”, life sentences had been imposed in less than one-third of one percent of all drug trafficking cases in 2013. Moreover, according to the US Sentencing Commission’s Interactive Sourcebook, in 2019, in the Northern District of Georgia, where the applicant had been charged, approximately 65% of 507 sentences had been below the range recommended by the US Sentencing Guidelines.

According to the February 2015 report, the drug trafficking guidelines specifically provided for a sentence of life imprisonment for drug trafficking offences where death or serious bodily injury had resulted from the use of the drug and the defendant had been convicted previously of a drug trafficking offence. Although one of the applicant’s co-conspirators had died from a fentanyl overdose, the evidence before the Court suggested that the applicant had no prior convictions.

A sentence of life imprisonment could also be imposed in other drug trafficking cases in which large quantities of drugs were involved, or where the court applied other sentence enhancement provisions relating to drug trafficking. The charges against the applicant were undoubtedly serious, and the US Department of Justice had indicated its belief that he had been the joint head of a Mexico-based drug trafficking operation who had supervised the work of US-based distributors. However, they had provided information about four of the applicant’s co-conspirators, whose sentences had ranged from seven years’ to twenty years’ imprisonment. The two, V-P and H-H, who had received the highest sentences and who had also faced a recommended sentence of life imprisonment, had been charged with the same charges as the applicant, and had also been convicted of additional charges which the applicant had not faced. According to the US Department of Justice, if the applicant had pleaded guilty or had been convicted at trial, he would be sentenced by the same judge who had sentenced his four co-conspirators. That judge would be required to consider the core sentencing principles, including the need to avoid unwarranted sentence disparities among defendants with similar records who had been found guilty of similar conduct.

In López Elorza, the Court had considered relevant the fact that the applicant’s co-conspirators had received sentences lower than those set out in the US Sentencing Guidelines, especially given that the applicant would be sentenced by the same judge, who would be required to consider the need to avoid unwarranted disparities.

The Court would accept, however, that the applicant’s co-conspirators had been perhaps not in an entirely comparable position to him, even though they had similar base offence levels. They did not appear to have been suspected of being at the head of any criminal organisation and, perhaps more importantly, they would have been entitled to a reduction in sentence on account of their guilty pleas. That being said, in the proceedings before the Grand Chamber the applicant had not adduced evidence of any defendants with similar records to himself who had been found guilty of similar conduct and had been sentenced to life imprisonment without parole. Furthermore, while the Court could not base its assessment on the likely sentence the applicant would receive if he were to plead guilty, it nevertheless recognised that there were many factors that contributed to the imposition of a sentence and, prior to extradition, it was impossible to address every conceivable permutation that could occur or every possible scenario that might arise. As the Court had noted in Findikoglu, the length of the applicant’s prison sentence might be affected by pre-trial factors, such as agreeing to cooperate with the US Government. Moreover, if the applicant were to plead guilty or be convicted at trial, the judge would have a broad discretion to determine the appropriate sentence after a fact finding process in which the applicant would have the opportunity to offer evidence regarding any mitigating factors that might justify a sentence below the range recommended by the Sentencing Guidelines. The sentencing judge would be required to have regard to the sentences given to the co conspirators, even if their situation had not been identical to that of the applicant. Finally, the applicant would have the right to appeal against any sentence imposed.

Having regard to all of the aforementioned factors, the applicant could not be said to have adduced evidence capable of showing that his extradition to the US would expose him to a real risk of treatment reaching the Article 3 threshold. That being so, it was unnecessary for the Court to proceed in this case to the second stage of the analysis.

Conclusion No violation of Article 3 in case of extradition (unanimously).

(See also Vinter and Others v. the United Kingdom [GC], 66069/09 et al., 9 July 2013, Legal summary; Trabelsi v. Belgium, 140/10, 4 September 2014, Legal summary; Murray v. the Netherlands [GC], 10511/10, 26 April 2016, Legal summary; Findikoglu v. Germany (dec.), 20672/15, 7 June 2016, Legal summary; López Elorza v. Spain, 30614/15, 12 December 2017; McCallum v. Italy (dec.), 20863/21, 21 September 2022, Legal summary)

© Council of Europe/European Court of Human Rights
McCALLUM v. ITALY [GC] Application no. 20863/21■ Grand Chamber■ 3 November 2022
Art 3Extradition to a third country not member of the Council of Europe where the applicant faces a real risk of being sentenced to life imprisonment without paroleDiplomatic assurance from the embassy that the applicant will be tried on lesser charges that entail life sentence with the possibility to apply for paroleProcedural aspect in the Vinter safeguards are not prerequisite for compliance with Art 3Inadmissible
Facts The applicant is an American national who was detained in Italy when she applied to the Court. In 2020 the Italian courts granted a request for extradition to the United States of America (Michigan), where she is wanted for trial on charges of being the leader and co-conspirator in the homicide of her then husband and the removal and burning of his corpse.
The applicant complains under Article 3 of the Convention that, if extradited, she faces a real risk of life imprisonment without parole (LWOP). She submitted that under Michigan law, a LWOP sentence may be commuted by the Governor in the exercise of unfettered discretionary clemency powers: while a Parole Board makes a recommendation to the Governor, the latter is not bound by a positive recommendation.
Under Rule 39 of the Rules of Court, the Court has indicated to the Italian Government that the applicant should not be extradited for the duration of the proceedings before it.
On 7 September 2021 a Chamber of the Court relinquished jurisdiction in favour of the Grand Chamber.
On 3 December 2021 the US Embassy in Rome sent a Diplomatic Note to the Italian authorities informing them that the Prosecuting Attorney had given a commitment to try the applicant on the lesser charge of second-degree murder. The Diplomatic Note clarified that if convicted of this charge, the applicable penalty would be imprisonment for life, or any term of years in the court’s discretion, and that the applicant would be eligible for parole. On this basis, the United States amended its original extradition request, the Minister of Justice had issued a new extradition decree reflecting that change, and the applicant was eventually extradited.

Law Article 3

The factual basis of the case had changed with the commitment given by the competent prosecutor in Michigan to reduce the principal charge against the applicant. The Court considered it justified to proceed on the basis that the applicant could now only be tried on the charges indicated in the Diplomatic Note and specified in the new extradition decree. The Court reiterated that Diplomatic Notes carried a presumption of good faith and that, in extradition cases, it was appropriate that that presumption be applied to a requesting State which had a long history of respect for democracy, human rights and the rule of law, and which had longstanding extradition arrangements with Contracting States (Harkins and Edwards v. the United Kingdom, the case concerning the same requesting State). Moreover, if, following her extradition, the original charges against the applicant were to be revived, that would not be compatible with the duty of good faith performance of treaty obligations.

Consequently, if convicted of the reduced charges, the applicant faced at most the prospect of life imprisonment with eligibility for parole. However, she had submitted that such a sentence had to be regarded as “irreducible” within the meaning of the Court’s case-law, on account of the role of the Governor of Michigan in the parole system in that State, which she argued was a decisive one. However, this argument related to a matter that could not be regarded as pertaining to the essence of the Vinter safeguard (Vinter and Others v. the United Kingdom [GC]), but rather was more in the nature of a procedural guarantee. The Court referred to the distinction between the substantive obligation and the related procedural safeguards that derived from Article 3 when it came to the issue of life sentences in the extradition context (Sanchez-Sanchez v. United Kingdom [GC]). The availability of procedural safeguards for “whole life prisoners” in the legal system of the requesting State was not a prerequisite for compliance by the requested Contracting State with Article 3.

In any event, having taken note of the relevant legislative provisions, the Court was not persuaded that the applicant’s understanding of the Michigan system was correct. As provided in Michigan Compiled Laws, a prisoner’s release on parole was at the discretion of the parole board. While the Governor of Michigan indeed enjoyed a broad power of executive clemency, he or she was not involved in the parole procedure. Nor did the relevant legal provisions empower the Governor to overrule the grant of parole to a prisoner. Appeal against the grant of parole lied to the competent circuit court.

An applicant who alleged that their extradition would expose them to a risk of a sentence that would constitute inhuman or degrading punishment bore the burden of proving the reality of that risk. In light of all of the above-mentioned factors, the applicant had not discharged that burden. Contrary to her claim, there was no real risk of the applicant receiving an irreducible life sentence, i.e., life imprisonment without eligibility for parole, in the event of conviction of the charges now pending against her in Michigan.


ConclusionInadmissible (manifestly ill-founded).

(See also Harkins and Edwards v. the United Kingdom, 9146/07 and 32650/07, 17 January 2012, Legal summary; Vinter and Others v. the United Kingdom [GC], 66069/09 et 2 al., 9 July 2013, Legal summary; Sanchez-Sanchez v. United Kingdom [GC], 22854/20, 3 November 2022, Legal summary)

© Council of Europe/European Court of Human Rights
KUPINSKYY v. UKRAINE Application no. 5084/18 ■ Fifth Section■ 10 November 2022
Art 7Art 3Heavier penaltyInhuman or degrading punishmentConversion, upon prisoner’s transfer, of a foreign reducible life sentence into an irreducible one due to unavailability of parole for life prisoners in his home StateSignificant change of the scope of the penalty by the domestic courts, going beyond the mere measures of enforcement and thus rendering Art 7 applicable
FactsIn 2002, the applicant, a Ukrainian national, was sentenced in Hungary to life imprisonment with the possibility of seeking release on parole after serving twenty years of imprisonment and being deported. In 2007 he was transferred to Ukraine to serve his sentence. The Ukrainian courts recognised the sentence imposed on the applicant by the Hungarian courts.
In 2016-2021, the Ukrainian courts refused several requests for release on parole on the ground that the applicant was serving his sentence in accordance with Ukrainian legislation which did not provide for release on parole for life prisoners. The applicant appealed unsuccessfully.
In September 2021, the Constitutional Court of Ukraine declared the relevant domestic-law provision on release on parole unconstitutional in so far as it did not apply to life prisoners.

LawArticle 3

The applicant’s situation had not changed for the purposes of Article 3 with the adoption of the judgment of the Constitutional Court taken alone; a judgment, which, moreover, had been delivered over three years after the introduction of his application and after the refusal of numerous release requests. Indeed, the procedure and manner of the application of the rule on release on parole to life prisoners had not yet been established, and in the absence of such rules and procedure the domestic courts had considered that they had no jurisdiction to decide on the release on parole of life prisoners. Thus, the Court’s reasoning in Petukhov v. Ukraine (no. 2) was equally pertinent to the present case.

ConclusionViolation of Article 3 (unanimously).

LawArticle 7

(a) Applicability – In the Court’s established case-law a distinction was drawn between a measure that constituted in substance a “penalty” and a measure that concerned the “execution” or “enforcement” of a “penalty”; Article 7 applied only to the former. Whether the case concerned a change in a regime for release on parole within the country or such a change in a regime took place as a result of transfer of prisoners, such a regime related to the execution of a sentence and thus excluded the application of Article 7.

In particular, in cases that concerned the transfer of prisoners (Szabó v. Sweden (dec.); Müller v. the Czech Republic (dec.)), despite the fact that prospects of release on parole in the administering State were less favourable than in the sentencing State, the transfer decisions remained within the scope of execution of penalties and had not amounted to a “penalty” itself within the meaning of Article 7. The same conclusion had been reached by the Court with respect to decisions on conversion of sentences in the administering State, when the penalty remained the same while the rules on release on parole in the administering State were stricter than in the sentencing State.

However, in practice the distinction between a “penalty” and the “execution” or “enforcement” of the “penalty” might not always be clear cut. The concept of “penalty” in Article 7 was autonomous in scope. The wording of the second sentence of Article 7 § 1 indicated that the starting point in any assessment of the existence of a penalty was whether the measure in question was imposed following conviction for a “criminal offence”. Other factors that might be taken into account as relevant in this connection were the nature and purpose of the measure; its characterisation under national law; the procedures involved in the making and implementation of the measure; and its severity.
Unlike the cases in which a change in a regime for release on parole had been found to belong exclusively within the domain of the execution of a sentence, in the present case the applicant’s transfer and, in particular, the manner in which his penalty had been converted, ultimately amounted to a change from a regime for release on parole to no availability of parole at all. The applicant’s sentence imposed as a result of the conversion had been irreducible under current Ukrainian law. Thus, the principle difference between the present case and previous cases on transfer of prisoners was that the latter concerned the terms for granting the parole in the State to which the prisoner had been transferred, while in the former there was an issue of unavailability of parole as a matter of law. The Hungarian legislation differentiated between reducible and irreducible life sentences and provided for both. In the applicant’s case, the domestic courts in Hungary had explicitly decided to impose on him a reducible life sentence and not an irreducible one.

Irreducible and reducible life sentences differed as to their scope, and the difference had been significant enough for this Court to find the former incompatible with the requirements of the Convention, while the latter had been found compatible. Such distinction reinforced the importance of the ground of rehabilitation, which was central for European penal policy nowadays, as reflected in the practice of the Contracting States, in the relevant standards adopted by the Council of Europe, and in the relevant international materials.

The Government had relied heavily on the fact that the transfer and conversion of the sentence of the applicant had taken place pursuant to another international treaty, the Convention on the Transfer of Sentenced Persons and its Additional Protocol, and they had been responsible only for the enforcement of the sentence under the said Convention. The Court was not precluded, however, from assessing whether the State had complied with its Convention obligations when implementing international legal assistance treaties. Regarding the autonomous concept of “penalty” within the meaning of Article 7, the Court did not consider that its interpretation could be substantially different depending on whether the measure claimed to amount to a new “penalty” had been the result of the operation of domestic law only or had also involved the application of international treaties that bound the respondent State.

The Court therefore concluded that by converting the applicant’s original reducible life sentence to the irreducible life sentence under Ukrainian law, the domestic courts in the particular circumstances of the present case had gone beyond the mere measures of enforcement and had changed the scope of the applicant’s penalty.

(b) Merits – The penalty “that had been applicable at the time the criminal offence had been committed”, within the meaning of Article 7, had been reducible life sentence. The domestic authorities, by denying the applicant the real possibility of seeking release on parole, had confirmed that they had converted his original reducible sentence into a de facto and de jure irreducible life sentence and thus had changed the scope of the original punishment to the applicant’s detriment, by imposing a heavier penalty.

ConclusionViolation of Article 7 (unanimously).

Article 41EUR 2,500 in respect of non-pecuniary damage.

(See also Szabó v. Sweden (dec.), 28578/03, 27 June 2006, Legal summary; Müller v. the Czech Republic (dec.), 48058/09, 6 September 2011, Legal summary; Del Río Prada v. Spain [GC], 42750/09, 21 October 2013, Legal summary; Petukhov v. Ukraine (no. 2), 41216/13, 12 March 2019, Legal summary)

© Council of Europe/European Court of Human Rights
ZAKHAROV v. UKRAINEApplication no. 52784/19 Fifth Section Committee■ 10 November 2022
Art 3Life imprisonment with no prospect of releaseNeed for assessment of penological grounds for continued detention
FactsThe applicant was sentence to life imprisonment. He complained that he had no prospect of release.

LawArticle 3

The Court recalled that it had already found that prisoners sentenced to life imprisonment have no prospect of release under Ukrainian law (see Petukhov v. Ukraine (no. 2), no. 41216/13, 2019). Having regard to the materials submitted, the Court was unable to reach a different conclusion in the present case and concluded there had been a violation of Article 3.

ConclusionViolation of Article 3
GABIDULLIN AND OTHERS v. RUSSIAApplications nos. 43125/17 and 7 othersThird Section Committee10 November 2022
Art 8Private and family lifeRestrictions of family visits for pre-trial detaineesFailure of the restriction to comply with the requirement of lawfulnessUse of glass partition during the visit is not necessary in a democratic society
FactsThe applicants complained principally of the restrictions on family visits in pre-trial detention facilities (essentially, refusal of short-term family visits, physical separation and supervision during short-term family visits).

LawArticle 8

The Court has already held in Kuznetsov v. Russia (no. 3079/18), Govorov v. Russia (no. 79809/17), Bikbulatov v. Russia (no. 72792/17), Limarev and Others v. Russia (nos. 15812/16 and 9874/18) that family visits were denied not “in accordance with law” and that the physical separation of the applicants from their visitors with a glass partition could not be justified as being “necessary in a democratic society”.

ConclusionViolation of Article 8
KALDA v. ESTONIA (NO.2)Application no. 14581/20Third Section6 December 2022
Art 3 P1 ■ Thorough assessment by domestic courts of the proportionality of statutory blanket voting ban as applied specifically to applicant, life prisoner convicted of several serious offences ■ Margin of appreciation not overstepped
FactsThe applicant is presently detained in prison serving a sentence of life imprisonment after being convicted of numerous criminal offences. In April 2019 he applied to the regional government requesting to be allowed to vote in the European Parliament Elections taking place the following month. His request was dismissed. He unsuccessfully challenged this decision in the domestic courts.

LawArticle 3 of Protocol No. 1

The applicant had been deprived of the right to vote at the European Parliament elections of 2019 as a result of a statutory blanket ban automatically applicable to all convicts in detention. The impugned ban constituted an interference with the applicant’s right to vote, as enshrined in Article 3 of Protocol No. 1 to the Convention, and the interference pursued a legitimate aim.

Concerning the proportionality of the voting ban, the domestic law restricting convicted prisoners’ right to vote in the European Parliament elections was indiscriminate in its application in that it did not take into account the nature or gravity of the offence, the length of the prison sentence or the individual circumstances of convicts. The Government had not put forward any evidence that the Estonian legislature had ever sought to balance the competing interests or assess the proportionality of a blanket ban on the right of convicted prisoners to vote. There was no evidence whether the domestic courts, in the instant case, had taken into account – at the time of deciding on a sentence – the fact that a prison sentence would involve the disenfranchisement of the applicant.

The present case seemed, on the face of it, similar to those examined by the Court in earlier cases where a blanket ban on prisoners’ voting rights was in question. However, unlike cases where the Court had found a violation of Article 3 of Protocol No. 1 to the Convention, in the present case – in the proceedings concerning the applicant’s right to vote – the domestic courts had assessed the proportionality of the application of the voting ban in the specific circumstances pertaining to the applicant and concluded that it had indeed been proportionate. In that connection, in cases arising from individual applications, the Court’s task was not to review the relevant legislation in the abstract. The Court therefore examined the manner in which the domestic legislation had been applied to the specific applicant in his particular circumstances, taking into account, inter alia, the findings of the domestic courts.

The domestic courts had reasoned that the voting ban had been proportionate in respect of the applicant, given the number, nature and gravity of the offences he had committed, his continued criminal behaviour while in prison, as well as the fact that, as a result, he had been sentenced to life imprisonment. In that connection, the Court observed that the seriousness of the offences committed was also one of the factors taken into account by the Grand Chamber in the case of Scoppola in reaching its conclusion that the Convention had not been violated.

The Estonian Supreme Court – despite deeming the voting ban to be constitutional with respect to the applicant – had taken an overall critical stance against the blanket ban on prisoners’ voting rights, referring extensively to the Convention and the Court’s case-law, and had considered that the ban clearly violated the rights of many prisoners.

Taking the above considerations into account, there was no basis for finding that the domestic courts, when assessing the proportionality of the voting ban with respect to the applicant, had overstepped the margin of appreciation afforded to them.

Conclusion No violation (five votes to two).

(See also Hirst v. the United Kingdom (no. 2) [GC], 74025/01, 6 October 2005, Legal Summary; Scoppola v. Italy (no. 3) [GC], 126/05, 22 May 2012, Legal Summary)

© Council of Europe/European Court of Human Rights
SUBAŞI AND OTHERS V. TÜRKIYEApplications nos. 3468/20 and 18 others Second Section 6 December 2022
Art 8Family lifeCorrespondencePrisoners denied permission to receive visits from their school-age children and to make telephone calls at weekendsFailure by domestic courts to conduct Convention-compliant proportionality assessment, resulting in insufficient protection against arbitrary interference
FactsThe applicants were remand and convicted prisoners held at various institutions across the country. The relevant legal framework gave prisoners the right to be visited once a week subject to the conditions determined by the prison administration. Restrictions were introduced by the applicants’ respective prison administrations to not allow visits during the weekends, citing overcrowding, shortage of staff and security concerns as the reasons for the decision. All the applicants had school-age children and complained that weekly visits organised only on weekdays and during working hours prevented them from seeing their children, who had an obligation to attend school. All the applicants, with two exceptions, unsuccessfully challenged the restriction. In addition, two applicants furthermore unsuccessfully challenged the prison administrations’ decisions to prohibit telephone calls at weekends.

LawArticle 8Complaint concerning restrictions on weekend visits

(i) No significant disadvantage (all applicants) - The prolonged periods during which the applicants had been unable to see their school-age children on a weekly basis as provided for by domestic law had not constituted an “insignificant” disadvantage. It had not been a trivial disadvantage that the applicants maintained contact with their children to a less frequent extent than would have been the case had weekend visits been available. Consequently, this objection was dismissed.

(ii) Victim status (two applicants) - While two of the applicants had obtained the reversal of the prison administrations’ impugned decisions, their complaints concerned the one-year period, during which they had been unable to receive visits on the weekends. The decisions of the domestic courts, including the Constitutional Court, had not contained any acknowledgment of a violation in respect of the period in question, nor had any redress been provided to the applicants, therefore, the applicants were considered victims for the period in question.

(iii) Merits - Although the applicants had been able to receive some visits from their children on weekdays they had not been able to make full use of their entitlement to weekly visits from their children owing to conflicts with school schedules, which amounted to an interference with the right to respect for family life. The restrictions on family visits had a statutory basis which had given the prison administrations the discretion to determine the days of the visits, provided that they were held once a week. Therefore, the interference complained of was “in accordance with the law”. The impugned restrictions pursued the legitimate aim of prevention of disorder.

Assessing the proportionality of the impugned restrictions, it was noted, in their requests to the prison administrations, all the applicants had pointed out the practical difficulties for their school-age children in visiting them on weekdays, including the long journey those visits entailed, given that the detention facilities had been a considerable distance from their homes. Lastly, they had complained of the negative effects of a prolonged lack of communication with their children on their family life. In their decisions to refuse weekend visits, all the prison administrations, except for one, had refused the requests in the same manner, by pointing to prison overcrowding, staff shortages and security concerns. It did not appear that the prison administrations in question had made a concrete assessment of how many prisoners had those specific needs or whether any alternative means of facilitating communication between imprisoned parents and their children had been possible. Furthermore, the economic burden on the prison administrations of conducting the visits at weekends had been described in vague terms and no consideration had been paid to the fact that permitting visits only on weekdays and during working hours had been very restrictive and burdensome in terms of maintaining the relationships between imprisoned parents and their children.

In this connection, Article 8 required States to take into account the interests of the prisoner and his or her family members and to evaluate them not in terms of broad generalities but in application to the specific situation. The regulation of such issues might not amount to the one-size-fits-all approach, and States were expected to develop their proportionality assessment technique, enabling the authorities to balance the competing individual and public interests and to take into account the peculiarities of a case, such as those in the present applications, namely the distance of detainee’s home from the prison, whether or not the detainee had school-age children and conflicts with school schedules when organising visits. The Court further noted that it had previously drawn the attention of the national authorities to the importance of the recommendations set out in the European Prison Rules of 2006 as applicable at the relevant time. It reiterated in that connection that the States had a positive obligation to help prisoners maintain contact with their families. In the case of imprisoned parents, Recommendation CM/Rec(2018)5 of the Committee of Ministers also encouraged authorities to facilitate communication between imprisoned parents and their children. Notably, if the imprisoned parent was detained far from home, the authorities were advised to arrange visits in a flexible manner with a view to maximising the quality and duration of the communication and preventing the interruption of the children’s educational activities.

In using their discretionary power to determine the days of the weekly visits, the prison administrations had made their decisions solely on the basis of considerations relating to the capacity of the prisons rather than the prisoners and their relationships with their children. It seemed that the restriction of visits to weekdays and to working hours had been intended to decrease the number of visitors so that it would be easier for the authorities to manage the visits. The domestic courts had accepted the impugned restriction solely on the basis of the reasons stated in the prison administrations’ decisions, by verifying whether the restriction had a legal basis without a concrete, Convention-compliant assessment. In that connection, it did not appear from the decisions of the trial courts that they had weighed up the competing interests or carefully considered the applicants’ arguments. The Constitutional Court had dismissed the individual appeals by the applicants in a summary fashion. It had referred to its case-law which had been pertinent to the restrictions introduced during the state of emergency, although the applicants’ complaints concerned the period after the state of emergency had been lifted, thus calling for a fresh examination. The domestic legal framework as applied in the current case had not provided the applicants with sufficient protection against arbitrary interference with their right to respect for family life, as required by the Convention.

ConclusionViolation of Article 8 (unanimously)

LawArticle 8Complaint concerning restrictions on weekend telephone calls (two applicants)

(i) Admissibility - In the context of the applicants’ complaint concerning the restrictions on their maintaining regular and meaningful contact with their children, and the importance for prisoners of maintaining contact with the outside world, the Court dismissed the Government’s objections as to the applicants’ lack of victim status and the lack of significant disadvantage suffered by them.

(ii) Merits - Although Article 8 could not be interpreted as imposing a general obligation to ensure prisoners’ access to telephones, since under Turkish law the applicants had the right to make telephone calls, any limitations on the use of that right at weekends for calls with their children had to be seen as an interference with their “private and family life” and “correspondence”. The Court was prepared to accept that the restriction on making telephone calls at weekends had had a basis in law and pursued the legitimate aim of prevention of disorder.

Regarding the necessity of those restrictions, the prison administrations’ decisions to prohibit telephone calls at weekends had been formulated in very general terms, without any concrete assessment of the needs of the prisoners or consideration of the positive obligations of the State in facilitating the prisoners’ contact with their children. Therefore, the Court’s findings with respect to weekend visits were likewise applicable in relation to the restrictions on telephone calls. The domestic authorities had engaged with the applicants’ Convention complaints in a superficial manner, depriving them of the procedural guarantees inherent in Article 8.
The Court observed that the security regime in place in the closed-type prison in which the applicant was held included monitoring of telephone conversations, as per the applicable law. The Court considered irrelevant whether the applicant was officially informed of this measure or not as “he would certainly have become aware of it soon” after his admission (para. 27).

The Court considered the interference justified as the “prison’s population included re-offenders, offenders with a negative criminal prognosis and prisoners with addictions” (para. 27), and as the applicant himself had a record of drug addiction and was classified as a recidivist offender.

The Court also recalled that “Article 8 does not in itself guarantee a right to telephone calls and allows that means of communication, if provided, may be subject to restrictions in view of the ordinary and reasonable requirements of imprisonment” and argued that “the applicant could also communicate with his private or family circle through means other than telephone conversations” (para. 27).

Accordingly, the Court found “in the very special circumstances of the present case” that the interference was justified and proportionate, and declared this part of the complaint inadmissible.

ConclusionViolation of Article 8 (unanimously)

Article 41EUR 1,500 awarded to each applicant in respect of non-pecuniary damage. Claim in respect of pecuniary damage dismissed.

© Council of Europe/European Court of Human Rights
VLAD V. ROMANIAApplication no. 122/17Fourth Section15 November 2022
Art 35 § 1 Failure to exhaust a remedy that became effective only after the application was lodged Remedy became available as a result of the change in the practice of the domestic courts following the ECtHR pilot judgment concerning a systemic issue Inadmissible
FactsIn 2017 the applicant lodged an application with the Court complaining about his material conditions of detention in Bucharest-Rahova Prison. He continued to be detained there until at least August 2020 and was subsequently transferred to a different prison. Under Law no. 169/2017 he received compensation in the form of a reduction of sentence, resulting by implication in his early release in March 2021. However, this form of compensation applied only to the period of detention prior to 23 December 2019, the date on which Law no. 169/2017 was repealed. The applicant complained that he had not received any compensation in respect of the subsequent period.

LawThe Court identified two distinct periods on the basis of the remedies available.

(a) Regarding the applicant’s detention before 23 December 2019:

Article 34 The applicant had been granted a reduction of sentence in relation to the total period of detention up to that date, which had also resulted directly in his early release, thereby preventing the continuation of the alleged violation (see Dîrjan and Ştefan v. Romania (dec.), 14224/15 and 50977/15, 15 April 2020, Legal summary).

Conclusion Inadmissible (loss of victim status)

(b) Regarding the applicant’s detention after 23 December 2019:

Article 35 § 1In its judgment in Polgar v. Romania (39412/19, 20 July 2021, Legal summary), the Court had recognised the possibility of bringing a civil action in tort before the domestic courts under Articles 1349 and 1357 of the Civil Code, and identified 13 January 2021 as the date from which the remedy in question could be deemed effective in respect of individuals who considered that they had been subjected to inadequate conditions of detention and who were no longer, when they lodged their action, being held in such conditions. The applicant in the present case had satisfied that condition by 23 March 2021 at the latest.

It was true that the effectiveness of a given remedy was normally assessed with reference to the date on which the application was lodged. However, the Court had made an exception to this principle in a number of cases characterised by particular circumstances, especially where it considered that the introduction of a new remedy by the national legislature had been the direct consequence of the pilot-judgment procedure aimed at remedying a systemic problem.

Stressing the importance of the principle of subsidiarity – recently enshrined in the Preamble to the Convention by Protocol No. 15 – and the principle of shared responsibility, the Court noted that the change in the practice of the Romanian courts was comparable to that resulting from the introduction of a compensatory remedy in the relevant Italian, Moldovan and Hungarian legislation.

In each case, the change reflected the efforts of the national authorities to implement the recommendations made by the Court in a pilot judgment – in this instance Rezmiveș and Others v. Romania, 61467/12 et al., 25 April 2017, Legal summary – and was aimed at enabling cases concerning prison overcrowding to be dealt with at the domestic level, so as to counter the growing threat posed to the Convention system by large numbers of similar cases deriving from the same structural or systemic problem. The Court had no reason to doubt that this line of case-law continued to be applied.

The Court also referred to the object and purpose of the pilot-judgment procedure. It did not have the capacity, nor was it appropriate to its function, to adjudicate on large numbers of repetitive cases which required the finding of basic facts or the calculation of monetary compensation – both of which should, as a matter of principle and effective practice, be the domain of domestic jurisdictions. In the Court’s view, recourse to the Romanian courts afforded speedier redress than proceedings before it, and eased the Court’s caseload by avoiding the need for it to examine large numbers of cases that were similar in substance.

The applicant, at the time of his release and to this day, had the possibility of bringing – as others had done, according to the numerous examples from the domestic case-law – the aforementioned action in tort.
With regard to the remedies made available at domestic level, the Court saw no objective reason to make a distinction between those stemming from legislation and those that resulted from a change in the practice of the domestic courts.

Consequently, it considered it appropriate in the present case to apply an exception to the general principle that the effectiveness of a given remedy was to be assessed with reference to the date on which the application was lodged.

ConclusionInadmissible (non-exhaustion of domestic remedies).

(See also Stella and Others v. Italy (dec.), 49169/09 et al., 16 September 2014, Legal summary; Domján v. Hungary (dec.), 5433/17, 14 November 2017, Legal summary; and Draniceru v. the Republic of Moldova (dec.), 31975/15, 12 February 2019, Legal summary)

© Council of Europe/European Court of Human Rights
YAKOVLYEV V. UKRAINE Application no. 42010/18 Fifth Section 8 December 2022
Art 3 (substantive) Inhuman and degrading treatment Force-feeding of prisoner on hunger strike, in protest against prison treatment, subjecting him to excessive physical restraint and pain Medical necessity for force-feeding not convincingly shown to exist Insufficient procedural safeguards due to absence of legal regulations and ineffective judicial control State’s response to protests limited to force-feeding inmates Need to investigate underlying reasons for inmates’ protests and to ensure a meaningful response to their complaints essential for proper examination and management of situation
FactsOn 22 January 2018 the applicant went on hunger strike along with other inmates in protest against their treatment in Zamkova Prison. By an order of the Izyaslav Court, the applicant was subjected to force-feeding daily from 1 February to 5 February 2018. He described the procedure, which he claimed lasted from thirty to ninety minutes, as follows: he was handcuffed with his hands behind his back, restrained by several prison officers, one of whom forcefully inserted a special rubber tube deep into his throat causing him serious pain and making him choke. The applicant unsuccessfully appealed against the order. On 6 February 2018 he stopped his hunger strike.

LawArticle 3
As in the case of Nevmerzhitsky v. Ukraine, the applicant had not argued that he should have been left without any food or medicine regardless of the possible lethal consequences. Instead, he had complained of the lack of any medical necessity for his force-feeding and the cruelty of that procedure. He had also alleged that the authorities’ true intention had been to suppress the protests in the prison.

There had been no explanation in the medical report, based on a repeated medical examination of the applicant, recommending his force-feeding as being necessary to save his life and health, of the nature and imminence of the risk of the applicant’s continued fasting to his life especially given the relatively short time that had passed since the beginning of the hunger-strike and the absence of any need for his hospitalisation. The Izyaslav Court had accepted the medical report’s conclusion as sufficient grounds for ordering the applicant’s force-feeding, despite his satisfactory health condition allowing him to attend the court hearing and the applicant’s arguments in this respect. Consequently, the medical necessity for his force-feeding had not been convincingly shown to exist.

Furthermore, the Izyaslav Court had not duly responded to the applicant’s submissions that, albeit generally weaker, he had felt well and that he had not understood why the doctors thought otherwise to the point of seeking his force-feeding. It had not explored alternative means to avert the alleged risk to the applicant’s health or commented on his submission about the absence of any legally established procedures for force-feeding in Ukraine. The appellate court had simply dismissed the applicant’s arguments as “groundless” and “not worthy of attention”. That being so, the Court had doubts as to the effectiveness of the judicial control as a procedural safeguard against abuse in the circumstances of the present case. Moreover, the applicant’s force-feeding had been carried out in the absence of any legal regulations on the procedures to be followed in such cases, a lacuna that had been observed by the Parliamentary Commissioner for Human Rights of Ukraine. The existence of unfettered discretion for the prison staff in carrying out the applicant’s force-feeding, together with the lack of any evidence as to how it had actually taken place, were sufficient for the Court to accept the applicant’s account of the events, according to which he had suffered excessive physical restraint and pain.

Lastly, inmates of the prison had been raising arguable grievances about violations of their rights by the prison administration for years, but in vain. Under such circumstances, the hunger strike that had been started by the applicant, together with other inmates, could indeed be regarded as a form of protest prompted by the lack of other ways of making their demands heard. Launching an investigation aimed at ascertaining the true intention of and real reasons for the inmates’ protest, as well as ensuring a meaningful response to their complaints and demands, had been essential for the proper examination and management of the situation by the State. However, this had not been done and the only response to the inmates’ hunger strike had been their force-feeding. It could not therefore be ruled out that the applicant’s force-feeding had been in fact aimed at suppressing the protests in the prison.

Accordingly, the State had not properly managed the situation in relation to the applicant’s hunger strike and had subjected him to ill-treatment.

Conclusionviolation (unanimously).

Article 41EUR 12,000 in respect of non-pecuniary damage.

(See also Nevmerzhitsky v. Ukraine, 54825/00, 5 April 2005, Legal Summary; Ciorap v. Moldova, 12066/02, 19 June 2007, Legal Summary)

© Council of Europe/European Court of Human Rights
G.T. v. GREECEApplication no. 37830/16Third Section13 December 2022
Art 8Refusal to allow a detainee to visit his sick mother and then attend her funeral solely because his escort was necessary and the maximum period of release from prison would have been exceededAbsence of individual and detailed examination of requestsFailure to balance the interests at stake
Art 13 (+ Art 8)Effective remedyAbsence of remedy to challenge the refusal to authorize a prisoner to leave prison to visit a sick relative or attend the funeral of a relative
FactsOn 27 June 2016 the applicant, who was detained in prison, applied to the governor for urgent prison leave in order to visit his mother, who was in hospital. He filled out a short standardised form setting out the reason for his request in a few lines. The request was sent to the public prosecutor at the Court of First Instance, who refused it on the ground that the applicant’s prison leave, under escort, would have lasted for more than twenty-four hours, the maximum statutory period.
On 30 June 2016 the applicant’s mother died. On the same day he submitted a request to the prison governor for urgent leave to attend her funeral, which was due to take place on 5 July 2016 at around 5 p.m. The request was refused by the prosecutor for the same reasons cited in the previous refusal.

LawArticle 8

The Court held that the refusal to allow a prisoner to leave prison to visit a sick relative or to attend a relative’s funeral amounted to interference with the exercise of his or her right to respect for private and family life. Article 8 of the Convention did not guarantee an unconditional right to be granted leave to visit a sick relative or to attend a funeral. However, the authorities could refuse a prisoner the right to attend a relative’s funeral only on compelling grounds and if no other solution could be found (Guimon v. France). It was for the national authorities to examine the merits of any such request submitted to them.

In the present case, domestic law provided for the possibility of ordinary leave only for prisoners who had served one-fifth of their sentence and who had been in detention for at least three months. If those conditions were not met, urgent leave could be granted for a maximum period of twenty-four hours to meet a family or work-related need or a need of an urgent, unforeseen and exceptional nature. In addition, where urgent leave was requested by a prisoner to attend the funeral of his or her spouse or a relative up to the second degree, or to visit the same person when he or she was in a critical condition, it could be granted on a decision of the prison governor, who had to inform the competent judicial body without delay.

The applicant did not qualify for ordinary leave but was eligible for urgent leave to visit his mother in hospital or to attend her funeral. However, the prosecutor had refused both requests on the grounds that his escorted leave would have exceeded the statutory maximum of twenty-four hours in each case. The interference had therefore been “in accordance with the law” and had been intended to prevent the risks of absconding and disturbance of public order inherent in the granting of temporary leave on an exceptional basis to a convicted prisoner, being essentially aimed at ensuring public safety and preventing disorder and crime.

The Court was mindful of the financial and logistical problems caused by escorted leave. The hospital and the place where the funeral of the applicant’s mother was to be held were both located at a significant distance from the place where the applicant was being held at the relevant time.

However, the prosecutor had found that the applicant could only leave prison under escort, without giving any reasons for his decision or providing any justification relating, in particular, to the applicant’s background, the danger he supposedly presented and the nature of his sentence and the offence of which he had been convicted. Furthermore, the orders in question had made no mention of the factual elements (such as the geographical distance, the means of transport chosen or the cost of the transfer) which the public prosecutor may have taken into account in deciding to refuse the requests. Nor did it appear from those orders that the public prosecutor had examined the various possible options, such as a transfer by air, or that he had specified that such a transfer under escort would be costly or, for any reason, impossible or difficult to arrange. Time constraints were an important factor, but the applicant had submitted his request for leave to attend the funeral promptly, giving the authorities five days to arrange his travel under escort. With regard to the second refusal, the prosecutor had not taken into account the fact that the applicant had not had an opportunity to visit his mother in hospital before her death.

It followed from the foregoing that the domestic authorities had refused the applicant’s requests for leave to visit his mother in hospital and then to attend her funeral, on the ground that an escort was necessary and that it was therefore not possible to complete the journeys within the twenty-four-hour period provided for by domestic law. However, they had not based their decisions on a detailed examination of the individual circumstances nor had they weighed up the interests at stake, namely the applicant’s right to respect for his private and family life on the one hand, and the need to prevent disorder and crime on the other. In those circumstances, it had not been demonstrated that the interference complained of had been “necessary in a democratic society”.


Conclusionviolation (unanimously).

LawArticle 13

The applicant had only been able to lodge his requests for urgent leave by means of a form requiring a short description of the reasons for the request. The Prison Code did not provide for any remedy against the refusal of such requests. Accordingly, the leave of absence provided for in the Prison Code was left to the decision of the competent prosecutor and could not be reviewed.

Regarding the right to address any public authority in writing, to seek legal protection from the courts, to apply to international organisations and to seek legal aid, those possibilities were described in general terms and did not appear to be relevant in the present case. As to the right to apply to the prison board or the Indictments Division of the Criminal Court of First Instance and to be heard by the supervising prosecutor responsible for the prison, the Government had not cited any examples or provided any relevant decisions. They had not shown that those remedies offered the applicant reasonable prospects of success.

Domestic law did not provide for any remedy by which the applicant could challenge the impugned refusals of prison leave and have those decisions reviewed from the standpoint of Article 8. The examination of the applicant’s requests by the public prosecutor at the Court of First Instance, without the possibility of obtaining a review of the refusal of those requests, could not be considered sufficient.

Conclusionviolation (unanimously).

Article 41EUR 4,000 for non-pecuniary damage.

(See also Guimon v. France, 48798/14, 11 April 2019, Legal summary)

© Council of Europe/European Court of Human Rights
AZMATGIRIYEV AND MENKOV V. RUSSIAApplications nos. 26683/18 and 9122/19Third Section Committee15 December 2022
Art. 8Permanent video surveillanceNo effective remedy
FactsThe two applicants complained mostly of the permanent video surveillance to which they were subjected in post-conviction detention facilities (including in lavatory/shower room) and of the lack of an effective remedy in that respect

LawArticles 8 and 13

The Court recalled it had already established that the national legal framework governing the placement of detainees under permanent video surveillance in penal institutions falls short of the standards set out in Article 8 of the Convention as it cannot provide appropriate protection against arbitrary interference, and it does not presuppose any balancing exercise or enable an individual to obtain a judicial review of the proportionality of his or her placement under permanent video surveillance to the vested interests in securing his or her privacy (see Gorlov and Others v. Russia, nos. 27057/06 and 2 others, 2 July 2019). The Court concluded that the measures imposed were not “in accordance with law”. With regard to the allegation of the second applicant of violation of Article 13, the Court also noted that he did not have any effective judicial remedy in respect of violations under Article 8.

ConclusionViolation of Articles 8 and 13.

Article 41The finding of a violation constitutes sufficient just satisfaction for non-pecuniary damage sustained by the applicants.

REPETITIVE CASES

TRANSPORTInadequate detention conditions during transport 3 committee judgments in cases against Russia
The applicants complained of overcrowding, lack of personal space and poor material conditions during transportation. The applicants were held in transit cells, vans and trains during transportation with extreme lack of space, somewhere between 0.1 to 0.5 sq. m. per inmate. The Court found a violation of Article 3.
The Court also found a violation of Article 13 due to lack of available remedies with regard to complaints about poor conditions of detention during transport.

Kashin and Petkyavichus v. Russia (nos. 15007/19 and 17123/19, insufficient number of sleeping places, lack of or insufficient electric light, lack of or poor quality of bedding and bed linen, lack of privacy for toilet, lack or inadequate furniture, mouldy or dirty cell, no or restricted access to toilet, no or restricted access to warm water, no or restricted access to potable water, overcrowding, poor quality of food, passive smoking etc.)
Gromov and Barbolin v. Russia, (nos. 1354/19 and 29725/19, inadequate temperature, insufficient number of sleeping places, lack of or insufficient electric light, no or restricted access to toilet, lack of fresh air, overcrowding)
Sidorets v. Russia (no. 59287/18, overcrowding, passive smoking, lack of fresh air, no ventilation, inadequate temperature, lack of or insufficient natural light, no or restricted access to warm water, lack of or insufficient electric light, passive smoking, mouldy or dirty cell, no or restricted access to toilet, no or restricted access to running water, applicant transported on numerous occasions, lack of or insufficient physical exercise in fresh air, overcrowding etc.)
DETENTION CONDITIONS■ Inadequate conditions of detention under strict imprisonment regime 2 judgments in cases against Russia
The applicants complained of the inadequate conditions of detention under strict imprisonment regime. Relying on its findings in a leading case (N.T. v. Russia, no. 14727/11, 2 June 2020), the Court concluded that in the cases at hand there has been a violation of Article 3.

Gatagazhev and Lugachev v. Russia (no. 43813/16), Finogenov v. Russia (no. 2976/20).
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This roundup is funded by the European Union and the Robert Carr Fund. Views and opinions expressed are those of the authors only and do not necessarily reflect those of the European Union, the European Commission or the Robert Carr Fund. Neither the European Union, the European Commission nor the Robert Carr Fund can be held responsible for them.

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