Round-up of the ECtHR case-law
July – September 2016
[GC] Buzadji v. The Republic of Moldova (no. 23755/07) – pre-trial detention. The applicant that his pre-trial detention was not based on sufficient grounds (violation of Article 5§3).
Bandur v. Hungary (no. 50130/12) – material conditions of detention / effective preventive remedy. The applicant complained about the conditions of his pre-trial detention and the absence of an effective domestic remedy in this regard (violation of Article 3; violation of Article 13).
Kulinski and Sabev v. Bulgaria (no. 63849/09) – voting rights. The applicants complained about the constitutional ban on prisoners’ voting rights (violation of Article 3 of Protocol no.1).
Shahanov and Palfreeman v. Bulgaria (nos. 35365/12 and 69125/12) – freedom of expression / disciplinary punishment. The applicant alleged in particular that disciplinary punishments imposed on them by the prison authorities in response to complaints they had made in relation to prison officers had unjustifiably interfered with the exercise of their right to freedom of expression (violation of Article 10).
Wenner v. Germany (no. 62303/13) – drug addiction / healthcare. The applicant complained that he did not receive an adequate treatment for his drug-addiction while in detention (violation of Article 3).
- D. v. Belgium (no. 73548/13) – pilot judgment / structural problem / minor / mental healthcare / purpose of detention / effective remedy. The applicant complained that he did not receive adequate mental healthcare in detention (violation of Article 3), that his detention in a psychiatric wing of a prison that was ill-suited to his deeds had broken the purpose of his detention (violation of Article 5§1), and that he had no effective remedy to complain about his detention conditions (violation of Article 5§4; violation of Article 13 in conjunction with Article 3).
- Ş. v. Turkey (no. 58271/10) – minor / violence among prisoners / procedural obligation. The applicant was assaulted in detention by other inmates. He accused the authorities of failing in their duty to protect persons under their supervision (no violation of Article 3 with regard to the sexual assault; violation of Article 3 with regard to the physical assault).
Siemaszko and Olszyński v. Poland (no. 60975/08 and 35410/09) – private property. The case concerned the obligation imposed on the applicants to place sums for their prison earning into a deposit account in order to constitute a kitty that would be available to them on their final release (violation of Article 1 of Protocol no. 1).
Kindrulin v. Russia (no. 12987/15) – NGO locus standi / healthcare / interim measures. The applicant complained that he had not received adequate medical assistance while in detention (violation of Article 3). He also complained that the authorities did not implement the interim measure indicated (violation of Article 34).
5 JULY 2016
The applicant, a businessman, was arrested in May 2007 and formally charged with defrauding a State company of which he was the director. He was placed in detention pending trial given the gravity of the charges against him, the complexity of the case and the risk of collusion. His detention was then extended on a number of occasions until July 2007 when the domestic courts accepted his request to be placed under house arrest. He remained under house arrest until March 2008 when he was released on bail.
The Court recalled that Article 5§3 of the convention enshrines the right for all person arrested on suspicion of having committed an offence (a) to be brought “promptly” before a judicial authority who will examine the lawfulness of the detention and whether the suspicion is reasonable; and (b) to a trial within a reasonable time or release pending trial. The Court added that its case-law provided that the persistence of a reasonable suspicion is a condition sine qua non for the validity of the continued detention, but, after a “certain lapse of time”, this no longer suffices so that other “relevant and sufficient” reasons to detain are required. However, the Court admitted that it had never defined the length of a “certain lapse of time”.
The Court then noted that, while the two limbs conferred distinct legal rights, there were certain overlaps: the period started to run for both from the time of arrest; both required a judicial authority to determine whether there were reasons justifying detention and to order release if not; and in practice the application of the guarantees under the second limb would to some extent overlap with those of the first, typically in situations where the judicial authority which authorises detention under the first limb at the same time orders detention on remand subject to the guarantees under the second. In such situations, the first appearance of the suspect before the judge constituted the “crossroads” where the two sets of guarantees met and where the second set succeeded the first. Yet, the question of when the second applied to its full extent, in the sense that further relevant and sufficient reasons additional to reasonable suspicion were required, was left to depend on the rather vague notion of “a certain lapse of time”.
In this connection, the Court noted that the domestic laws of the great majority of the thirty-one Council of Europe member States covered by its comparative-law survey required the relevant judicial authorities to give “relevant and sufficient” reasons for continued detention if not immediately then only a few days after the arrest, namely when a judge examined for the first time the necessity of placing the suspect in pre-trial detention. Such an approach, if transposed to Article 5 § 3 of the Convention, would not only simplify and bring more clarity and certainty into the Convention case-law, but would also enhance the protection against detention beyond a reasonable time.
There were thus compelling arguments for synchronising the second-limb guarantees with the first limb. Accordingly, the requirement on the judicial officer to give relevant and sufficient reasons for the detention in addition to the persistence of reasonable suspicion applied already at the time of the first decision ordering detention on remand, that is to say “promptly” after the arrest.
The Grand Chamber found that the applicant’s house arrest also constituted a deprivation of liberty and proceeded to apply the same criteria for the entire period of deprivation of liberty, irrespective of the place where the applicant had been detained.
It found that the reasons invoked by the domestic courts for ordering and prolonging the applicant’s detention had been stereotyped and abstract. Their decisions had cited the grounds for detention without any attempt to show how they applied concretely to the specific circumstances of the applicant’s case. Moreover, the domestic courts could not be said to have acted consistently. In particular, on some occasions they had dismissed as unsubstantiated and implausible the prosecutor’s allegations about the danger of the applicant’s absconding, interfering with witnesses and tampering with evidence. On other occasions they had accepted the same reasons without there being any apparent change in the circumstances and without explanation. Where such an important issue as the right to liberty was at stake, it was incumbent on the domestic authorities to convincingly demonstrate that the detention was necessary. That had certainly not been the case here.
Thus there had been no relevant and sufficient reasons to order and prolong the applicant’s detention pending trial, in breach of Article 5§3.
Relying mainly on Articles 3 and 13 of the Convention, the applicant complained about the conditions of his pre-trial detention and the absence of an effective domestic remedy in this regard.
The Court noted that the applicant was kept in a collective cell allowing at certain periods of his detention some three sq. m. of floor per inmate – a surface that was further reduced due to the presence of sanitary facilities, furniture and fittings. The Court further noted that the applicant was allowed a one-hour period of outdoor exercise daily, and was not allowed to leave his cell otherwise. In the light of the lack of personal space afforded to the applicant, combined with the lack of adequate access to outdoor activities for almost three months of his detention, the Court finds that the conditions of the applicant’s detention were in breach of Article 3. Against this background, the Court recalled that it had found in the case Varga and Others v. Hungary (no. 14097/12 and others) that there was no effective preventive remedy available to prisoners in the applicant’s situation. Therefore, the Court concluded that there had been a violation of Article 13.
21 JULY 2016
The case concerned the constitutional ban on prisoners’ voting rights. While both applicants were serving their sentences, elections to the European Parliament and to the Bulgarian Parliament took place – in June and July 2009 respectively. The Court noted that the deprivation of the right to vote applied to all conviction persons who were in detention, and that this prohibition was unambiguous and categorical. The Court recalled that in the Scoppola v. Italy (n°3) (no. 126/05) case, no violation of Art. 3 of Protocol No.1 was found because the removal of the right to vote by law was adjusted to the circumstances of the particular case, the gravity of the offence or the conduct of the offender. No such adjustment stemmed from the constitutional ban on prisoners’ voting rights in the present case (see also Anchugov and Gladkov v. Russia). Therefore, the Court concluded that such a general, automatic and indiscriminate restriction was in breach of Article 3 of Protocol No. 1.
The applicants alleged, in particular, that disciplinary punishments imposed on them by the prison authorities in response to complaints that they had made in relation to prison officers had unjustifiably interfered with the exercise of their right to freedom of expression.
- Shahanov, detained in Plovdiv prison, had made complaints to the Ministry of Justice where he stated that another inmate in his ward was bragging that two prison officers were relatives of his. M. Palfreeman, after he learnt that journalists who visited him had been treated rudely and had had personal items stolen from visitors lockers – which are only accessible to the guards – complained to the governor of Sofia prison to take measures « to ensure that the guards work in a disciplined way and with respect towards inmates and others ». Both of them were sentenced to disciplinary punishment after an inquiry found their requests were unfounded (10 days in solitary confinement for M. Shahanov, three months’ deprivation of the right to receive food parcels from outside prison for M. Palfreeman).
The Court first noted that the interferences with the applicants’ right to freedom of expression had a legal basis, and that the interferences « were intended to protect the reputation and rights of the prison officers who were the subject of the applicant’s allegation, and hence pursued a legitimate aim » (§56).
As to the proportionality of the interferences, the Court recalled it must examine it looking at (a) the nature and exact manner of communication of the statements; (b) the contexts in which they were made; (c) the extent to which they affected the officials concerned; and (d) the severity of the sanctions imposed on the applicants. The Court noted that « the langage used was not strong, vexatious or immoderate » (§61) and that « the statements were not made publicly » (§62). The Court further noted that whereas « it is true that the applicants’ allegations were capable of having an effect on the professional standing of the prison officers concerned », these allegations « were made by the applicants in the exercise of the possibility in a democratic society governed by the rule of law for a private person to report an alleged irregularity in the conduct of a public official to an authority competent to deal with such an issue » (§63). The Court then added that prisoners, given the mere fact that they are under the control of the authorities, should be able to avail themselves of the opportunity to report alleged irregularities and make complaints against public officials « without having to fear that they will suffer negative consequences for doing so » (§64, see Yankov v. Bulgaria, §134). In view of the foregoing, the Court declared that the punishments imposed on the applicants were disproportionate, in breach of Article 10 of the Convention.
1 SEPTEMBER 2016
The applicant is a long-term heroin addict. From 1991 to 2008 his addiction was treated with medically prescribed and supervised drug substitution therapy. In 2008, the applicant was sentenced to six years’ imprisonment. While in prison, his treatment was stopped, whereas he claimed it was the only adequate response to his medical condition. He was offered instead an abstinence-oriented drug therapy.
The Court first-of-all recalled that it “accepts that the States have a margin of appreciation in respect of the choice between different suitable types of medical treatment for a prisoner’s disease” which applies to the “setting-up of a general policy” in the field of drug-addiction therapy (§61). The Court then stated that in the present case it has “to determine whether the respondent State as provided credible and convincing evidence proving that the applicant’s state of health and the appropriate treatment were adequately assessed and that the applicant subsequently received comprehensive and adequate medical care in detention” (§62).
The Court observed that Federal Medical Association’s Guidelines for the Substitution Treatment of Opiate Addicts clarified that substitution treatment was a scientifically tested therapy for manifest opiate addiction, and that drug substitution therapy was, in principle, available outside and in prisons in Germany (as in the majority of member States of the Council of Europe), and was actually provided in practice in prisons in several Länder other than Bavaria where the applicant was detained. The Court added that that there was a strong indication that drug substitution treatment could be regarded as the required medical treatment for the applicant: this was confirmed both by the doctors who had prescribed the applicant drug substitution therapy prior to his detention as well as by two external doctors, one of whom had examined the applicant in person (§67); and the applicant was “prescribed and provided with drug substitution treatment after his release from detention” (§68).
The Court stated that “in order to ensure that the applicant received the necessary medical treatment in prison the domestic authorities, and in particular the courts, were required to verify, in a timely manner and with the help of an independent doctor skilled in drug addiction treatment, whether the applicant’s condition was still adequately treated without such therapy” (§77). However “no follow-up was given to the opinions expressed by external doctors […] on the necessity to consider providing the applicant again with drug substitution treatment” (§77).
In the light of the foregoing, the Court declared that “the respondent State failed to provide credible and convincing evidence showing that the applicant had received comprehensive and adequate medical care in detention, at a level comparable to that which the State authorities have committed themselves to provide to persons in freedom, where drug substitution treatment was available” (§80) in breach of Article 3.
6 SEPTEMBER 2016
The applicant was condemned in 2006 for indecently assaulting a person under the age of sixteen. The domestic court noted he lacked criminal responsibility and suffered from a mental disorder. Since 2007 he had been detained in a social protection unit at Merksplas Prison.
Complaint under Article 3
The applicant complained that he had been detained in a prison environment for more than nine years without any appropriate treatment for his mental condition or any realistic project of reintegrating into society. The Court first noted that it had declared in several previous landmark cases that there as a structural problem in Belgium regarding mental healthcare for prisoners (see L.B. v. Belgium, no.22831/08, 2 October 2012; Claes v. Belgium, no. 43418/09, 10 January 2013; Dufoort v. Belgium, no. 43653/09, 10 January 2013; Swennen v. Belgium, no. 53448/10, 10 January 2013) and that there are some forty similar cases pending before the Court. Since then, the situation had worsened, according to national (OIP, Supervisory Board of Merksplas Prison) and international (CPT, UNCAT) statements made on the issue (§§73-76) indicating that psychiatric wings, including social protection units, were not suitable places of detention for people suffering from mental disorders, because of the general lack of staff, the poor quality and the lack of continuity in the treatment provided, and overcrowding (§107).
These findings were corroborated by the fact that the reports issued by the prison’s medical staff did not provide any explanation of the nature of the treatment said to have been provided to the applicant (§108). Moreover, based on reports issued in 2013 and 2014 on the applicant’s case, the Court noted that the applicant’s had made no progress in understanding his problems and appeared to need personal supervision even more strongly than at the start of his detention (§111).
The Court found that the applicant’s detrimental situation was the result of a structural problem : on the one hand, the medical care available to those detained in prison psychiatric wings was inadequate, and on the other, the placement outside the prison system was often impossible, either because of the lack of places in psychiatric hospitals or because the legislative framework did not allow the social protection authorities to order the admission of such individuals to outside facilities that viewed them as undesirable (§112). The Court pointed out that the obligation deriving from the Convention required suitable treatment to be provided to such offenders to help them to reintegrate into society as successfully as possible – as foreseen in the new Belgian legal framework that should entered into force in October 2016 (§113). In view of the foregoing, the Court declared that there had been a violation of Article 3 of the Convention.
Complaint under Article 5§1
The applicant complained that his continued detention in a social protection unit had been in breach of Article 5§1. The Court first observed that the prospect of transferring the applicant to an appropriate outside facility had been envisaged since 2009. The Court therefore concluded that the applicant’s detention in a psychiatric wing was regarded by the authorities as a temporary solution, and that the reason why he remained there was the structural lack of alternatives.
The Court recalled that in similar cases it found a violation of Article 5§1 on the ground that the detention of the applicants for a significant period in a psychiatric wing of a prison that was ill-suited to their needs had broken the link between the purpose and the conditions of his detention. It saw in the present case no reason to depart from this conclusion and held that there had been a violation of Article 5§1.
Complaint under Article 5§4 and Article 13 in conjunction with Article 3
The applicant complained he had had no effective remedy to complain about his detention conditions. The Court noted that the effectivity of the remedies available was undermined by the structural nature of the problem mentioned. It was the lack of suitable places in a non-prison environment and the lack of qualified staff in prison psychiatric wings, rather that the remedies themselves, that had resulted in the ineffectiveness of appeals to the social protection authorities and hindered the implementation of any favourable court decisions. As a result, the Court found a violation of Article 5§4 and of Article 13 in conjunction with Article 3.
Statement under Article 46
The Court encouraged the Belgian State to take action to reduce the number of offenders with mental disorders who were detained in prison psychiatric wings without receiving appropriate treatment, in particular by redefining the criteria for psychiatric detention. The Court welcomed the objective enshrined in law of providing therapeutic support to such detainees with a view to their reintegration into society. The Court gave the respondent Government a period of two years to remedy both the general situation and the situation of any applicants who had lodged similar applications with the Court before the delivery of this judgment and any who might apply to the Court subsequently.
13 SEPTEMBER 2016
In 2008, the applicant, then aged thirteen, was placed in pre-trial detention. In March 2010, he was placed in a dormitory for juveniles who had committed sexual offences. In this dormitory he was assaulted by one other detainee and beaten by three other detainees. The applicant accused the respondent State of failing in its duty to protect persons under its supervision.
With regard to the sexual assault, the Court firstly declared it was satisfied with the domestic legal framework. The Court also observed that as soon as they had become aware of the events, the prison authorities had opened an internal investigation and that the applicant had been taken to hospital immediately to undergo a medical examination. Statements had been taken from all those involved and disciplinary actions had been taken against the applicant’s assailant. The prison authorities informed the public prosecutor of the incident. The latter had instituted an investigation and the applicant’s assailant had been tried and sentenced. Accordingly, the Court declared the authorities did not fail to fulfill their obligation.
With regard to the physical assault, however, the Court observed that the public prosecutor discontinued the proceedings against the three assailants on the ground that prosecution of the offence complained of depended on a complaint by the victim. The Court underlined that the applicant was detained and minor when the disputed facts arose, hence vulnerable in two ways (§§66-67, see M.C. v. Poland, no.23692/09, 3 March 2015, §88; Bouyid v. Belgium, no. 23380/09, 28 September 2015, §109). The Court stated that by requiring the applicant to lodge a formal complaint as a prerequisite for the bringing of criminal proceedings, without taking into account his particular vulnerability, Turkish criminal law had rendered ineffective the legal enforcement measures designed to protect individuals against treatment contrary to Article 3 of the Convention.
The case concerned the obligation imposed on the applicants, when they were imprisoned, to place sums from their prison earnings into a deposit account with an interest rate of 0.1% in order to constitute a kitty that would be available to them on their final release.
The Court then stated that the case raised a question of principle regarding the right for imprisoned people to enjoy their possessions (§85). In this regard, the Court noted that the applicants were compelled to place sums into a deposit account which rate was below the market rate: the applicant therefore suffered a material prejudice. The Court added that given the length of their sentences and the lack of work opportunities in prison, this material prejudice may have had a significant impact on their personal life (§§87-88).
The Court concluded that there had been a violation of Article 1 of Protocol no. 1 to the Convention.
20 SEPTEMBER 2016
The case originated in an applicant lodged by the applicant on March 2015. He alleged that he had not received adequate medical assistance while in detention. Following his death on October 2015, the AGORA International Association of Human Rights organisations expressed its wish to pursue the application.
Regarding the locus standi of Agora, the Court first noted that the applicant died in custody, leaving no know relatives. The Court further noted that Agora’s lawyers represented him in his proceedings against the domestic authorities, and continued to do so even after his death, in the absence of any objections from the respective authorities. The Court therefore concluded that there was a strong link between the applicant and Agora, and that the latter, in the exceptional circumstances of this case and bearing in mind the serious nature of the allegations, should be authorized to pursue the application (§§31-33, see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, 17 July 2014, §112).
Regarding the alleged violation of Article 34 of the Convention, the Court noted that on 27 March 2015 it indicated to the Government that the applicant should immediately be examined by medical experts independent from the prison system (§41). The Court observed that neither the medical reports nor certificates issued by the authorities following the formulation of the interim measure contained any analysis of the adequacy of the applicant’s medical treatment or the compatibility of the conditions of his detention with his state of health. The Court therefore concluded that the documents furnished by the authorities had little relevance to the implementation of the interim measure indicated, in breach of Article 34 (§§46-48).
Regarding the alleged violation of Article 3 of the Convention, the Court first declared itself satisfied with the expert report and other evidence submitted by the applicant in favour of his submission and stated that the burden of proof should shift to the respondent Government. The Court added that “having regard to its findings under Article 34 of the Convention, [it] is prepared to draw inferences from the Government’s conduct” (§58). The Court also noted that the Government has failed to demonstrate conclusively that the applicant received effective medical treatment for his illnesses while in detention. Therefore, the Court concluded that there had been a violation of Article 3.