Newsletter no.2019/1 - Round-up of the ECtHR case-law (January – February 2019)

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Summaries

Ēcis v. Latvia (no. 12879/09)discrimination / temporary absence. The case concerned a male prison inmate who complained that he had not been allowed to attend his father’s funeral under a law regulating prison regimes which discriminated in favour of women (violation of Article 14 in conjunction with Article 8).

Ilgiz Khalikov v. Russia (no. 48724/15)transportation / effective investigation. The case concerned a prisoner’s complaint that he had been seriously wounded by a stray bullet during a shoot-out between escorting officers and detainees attempting to escape during their transfer to another facility (violation of Article 3).

Gjini v. Serbia (no. 1128/16)violence between prisoners. The applicant complained that the prison administration failed to protect him against repeated assaults from his cell mates. The applicant also complained that there had not been an effective investigation into his complaint (violation of Article 3).

Ebru Dinçer v. Turkey (no. 4334709)anti-riot operation / ill-treatment / medical care. The case concerned an operation conducted by the security forces in Bayrampaşa Prison during which the applicant suffered serious burns to various parts of her body owing to a fire which broke out in the women’s dormitory (violation of Article 3).

Nikitin and Others v. Estonia (nos. 23226/16 and others)material conditions of detention / effective remedy. The applicants complained about their conditions of detention and the lack of effective remedy in this respect (violation/no violation of Article 3, violation / no violation of Article 13).

[GC] Rooman v. Belgium (no. 18052/11)mental health / access to medical care. The case concerned the question of the psychiatric treatment provided to a sex offender who has been in compulsory confinement since 2004 on account of the danger that he poses and the lawfulness of his detention (violation / no violation of Article 3, violation / no violation of Article 5).

Utvenko and Borisov v. Russia (no. 45767/09)ill-treatment. The case mainly concerned the applicants’ allegations of ill-treatment in prison and the conditions of their detention (violation / no violation of Article 3).

[dec.] Chernenko and Others v. Russia (no.4246/14 and others)family visits. The applicants had been sentenced to life imprisonment and had to serve their sentences in special-regime correctional colonies. Under that regime they were entitled to two short-term visits per year, and since November 2016 to one long-term visit per year. The applicants complained about severe restrictions on their contacts with the outside world during their detention following conviction (inadmissible).

Patsaki and Others v. Greece (no. 20444/14)right to life / medical care / effective investigation. The case concerned the death of a drug addicted person in prison (violation of Article 2 under its procedural limb, no violation of Article 2 under its substantive limb).

Boltan v. Turkey (no. 33056/16)life sentence / security measures / medical release / structural problem. The applicant alleged that his detention in an individual living unit for 16 days constituted inhuman treatment in view of his infirmity (no violation of article 3). He alleged also that his life sentence without the possibility of conditional release constitutes a violation of Article 3 (violation of Article 3).

Yakuba v. Ukraine (1452/09)file access / right to individual application. The applicant complained that the authorities had refused to provide him with copies of the documents regarding his proceedings before the domestic courts, which he needed to substantiate his complaint before the Court, because he was serving his sentence (violation of Article 34).

Gömi v. Turkey (no. 38704/11)medical care / mental health / Article 46. The case concerned the continued detention of the applicant, who has suffered from a psychotic illness since 2003. The applicant complained that his detention was incompatible with his state of health (violation of Article 3). The Court considered that it was incumbent on the Turkish authorities to ensure that the applicant had appropriate detention conditions in a suitable institution (application of Article 46).

Mammadov and Others v. Azerbaijan (no. 35432/07)right to life / effective investigation. The first applicant died in detention. His wife and son argue in particular that the authorities are responsible for his death as he had been subjected to ill-treatment and deprived of adequate medical care while in detention (violation of Article 3), and that his detention was continued in spite of his medical condition (no violation of Article 2 under its substantive aspect, violation of Article 2 under its procedural aspect).

Gablishvili and Others v. Georgia (no. 7088/11)ill-treatment / effective investigation. The case concerned the alleged ill-treatment of prisoners and the national authorities’ failure to conduct an effective investigation in that regard (violation of Article 3).

 

10 January 2019

Ēcis v. Latvia (no. 12879/09)

The case concerned a male prison inmate who complained that he had not been allowed to attend his father’s funeral under a law regulating prison regimes which discriminated in favour of women.

Facts

Under the Latvian penitentiary system, all male prisoners convicted of serious and particularly serious crimes had to be placed in closed prisons at the maximum-security level and were not entitled to prison leave until they were moved to a partly-closed prison – a transfer they might become eligible for only after serving half of the imposed sentence. In contrast, female prisoners who had been convicted of the same crimes were placed in partly-closed prisons from the very beginning of their sentence.

The applicant was convicted of murder and sentenced to twenty years’ imprisonment. While he was placed at the medium-security level in a closed prison, his father died and he requested permission to attend the funeral. His request was denied, as only prisoners serving their sentence at the medium, or minimum, security level in partly-closed prisons were eligible for such leave. The applicant complained that he had been discriminated against on the grounds of his sex with respect to the applicable prison regime that had led to the refusal.

Law

(a) Whether the applicant was in an analogous or relevantly similar position to female convicts – The difference in treatment concerned men and women who had committed the same or comparable offences and had all been sentenced to prison terms. The complaint related to the manner in which the applicable prison regime affected the restrictions on prisoners’ family life, in particular, with regard to their right to prison leave on compassionate grounds. Accordingly, the complaint concerned an issue that was of equal relevance to all prisoners. In the light of the nature of the particular complaint, the applicant could claim to be in an analogous position to that of female prisoners convicted of the same or comparable offences.

(b) Whether the difference in treatment was objectively justified – The Government argued that the difference in treatment pursued the aim of protecting female prisoners from being adversely affected by identically tailored approaches that would not sufficiently take their specific needs into account.

Providing for the distinctive needs of female prisoners, particularly in relation to maternity, in order to accomplish substantial gender equality should not be regarded as discriminatory. Accordingly, certain differences in the prison regimes that were applicable to men and women were acceptable and might even be necessary in order for substantive gender equality to be ensured. Nonetheless, within the context of the penitentiary system and prison regimes, a difference in treatment that was based on sex had to have a reasonable relationship of proportionality between the means employed and the aim sought.

At the time of the applicant’s request for prison leave, he had already been moved to the medium-security level of the closed prison. His request was not entertained precisely on the grounds of being placed at the medium-security level of the closed prison. Neither the domestic authorities, nor the Government had suggested that there was any other consideration that had informed this decision. Meanwhile, female prisoners in analogous circumstances, that was to say, convicted of the same crimes, given the same sentence, having served the same proportion of the sentence, and having progressed to the medium-security level, would have been eligible for such prison leave, as they would have been placed in partly-closed prisons from the outset.

In justifying that distinction the Government argued that women prisoners, in general, were less violent and less prone to aggression, whereas male prisoners were more predisposed to inter-prisoner violence and attempted prison-breaks, and they posed higher threats to prison security and staff. Even if that claim had been supported by data, it would not have been sufficient to justify such difference in treatment. Finding otherwise would be tantamount to concluding that all male prisoners, when compared to women who had committed exactly the same offences, were so much more dangerous that no individualised assessment was even purposeful. Such an approach would be incompatible with the case-law of the Court emphasising the need for an individualised risk assessment of all detainees with regard to prison leave.

Although there might be several legitimate penological grounds for a person’s deprivation of liberty, the emphasis in European penal policy was on the rehabilitative aim of imprisonment. While that principle applied regardless of the crime committed or the duration of the sentence imposed, it also applied irrespective of the prisoner’s sex. The maintenance of family ties was an essential means of aiding social reintegration and rehabilitation of all prisoners, regardless of their sex. Furthermore, prison leave was one of the means of facilitating social reintegration of all prisoners.

A blanket ban for men to leave the prison, even for attending a funeral of a family member, was not conducive to the goal of ensuring that the distinctive needs of female prisoners were taken into account. The refusal to entertain the applicant’s request to attend his father’s funeral on the basis of the prison regime to which he was subjected owing to his sex had no objective and reasonable justification.

Conclusion: violation.

© Council of Europe/European Court of Human Rights

 

15 January 2019

Ilgiz Khalikov v. Russia (no. 48724/15)

The case concerned a prisoner’s complaint that he had been seriously wounded by a stray bullet during a shoot-out between escorting officers and detainees attempting to escape during their transfer to another facility.

Facts

The applicant and eight other detainees were transported in a prison van designed for a maximum of seven detainees, with three seats for convoy officers. Being a former police officer, the applicant had been placed next to the convoy officers. At some point, three detainees attempted to escape and one of them took hold of an officer’s gun. In the ensuing shooting, the applicant was wounded in the leg by a stray bullet. Subsequently, he filed a complaint of a serious breach of the prisoner transfer regulations. Following a “pre-investigation inquiry”, a decision was adopted, less than a month later, refusing to institute criminal proceedings.

Law

Procedural limb – In many previous cases against the Russian Federation, the Court has highlighted the structural defects of the format of a “pre-investigation inquiry”. When confronted with a credible allegation of ill-treatment, the authorities had the duty to open a criminal case and conduct an investigation. Instead, the inquiry in the instant case was both belated and insufficient in scope and it did not make a serious attempt to establish all the circumstances of the incident or to attribute responsibility for firing the shot that had wounded the applicant. The refusal to open criminal proceedings into the applicant’s credible allegations of failure to protect his physical integrity, of which the authorities were promptly made aware, amounted to a failure to carry out an effective investigation.

Conclusion: violation.

Substantive limb – As to whether or not the State may be held responsible for the applicant’s injury, the Court observed that the applicant was a casualty in a haphazard shooting that followed an abortive escape from prison, in which he played no part. It was undisputed that he had been hit in the leg by chance rather than intention and there was nothing to indicate that anyone took aim at the applicant or meant to harm him.

On the other hand, even though the applicant’s injury was accidental, his presence in the non-secure area of the prison van was the result of the convoy officers’ decision to transport more detainees than the prison van should have accommodated, in breach of the general regulations. As a consequence, there was no separate cell available for the applicant and he had to ride with the guards. Such action also violated the specific regulation relating to the placement of particularly vulnerable categories of prisoners, such as former law-enforcement officers, like the applicant, in separate cells during transportation.

The prisoner transfer regulations were designed with the objective of preventing security incidents such as the one in issue; they limited the number of prisoners that could be transported together to reduce the risk of a concerted attempt on their part to overpower convoy officers. They also sought to avoid cases of inter-prisoner violence by requiring separation of vulnerable detainees.

In the instant case, the convoy officers gave no consideration to the security risks entailed by transporting more prisoners than permitted by the van’s capacity. Irrespective of whether they sought to save fuel or the effort of an extra journey, they acted with disregard for the regulations which had been put in place to protect the well-being and physical integrity of detainees during transfers. In such circumstances, the State had to be held responsible for the failure to provide adequate protection to the applicant’s physical integrity during the transfer.

Conclusion: violation

© Council of Europe/European Court of Human Rights

 

Gjini v. Serbia (no. 1128/16)

The case concerned inter-prisoner violence. The applicant complained that the prison administration failed to protect him against repeated assault from his cell mates. In addition, the applicant complained that there had not been an effective investigation into his complaint.

The Court first observed that the domestic courts found “as a result of his suffering in detention, the applicant had lost 10% of his general vital activity” (§82). The Court therefore considered it had been “established that the applicant suffered ill-treatment at the hands of his cellmates, and that that ill-treatment was of such severity that Article 3 applies” (§83).

As regards the State responsibility for the applicant’s suffering, the Court noted that inter-prisoner violence, and the failure of the medical personnel to properly record the injuries related thereto, in the prison in which the applicant had been held had been repeatedly pointed out in the CPT reports. In addition, the Court observed that the prison guards could not have ignored the many physical signs indicating that the applicant had been subjected to ill-treatment (eyebrows and head shaved, skin damaged), and the fact that a Croatian of Albanian origin had been forced to sing nationalist songs at night (§86). The Court concluded “that the prison authorities failed to notice or react to any of the signs of violence listed above; they further failed to secure a safe environment for the applicant and, also, failed to detect, prevent or monitor the violence he was subjected to” (§87).

As regards the investigation into the applicant’s ill-treatment, the Court observed at the outset that no criminal investigation had been conducted. As regards the question whether “the applicant’s failure to lodge a formal criminal complaint either prevented the State authorities from carrying out the investigation or relieved them of their general duty to do so” (§99), the Court noted that the authorities could not ignore the applicant’s ill-treatment, and that Serbian law imposes an obligation “on all public authorities to report criminal offences subject to public prosecution of which they are informed” (§101). Therefore, the Court concluded “that the absence of a criminal complaint by the applicant did not prevent the public prosecutor from initiating criminal proceedings or preclude other domestic authorities from informing the public prosecutor about the allegations of ill-treatment” (§102).

 

29 January 2019

Ebru Dinçer v. Turkey (no. 4334709)

The case concerns an operation conducted by the security forces in Bayrampaşa Prison (Istanbul) in December 2000, during which Ms Dinçer suffered serious burns to various parts of her body, including her face, owing to a fire which broke out in the women’s dormitory.

The applicant was incarcerated in Bayrampaşa Prison (Istanbul) when violent clashes broke out between the security forces and prisoners. That day she suffered serious burning owing to a fire which broke out in the women’s dormitory.

Relying in particular on Article 3, the applicant complained that she had sustained serious injuries during the operation owing to an allegedly excessive use of tear gas grenades, the circumstances in which she had been evacuated from the site of the operation, and the lack of emergency medical care necessitated by her condition. She also complained of mistreatment by prison guards following her operation.

As regards the medical care provided to the applicant, the Court noted she had had access to comprehensive and appropriate medical care, and had benefited from regular monitoring in various hospitals. The Court did not therefore note any appearance of negligence on these points.

As regards the alleged mistreatment to which the applicant had been subjected following her operation, the Court considered that the applicant had not adduced before the Court any evidence in support of this allegation and therefore rejected this part of the application as manifestly ill-founded.

As regards the burns sustained during the security operation and the ineffectiveness of the investigation related thereto, the Court first recalled that it had previously examined this very counter-mutiny operation and had concluded that the Government had not been able to give sufficient explanations concerning the cause of the injuries complained of (see i.a. Erol Arıkan and others v. Turkey, no.19262/09, § 84). In the present case the Court saw no reason to reach a different conclusion. In the Court’s view, only an investigation or an effective procedure could allow the cause of the fire to be determined and therefore the responsibility for the injuries sustained duly examined. However, nearly 18 years after the fact, the criminal proceedings were still pending. Consequently, the Court found that there had been a violation of Article 3 of the Convention.

 

Nikitin and Others v. Estonia (nos. 23226/16 and others)

The applicants complained about their conditions of detention and the lack of effective remedy in this respect.

They complained to the prison authorities about various aspects of the conditions of their detention, alleging overcrowding, and space which was often less than three square metres. The prison authorities either failed to respond to their complaints or rejected them. The applicants began civil proceedings for compensation. Compensation was awarded to most of the applicants but on appeal those sums were quashed or reduced, while complaints were ruled as being out of time or were dismissed for failure to use the correct procedure.

The Court found a violation of Article 3 with regard to the periods in which the applicants had less than 3 square metres of personal space at their disposal but it found no violation of this provision with regard to the periods in which the applicants had between 3 and 4 square metres of personal space at their disposal.

As regards the applicants’ complaint under Article 13, the Court conducted a three-step assessment. First, as regards the statutory time-limit for lodging a complaint for compensation the Court found that the domestic courts followed a restrictive approach that is inconsistent with the established practice of the Supreme Court of Estonia. Second, as regards the effectiveness of the compensatory remedy with regard to the redress afforded, the Court considered that “the fact that the applicants’ claims were granted only partially is not in itself sufficient to render the remedy ineffective” (§216). Third, as regards the length of the proceedings in respect of one of the applicants, the Court recalled that contrary to preventive remedies “a claim for compensation does not require the same promptness, as it serves a different purpose” (§222)  and so concluded that there had been no violation of Article 13 of the Convention.

 

31 January 2019

[GC] Rooman v. Belgium (no. 18052/11)

The case concerned the question of the psychiatric treatment provided to a sex offender who has been in compulsory confinement since 2004 on account of the danger that he poses and the lawfulness of his detention.

Facts

The applicant, who suffered from a severe mental disturbance rendering him incapable of controlling his actions, had been held in compulsory confinement since 2004 in a specialised institution where there were no German-speaking staff, although he himself spoke only German (one of the three official languages of Belgium). The social protection board indicated on numerous occasions that the communication difficulties had the effect of depriving the applicant of any treatment for his mental disorders (which, moreover, made it impossible to envisage his release), but its recommendations were only partially or belatedly followed by the authorities. The relevant judicial authorities reached similar findings in 2014.

By a judgment of 18 July 2017, a Chamber of the Court had concluded, unanimously, that there had been a violation of Article 3 on account of the failure to provide appropriate treatment over thirteen years, and, by six votes to one, that there had been no violation of Article 5 § 1, holding that the obstacle to providing appropriate treatment was unconnected with the actual nature of the institution. The case was referred to the Grand Chamber at the applicant’s request.

Since August 2017 various measures had been taken to assist the applicant: monthly meetings with the psychologist; the confirmed availability of a German-speaking psychiatrist; the involvement of an interpreter for the monthly meetings with the general practitioner. However, the applicant had not been particularly receptive (he had not pursued the opportunity for psychiatric consultations and refused to allow the external psychologist to share her findings with the internal psycho-welfare team).

In 2016 a new law on compulsory confinement entered into force; it emphasised the care path to be offered to persons in compulsory confinement.

Law

Article 3 (substantive head)

The purely linguistic element could prove to be decisive as to the administration (or availability) of appropriate treatment, but only where other factors did not make it possible to offset the lack of communication; in particular, treatment was subject to cooperation by the individual concerned.

(a) Period from 2004 to 2017 – Here, the Grand Chamber echoed in substance the Chamber’s findings and did not identify compensatory factors. To justify the lack of psychotherapeutic treatment, the authorities had merely noted that, on the one hand, the applicant’s dangerousness ruled out his placement in a less secure German-speaking facility, and, on the other, that no German-speaking staff were available in the institution in question, without exploring other possibilities.

Conclusion: violation (sixteen votes to one).

(b) Period since August 2017 – Firstly, the authorities had shown a real willingness to remedy the situation after the Chamber judgment by undertaking tangible measures, which a priori corresponded to the concept of “appropriate treatment”.

Secondly, the applicant had not cooperated sufficiently and had not been receptive to the proposed treatment (namely, an external psychiatrist who was “available” for him). While the lack of a therapeutic schedule was certainly regrettable, it remained the case that the applicant had not even asked to take advantage of the proposed psychiatric consultation. Admittedly, as the applicant was a vulnerable individual, his cooperation was only one factor to be taken into account in assessing the effectiveness of the required treatment; nonetheless, having been assisted by a lawyer throughout the domestic proceedings, the applicant could have shown himself open to the attempts by the authorities to respond to the Chamber’s findings. The applicant was admittedly entitled to refuse to accept the treatment proposed to him; in that case, however, he risked reducing his prospects of discharge.

Thirdly, the short period which had elapsed since this change made it impossible to evaluate the impact of these new arrangements.

Thus, in spite of certain organisational shortcomings, the threshold of severity required to bring Article 3 into play had not been reached in respect of this period.

Conclusion: no violation (fourteen votes to three).

Article 5 § 1

(a) Refining the principles concerning the obligation to provide treatment to persons in compulsory confinement – Even as currently interpreted, Article 5 did not contain a prohibition on detention on the basis of impairment (in contrast to what was proposed by the UN Committee on the Rights of Persons with Disabilities). However, the deprivation of liberty under Article 5 § 1 (e) of the Convention had to fulfil a dual function: on the one hand, the social function of protection; and, on the other, a therapeutic function, in the interest of the person of unsound mind.

The first function ought not, a priori, to justify the absence of measures aimed at discharging the second. Irrespective of the facility, any detention of mentally-ill persons had to have a therapeutic purpose, aimed, in so far as possible, at curing or alleviating their mental-health condition, including, where appropriate, bringing about a reduction in or control over their dangerousness, with a view to preparing them for their eventual release.

The provision of appropriate and individualised treatment was an essential part of the notion of “appropriate institution”: it was possible that an institution which was a priori inappropriate, such as a prison structure, could nevertheless be considered satisfactory if it provided adequate care, and conversely, that a specialised psychiatric institution which, by definition, ought to be appropriate could prove incapable of providing the necessary treatment. Mere “access” to health professionals, consultations and the provision of medication could not suffice here.

However, the Court’s role was not to analyse the content of the treatment that was offered and administered; what was important was that the Court could verify whether an “individualised programme” had been put in place, taking account of the specific details of the detainee’s mental health with a view to preparing him or her for possible future reintegration into society. In this area, the Court afforded the authorities a certain latitude with regard both to the form and the content of the therapeutic care or of the medical programme in question.

Lastly, in the event of a problem that was hampering the applicant’s treatment, the potential negative consequences for the prospects of change in an applicant’s personal situation would not necessarily lead to a finding of a breach of Article 5 § 1, provided that the authorities had taken sufficient steps to overcome it.

The intensity of the Court’s scrutiny could differ depending on whether a complaint was submitted under Article 3 – which presupposed a particular threshold of gravity, where the assessment was relative and depended on all the circumstances of the case – or Article 5 § 1 – where the question of the appropriateness of the institution would predominate (necessary for preserving the link between the compulsory confinement and its declared purpose). A finding that there had been no violation of Article 3 did not automatically lead to a finding that there had been no violation of Article 5 § 1; although a finding of a violation of Article 3 on account of a lack of appropriate treatment could also result in a finding that there had been a violation of Article 5 § 1 on the same grounds.

Admittedly, Article 5 § 1 (e) did not guarantee to an individual in compulsory confinement the right to receive treatment in his or her own language. However, the need for personalised and appropriate treatment of persons in compulsory confinement had been emphasised by the United Nations Convention on the Rights of Persons with Disabilities (2006), and by Recommendation Rec (2004) 10 of the Committee of Ministers of the Council of Europe concerning the protection of the human rights and dignity of persons with mental disorders – which recommended, in particular, that an appropriate individualised treatment plan be drawn up, after consultation (in so far as possible) with the person concerned. It was natural to take account of the language factor, so that the individual in question could receive the necessary information related to treatment (failure to do so could increase his or her vulnerability).

(b) Application to the present case

(i) Period from 2004 to 2017 – Although German had the status of an official language in Belgium, it was not often spoken in the region in which the institution in question was located. Furthermore, the applicable legislation did not require this type of institution to employ staff members who were bilingual in French and German.

However, the applicant’s right to speak, to be understood and to receive treatment in this language had been expressly acknowledged by the social protection board in 2009, although it had subsequently seemed to accept the idea that this aspect was not decisive for his progress and refused to issue orders to or reprimand the authorities. The Court could not speculate on what results might have been obtained from treatment in German; it had to limit itself to noting the absence of such treatment. Further, the possibility that the individual concerned could not be cured did not reduce the obligation to provide treatment.

Taking account of the applicant’s requests for treatment and discharge, it had been for the authorities to find a way to overcome the deadlock arising from the communication issue between him and his health-care providers. It was not for the Court to rule in a general manner on the types of solutions which could have been considered sufficient: that choice fell within the authorities’ margin of appreciation.

In the present case, the authorities’ sporadic measures had not been an integral part of any therapeutic care or treatment path. The possibility of treating the applicant in Germany had been explored by the authorities, but there was no information about the results of these efforts. In Belgium itself, however, overcoming a problem related to the use of German did not seem unrealistic, given that it was one of the official languages of the country.

Conclusion: violation (unanimously).

(ii) Period since August 2017 – Given that the applicant had been held to be capable of reaching his own decisions and granting consent, the domestic law prohibited a therapeutic measure being imposed on him against his will. By definition, however, his discernment was weakened by his psychological disorders, which increased his vulnerability. The authorities were obliged to attempt to include the applicant, as much as possible, in an individualised medical treatment care capable of bringing about an improvement in his health.

In the present case, the authorities had adopted a multidisciplinary and – on the face of it – coherent approach, between the various players, seeking to ensure that the applicant’s “care path” was tailor-made to his specific communication needs and pathology. The series of activities in German (making available a German-speaking psychiatrist, psychologist and welfare officer) was such as to facilitate communication and the construction of a relationship of trust. 

Moreover, the applicant’s personal advocate or his legal representative, where appropriate, had an active role to play in assisting him to exercise his rights to consent and benefit from a treatment plan. In spite of assistance from his representatives, however, the applicant had refused to cooperate with the medical staff in drawing up a treatment path.

In this situation – in the absence of information such as, for example, a refusal by the German-speaking psychiatrist to meet the applicant and to draw up with him a suitable therapeutic project –, the Court considered that the State’s obligation as to means had been fulfilled.

In short, having regard in particular to the significant efforts made by the authorities, which were on the fact of it coherent and adapted to the medical treatment that was now available, to the brevity of the period under examination, and to the fact that the applicant was not always receptive, in spite of his representatives’ assistance, the applicant’s compulsory confinement corresponded to the required therapeutic aim.

The Court specified, however, that having regard to the applicant’s vulnerability and his diminished ability to take decisions, the authorities remained under an obligation to ensure that all the necessary initiatives were taken, in the medium and long term, to secure psychiatric and psychological treatment and welfare assistance, so as to provide him with the prospect of release.

Conclusion: no violation (ten votes to seven).

© Council of Europe/European Court of Human Rights

 

5 February 2019

Utvenko and Borisov v. Russia (no. 45767/09)

The case mainly concerned the applicants’ allegations of ill-treatment in prison and the conditions of their detention.

Complaint regarding the applicants’ ill-treatments

As regards the investigation, the Court observed that the applicants’ complaints to the Russian authorities were sufficiently detailed so as to justify the initiation of a criminal investigation. In line with its previous findings, the Court concluded that the authorities failed to fulfill their obligations under Article 3 of the Convention under its procedural limb (§127 – see Lyapin v. Russia, 46956/09, §§96-102, 24 July 2014).

As regards the ill-treatment, the Court declared it lacked sufficient element in order to establish the reality of the ill-treatment beyond reasonable doubt and declared therefore that there had been no violation of Article 3 under its material limb.

Complaint regarding the applicants’ detention conditions

The first applicant alleged that he had been detained in a cell where he had less than 3 sq.m. of personal space. The Court noted that the Government failed to refute the applicant’s allegations as the registries communicated were incomplete and were not backed by appropriate technical plans, and as the attestation provided by the prison administration of the remand centre cannot be seen as sufficient proof. In addition, the Court recalled it had found on numerous occasions that the conditions of detention in Russian remand prisons amounted to a violation of Article 3 (see for example Dudchenko v. Russia, no. 37717/05, 7 November 2017; Vyatkin v. Russia, no. 18813/06, 11 April 2013). It saw no reason in the present case to depart from its previous findings.

 

[dec.] Chernenko and Others v. Russia (no.4246/14 and others)

Facts – The applicants had all been convicted of serious criminal offences and sentenced to life imprisonment. All convicts sentenced to life imprisonment had to serve their sentences in special-regime correctional colonies. Upon arrival at a special regime correctional colony such convicts were placed under a strict regime, where they had to spend at least the first ten years of their sentence. Under that regime they were entitled to two short-term visits per year, and since November 2016 to one long-term visit per year. The applicants complained about severe restrictions on their contacts with the outside world during their detention following conviction.

Law – Article 34: In order to claim to be the victim of a breach of the right to respect for private and family life on account of statutory restrictions on visits from family members or other persons in the first ten years of lifelong imprisonment, an applicant had to demonstrate: firstly, that he had relatives or other persons with whom he genuinely wished and attempted to maintain contact in detention, and secondly, that he had used his right to visits as frequently as was permitted under domestic law.

In the applicants’ case, two of the applicants had not demonstrated that they had relatives or other persons with whom they wished to maintain contact while in detention. In the absence of any such persons they could not be said to have been directly affected by the measure complained of. The remaining applicants had demonstrated the existence of relatives and their genuine attempts to maintain contacts with them by clearly specifying those relatives and providing an account of their attempts to maintain correspondence with them and to receive visits from them, or of actual visits from those relatives. They had not however used their right to visit as frequently as was permitted under domestic law. Only one of the applicants had been visited by a member of his family. However, the frequency of those family visits was substantially below that permitted. In the absence of any evidence that the lack of visits had been as a result of the authorities’ refusal to allow them, those applicants could not be said to have been directly affected by the measure complained of.

Conclusion: inadmissible (incompatible ratione personae)

© Council of Europe/European Court of Human Rights

 

7 February 2019

Patsaki and Others v. Greece (no. 20444/14)

The case concerned the death of a drug addicted person in detention.

Admissibility

“The Court rejected the part of the application lodged by three of the applicants […] as they had not made an official complaint. They had merely brought an action for damages against the State under section 105 of the Introductory Law to the Civil Code. The Court considered that that action had been bound to fail and had therefore been ineffective” (Press release)

Procedural limb

“Firstly, the length of the investigation – four years and eight months to determine responsibility and decide whether the persons involved in the prisoner’s fatal overdose should be committed for trial – did not meet the diligence and promptness requirements for an investigation to be effective.

Secondly, the Court reiterated that the domestic courts should not permit life-endangering offences to go unpunished. In the present case the Chios Criminal Court had failed to summon people whose statements might have been decisive for the outcome of the case. Nor were the prisoners who had shared [the deceased’s] cell questioned by any of the authorities involved in the investigation or summoned to appear before the criminal court. Furthermore, the expert who had conducted the toxicological examination of the deceased and the prison officers who had distributed the medicines over the days leading up to the death had not been questioned. Moreover, the court had referred the case back to the public prosecutor to assess whether proceedings should be brought against the deputy governor of the prison, whom it considered as the only person who had known of the information provided by [the deceased] and who had failed to react in order to verify that information. The public prosecutor had ordered a preliminary investigation, but had not taken any procedural measures. Subsequently he had dropped the case without giving reasons, and had refused to provide the applicants with a copy of the file on the grounds that they lacked locus standi. Consequently, the Court considered that the authorities had not subjected [the deceased]’s case to the meticulous examination required under Article 2 of the Convention and that they had therefore failed to conduct an effective investigation into the circumstances of his death.” (Press release)

Substantive limb

“The Court held that the prison authorities had not had sufficient facts at their disposal to suggest that [the deceased] had been in a situation of particular danger on the day before his death or that he had faced a potentially greater risk than any other drug-addicted prisoner of undergoing fatal consequences. The Court therefore considered that the circumstances of [the deceased’s] death in Chios Prison had not been such as to incur State responsibility for the impugned death. There had therefore been no violation of the substantive limb of Article 2” (Press release)

 

12 February 2019

Boltan v. Turkey (no. 33056/16)

The applicant alleged that his detention in an individual living unit for 16 days constituted an inhuman treatment in view of his infirmity. He alleged also that his life sentence without the possibility of conditional release constitutes a violation of article 3.

Complaint regarding the applicant’s detention conditions

The Court noted at the outset that the applicant did not complain of a lack of medical care in detention in general. Nor did he explain to what extent this relative isolation impacted on his ability to carry out his daily tasks. In addition, the Court pointed out the fact that his relative isolation lasted for only 16 days. Last, the Court observed that two medical reports found that his state of health was compatible with  detention in an individual cell. Therefore, the Court concluded that the minimum gravity threshold had not been reached.

Complaint regarding the applicant’s life sentence

The Court recalled it had already examined the aggravated life sentence as defined in Turkish law in previous cases (§42 – see Öcalan v. Turkey (no.2) (no. 24069 and others, 18 March 2014, §§193-027; Kaytan v. Turkey (no.27422/05), 15 September 2015, §§63-68). The Court declared it saw no reason to depart from these findings as the presidential clemency for medical reasons put forward by the Government cannot be considered as an appropriate and adequate avenue of redress based on penological grounds (§41 – see Vinter and others v United-Kingdom, n° 66069/09, §129).

 

Yakuba v. Ukraine (1452/09)

The applicant complained that the authorities had refused to provide him with copies of the documents regarding his proceedings before the domestic courts, which he needed to substantiate his complaint before the Court, because he was serving his sentence.

The Court observed that it had already found in previous cases that “the Ukrainian legal system did not provide prisoners with a clear and specific procedure enabling them to obtain copies of case documents after the completion of criminal proceedings” (§56 – see Vasiliy Ivashchenko v. Ukraine (no.760/03), 26 July 2012, §123).

The Court saw no reason to depart from its previous conclusions and declared that the Ukrainian authorities had failed to comply with their obligation under Article 34.

 

19 February 2019

Gömi v. Turkey (no. 38704/11)

The case concerned the continued detention of the applicant, who has suffered from a psychotic illness since 2003.

First, the Court observed that the applicant had been sentence to an irreductible life sentence. Even though the applicant did not complain about this sentence, the Court “reiterated that it had on several previous occasions held that the enforcement of such sentences was incompatible with the requirements of Article 3 of the Convention on account of the absence of any prospect of release and any possibility of review” (press release).

Second, the Court observed that the authorities failed to monitor the evolution of the applicant’s state of health. Therefore, the medical treatment the applicant benefitted from cannot be deemed adequate. Third, the Court noted that “the fact that the applicant was unable to complain clearly and precisely about his detention in prison owing to his insanity could in no way be used to justify his current conditions of detention. The Court considered that the very nature of the applicant’s mental health meant that he was more vulnerable than the average prisoner, and his detention in prison – apart from his periods of hospitalisation – could have contributed to the worsening of his mental disorders. The authorities’ failure, throughout most of the applicant’s period of detention, to place him in a psychiatric hospital or a prison equipped with a specialist psychiatric department had necessarily exposed him to a health risk and been a source of stress and anxiety to him. Given that the relevant requirements of Article 3 had not been observed, the Court found a violation of that provision” (press release).

In view of the above the Court ruled that “it was incumbent on the respondent State, on account of the application of Article 46, to ensure that the mentally ill applicant had appropriate conditions of detention in an institution capable of providing him with the requisite psychiatric treatment, as well as constant medical follow-up” (press release)

 

21 February 2019

Mammadov and Others v. Azerbaijan (no. 35432/07)

The first applicant died in detention. His wife and son argue in particular that the authorities are responsible for his death as he had been subjected to ill-treatment and deprived of adequate medical care while in detention, and that his detention was continued in spite of his medical condition.

Complaint under Article 3

As regards the ill-treatment to which the applicant had been subjected, the Court observed “that the statements of the first applicant are supported by his lawyer and family” (§114). In addition, whereas “the first applicant’s lawyer immediately complained of the first applicant’s alleged ill-treatment in his appeal lodged on 5 February 2007 […] the investigator in charge of the case ordered the first applicant’s forensic examination only on 7 April 2007, which was carried out on 12 April 2007” (§115). The Government did not give any reason for this delay.

As a result “having regard to the fact that there was witness evidence about injuries (even if it came from the first applicant’s lawyer and family members), that the first applicant was detained by the authorities in an undisclosed location at the time when the alleged acts of ill-treatment took place, that the events complained of lied wholly within the exclusive knowledge of the authorities, and that the first applicant’s version of events [had] been consistent and plausible as far as essential elements are concerned and that the Government [had] failed to submit sufficient information or evidence calling into question the first applicant’s version of events” (§116) the Court accepted the first applicant’s account of events and concluded that there had been a violation of Article 3.

In addition, the Court found a violation of Article 3 under its procedural limb as the Government failed to conduct a proper investigation into the first applicant’s allegations of ill-treatment. Not only that the forensic examination was carried out two months after the events reported, the domestic courts in charge of the case “merely dismissed his allegation of ill-treatment as unsubstantiated without conducting an effective judicial investigation… [and] failed to hear evidence from the first applicant, the alleged perpetrators of the ill‑treatment, or any other possible witness” (§127).

Complaint under Article 2

The first applicant “died from an ischemic cerebral infarction in detention under the authorities’ control” (§137). As early as March 2009, the medical department of the prison in which the applicant was held “confirmed the necessity of [his] transfer to a specialised medical establishment” (§138). However, the transfer only took place in July 2009. In this regard, the Court observed that the first applicant “refused to be transferred to the medical facility at least on two occasions between 6 March and 28 July 2009” (§140). As a result, “the Court considers that the delay in the first applicant’s transfer to the medical facility is not attributable to the domestic authorities” (§141) and concluded that there had been no violation of Article 2 under its substantive limb.

As regards the investigation into the circumstances of the first applicant’s death, the Court observed that even though a “criminal inquiry was launched by the prosecuting authorities immediately after the first applicant’s death” (§147), this investigation did not concern the consequences of the late transfer of the first applicant nor circumstances surrounding his refusals to be transferred between March and July 2009. In addition “prosecuting authorities failed to inform the second and third applicants of the progress of the investigation and to involve them in the investigation” (§150). Therefore, the Court concluded that there had been a violation of Article 2 under its procedural limb.

 

Gablishvili and Others v. Georgia (no. 7088/11)

The applicants complained that they had been ill-treated by prison officers during their arrest after their attempt to escape from prison and immediately thereafter. They further alleged that the authorities had failed to conduct a thorough, adequate, and independent investigation into their allegations of ill-treatment.

Substantial limb

The Court found a violation of Article 3 in its substantial limb in respect of two of the applicants. As regards the two remaining applicants, the Court held there had been no violation of this provision. The Court declared that it could not be established that the prison officers’ recourse to physical force to restrain the second and third applicants had been excessive. The Court however pointed out that “its inability to reach a conclusion as to whether there had been treatment prohibited by Article 3 of the Convention subsequent to the applicants’ arrest derives considerably from the failure of the domestic authorities to effectively investigate the applicants’ complaint” (§63).

Procedural limb

As regards the investigation into the applicants’ allegation of ill-treatment, the Court found that the authorities failed to conduct an independent, thorough and effective investigation into the circumstances surrounding the incident. First, “all the investigative measures were conducted by the Investigation Department of the Ministry of Prisons, the very same Ministry which was, at the material time, in charge of the prison system” (§66). Second, the Court underlined “the length of time it took before an official investigation got under way and statements from pertinent witnesses were obtained” (§67). Third, the “prosecutor’s decision to terminate the criminal investigation [was] only based on the testimony given by the prison officers involved in the incident” (§68). Fourth, “it is unclear whether the authorities questioned some potentially important witnesses” (§69).

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