Newsletter no. 2019/3- Round-up of the ECtHR case-law (May – June 2019)

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Summaries

Vetsev v. Bulgaria (no. 54558/15) – private and family life / funeral. The applicant alleged that the refusal of the competent authorities to allow him to attend his brother's funeral, while he was in pre-trial detention, constituted a violation of his right to respect for his private and family life (violation of article 8).

 Chaldayev  v. Russia (no. 33172/16) – remand detention / family visits. The applicant alleged that his right to respect for private and family life had not been respected because of various restrictions on family visits imposed upon him during his detention. He also complained that he had been discriminated in exercising this right (violation of article 8 and 14). 

Clasens v. Belgium (no. 26564/16) – detention conditions / effective remedy. The applicant complained that his detention conditions were negatively affected during a strike by prison guards (violation of Article 3). He also complained that he had no effective remedy at his disposal in order to file a complaint in this respect (violation of Article 13).

Mehmet Ali Ayhan and Others v. Turkey (no.2) (nos. 4536/06 and 53282/07) – right of individual petition. The applicants complained that the authorities had intercepted their correspondence with their representatives concerning their applications before the Court (violation of Article 34).

Marcello Viola v. Italy (no.2) (no. 77633/16) – life sentence. The applicant was sentenced to life imprisonment and complained that his access to release on licence was contingent on cooperation with the judicial authorities (violation of Article 3).

Mehmet Reşit Arslan and Orhan Bingöl v. Turkey (no. 47121/06) – right to education. The applicants complained they were not allowed to use a computer and access the internet for their higher-education studies (violation of Article 2 of Protocol no.1).

 

2 May 2019

Vetsev v. Bulgaria (no. 54558/15)

The applicant alleged that the refusal of the competent authorities to allow him to attend his brother's funeral, while he was in pre-trial detention, constituted a violation of his right to respect for his private and family life.

The Court observed that under domestic law, only sentenced prisoners can be granted a temporary absence, and escorts can be organised only for transfers between judicial institutions. As a result, a person detained pending trial cannot benefit from either of these possibilities in order to attend a funeral.

The Court acknowledged that the refusal of the competent authorities to allow the applicant to attend his brother’s funeral was foreseen in domestic law. However, the Court observed that the authorities did not based their decision on a detailed individual examination of applicant’s request and therefore did not assess the necessity of this refusal, in view of its impact on the applicant’s right to respect for private and family life.

In view of the above, the Court concluded that the necessity of the measure had not been demonstrated and that there had been a violation of Article 8.

 

28 may 2019

 Chaldayev  v. Russia (33172/16)

The applicant alleged that his right to respect for private and family life had not been respected because of various restrictions on family visits imposed upon him during his detention. He also complained that he had been discriminated in exercising this right.

Complaint under Article 8

The applicant complained that his family members had only been authorities to visit him for short period of times, and that the fact that he was separated from this family members by a glass partition was in breach of his right to respect for private and family life.

Admissibility – The Court considered that in view of the absence of effective remedies against the use of restrictions during family visits, and of the fact that the visits conditions had been the same during the whole period during which the applicant had been detained in the remand centre, the applicant’s complaint is directed against a continuous situation and not against a specific decision of the administration. As a result, the complaint is admissible.

Merits – The Court recalled it had found on several occasions that there had been a violation of Article 8 on similar cases involving refusals of visits (see Vlassov v. Russia, no. 78146/01, 12 June 2008) and the use of glass partitions (see Andrey Smirnov v. Russia, no. 43149/10, 13 February 2018). In addition, the Court recalled it had already found that the legal framework governing visits does not fulfil the criteria of quality and predictability as it does not specify clearly under which conditions visits can be refused. The Court found no reason to depart from the conclusion reached in these previous cases and ruled that there had been a violation of Article 8.

Complaint under Article 14

The applicant complained that as a remand prisoner he could only be granted shorter visits than of sentenced prisoners. The Court found no objective justification for such severe restrictions imposed on remand prisoners. In addition, the Court noted that the CPT argued in its 2013 visit report that it should be put an end to the isolation of remand prisoners. Last the Court recalled that such isolation is in breach with the European prison rules, which provides that remand prisoners shall benefit from the same visit conditions as sentenced prisoners. Accordingly, the Court found a violation of Article 14 of the Convention.

 

Clasens v. Belgium (26564/16)

The applicant complained that his detention conditions were negatively affected during a strike by prison guards. He also complained that he had no effective remedy at his disposal in order to file a complaint in this respect.

Facts – In the spring of 2016 strike action by prison wardens affected prisons in Brussels and Wallonia. In the absence of a guaranteed minimum service in Belgian prisons, the ordinary prison regime was subsequently suspended to varying extents, depending on the prison concerned.

Throughout the entire duration of the strike – almost two months – the applicant had no access to activities outside his cell: he was confined to his cell for 24 hours a day, with the exception of a one-hour period every three days in the recreation yard, and was able to take a shower only twice a week, with no possibility of obtaining hygiene products, distribution of which had been discontinued.

From the beginning of the strike, several prisoners, including Mr Clasens, had applied to the urgent-applications judge and obtained an order requiring the State to ensure a minimum service, in order to meet the basic needs of the persons detained within the prison, subject to penalties for non-compliance. In spite of the prison governor’s efforts and police intervention, it proved impossible to re-establish the lawful provision of basic services: there had been no substantial improvement in the conditions of detention. In 2017 the court of appeal reduced the amount of the penalties but upheld the finding against the State, on the grounds that there had been a breach of human dignity.

LawComplaint under Article 3: There had been consensus among the observers who visited the premises in terms of their description of the material conditions of detention in the prison concerned during the strike (see above). The court of appeal itself had used those reports to conclude that such a situation violated human dignity.

These material conditions of detention had been aggravated by the consequences of the lack of a framework for ensuring continuity in prison wardens’ tasks during strike periods: the prisoners had found themselves dependent on the refusal to work of large numbers of prison wardens and obliged to accept the unlawfulness and uncertainty of the minimum services provided, without knowing when the strike would end and thus with no prospects of seeing the situation improve. They had been deprived of almost all contact with the outside world, whether the use of the telephone, family visits or meetings with their lawyers.

There had been a crucial shortage in prison staff. None of the reports drawn up following visits to the prison during the strike indicated that the presence of police officers, essentially assigned to security and surveillance, had permitted a significant improvement in the prisoners’ daily lives.

The cumulative effect of a continued lack of physical exercise, repeated breaches of the hygiene regulations, the lack of contact with the outside world and the uncertainty about whether his basic needs would be met had necessarily caused the applicant distress of an intensity exceeding the unavoidable level of suffering inherent in detention. Those conditions of detention constituted degrading treatment.

Conclusion: violation (unanimously).

Law – Complaint under Article 13:  The lack of a framework to ensure continuity in the tasks of prison wardens during strike periods had compromised execution of the favourable decision given by the ordinary courts in response to the applicant’s urgent application, given that the provision of minimum services to the prisoners had in any event been dependent on fluctuations in the strike action.

Having regard to this underlying structural shortcoming, the applicant had thus not had access to a remedy capable of affording redress for the situation of which he was a victim and preventing the continuation of the alleged violations.

Conclusion: violation (unanimously).

© Council of Europe/European Court of Human Rights

 

4 June 2019

Mehmet Ali Ayhan and Others v. Turkey (no.2) (nos. 4536/06 and 53282/07)

The applicants complained that the authorities had intercepted their correspondence with their representatives concerning their applications before the Court. These letters contained “forms of authority to be completed for the purpose of lodging and then subsequently finalising their application with the Court” (§42).

The Court insisted on the fact that in the present case the applicants were serving their sentence and were therefore “dependent in their correspondence with the Court... on the prison administration” (§40).

The Court noted that “the forms of authority were withheld from the applicants by the decisions of the [domestic courts] on the ground that the letters could not be categorised as falling within a lawyer’s permitted professional activities and that the applicants’ lawyers had allegedly put pressure on the applicants to lodge a case before the Court” (§42). However, the Court observed that the domestic courts did not make any finding on that basis” (§44); and that “the applicants claimed that their lawyers... had been their lawyers prior to the interception of the letter” (idem).

In addition, the Court found “unacceptable from the standpoint of the protection of the right of individual petition that the domestic courts took it upon themselves to decide for the applicants whether or not they should lodge an application” (idem). Furthermore, it underlined that “domestic court which ordered the measure to intercept the letters addressed to the applicants was the very same court in respect of whose decisions the applicants wanted to complain in the context of their original application to the Court” (idem).

Accordingly, the Court found that the domestic courts “attempted to discourage, or even prevent, the applicants from pursuing a Convention remedy” (idem) and concluded that there had been a violation of Article 34 of the Convention.

 

13 June 2019

Marcello Viola v. Italy (no.2) (no. 77633/16)

The applicant was sentenced to life imprisonment and complained that his access to release on licence was contingent on cooperation with the judicial authorities.

Facts – In 1999 and in 2002 (on appeal) the applicant was sentenced to life imprisonment for membership of a Mafia-type criminal organisation. The fact that he was the organisation’s leader was considered an aggravating factor. The regime applicable by default was that of “whole-life” imprisonment. Under domestic law, any prospect of release for such prisoners was conditional on their cooperating with the police. The person concerned had to provide the authorities with decisive information for the purposes of preventing further consequences of the offence or helping to establish the facts and identify the perpetrators of criminal offences (except where such cooperation was impossible or unenforceable and the person concerned could prove that he or she had severed all ongoing links with the Mafia-type group).

The applicant refused to cooperate in this way, citing his genuine belief in his innocence and the fear of reprisals against himself or his family. As a result, despite having built up entitlement to a potential five-year remission of his sentence by participating in a rehabilitation programme, he was deprived of that remission in practice.

In refusing the applicant’s application for release on licence the sentence supervision court noted his lack of cooperation with the judicial authorities, but did not conduct any assessment of the progress the applicant claimed to have made since being convicted.

Law – Article 3 (substantive aspect)

(i)  Prospect of release and possibility of applying for release on licence – In the present case the domestic legislation did not impose an automatic blanket ban on access to release on licence or other adjustments of sentence, but made such access contingent on “cooperation with the judicial authorities”. Owing to the existence of aggravating circumstances linked to his role as head of the Mafia-type group to which he had belonged, cooperation by the applicant with the authorities would not be considered “impossible” or “unenforceable” for the purposes of domestic law.

While it was true that the domestic regime offered convicted prisoners a choice as to whether to cooperate with the judicial authorities, the Court had doubts as to the free nature of that choice and the appropriateness of equating a lack of cooperation with the prisoner’s dangerousness to society. Failure to cooperate was not always the result of a free and deliberate choice, nor did it necessarily reflect continuing adherence to “criminal values” or ongoing links with the organisation in question.

A refusal to cooperate could be attributable to other circumstances or considerations (such as the fear of reprisals against the person concerned or his or her family); conversely, the decision to cooperate might be based on purely opportunistic reasons. In such scenarios, equating a lack of cooperation with an irrebuttable presumption of dangerousness to society failed ultimately to reflect the individual’s actual progress towards rehabilitation.

Under Article 5 of the Convention the Court had previously held that a legal presumption of dangerousness could be justified, especially where it was not absolute, but was liable to be contradicted by proof to the contrary. This was particularly true in relation to Article 3 of the Convention, the absolute nature of which did not permit any exceptions. Regarding cooperation with the authorities as the only possible indication that a prisoner had broken off contact with criminal circles and been rehabilitated failed to take any account of other indicators that could be used to assess his or her progress.

In the instant case the Italian prison system offered a range of progressive opportunities for contact with society – such as outside work, prison leave, a semi-custodial regime and release on licence – designed to ease the prisoner’s resocialisation. However, the applicant had not been granted these opportunities for social reintegration, despite the fact that various items of evidence in the domestic case file pointed to a positive change in his personality and progress towards resocialisation.

A convicted prisoner’s personality did not remain unchanged from the time of commission of the offence: it could evolve in the course of his or her sentence, as reflected in the resocialisation process. In the present case the lack of “cooperation with the judicial authorities” gave rise to an irrebuttable presumption of dangerousness which deprived the applicant of any realistic prospect of release. It was thus impossible for the applicant to demonstrate that his detention was no longer justified on legitimate penological grounds; by continuing to equate a lack of cooperation with an irrebuttable presumption of dangerousness to society, the regime in place effectively assessed the person’s dangerousness by reference to the time when the offence had been committed, instead of taking account of the reintegration process and any progress the person had made since being convicted.

This irrebuttable presumption effectively prevented the competent court from examining the application for release on licence and from ascertaining whether the person concerned had, in the course of his her detention, changed and made progress towards rehabilitation to such an extent that his or her detention was no longer justified on penological grounds. The court’s involvement was limited to finding that the conditions of cooperation had not been met, and it could not assess the prisoner’s individual history and his or her progress towards rehabilitation.

It was true that the offences of which the applicant had been convicted concerned a particularly dangerous phenomenon for society. Furthermore, the prison reform which had given rise to the regime in issue had been adopted in 1992, in the context of an emergency following an episode that had marked Italy deeply. However, efforts to tackle that scourge could not justify derogating from the provisions of Article 3 of the Convention, which prohibited in absolute terms inhuman or degrading treatment. Thus, the nature of the offences of which the applicant had been accused was irrelevant in the present context. Moreover, the ultimate aim of resocialisation was to prevent reoffending and protect society.

(ii)  Other domestic remedies by which to obtain a review of sentence – As to the possibility of obtaining a pardon or release on humanitarian grounds (for reasons such as advanced age or ill-health), the Court had previously held that this type of remedy was not what was meant by a “prospect of release” as the term had been used since the Kafkaris v. Cyprus judgment ([GC], 21906/04, 12 February 2008, Information Note 105). Moreover, the Government had not provided any examples of convicted prisoners in a similar situation who had obtained an adjustment of their sentence by means of a presidential pardon.

(iii)  Conclusion – The regime applicable to the applicant restricted his prospects for release and the possibility of review of his sentence to an excessive degree. Accordingly, his sentence of life imprisonment could not be regarded as reducible, in breach of the principle of respect for human dignity inherent in the Convention and in Article 3 in particular. However, the Court specified that this finding could not be understood as offering the applicant the prospect of imminent release.

Conclusion: violation (six votes to one).

Article 46: The nature of the violation found was such that the State should undertake a reform of the life imprisonment regime, preferably by introducing legislation, in order to guarantee the possibility to review the sentence. This should allow the authorities to determine whether, in the course of his or her sentence, the prisoner had changed and made progress towards rehabilitation, to the extent that his or her detention was no longer justified on legitimate penological grounds, while enabling the convicted prison to know what he or she had to do in order to be considered for release and what conditions were attached. The severing of ties with Mafia circles could be expressed in ways other than cooperation with the judicial authorities and the automatic mechanism provided for under the current legislation. Nevertheless, the Court specified that the possibility of applying for release did not necessarily prevent the authorities from rejecting the application if the person concerned continued to pose a danger to society.

© Council of Europe/European Court of Human Rights

 

18 June 2019

Mehmet Reşit Arslan and Orhan Bingöl v. Turkey (no. 47121/06)

The applicants complained they were not allowed to use a computer and access the internet for their higher-education studies.

Facts – In June 2006 the two applicants, who were serving prison sentences for terrorist activities, sat an entrance examination for two higher-education institutions. The first applicant was admitted, for the academic year 2006/2007 to the economics-management faculty, which provided distance education. The second applicant had obtained a mark which entitled him to a place in an institution of higher education, even though he did not enrol for the academic year 2006/2007.

In that context, and relying on the relevant legislation, the two applicants asked to be able to use a computer with Internet access in the rooms specially designated by the prison authorities in order to pursue their higher education. The first applicant also asked if he could use a calculator-translator device in his cell. Their requests were denied by the prison authorities. Their appeals against those decisions were unsuccessful.

Law – Article 2 of Protocol No. 1

(a)  Scope of the first sentence of Article 2 of Protocol No. 1 – The requests that the applicants submitted to the prison authorities had concerned the use of audiovisual materials and computers or electronic devices, with the aim of preparing for admission to university or pursuing their higher education. Consequently, it was of no importance whether or not the second applicant had already enrolled on a course. Both applicants intended to continue their higher education in institutions providing remote learning and they had supported their request by the fact that they had sat entrance examinations in 2006 for admission to relevant institutions.

Turkish legislation allowed convicted prisoners to continue their studies in prison to the extent of the prison’s resources. In particular, prisons had an obligation not to prevent access to an educational activity made available internally. In this connection, under section 67(3) of Law no. 5275, the use of audiovisual training resources and computers, with Internet access, were authorised under supervision in rooms set aside for that purpose by the prison authorities in the context of rehabilitation programmes or training courses. That possibility constituted an indispensable material means to ensure the genuine exercise of the right to education, since it enabled the prisoners to prepare for examinations to be admitted to higher-education institutions and potentially to pursue their studies. According to the Court’s settled case-law, access to educational institutions existing at any given time was an integral part of the right enshrined in the first sentence of Article 2 of Protocol No. 1. It followed that the complaint in question fell within the scope of that Article.

(b)  Merits – Domestic law allowed prisoners to use a computer and the Internet under certain conditions. That use could nevertheless be subject to the supervision of the prison authorities and be restricted for more dangerous individuals or those sentenced for being members of an illegal organisation. The resulting limitation of the applicants’ rights had thus been prescribed by law and could pursue the legitimate aims of the prevention of disorder or crime.

The manner of regulating access to audiovisual training materials, computers and the Internet fell within the Contracting State’s margin of appreciation. The prisons in the present case had the means to provide their inmates with the possibility afforded by the law. Moreover, no concrete justification for the lack of resources of the prisons in question had been put forward in the domestic proceedings or before the Court.

Moreover, the prisoners’ desire to benefit from the possibility afforded by the relevant legislation stemmed from their wish to pursue their studies.

The denial of the first applicant’s request to use an electronic device with calculation and English-Turkish translation functions in his cell had been justified, especially as the use of that device had been authorised under supervision in a room that was to be indicated by the prison authorities.

Concerning the access to computers and to the Internet, even though the security considerations relied upon by the national authorities and the Government concerning the terrorist applicants could be regarded as relevant, the national courts had not carried out any detailed analysis of the security risks and had failed both to weigh up the various interests at stake and to fulfil their duty to prevent any abuse of power on the part of the administration. In those conditions, the Court was not persuaded that sufficient grounds had been put forward to justify the authorities’ decisions to deny the rights established by section 67(3) of Law no. 5275.

Similar omissions also prevented the Court from effectively exercising its European supervision as to the question whether the national authorities had applied the standards established by its case-law concerning the balancing of the interests at stake.

Thus the domestic courts had not struck a fair balance between the applicants’ right to education and the imperatives of public order.

Conclusion: violation (unanimously).

© Council of Europe/European Court of Human Rights

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