Newsletter no. 2019/4 - Round-up of the ECtHR case-law (July – September 2019)

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Summaries

Gorlov and Others v. Russia (nos. 27057/06 and others) – video surveillance. The case concerned the permanent video surveillance of detainees in their cells by closed-circuit television cameras (violation of Article 8).

Tim Henrik Bruun Hansen v. Denmark (no. 51072/15) – continuous detention / medical expertise. The case concerned the applicant’s complaint about the lack of an external medical opinion on his continuous deprivation of liberty in a specific institution since 1997 (violation of Article 5 § 1).

[Dec.] Dardanskis v. Lithuania (nos. 74452/13 and others) – life imprisonment. The case concerned the applicant’s complaint that their imprisonment for life amounted to inhuman and degrading treatment as they had no hope of release (struck out).

Izmestyev v. Russia (no. 74141/10) – security regime / video surveillance / detention conditions / transport conditions. The applicant, serving a life sentence, complained about the security cameras which operated in his cell 24 hours a day, restrictions on family visits, the length of his pre-trial detention, his conditions of detention and the fact that the proceedings were held behind closed doors (violation of Article 8). He also complained about his detention conditions and the conditions in which he was transported to and from the courthouse during the criminal proceedings against him (violation of Article 3, no violation of Article 3).

Magnitskiy and Others v. Russia (nos. 32631/09 and 53799/12) – right to life / medical care / investigation / ill-treatment / detention conditions. The applicants (Mr Magnitskiy, his wife and his mother) complained that Mr Magnitskiy was detained in appalling detention conditions and endured ill-treatment by prison guards (violation of Article 3). They also complained that he died while in detention as a result of the absence of medical care and that the authorities failed to investigate the circumstances of his death (violation of Article 2).

[Dec.] Aguirre Lete v. Spain and four other applications (nos. 29068/17 and others) time served in another country. The applicants complained that the prison sentences already served in France were not taken into account for the purposes of calculating the maximum length of their sentence in Spain (manifestly ill-founded).

Avşar and Tekin v. Turkey (no. 19302/09 and 49089/12) – right to respect for private and family life. The applicants complained that the refusal of the prison administration to transfer them to a detention facility closer to their family breached their right to respect for private and family life (violation of Article 8).

[Dec.] Robert v. France (no. 1652/16) – admissibility / international transfer / Request for replacement of sentence. The applicant had been sentenced to life imprisonment in Morocco. He complained that following his transfer from Morocco to France, his sentence was converted to a 30-year imprisonment sentence in application of the law in force at the time of the transfer, whereas he argued the law in force at the time of the impugned facts should have applied (inadmissible).

 

2 July 2019

Gorlov and Others v. Russia (nos. 27057/06 and others)

Facts – When confined to their cells, the applicant detainees remained under constant surveillance by prison guards via a closed-circuit television camera (CCTV). CCTV camera monitoring was routinely carried out by female officers.

Law – Article 8: The permanent video surveillance constituted an interference with the applicants’ right to respect for their private life.

The relevant legislation set forth a general rule enabling the administrations of penal institutions and pre-trial detention centres to have recourse to video surveillance. However, they did not specify whether both the common parts and residential areas should be subject to surveillance; at which time of the day it should be operational; the conditions under which it should be used and for how long at a time; the applicable procedures, and such like. The only obligation was to inform convicts, obtaining their signature as acknowledgment, of the use of the CCTV cameras. The relevant regulations did not set out any specific rules governing the conditions in which the impugned measure could be applied and revoked, the duration or the procedures for review.

In so far as post-conviction penal institutions were concerned, the relevant provisions did not specify whether the obtaining of information about convicts’ conduct was limited to monitoring by CCTV cameras, or whether that information was recorded and kept, and, if so, what the applicable safeguards and rules were governing the circumstances in which such data could be collected, the duration of their storage, the ground for their use, and the circumstances in which they could be destroyed. The technical specifications provided for the possibility of keeping the recordings from a CCTV system for a period of thirty days.

Unlike in the decision in Van der Graaf v. the Netherlands, the applicants’ placement under permanent video surveillance had not been based on an individual decision providing reasons which would have justified the measure in question in the light of the legitimate aims pursued; the measure had not been limited in time, and the administrations of the relevant institutions had not been under an obligation to review regularly (or at all) the well-foundedness of that measure. Indeed, there was no basis in national law for the adoption of such individual decisions.

In such circumstances, whilst the Court was prepared to accept that the contested measure had some basis in national law, it was not convinced that the existing legal framework was compatible with the “quality of law” requirement. Whilst vesting in the administrations of pre-trial detention centres and penal institutions the right to use video surveillance, it did not define with sufficient clarity the scope of those powers and the manner of their exercise so as to afford an individual adequate protection against arbitrariness. In fact, as interpreted by the domestic courts, the national legal framework vested in the administrations of pre-trial detention centres and penal institutions an unrestricted power to place every individual in pre-trial or post-conviction detention under permanent, that is day and night, video surveillance, unconditionally, in any area of the institution, including cells, for an indefinite period of time, with no periodic reviews. As it stood, the national law offered virtually no safeguards against abuse by State officials.

Although the Court was prepared to accept that it might be necessary to monitor certain areas of pre-trial and penal institutions, or certain detainees on a permanent basis, including by using a CCTV system, it found that the existing legal framework could not be regarded as being sufficiently clear, precise and detailed to have afforded appropriate protection against arbitrary interference by the authorities with the applicants’ right to respect for their private life.

The measure complained of had therefore not been “in accordance with the law”. Accordingly, there was no need to examine whether it pursued any of the legitimate aims and was “necessary in a democratic society”, being proportionate to those aims. In particular, the Court left open the question of whether the fact that the permanent video surveillance had been carried out by female operators of CCTV cameras was compatible with the requirements of Article 8 § 2, as, in its view, this was an element of the proportionality of the alleged interference.

Conclusion: violation (unanimously).

 The Court also found, unanimously, a violation of Article 13 because the domestic law, as interpreted by the courts, did not presuppose any balancing exercise or enable an individual to obtain a judicial review of the proportionality of his or her placement under permanent video surveillance to the vested interests in securing his or her privacy.

© Council of Europe/European Court of Human Rights

 

9 July 2019

Tim Henrik Bruun Hansen v. Denmark (no. 51072/15) 

Facts – Following previous similar convictions, the applicant was convicted in 1996 of a serious sexual assault of a minor and sentenced to “safe custody” for an indefinite term. His therapeutic treatment, and thus his chances of rehabilitative release from prison, had reached a deadlock in terms of the relationship of trust with staff of the institution, the applicant having refused chemical castration which was a condition of release and, eventually, having refused counselling. In 2015 a court ordered his continued deprivation of liberty. He complained under Article 5 § 1 (a) arguing that his continued imprisonment was not sufficiently linked to the original objective of detention.

Law – Article 5 § 1: The main issue was whether there had been a sufficient causal connection, for the purposes of sub-paragraph (a) of Article 5 § 1, between the applicant’s criminal conviction by the sentencing court in 1996 and his continued deprivation of liberty ordered in 2015.

In ordering his continued deprivation of liberty, the domestic court had had before it a number of elements for concluding that safe custody had to be maintained in order to prevent an imminent risk of relapse into the very serious sexual crimes of which the applicant had been convicted three times in the period between 1989 and 1996. The domestic court had however dismissed the applicant’s specific request for an external expert opinion, although at that point in time the applicant had been detained in safe custody for almost 19 years and the most recent external expert opinion had been from 2007.

There seemed to have been no means of cooperation between the applicant and the medical staff at the detaining Institution, in order to work towards reducing significantly the applicant’s dangerousness, therefore the situation had indeed ended in deadlock. In such a situation it was particularly important to consult an external expert in order to obtain fresh propositions for initiating the necessary therapeutic treatment. By failing at least to attempt to obtain fresh advice from an external medical expert on the necessity of the applicant’s continuing safe custody, the domestic court had not sufficiently established the relevant facts in this respect. The decision not to release the applicant, or to apply a more lenient sentence than safe custody, had therefore not been based on an assessment that was reasonable in terms of the objectives pursued by the sentencing court in 1996.

Conclusion: violation (unanimously).

 © Council of Europe/European Court of Human Rights

 

11 July 2019

[Dec.] Dardanskis v. Lithuania (nos. 74452/13 and others)

The 16 applicants have been sentenced to life imprisonment. They complained that their life sentence could not be considered reducible.

The Court observed that in application of its judgment Matiošaitis and Others v. Lithuania (no. 22662/13 and 7 others, 23 May 2017), the Lithuanian authorities amended the legislation regarding life sentences in March 2019.

The Court decided to analyse the instant case in the light of these recent legislative changes.

The Court firstly observed that according to the recent legislative changes, the commutation of a life sentence was the result of a court decision. While finding this system satisfactory, the Court recalled that it had “previously held that a State’s choice of criminal-justice system, including sentence review and release arrangements, is in principle outside the scope of [its] supervision” (§26).

Secondly, the Court noted that “a life prisoner’s situation might be reviewed at the earliest 20 years after he or she had been detained or had started serving the life sentence… [which is] shorter than the maximum indicative term of 25 years” (press release) established in its case-law (see [GC] Vinter and Others v. the United Kingdom, nos. 66069/09 and others, 2013).

Thirdly, according the Court, “a life prisoner could take an active part in the proceedings for the review of his or her life sentence, in which a court had to adopt a reasoned ruling, which could be appealed against” (idem). In this respect, the Court noted that the review contains “sufficient procedural guarantees since both life prisoner and his or her lawyer have a right to be present in the courtroom to plead that the life prisoner has reformed” (§28).

Fourthly, the Court declared itself satisfied of the criteria on the basis of which a life sentence could be commuted. These criteria include “in particular the risk of recidivism, the aims of the life sentence and the effect of serving part of the life sentence on the convicted person and the level of implementation of correctional measures” (idem). What is more, the Court noted that as a result of the legislative changes, life prisoners are now to be communicated the reasons for the refusal of a commutation request.

Lastly, the Court observed “that the State has not overlooked the need for life prisoners’ continuous rehabilitation, including applying to them enhanced social rehabilitation measures, also after the life sentence has been changed to a fixed-term sentence, with the view to possible release on parole and to their eventual reintegration into society” (§30).

Accordingly, the Court concluded that the “matter giving rise to this complaint can therefore now be considered to be “resolved” within the meaning of Article 37 § 1 (b)” and decided to struck the application out of its list of cases.

 

27 August 2019

Izmestyev v. Russia (no. 74141/10)

The applicant, serving a life sentence, complained about the security cameras which operated in his cell 24 hours a day, restrictions on family visits, the length of his pre-trial detention, his conditions of detention and the fact that the proceedings were held behind closed doors. He also complained about his detention conditions and the conditions in which he was transported to and from the courthouse during the criminal proceedings against him.

Complaint under Article 8 – The Court observed that the applicant had been unable to maintain contact with the outside world other than by corresponding in writing between November 2011 and November 2013. In addition, his relatives were only allowed to visit him once every six months. The visit conditions were also substandard as they lasted only four hours and the number of adult visitors was limited to two. Furthermore, the applicant was separated from his visitors by a glass partition and a prison guard had to be present during the whole visit. In view of the above, the Court declared that there had been a violation of Article 8.

As regards the video surveillance of the applicant’s cell, the Court observed that the national legislation on which this measure was based lacked clarity and did not secure enough the applicant’s rights under Article 8. According to the Court, “the Russian law was thus not sufficiently accessible and foreseeable, since it did not indicate with sufficient clarity the scope and manner of exercise of the relevant discretion conferred on the domestic authorities with regard to the video surveillance of convicted individuals who were serving a prison sentence” (press release). Accordingly, there had been a violation of Article 8.

Complaint under Article 3 – As regards the detention conditions of the applicant in the remand center in which he was detained, the Court recalled that it has found a violation of Article 3 in a number of similar cases (see i.a. Mayzit v. Russia, no, 63378/00, 20 January 2005; Ananyev and others v. Russia, nos. 42525/07 and others, 10 January 2012; Radzhab Magomedov v. Russia, no. 20933/08, 20 December 2016). The Court then observed that the Government was unable to provide it with elements enabling it to reach a different conclusion. Similarly, as regards the applicant’s transport conditions from this remand center to and from the courthouse, the Government did not provide the Court with elements enabling to rebut the applicant’s allegation. Accordingly, the Court found a violation of Article 3.

Conversely, the Court rejected as manifestly ill-founded the applicant’s allegation regarding his conditions of detention in the penitentiary colony as he failed to provide it with a coherent description of his detention conditions. Moreover, the applicant did not question the authenticity of the documents provided by the Government (in particular technical plans and photographs of the cells). Therefore, in the particular circumstances of the case, there is no reason to shift the burden of proof to the Government.

 

Magnitskiy and Others v. Russia (nos. 32631/09 and 53799/12)

Facts – The first applicant, a tax and accountancy expert with a Moscow-based law firm, had carried out investigations on behalf of a client in relation to alleged tax fraud. He had subsequently been arrested on suspicion of having assisted in tax evasion. While in custody the first applicant was diagnosed with pancreatitis and he died in pre-trial detention on 16 November 2009. He was convicted posthumously. Prior to his death, the first applicant had complained to the Court, in particular about the conditions of detention and the justification and length of his pre-trial detention. The first applicant’s wife and his mother (who were the second and third applicants, respectively) lodged further complaints following his death.

Law – Article 2

(a)  Substantive aspect – The first applicant had not received essential medical tests and examinations in custody. The failure to perform the necessary surgical procedure in a timely manner could well have contributed significantly to his death. The remand prison had been unable to address his medical needs owing to understaffing, lack of medical equipment, and lack of specialised medical training and qualifications among the prison medical staff. No meaningful medical records had been maintained.

The custodial authorities had failed to provide an adequate response to the emergency situation on 16 November 2009. The decision to urgently send the first applicant to the medical facility had been taken at 9.30 a.m. However, it was not until almost 2.30 p.m. that an ambulance had been called. Although it had taken the emergency team less than thirty minutes to arrive at the facility, they had to wait another two hours and thirty-five minutes for an escort into the facility. Those delays had been unreasonably long and manifestly inadequate in such a grave medical emergency. By depriving the first applicant of important medical care, the domestic authorities had unreasonably put his life in danger.

(b)  Procedural aspect – The authorities had not demonstrated the required thoroughness in dealing with the case. The autopsy examination had been perfunctory and thus important questions had been left unresolved. The rejection of the third applicant’s request for an additional post-mortem examination had seriously damaged the efficiency of the investigation as a whole. Following the first applicant’s death and the opening of the investigation, his lawyer had promptly asked the investigative authorities to secure video recordings of the events of 16 November 2009. However, it was not until February 2011 that the investigator had asked for the footage.

The investigators had not properly assessed the medical personnel’s response to the rapid deterioration of the first applicant’s health. They had disregarded the delays in calling an ambulance and transferring the first applicant. They had also failed to establish a sufficiently clear account of the last hours of the first applicant’s life. The time-barring of the prison doctor’s prosecution was one of the most serious indicators of the ineffectiveness of the investigation. The expiry of the limitation period irreparably damaged the effectiveness of the investigation.

Conclusion: violation (unanimously).

[…]

The Court also found, unanimously, a violation of Article 3 as regards the first applicant’s conditions of detention; a violation of Article 3 under its substantive and procedural limbs as regards injuries the first applicant had received in custody; and a violation of Article 5 § 3 on the basis that his pre-trial detention had not been based on sufficient reasons.

[…]

© Council of Europe/European Court of Human Rights

 

29 August 2019

[Dec.] Aguirre Lete v. Spain and four other applications (nos. 29068/17 and others)

The applicants had been sentenced in France between 1993 and 2009 to imprisonment and served their sentences in that country. Subsequently, the applicants were sentenced by Spanish courts between 2013 and 2014 to a maximum of 30 years’ imprisonment for the offenses they had been convicted of in France. The applicants argued “that the duration of the sentences imposed by the French authorities and served in France should be taken into consideration in determining the maximum prison term of 30 years in Spain” (press release).

Their requests were dismissed. In particular, the Spanish Supreme Court ruled that “since the publication of Organic Law no. 7/2014 of 12 November 2014 on the Exchange of Information from Police Records and the Acknowledgment of Criminal Judicial Decisions within the EU, which had been in force since 3 December 2014, the legislature had expressly ruled out any consideration of concurrence with sentences handed down in another member State for the purposes of determining the maximum duration of a prison term” (idem).

Relying on Article 7 § 1 and 5 § 1, the applicants complained that the Spanish Supreme Court decisions resulted in the retroactive application of “a new law which had come into force after their conviction and which… extended the length of their prison terms” (idem).

Complaint under Article 7 § 1 - “The Court first observed that the decisions of the Spanish courts “had not modified the maximum period for serving the sentences in Spain, retaining a thirty-year term for each of the applicants” (idem). The Court reiterated, pursuant to its relevant case-law that it had to seek to establish whether the domestic courts had modified the severity of the penalties imposed on the applicants. The Court noted that the decisions given by the Audencia Nacional and the Supreme Court had not modified the maximum period for serving the sentences in Spain, retaining a thirty-year term for each of the applicants.

It noted that the applicants had never obtained decisions in favour of taking into consideration the sentences served in France, since both the courts to which they had applied on this matter had dismissed their requests to that end. The Court also noted that at the time the applicants had committed the criminal offences in question and when the decisions had been taken on placing an upper limit on their sentences, Spanish law had not taken reasonable account of prison terms already served in France. Consequently, the Court found that the applicants could not reasonably have thought, while they had been serving their prison sentences in France and when the decisions had been taken on placing an upper limit on their sentences in Spain, that the period spent serving sentences in France would be taken into account in determining the upper limit of thirty years laid down in Spanish criminal law. The Court therefore rejected that complaint as manifestly ill-founded.” (idem)

Complaint under Article 5 § 1 - “When sentence had been passed on the applicants and afterwards, when they had requested consideration of the sentences served in France, Spanish law had not specifically provided for time already served in France to be taken into account for the purposes of determining the maximum thirty-year prison term. Given that the impugned decisions had not led to any change in the sentences imposed, the contested periods of imprisonment could not be described as unforeseeable or unauthorised by law for the purposes of Article 5 § 1 of the Convention. Furthermore, the Court noted that the causal link between the sentences imposed and the continued incarceration of the applicants emerged from the guilty verdicts and the maximum thirty-year sentence to be served, as determined in the decisions on placing an upper limit on the sentences imposed in Spain. The Court consequently held that this complaint should also be rejected as manifestly ill-founded.” (idem)

 

17 September 2019

Avşar and Tekin v. Turkey (no. 19302/09 and 49089/12)

The applicants, both sentenced to life imprisonment, complained that they were detained in detention facilities far away from their families (at a distance ranging from 800km to 1500km) and that their transfer requests were all rejected, in breach of Article 8 of the Convention.

The Court acknowledged that the repeated refusals to transfer the applicants closer to their hometown were legal and were pursuing a legitimate aim (§§64-67). However, the Court recalled the importance, underlined in the European Prison Rules, to enable detainees to keep in contact with their families. The Court insisted that the criminal profile and security risks should not be the only criteria used by the authorities when ruling on a transfer request, and that the maintenance of family ties should be taken into due consideration. Furthermore, the Court noted that the state of health of the mother of one of the applicants, and the young age and economic situation of the other applicant’s children, prevented them from undertaking a long trip to the detention facility. Last, the Court noted that the Government provided no evidence that the rejection of the transfer requests were based on an individual decision taking into account all pertinent factors.

As a result, the Court concluded that there had been a violation of Article 8.

 

26 September 2019

[Dec.] Robert v. France (no. 1652/16)

The applicant, a French national, was condemned in 2003 by a Moroccan court to life imprisonment for a terrorism-related offence. In 2012 he was transferred to France in application of the 1981 Franco-Moroccan Convention on assistance to detained persons and the transfer of convicted persons. Following his transfer, the applicant applied to a French court in order to have his life sentence converted into a sentence compliant with French law.

The domestic courts ruled that the applicable law shall be the law in force at the time of the transfer and not at the time of the impugned acts, and converted the life sentence into a 30-year imprisonment sentence.

The applicant disputed this reasoning, arguing that the domestic court make a retroactive use of (less favorable) legislation that was adopted between his condemnation in Morocco and his transfer to France, in breach of Article 7. In addition, he complained that the domestic courts did not take into account the fact that, as he claimed, he was condemned following “a show trial under the direct influence of the executive” (press release), in breach of Article 6.

The Court recalled it “had already ruled on several occasions that Article 7 did not apply to the execution of a sentence, particularly, as in the present case, in the framework of a procedure for transferring a convicted person to another country” (press release, see i.a [Dec.] Grava v. Italy, no. 43522/98, 5 December 2002 and [Dec.] Saccoccia v. Austria, no. 69917/01, 5 July 2007, [Dec.] Ciok v. Poland, no. 498/10, 23 October 2012).

In addition, the Court “pointed out that issues relating to sentence enforcement did not come under Article 6 either inasmuch as a domestic court is not called upon to determine the ‘merits’ of a criminal charge within the meaning of Article 6 of the Convention” as in the present case (press release).

As a result, the Court declared the application inadmissible because they were incompatible ratione materiae with the Convention.

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