Newsletter no. 2020/2 - Round-up of the ECtHR case-law (January – July 2020)

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Please note that due to the health crisis, the distribution of this newsletter has been disrupted. From now on, it returns to its usual frequency.

 

TABLE OF CONTENTS

January – February 2020

Ciupercescu v. Romania (no. 3) – application no. 41995/14 and 50276/15- Temporary lack of access to online communication with family members: manifestly ill-founded.

Maddalozzo v. Switzerland – application no. 19338/18 –Lack of causality between the initial conviction and the continuation of detention of the applicant and the inappropriateness of the sentencing regime: inadmissible; lack of prospect of release and the lack of psychotherapeutic treatment: inadmissible.

Strazimiri v. Albania – application no. 34602/16–– Poor conditions of detention and the inadequacy of the medical treatment: violation of Article 3; unlawful confinement: violation of Article 5 § 1; no possibility to have detention reviewed “speedily” by a court: violation of Article 5 § 4; no possibility to receive compensation: violation of Article 5 § 5.

J.M.B. and Others v. France – application no. 9671/15 and 31 others – Quasi-pilot judgment –Ineffectiveness of the preventive remedies introduced as a means of putting an end to inadequate conditions of detention linked to prison overcrowding: violation of Article 13 and Article 3.

Saribekyan and Balyan v. Azerbaijan – application no. 35746/11 –Torture and killing in detention, no effective remedy and the occurrence of violations as a result of discrimination based on ethnic origin: violation of Article 2 and Article 3.

Sukachov v. Ukraine – application no. 14057/17 – Pilot Judgment – Inadequate conditions of detention and lack of an effective remedy in that regard: violation of Article 3 and Article 13.

Bayram v. Turkey – application no. 7087/12 –Imprisonment for 13 years despite severe disability: violation of Article 3.

Kungurov v. Russia – application no. 70468/17 –Refusal of the petition for a visit from the wife and children of the applicant: violation of Article 8; no possibility to obtain a review of the decision rejecting the applications for a family visit: violation of Article 13.

Pavlova v. Russia – application no. 8578/12 – Restrictions on visits of a wife for a husband in prison for the entire duration of his trial: violation of Article 8; inability to obtain a review of decisions rejecting the applications of the wife for prison visits: violation of Article 13.

March – April 2020 

Kosenko v. Russia (applications nos. 15669/13 and 76140/13) – Lack of adequate psychiatric treatment for the period of pre-trial detention: no violation of Article 3; excessive length of pre-trial detention: violation of Article 5 §3; denial of family visits in remand prison and no leave from detention to attend relative’s funeral: violation of Article 8.

Fabris and Parziale v. Italy (application no. 41603/13) – Failure to protect the life of a prisoner who deliberately inhaled gas supplied for cooking in the cell: no violation of Article 2 (substantial); ineffective domestic investigation of the death of a prisoner: no violation of Article 2 (procedural).

Cantaragiu v. the Republic of Moldova (application no. 13013/11) – Ill-treatment of the applicant and his brother while in detention which has resulted in the death of the latter: violation of Article 2 (substantive), violation of Article 3 (substantive); ineffective investigation of the death: violation of Article 2 (procedural), violation of Article 3 (procedural).

Jeanty v. Belgium (application no. 82284/17) –Failure of the prison authorities to take appropriate measures to prevent the risk of suicide attempts from materializing: no violation of Article 2; lack of psychiatric care given to a detainee with suicidal tendencies and placement in solitary confinement for three days without taking into account the mental state of the applicant: violation of Article 3 (both substantive and procedural).

Kukhalashvili and Others v. Georgia (applications nos. 8938/07 and 41891/07) – Failure of the state to ensure respect for the right to life of the prisoners who died during a police operation to quell a riot in a prison: violation of Article 2 (substantive); failure of the national authorities to carry out an effective investigation of the death of prisoners: violation of Article 2 (procedural).

Shmelev and Others v. Russia (application no. 41743/17 and 16 others) – Poor conditions of detention, namely, overcrowding and the absence of an effective domestic remedy in respect of the detention conditions: some applications are rejected as inadmissible due to non-exhaustion of domestic remedies, and the examination of other applications is adjourned in light of the newly adopted national Compensation Act.

May – June 2020

Korostelev v. Russia – application no. 29290/10Muslim prisoner reprimanded for performing acts of worship at night in breach of prison schedule: violation of Article 9

Astruc v. France (dec) – application no. 5499/15 – Prisoner placed in solitary confinement for two and a half months for having acquired illicit but not dangerous items (Article 3 substantive + procedural): complaint manifestly ill-founded –

Kadagishvili v. Georgia –  application no. 12391/06 – Poor conditions of detention and inadequate medical supervision and treatment while in prison: violation of Article 3 (material); Government’s failure to provide the Court with the relevant medical documents and refusal to place the first applicant in an external or dedicated prison medical facility after the interim measure indicated under Rule 39: violation of Article 34

I.E. v. the Republic of Moldova – application no. 45422/13 –failure of the authorities to prevent applicant’s ill-treatment by cellmates and ineffectiveness of the investigation of his complaints: violation of Article 3 (substantive + procedural)

Dîrjan and Ştefan v. Romania – applications nos. 14224/15 and 50977/15 – Compensation for poor conditions of detention by specific and measurable reduction in sentence leading to applicants’ release: loss of victim status;

N.T. v. Russia – application no. 14727/11 – Life prisoners automatically placed, for the first ten years of their sentence, under a strict regime involving segregation, limited outdoor exercise and a lack of purposeful activity: violation of Article 3 (substantive)

Potoroc v. Romania – application no. 37772/17– Inadequate medical care and assistance during applicant’s detention and no adequate measures to accommodate his needs for daily assistance, despite help from other inmates  violation of Article 3 (substantive)

Erlich and Kastro v. Romania – application nos. 23735/16 and 23740/16 – Appropriate measures taken by prison authorities in the execution of a judgment recognising the right of Jewish prisoners to have kosher meals: no violation of Article 9

Pshibiyev and Berov v. Russia – application no. 63748/13 – Short visits in the presence of a guard for detainees in pre-trial detention excluding any physical contact and impossibility for these unconvicted prisoners to benefit from long visits for more than ten years: violation of Article 8

George-Laviniu Ghiurău v. Romania – application no. 15549/16 – Inadequate living space / Poor conditions of detention:violation, no violation of Article 3 (substantive)

July 2020

Dikaiou and Others v. Greece (application no. 77457/13) – Detention of HIV-positive prisoners placed together in a room separately from other prisoners: no violation of Article 3 taken separately or in conjunction with Article 14; lack of an effective remedy for poor conditions of detention and lack of medical help to detainees suffering from HIV: violation of Article 13; lack of domestic remedy by which to apply to release on medical grounds for detainees suffering from HIV: no violation of Article 3 and Article 14.

Dimitar Angelov v. Bulgaria (application no. 58400/16) – Strict regime of imprisonment, poor conditions of detention, almost complete isolation and without purposeful activities: violation of Article 3.

Lautaru and Seed v. Greece (application no. 29760/15) – Inadequate conditions of detention, namely, overcrowding: violation of Article 3 (substantive); lack of effective domestic legal emedies: violation of Article 13 taken in conjunction with Article 3.

 

SUMMARIES

7 January 2020

Ciupercescu v. Romania (no. 3) (application no. 41995/14 and 50276/15)

Art 3 • Degrading treatment • Conditions of detention • Prison overcrowding

Art 8 • Family life • Prisoners’ access to online communication with family members not guaranteed by the Convention • Short-term restriction of right provided for by domestic law • Availability of alternative means of communication

Facts – The applicant served a prison sentence from 2009 to the end of 2016. In February 2014 a law came into force that allowed inmates, under certain circumstances, to maintain contact with the outside world, particularly family members, through online communication. For security and practical reasons, the exercise of that right was subject to the prison authorities’ prior evaluation and approval. The specific elements to be considered as regards approving and exercising that right were to be set out in an implementation regulation to be adopted within six months; it was eventually adopted in April 2016. From April 2015 the applicant complained of the lack of implementation of the above-mentioned right, putting forward the argument that his wife could visit him only every three months because she lived some distance away, in Italy. Relying on the provisions of the domestic law, the domestic courts accepted the existence of the said right and found that the lack of regulation allowing for the implementation of that right represented a continuous breach thereof.

Law – Article 8: This provision of the Convention could not be interpreted as guaranteeing prisoners the right to communicate with the outside world by way of online devices, particularly where facilities for contact via alternative ways were available and adequate. In the applicant’s case, access to this communication facility in order to maintain contact with his wife was a right provided for by domestic law.

Admittedly, there had been a delay of one year and eight months vis-à-vis the time-limit set out in the relevant provision of the domestic law for the implementation of that right. The right in issue had thus been restricted by the temporary absence of an adequate legal and infrastructural framework allowing him to communicate online. However, the Court noted that:

–  this restriction had related to a relatively short period of time (April 2015, when the applicant had first complained before the post-sentencing judge in that respect, until April 2016 at the latest, when the implementation regulation was adopted);

–  during that time the applicant’s wife had been able to visit him once every three months;

–  nothing had prevented the applicant from maintaining meaningful contact with his wife via alternative means of communication.

Conclusion: inadmissible (manifestly ill-founded).

Another complaint of the applicant, related to his conditions of detention, was examined on the merits. The Court unanimously found a violation of Article 3 in respect of the first period under examination (with a EUR 3,000 award in respect of non-pecuniary damage sustained in that connection), and no violation for the second period.

© Council of Europe/European Court of Human Rights

 

16 January 2020

Maddalozzo v. Switzerland (application no. 19338/18)

Art 5 • Detainee placed in a psychiatric unit, relying on an expert report produced four years before the detention • Causal  link between the initial conviction and the detention • Consideration of various factors for the purpose of decisions on the medical treatment • Consistent medical treatment suitable for the health conditions

Article 3 (substantive) • measure susceptible to be lifted with the evolution of the dignostic • detainee refusing the proposed medical care

Facts – In 1998, the applicant was sentenced to psychiatric detention and the obligation to undertake psychiatric treatment. After an application for a review of his detention, a doctor concluded in 2012 that psychiatric detention was still necessary and could not be replaced. In 2013, 2015 and 2016 national courts ordered the continuation of his psychiatric detention. In September 2015, the applicant had been transferred to a high-security prison where he received a medical consultation once or twice a month. 

Law – Article 5: The Court noted that an expert report produced four years before the decision of detention could not justify, on its own, the maintenance of his detention. But this decision was not unreasonable if it considered several factors such as the opinion of medical experts drawn up between the initial report and the final decision. Furthermore, the fact that the applicant had not been placed in a psychiatric institution did not constitute a violation of Article 5.1 of the Convention. The authority offered to the applicant therapeutic measures; he had not been left without a choice of treatment even if he refused it. So, the Court considered that the applicant had been provided with consistent medical treatment suited to his condition and that he was detained in an institution tailored to the detention of people suffering from mental disorders. The decision to continue the detention could not be considered as incompatible with the objectives of the initial conviction.

Regarding the place and regime of internment, the applicant complained that he was interned in unsuitable institution, as most of them were detention facilities, particularly those intended for pre-trial detention. He claimed that there were shortcomings in the somatic and psychiatric care provided there. In this regard, the Court considers that the applicant, despite his lack of cooperation, was offered consistent medical supervision appropriate to his situation and that he was therefore detained in appropriate facilities for the detention of mentally disordered offenders.

Article 3: the Court recalled that a medical opinion denying the opportunity of release did not constitute an irreducible detention as it could be modified in the future and was not immutable.

Conclusion – Inadmissible.

21 January 2020

Strazimiri v. Albania (application no. 34602/16)

Art 3 • Inhuman treatment • Degrading treatment • Poor conditions of detention and inadequate medical treatment of a mentally ill person subject to a court-ordered compulsory medical treatment • “Therapeutic abandonment”

Art 5 § 1 (e) • Lawful arrest or detention • Detention in penal facility of mentally ill individual who had been exempted from criminal responsibility • Authorities’ longstanding failure to set up a special medical institution integrated into health system, in breach of domestic law • Structural problem

Art 5 § 4 • Speediness of review • Three years’ delay in appeal proceedings entirely attributable to the authorities

Art 5 § 5 • Compensation • Absence of enforceable right to compensation in respect of the specific violations of Articles 5 §§ 1 and 4

Facts – The applicant committed a criminal offence but was exempted from criminal responsibility on account of his mental illness. The tribunal ordered the applicant to undertake medical treatment in a medical institution. He was sent to prison and then to a prison hospital where he was administered psychotropic drugs.

Law –

Article 3: The Court concluded that the lack of individualised treatment and adequate medical care combined with the deteriorated conditions of detention constituted inhuman and degrading treatment.

Article 5: the Court noted that in only considering whether his family were capable of providing the appropriate conditions to look after him if he were released the authorities failed to consider alternative means of placement. In accordance with the absence of adequate medical care, the Court concluded that the deprivation of liberty was not lawful. Furthermore, the Court concluded that a delay of more than three years for an appeal pending before the Supreme Court could not be considered compatible with the speediness requirement of Article 5 § 4. Finally, the Court concluded that the applicant did not have an enforceable right to compensation (Article 5 § 5) as Albanian legislation did not provide for a right to compensation for unlawful detention of individuals in Mr Strazimiri’s specific situation.

Conclusion – Violation of Article 3, Article 5 § 1, Article 5§ 4 and 5§ 5.

 

30 January 2020

J.M.B. and Others v. France (application no. 9671/15 and 31 others)

Art 3 • Degrading treatment • Poor conditions of detention • Prison overcrowding

Art 13 • Ineffective preventive remedy • Injunctions from the interim relief judge difficult to implement in practice by the prison authorities

Art 46 • Defendant State obliged to take general measures to permanently reduce prison overcrowding and establish an effective preventive remedy in practice

Facts – The applicants were detained in six prisons in France and its overseas territories. Their conditions of detention varied in terms of the amount of personal space they were allocated and other aspects of their imprisonment. While they were in prison some of the applicants lodged administrative complaints with the competent administrative courts, either on an individual basis or through collective complaints lodged by the French section of International Prison Watch (“the OIP”). The administrative courts allowed the complaints in part and ordered measures to address certain aspects of the applicants’ conditions of detention, particularly with regard to hygiene standards. Some of the applicants also made use of a compensatory remedy, bringing actions for compensation against the State in the administrative courts, resulting in awards of damages. The applicants complained mainly of inadequate conditions of detention and of the lack of an effective preventive remedy in that regard.

Law – Article 13: In its pilot judgments concerning overcrowding in prisons (see Ananyev and Others v. Russia, application no. 42525/07 and 60800/08, 10 January 2012), the Court had noted that the possibility for prisoners to obtain redress for their situation following a decision in their favour was insufficient unless there was an improvement in the situation with regard to overcrowding. In such circumstances the situation of one prisoner could only be improved to the detriment of other prisoners, and the capacity of the remedy to produce a preventive effect was not demonstrated. Recently in France, applications to the administrative courts (in this instance an urgent application to protect a fundamental freedom) had highlighted the issue of overcrowding and degradingconditions in the prisons concerned and hence contributed quite rapidly to certain improvements in collective conditions of detention. The developments in the case-law had been brought about mainly by applications to the urgent-applications judge made by the OIP in its capacity as an observer of the prison system committed to defending prisoners’ rights. An urgent application to protect a fundamental freedom was also available to individual prisoners, and legal representation was not compulsory. The urgent-applications judges delivered their rulings promptly, taking account of the prisons legislation guaranteeing dignified conditions of detention and of the rights defined by the Convention and the principles established in the Court’s case-law. Prisoners’ conditions of detention were also assessed in light of their position of vulnerability and complete dependence. Lastly, their rights under Articles 2 and 3 of the Convention constituted fundamental freedoms.However, the issue to be addressed was whether the positive development in the administrative courts’ case-law actually made it possible to put an end to conditions of detention contrary to the Convention.

Firstly, the power of the urgent-applications judges to give orders was limited in scope. The judge was not empowered to require that work be carried out to eliminate the consequences of overcrowding in prisons or to order measures to reorganise the public justice system, but was concerned only with measures that could be implemented rapidly. Furthermore, it was not the task of the urgent-applications judge to monitor the implementation by the judicial authorities of criminal-policy measures.

Secondly, the role of the urgent-applications judge was conditional on the funding available to the prison authorities and the measures already taken by them. The prison authorities had no power to take decisions with regard to placements in detention, and prison governors were required to accept persons placed in detention even when the prison was overcrowded. The urgent-applications judge ordered transitional measures with little binding effect “pending a lasting solution”, which were not capable of putting a swift end to the applicants’ exposure to inhuman or degrading treatment. Lastly, the prison authorities could impede the judge’s power to issue orders by referring to the scale of the work to be carried out or the cost.Such an approach was incompatible with the rights protected by Article 3 of the Convention. The Court had previously stressed that a high crime rate, a lack of financial resources, or other structural problems were not circumstances that attenuated the State’s liability and justified a failure to take measures to improve the situation in prisons. The State had a duty to organise its prison system in such a way that prisoners’ dignity was respected.

Thirdly, there were issues when it came to monitoring the implementation of the measures ordered by the urgent-applications judge, notwithstanding the existence of procedures clearly designed to ensure the effectiveness of the judicial decisions. While it was not for the urgent-applications judge per se to ensure judicial supervision of his or her orders, an application to the Report and Research Division of the Conseil d’État was intended to ensure effective follow-up of those orders. However, the time taken to implement the orders was incompatible with the requirement to afford prompt redress. Prisoners who had obtained a decision in their favour could not be expected to make multiple applications to ensure that their fundamental rights were recognised by the prison authorities.

Lastly, irrespective of the procedures for implementation, the Court noted that the measures implemented did not always produce the desired results. For instance, pest and rat control measures continued to be inadequate in certain prisons despite the efforts made, a fact which highlighted the full impact of the dilapidated state of some French prisons.

Ultimately, the measures ordered by the urgent-applications judge, in so far as they concerned overcrowded prisons, were difficult to implement in practice. The fact that prisons were overcrowded and dilapidated, especially in areas where there were few prisons and where transfers were not a realistic option, meant that the use of an urgent application to protect a fundamental freedom did not in practice enable persons in detention to secure the immediate and complete cessation of serious breaches of Article 3 of the Convention or to obtain a substantial improvement in their situation.

In these circumstances, the French prison authorities were not in a position to implement satisfactorily the measures ordered by the urgent-applications judge and, accordingly, to ensure that prisoners’ conditions of detention were in line with the Court’s case-law. While an urgent application to protect a fundamental freedom appeared to provide a solid legal framework for examining serious breaches of prisoners’ rights, it could not be regarded as the preventive remedy required by the Court. The same was true of urgent applications for appropriate measures, which encountered the same practical obstacles.

Conclusion: violation (unanimously).

The Court also held unanimously that there had been a violation of the substantive aspect of Article 3 on account of the demeaning conditions of detention resulting from the allocation of personal space ranging from less than 3 sq. m to 4 sq. m, which amounted to degrading treatment.

Article 46: The Court recommended to the respondent State that it should consider the adoption of general measures. Firstly, in order to ensure that prisoners’ conditions of detention were compatible with Article 3 of the Convention, the measures taken should include putting a permanent end to overcrowding in prisons by revising the method of calculating prison capacity and improving compliance with maximum occupancy standards. The 2018-2022 legislative programme contained criminal-policy and prison-policy provisions that were apt to have a positive impact by reducing the number of persons imprisoned. Furthermore, an effective preventive remedy should be put in place, which, together with the compensatory remedy, would enable prisoners to obtain redress for the situation of which they were victims and prevent the continuation of alleged violations.

Article 41: sums ranging between EUR 4,000 and EUR 25,000 to each applicant in respect of non‑pecuniary damage.

© Council of Europe/European Court of Human Rights

 

Saribekyan and Balyan v. Azerbaijan (application no. 35746/11)

Arts 2 and 3 • Life • Torture • Effective investigation • Death of Armenian national while detained in Azerbaijan on suspicion of spying and intending to commit a terrorist act • Azerbaijani authorities’ failure to consider whether ethnic hatred had been a contributing factor in victim’s death and the torture to which he had been subjected • Azerbaijani authorities’ lack of communication with victim’s relatives and Armenian authorities

Facts – The son of the applicant, an Armenian national, was accused of planning to blow up a school and had been arrested in Azerbaijan. He died in his cell during his detention by the military police. The Armenian Prosecutor-General requested legal assistance but it had been denied by the Azerbaijan Prosecutor-General. The investigation by Azerbaijani authorities concluded that the death was due to suicide and that the inmate had been treated properly and hadnot been assaulted.

Law – Admissibility: The Court rejected the two objections made by the Azerbaijan government particularly their assertion that Mr Saribekyan had been captured as a member of the Armenian armed forces and so his case had to be dealt with under international humanitarian law not by the Court. According to the Court, the case did not take place in a situation of armed conflict and international humanitarian law and European human rights laws were not exclusive.

Article 2 (substantive): The Court “reiterates that, while it generally requires proof ‘beyond reasonable doubt’, in situations where knowledge of the events in issue lie wholly, or in large part, with the authorities, as in the case of persons in detention, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. It is then for the respondent Government to provide a satisfactory and convincing explanation. In the present case, not only the limited extent of the Azerbaijani investigations and the lack of documentation supporting the findings of those investigations give cause for concern” (§68). As a result, “given the injuries which Mr Saribekyan sustained prior to his death, as described in the Armenian forensic report, supported by photographic evidence, and the information made available to the Court regarding the configuration of his cell, the account according to which he hung himself cannot be accepted” (§69).

Conclusion : violation of article 2 (substantive aspect)

Article 2 (procedural): The Court observes that the Azerbaijani investigation was conducted on the basis of the presumption that Mr Saribekyan had committed suicide by hanging. It thus appears that the officials involved in the various parts of the investigation did not follow any alternative line of inquiry. This limited scope of the investigation evidently hampered its efficacy.

The Court cannot accept the respondent Government’s contention that the Azerbaijani authorities had no duty to cooperate on account of the suspension of all diplomatic relations between the two countries. It concluded that the lack of diplomatic relations between two states did not absolve a Contracting state from the obligation to cooperation in criminal investigations.

Conclusion : violation of article 2 (procedural aspect)

Article 3: the Court concluded that the suffering was carried out intentionally under the control of the authorities. Therefore this suffering had to be characterised as torture. Howevert found no violation of the two applicants’ rights under this provision, although it had no doubt that the arrest, detention and death of their son, as well as the uncertainty about his fate, had caused them profound suffering

Conclusion: violation of Article 3 for the torture of the applicant’s son but no violation in respect of the applicants.

 

Sukachov v. Ukraine (application no. 14057/17)

Art 3 • Degrading treatment • Poor conditions of pre-trial detention

Art 13 • Lack of effective domestic remedies

Art 46 • Pilot-judgment • Structural problem • Respondent State required to reduce prison overcrowding, improve conditions of detention and introduce preventive and compensatory remedies

Facts – Before the Court, the applicant mainly complained about the inadequate conditions of his detention and about a lack of an effective remedy in that regard.

Law– The Court unanimously found a breach of Article 3 as well as a breach of Article 13.

Article 46: The violations identified in the present case had been found fourteen years after the Court’s first judgment concerning conditions of detention in Ukraine, and around 120 prima facie meritorious applications were currently pending before the Court. The origins of the violations had concerned problems of overcrowding and various other recurrent issues related to the material conditions of detention. In a number of those judgments the Court had also concluded that there had been a violation of Article 13. It was therefore appropriate to apply the pilot-judgment procedure in the present case.

(a)  Measures to reduce overcrowding and improve conditions of detention – The most appropriate solution to the problem of overcrowding would be to reduce the number of detainees by more frequent use of non-custodial measures and by minimising the recourse to pre-trial detention.Ukrainian prosecutors and other law-enforcement officers should be encouraged to further decrease the number of requests they made for initial detention and for its extension, except in the most serious cases. Prosecutors and judges should also be encouraged to use alternatives to detention as widely as possible.Reduction in overcrowding in the SIZOs (prisons) would also follow from a change in the current minimum domestic standard of 2.5 square metres of personal space per detainee provided for by law.Despite the Respondent State’s efforts, the material conditions in the SIZOs remained poor or had even deteriorated. In view of the extent of the problem, consistent and long-term efforts and the adoption of further measures aimed at major renovation work in the existing detention facilities, or at replacing obsolete facilities with new ones should continue without delay; appropriate funds should be set aside for this purpose.

(b)  Effective remedies

(i)  Preventive measures – The best way of putting in place a preventive remedy would be to set up a special authority to supervise detention facilities. Such an authority should be entitled to monitor breaches of detainees’ rights, be independent from the penal authorities, have the power and duty to investigate complaints with the participation of the complainant, and be capable of rendering binding and enforceable decisions indicating appropriate redress. Such a procedure may be set up before the existing authorities, for instance public prosecutors. If the respondent State eventually chose to comply with this judgment by amending the procedure for complaining to a prosecutor, the procedure should comply with the principles set out in the judgment.

(ii)  Compensatory measures – One form of compensation might consist in reducing the sentence of the person concerned proportionately in relation to each day that he or she had spent in inadequate conditions of detention. Such a remedy could only concern persons who were still incarcerated. However, a reduction of their sentence could only constitute adequate and sufficient redress for them if it entailed an acknowledgement of the breach of Article 3 of the Convention and provided measurable reparation of that breach.Another form of compensation could be the provision of monetary compensation, the only option possible for persons who were no longer in detention. As to the elements relevant for assessing the extent of the damage, the time spent by a detainee in poor conditions was the most important factor. Lastly, a compensatory remedy must be exercised retrospectively, in the sense of providing redress in respect of breaches of Article 3 that pre-date its introduction.

(iii)  Time-limit for making the preventive and compensatory remedies available – In view of the persisting and long-lasting nature of the structural problem identified in the present case and of the apparent absence of any concrete solution to the problem being currently considered at the domestic level, a specific time-limit should be set and the required preventive and compensatory remedies be made available no later than eighteen months after this judgment becomes final.

(c)  Procedure to be followed in other similar cases – The Court did not find it appropriate at this juncture to adjourn the examination of similar cases, whether pending or impending.

© Council of Europe/European Court of Human Rights

 

4 February 2020

Bayram v. Turkey (application no. 7087/12)

Art 3 (substantive) • Degrading treatment • Inability of the detainee with disabilities to move by their own • Long duration • Lack of explanation for the late transfer to an appropriately equipped institution

Facts – In fact, the applicant had to be carried up and down the stairs to go to the toilets or on the exercise yard.

Law – The Court recalled that the detention of disabled persons in an institution where they couldn’t move by their own means is “degrading treatment” within the meaning of Article 3. Due to the duration of this situation (17 months) and the lack of explanations for the late transfer to a more appropriately equipped institution, the Court concluded to the violation of Article 3

Conclusion : violation of Article 3.

18 February 2020

Kungurov v. Russia (no. 70468/17)

Art 8 • Respect for family life • Arbitrary refusal of family visits in remand prison • Domestic law conferring unrestricted discretion to authorities to grant or refuse prison visis

Art 13 (+ Art 8) • Effective remedy  • Applications for prison visits rejected by means of unreasoned non-procedural letters not amenable to review

Facts – The applicant asked the authorities to allow short-term visits from his wife and children and phone communications with them. This request had been denied because his wife was a witness in his criminal case, because the judgment wasn’t final and because prison visits by minors weren’t covered in applicable law. Since the response was not a procedural act, the applicant couldn’t file an appeal against it.

Law – The Court concluded that the Judge “refused a visit by the applicant’s wife and children beyond a generic reference to the fact that his wife was a witness in the case and that the Defendants’ Detention Act made no express provision for visits by children. The letter did not give any weight to the applicant’s and his family members’ right to respect for their family life or explain why the procedural status of the witness prevented the applicant’s wife from seeing him even after the taking of evidence had been completed and the conviction pronounced. Moreover, the Defendants’ Detention Act does not restrict the right to prison visits to adult family members, and the refusal of a visit by the applicant’s children on the ground that children were not expressly mentioned in the Act was arbitrary” (§19). Furthermore, “the applicant’s request was rejected in generic terms by means of a non-procedural letter which was not amenable to a judicial review. In these circumstances, the Court finds that the applicant did not have an effective remedy for his complaint about the restriction on family visits” (§25).

Conclusion : violation of article 8 and 13.

Pavlova v. Russia (no. 8578/12)

Art 8 • Respect for family life • Remand prisoner denied family visits for the entire duration of his trial • Domestic law conferring unrestricted discretion to authorities to grant or refuse prison visits

Art 13 (+ Art 8) • Effective remedy • Applications for prison visits rejected by means of unreasoned non-procedural letters not amenable to review

Facts –  The applicant had been unable to visit her husband for three and a half years due to the “particular circumstances of the present cases”.

Law – The Court concluded that “in the present case […] the Supreme Court of Tatarstan made no attempt to justify the refusal of family visits beyond a generic reference to the ‘particular circumstances of the case’, the nature of the charges against the applicant’s husband or unspecified security considerations. The President of the Supreme Court of Tatarstan upheld a blanket ban on family visits in respect of all defendants for the entire duration of a trial” (§26). In fact, “the applicant’s requests were rejected in generic terms by means of non-procedural letters which contained little motivation, if any at all. Her complaints to the Presidents of the Supreme Court of Tatarstan and of the Supreme Court of Russia were forwarded to the same trial judge whose conduct she impugned. In his reply, he expressly excluded the possibility of having his decision reviewed on appeal” (§32).

Conclusion: violation of Article 8 and Article 13.

 

17 March 2020

Kosenko v. Russia (applications nos. 15669/13 and 76140/13)

Art 3 (substantive) • Inhuman and degrading treatment • Adequate psychiatric treatment administered in a regular detention facility for five months • Absence of aggravating factors related to material conditions of detention

Art 5 § 3 • Length of pre-trial detention • Authorities’ failure to adduce relevant and sufficient reasons justifying extensions of detention • Authorities’ failure to examine alternative measures

Art 8 • Respect for family life • Restrictions on family visits in remand prison • Domestic law conferring unrestricted discretion to authorities • Unjustified denial of leave from detention to attend mother’s funeral

Facts – The applicant, Mikhail Kosenko, was arrested for having taken part in the Bolotnaya Square protest in Moscow in May 2012. Following his arrest, he was remanded in custody due to the seriousness of the offence the fact that he might abscond or interfere with the investigation. While the applicant appealed for alternative preventive measures, such as house arrest or bail several times due to his mental conditions (schizophrenia), the pre-trial detention order was nevertheless extended several times.

Mr Kosenko was found guilty but absolved from criminal liability owing to mental incapacity. He was committed to a psychiatric hospital, from which he was released in nine months. While being in the pre-trial detention, the applicant was denied an authorization of a short-term leave to attend the funeral of his mother. Additionally, his sister, who was his legal guardian, also could not visit the applicant. The facility where he was held did not have a hospital ward; however, he had received several visits from psychiatrists during his pre-trial detention.

Law –

Article 3: The ECtHR found that there were no aggravating factors related to material conditions of detention that could amount to inhuman or degrading treatment of the applicant. It found that the initial detention of the applicant in the general detention facility was compatible with his state of health, he had four psychiatric consultations in the course of three months period which is considered satisfactory. There were no aggravating factors related to the material conditions of his detention and, in a relatively short period of time, he was transferred to the medical ward. The applicant has not provided any evidence that his mental health has deteriorated as a result of improper medical supervision and treatment received in the general detention facility.

Conclusion: no violation of Article 3

Article 5 §§ 1 and 3: the Court found that the period of detention of one year and four months was not justified by the gravity of the charges as the Government failed to prove that the release of Mr Kosenko would adversely impact the investigation. It concluded that in the present case there has been a violation of Article 5 §§ 1 and 3 as the detention of the applicant was extended without serious consideration of alternative preventive measures which he has repeatedly requested.

The issue of the delay in the examination of appeal was found to be manifestly ill-founded by the ECtHR because the excessive length occurred in order to accommodate the request of the applicant’s lawyer to file additional written submissions regarding the pending case.

Conclusion: violation of Article 5 § 3, no violation of Article 5 § 4

Article 8: The Court stressed that the Russian Pre-trial Detention Act does not meet the “quality of law” standard of the Convention to be considered as a legitimate limitation of the applicant’s right to respect for family life. Regarding the refusal to grant the leave right for the applicant to visit his mother’s funeral, it found such refusal incompatible with the the Convention and reiterated that the State’s duty to carefully examine the circumstances of each particular case and demonstrate, in case of refusal, that such restriction to attend the funeral was “necessary in a democratic society” was not fulfilled.

Conclusion: violation of Article 8.

19 March 2020

Fabris and Parziale v. Italy (application no. 41603/13)

Art 34 • Status as victim of a cousin of a deceased detainee not automatic • Lack of legitimate interest before the Court despite recognition as injured party in the domestic proceedings • Status as victim of an uncle

Art 35 • Exhaustion of domestic remedies • Choice of criminal proceedings by the petitioner • Termination of the case for prescription preventing the constitution of a civil party, which does not constitute a waiver of the victim's rights • Inaccessibility of the civil remedy invoked by the government.

Art 2 (material) • Positive obligations • Death in prison of a drug addict prisoner by voluntary inhalation of gas supplied for cooking • Misuse of a dangerous substance regularly possessed • Addiction known to prison authorities and subject to constant medical monitoring • Rapid intervention by the authorities during a previous inhalation of gas • Legitimate decision not to limit access to gas or not to strengthen surveillance • No immediate risk of endangering the life or physical integrity of the detainee

Art 2 (procedural) • Effective investigation into the circumstances of the detainee's death • Immediate intervention by the authorities • Erroneous conclusions of the first autopsy without impact on the effectiveness of the investigation • Significant slowing down of the investigation without effect on its effectiveness in as a whole • Prescription of the facts which did not prevent the accomplishment of essential investigative acts or the possible conviction of those responsible

Facts – The case concerned the death of a drug-addicted person who used drugs and alcohol and suffered from physical and mental disorders and served his sentence in Venice Prison. His relatives have brought an action against Italy complaining that the State has not complied with its obligation to protect the life of the deceased and effectively investigate his death which was a result of deliberate inhalation of gas from canisters provided to inmates for cooking.

Law –

Admissibility: The Government alleged that the applicant had not exhausted domestic remedies on the ground that he had not brought an action for damages before the civil courts. The Court observes that throughout the criminal proceedings, which lasted almost seven years, the applicant continued to avail himself of his rights as an injured party in order to accelerate the proceedings and obtain the committal for trial of the defendants. The Court sees no reason to consider that the applicant acted inappropriately when he chose to take part in the criminal proceedings and considers that the applicant had no reason to give up that possibility in order to try the civil proceedings. In this connection, it should also be recalled that, if a person has several domestic remedies at his disposal, he is entitled, for the purposes of exhausting domestic remedies, to choose one which is likely to lead to the redress of his main grievance. In other words, where one remedy has been used, the use of another remedy having substantially the same purpose is not required.

Merits: The Court held that the State has taken all reasonable measures to treat various conditions of the victim, including pharmacological and psychological detoxification therapies as well as medication treatment. Additionally, after a previous case of gas inhalation by the victim, he received immediate treatment and an investigation was carried out. In the days preceding the death of the victim, he has not shown any signs of physical or mental distress and the levels of his canister gas inhalation had not increased.

Conclusion: no violation of Article 2 (material)

Concerning the allegations of ineffective investigation of the death of the victim, the ECtHR held that the national authorities conducted an investigation with the necessary diligence, there was sufficient involvement of Mr Fabris, the uncle of the deceased, into the investigation process and he had the opportunity to exercise his procedural rights. The delays in the procedure were not excessive, and, in general, the way the investigation was conducted did not amount to a violation of Article 2 of the Convention.

Conclusion: no violation of Article 2 (procedural).

 

24 March 2020

Cantaragiu v. the Republic of Moldova (application no. 13013/11)

Art 34 • Locus standi • Death prior to the lodging of the application in circumstances allegedly engaging the responsibility of the State • Right of the applicant to act in his deceased brother’s name

Art 2 (substantive and procedural) • Life • Death of a young and healthy person as a result of a clear sign of ill-treatment while in detention • Lack of effective investigation

Art 3 (substantive and procedural) • Inhuman and degrading treatment • Effective investigation • Finding of a breach of Article 3 at national level but no ensuing investigation by the competent authorities contrary to the State’s obligation

Facts – The applicant, his brother and, subsequently, their father were suspected of committing murder. While being in pre-trial detention, the applicant complained about being ill-treated by police, however, the investigation regarding such ill-treatment was discontinued by the prosecutors, finding that no offence had been committed.

The applicant’s brother also complained of pains in his stomach and headaches.After some urgent medical treatment, he was transported to a hospital in a comatose state and died two days later.

Law –

Article 2:

The Court notes that the applicant’s brother, a former judo champion and aged only 21 at the time, was in good health when he was taken into the custody of the police. However, during his detention he died as a result of a rupture of his duodenum, a clear sign of ill-treatment. The Court recalled that in such circumstances there is a strong presumption that the death occurred as a result of the actions of the authorities, which must provide an adequate explanation of those actions in order to refute the presumption. No such explanation was given either at the domestic level, or by the Government in the present case.

Regarding the efficiency of the investigation of the death of the applicant’s brother, the Court pointed out that the investigation has only started one month after his death, without any reasons being given for such undue delay. No other investigation, except for the one concerning medical malpractice, was initiated. Additionally, the Supreme Court of Moldova has found that investigation ineffective.

Conclusion: violation of Article 2 (substantive and procedural limb)

Article 3:

As the Supreme Court of Moldova explicitly confirmed the ill-treatment and the ineffective investigation thereof (the prosecution has discontinued the investigation and destroyed the proof of such ill-treatment), there is no doubt that the State breached Article 3 of the Convention in respect of the applicant. Additionally, the Court expressed its concern with such a manifest disregard of the Convention obligations by national prosecuting authorities and doubted their ability to properly investigate subsequent cases in future.

Conclusion: violation of Article 3 (substantive and procedural limb)

 

31 March 2020

Jeanty v. Belgium (application no. 82284/17)

Art 2 (material) • Positive obligations • Prison authorities intervened quickly to effectively prevent several suicide attempts

Art 3 (substantive and procedural) • Inhuman and degrading treatment • Lack of psychiatric care given to a detainee with suicidal tendencies • Placement in solitary confinement for three days without taking into account the mental state of the applicant • Lack of effective investigation

Facts – The applicantmade three suicide attempts while in prison. After having been released on bail, a second arrest warrant followed as he has not complied with the bail conditions. While being in the pre-trial detention for the second time, he requested to be replaced to another cell, complained about his cellmates and threatened to commit suicide after having received a refusal from the administration of the prison. He was subsequently placed in an isolation cell under special surveillance. After having been isolated, Mr Jeanty attempted to commit suicide but was prevented from doing it by the prison guard. The prison administration has put a helmet on him and handcuffed him to prevent him from injuring himself and subsequently ordered a disciplinary sanction of his placement in an isolation cell for three days.

Law –

Article 2:

First, the ECtHR considered that the administration of the prison has taken necessary steps to prevent the applicant from committing suicide by removing all objects and his personal effects, a tranquiliser was administered by a doctor, special surveillance was also provided for several days.

Conclusion: no violation of Article 2

Article 3 

The Court noted that the applicant's psychological fragility and suicidal tendencies had been noted by the judge, the prison doctor and a psychiatric expert. Consequently, the applicant's state of mental health had, at the very least, to be taken into consideration in decisions concerning his prison regime and his continued detention. If the authorities failed to order the applicant's placement in a psychiatric institution, they should at least provide him with medical care appropriate to his condition. In view of the applicant's psychological fragility and the behavioural problems which appeared immediately after his placement in pre-trial detention, it was for the authorities to have him examined by a psychiatrist in order to determine whether his psychological state was compatible with detention and what therapeutic measures should be taken. The applicant's treatment was defined without consulting specialists in psychiatry, which the Court has already found to constitute serious shortcomings in the medical care provided to a mentally ill person with known suicidal tendencies. Nor do the prison doctors appear to have questioned the adequacy of the applicant's detention in an ordinary prison cell with his state of mental health.

 Moreover, the prison director failed to inform the judge of the suicide attempts, even though the judge was the only person who, at that time, had the power to order that the applicant be placed under observation in the psychiatric annexe of a prison. It thus appears that the applicant suffered from the structural shortcomings in the provision of psychiatric care.

In addition, the Court recalled that in the case of mentally ill persons, account must be taken of their vulnerability and their inability, in certain cases, to complain coherently or at all about the effects of a given treatment on their person

As regards the special protective measures taken after the first suicide attempt, the Court considered that they had not been extended beyond the necessary time. By contrast, as regards the subsequent placement in solitary confinement, it was decided as an interim measure and then confirmed as a disciplinary sanction, on account of the applicant's threats to his life. This sanction was applied for a period of three days. For the first 24 hours the applicant remained naked, shackled and wearing a helmet without any medical examination. Admittedly, the doctor's order to put on a helmet and handcuff the applicant and to remove his clothing was intended to protect him from himself, in view of his suicide attempt. That said, this measure was apparently decided without taking account of the applicant's mental state, and without any reassessment of the need to maintain the applicant's shackles and nakedness for 24 hours. The Court noted that the CPT has already indicated that it considers that keeping a prisoner naked in a cell amounts to degrading treatment and recommended that the Belgian authorities abandon the use of disciplinary cells in the context of psychiatric emergencies.

As to the procedural aspect, the complaint of Mr Jeanty regarding this ill-treatment was not effectively investigated, the length of the procedure of more than eight months and the severity of the acts complained of and the very limited set of measures ordered by the judge to investigate the circumstances left no doubt that no effective investigation was at issue.

Conclusion: violation of Article 3 (both substantive and procedural limbs).

 

2 April 2020

Kukhalashvili and Others v. Georgia (applications nos. 8938/07 and 41891/07)

Art 2 (substantive) • Indiscriminate and excessive use of lethal force during anti-riot operation in prison conducted in uncontrolled and unsystematic manner without clear chain of command • Use of lethal force justified by unlawful violence and risk of insurrection • Authorities’ failure to consider less violent means or possibility of negotiations • Ill-treatment and disproportionate use of force persisting after the end of the operation • Authorities’ failure to provide adequate medical assistance • Government’s failure to account for each of the relevant deaths • Court’s reliance on all material available, including NGO reports, when it is prevented from establishing facts for reasons attributable to State

Art 2 (procedural) • Investigation undermined by belated launch, lack of independence and impartiality, insufficient involvement of the deceased’s next of kin and prohibitive delays in proceedingsFacts – In 2006, an anti-riot operation was conducted in a Tbilisi prison in which at least seven inmates, including members of the applicants' families, were killed by the anti-riot forces. Dozens of other inmates were seriously injured.

Law –

Article 2 (procedural aspect): The investigation into the law‑enforcement agents' use of force had been launched after a three-month delay by the same unit from the Ministry of Justice which had given the order to storm the prison and had been in direct command of the anti-riot squad. The investigation had not examined the planning of the anti-riot operation or the use of lethal or physical force. In addition, as evident from the statements of senior prosecution officials, the State authorities had been predisposed to discount any wrongdoing on the part of the law-enforcement agents. The investigation had therefore lacked independence and impartiality. The involvement of the deceased's next of kin and public scrutiny into the relevant investigation had been virtually non-existent. Lastly, the investigation had not produced any conclusive findings. The delays in proceedings had been prohibitive. In light of the foregoing, the investigation had been ineffective.

Conclusion: violation (unanimously).

Article 2 (substantive aspect)

(a) Methodology of the Court’s scrutiny – The domestic courts had not been given a chance to establish the relevant facts because the proceedings regarding the alleged abuse of power by State agents during the anti-riot operation had still been ongoing. And there had been no parliamentary inquiry, even though such a massive incident had shaken the country and attracted significant international attention. In such circumstances, when the Court was prevented from having knowledge of the exact circumstances surrounding the anti-riot operation for the reasons objectively attributable to the State authorities, it was for the respondent Government to explain, in a satisfactory and convincing manner, the sequence of events and to exhibit solid evidence that could refute the applicants’ allegations. If the Government failed to do so, the Court might then draw strong inferences. Since it was ultimately for the Court to make its own findings and reach its own conclusions on the applicants’ allegations, it drew on all the material available, including the factual findings of the relevant domestic and international human rights observers and the results of the investigation launched against the six riot organisers.

(b) Whether the use of lethal force was legitimate – The use of lethal force for purely punitive, retaliatory purposes, even if those purposes targeted alleged members of the criminal underworld, could not be justified under Article 2 § 2.

The Government’s argument that there had existed an imminent and real danger to the lives of prison guards as a result of the gunshots coming from some of the most aggressive prisoners behind the barricades had been sufficiently convincing. The law-enforcement officers could indeed have subjective good reasons to believe that the use of force had been necessary. The conduct of the inmates had shown certain signs of being an attempted uprising. In light of the foregoing, the respondent State could resort to measures involving potentially lethal force.

(c) Whether the use of lethal force was proportionate – The authorities had been aware of the criminal bosses' plans to instigate disobedience in prisons well before the incident. Nevertheless, the officers of the anti-riot squad had not received specific instructions and orders from their superiors regarding the requisite form and intensity of any use of lethal force in order to keep the likelihood of casualties to a minimum. Having recourse to automatic weapons within the close confines of the prison walls would necessarily have meant that the risk of causing fatalities had been inordinately high. The Government had failed to produce any evidence to show that the anti-riot squad had acted in a controlled and systematic manner, under a clear chain of command. According to the evidence collected by Human Rights Watch, the competent authorities had not even known exactly who had been in charge of the anti-riot operation.

The competent authorities had not even considered using alternative, less violent means of suppressing the incident in the prison, such as teargas or water cannons. This had been apparently a consequence of the lack of any strategic planning as to how the anti-riot operation would be carried out. Moreover, as reported by Amnesty International and Human Rights Watch, the gunshots in the inmates' direction had come not just from the anti-riot squad inside the building, but also from shooters situated outside on the roofs of neighbouring buildings, with stray bullets entering prison cells through the windows. Those facts had shown that the use of lethal force by the anti-riot squad had been indiscriminate and excessive. Furthermore, as reported by Human Rights Watch, no serious attempts had been made to conduct negotiations with the prisoners behind the barricades, even though the latter had clearly shown readiness to enter into such negotiations. In this respect, it was appropriate to restate that a prison population was by its nature a vulnerable group, in need of the protection by the State.

According to the relevant international reports, the authorities had failed to provide adequate medical assistance to the prisoners after the termination of the anti-riot operation. Since the hazard had been predictable, the relevant authorities' obligation to come up with a proper medical evacuation plan had been even greater. Furthermore, according to credible reports, numerous detainees had been ill-treated and even shot in their cells, even though they were no longer putting up resistance. Lastly, neither the competent domestic authorities nor the respondent Government had provided information regarding the individual fates of the applicants’ family members who had been killed during that operation. Having regard to the treatment to which the State agents subjected the detainees after the termination of the anti-riot operation, the Government's failure to account for each of the relevant deaths had appeared to be a particularly grave shortcoming, a consequence of the seriously defective domestic investigation.

Conclusion: violation (unanimously).

Article 41: EUR 40,000 for the first and second applicants jointly and EUR 32,000 for the third applicant in respect of non-pecuniary damage; claim for pecuniary damage dismissed.

 © Council of Europe/European Court of Human Rights

 

9 April 2020

Shmelev and Others v. Russia (application no. 41743/17 and 16 others)

Article 35-1• Failure to exhaust newly introduced compensatory remedy in respect of improper conditions of past pre-trial and correctional detention in breach of domestic standards

Facts – All applicants were detained in various Russian detention facilities, before or after their conviction in criminal proceedings. When their complaints about breaches of Articles 3 and 13 due to the material conditions of detention were communicated to the respondent Government, the detention of some of the applicants had ended, while it continued for others.

On 27 January 2020, the Federal Law no. 494–FZ (hereinafter, the Compensation Act), adopted on 27 December 2019, entered into force. It provides that any detainee who alleges that his or her conditions of detention are in breach of the national legislation or international agreements of the Russian Federation can apply to a court. The detainee can seek a judicial finding of the violation in question and financial compensation for any such violations. The courts can consider complaints that raise various problems of detention, including overcrowding, and award compensation without the prerequisite of establishing any official’s guilt or unlawful conduct. The claim should be lodged while the detention in question is ongoing or within three months of its termination. Persons whose detention has ended and had complaints pending before the European Court on the date when the Compensation Act entered into force, or whose complaints were dismissed for reasons of non-exhaustion, have 180 days to lodge their complaints.

A number of other developments occurred in the domestic legislation and practice since the Court's pilot judgment in Ananyev and Others and its Sergey Babushkin judgment.

Law – Article 35 § 1: The Court was satisfied that the procedural requirements of access to the compensatory scheme were simple and accessible and did not excessively burden claimants either procedurally or in terms of cost. The Court was also satisfied that the procedure was equipped with the requisite procedural guarantees associated with adversarial judicial proceedings, such as independence and impartiality and the right to legal assistance. There were safety measures to take into account the special situation of detainees. The courts were equipped with the ability to apply preliminary measures, such as ordering a detainee’s transfer to other premises or a medical examination. Furthermore, the courts were reminded of the need to treat any motion for withdrawal of a complaint by a detainee with caution. The adjudication of administrative complaints was based on shifting the burden of proof to the administration. The courts were instructed to bear in mind the difficulties faced by detainees in collecting evidence and were encouraged to play an active role in identifying and obtaining evidence. A complaint had to be considered within a month or processed immediately, if there were special circumstances calling for urgency. There was thus no reason to assume that the claims would not be processed within a reasonable time, or that the compensation would not be paid promptly. The Court was also satisfied that the domestic authorities and competent courts had been sufficiently apprised of the Court’s own practice and the criteria that needed to be taken into account when making a compensation award.

Where the detention is over, a compensatory remedy can suffice to provide applicants with fair redress for alleged breaches of Article 3. Therefore, in situations where the pre-trial or correctional detention was over, the new Compensation Act presented, in principle, an adequate and effective avenue for obtaining compensatory redress and offered reasonable prospects of success to applicants.

The applicable provisions of the Russian legislation set different standards of personal space for pre-trial detention (four square metres per detained person) and correctional detention for male convicts in colonies or prisons (two and two-and-a-half square metres). However, the Court’s consistent practice has been to regard three square metres of floor surface per person as the relevant minimum standard under Article 3 (see Muršić v. Croatia). Therefore, the Court distinguished between cases where the applicants’ conditions of detention had fallen below the national standards and those cases where the minimal available space was in line with the national standards but would still raise a prima facie issue under Article 3.

Accordingly, whenever a complaint was made about past breaches of Article 3 by inadequate conditions of pre-trial or correctional detention falling below domestic standards, actual or potential applicants were expected to exhaust the newly introduced compensatory remedy before lodging their complaints with the Court. Even though the domestic remedy had not been available to the applicants at the time when they had applied to the Court, the situation justified a departure from the general rule on exhaustion and required the applicants in question to seek compensation under the Compensation Act. The Court was prepared to change its approach as to the effectiveness of the remedy in question, should the practice of the domestic courts show, in the long run, that complaints were being refused on formalistic grounds, that compensation proceedings were excessively long, that compensation awards were insufficient or were not paid promptly, or that domestic case-law was not in compliance with the requirements of the Convention and the Court’s case-law.

Conclusion: inadmissible (non-exhaustion of domestic remedies).

The Court invited the parties to submit further observations in order to clarify the effectiveness of the preventive remedies in respect of the pending pre-trial and correctional detention in conditions incompatible with Article 3, as well as the effectiveness of the newly introduced compensatory remedy in respect of past correctional detention in conditions complying with domestic standard, but falling below minimal Article 3 standard.

Pending its examination of the questions as outlined above, and the adoption by the domestic authorities, subject to supervision by the Committee of Ministers, of the necessary measures at national level, the Court decided not to deal with any applications of which the Government had not yet been given notice where the sole or main complaint concerned overcrowding and other aspects of poor material detention conditions in pre-trial and post-conviction detention facilities in Russia. The Court might nevertheless decide at any moment to declare any such case inadmissible or to strike it out, for example in the event of a friendly settlement between the parties or the resolution of the matter by other means, in accordance with Articles 37 or 39 of the Convention. However, the Court might continue its examination of applications of which notice had already been given to the respondent Government. 

© Council of Europe/European Court of Human Rights

 

12 May 2020

Korostelev v. Russia - application no. 29290/10

Freedom of religion • Muslim prisoner reprimanded for performing acts of worship at night in breach of prison schedule • Authorities formalistic approach to prison discipline • Acts of worship not posing any risks to prison order or safety or disturbing prison population • Reprimand having chilling effect on other prisoners • Failure of domestic courts to identify legitimate aim of impugned interference or carry out balancing exercise • violation of Article 9

Facts - The applicant, a practising Muslim, had been reprimanded on account of his misconduct in prison – namely, two acts of worship (“Salah”) at night time, when “sleep without interruption” was prescribed for all detainees.

Law - The applicant had been reprimanded for a breach of the prison schedule and for disregarding the prison guards’ orders to return to his sleeping place. The imposition of a disciplinary punishment on the applicant, even in such a lenient form as a reprimand, amounted to an interference with his right to freedom of religion. The question was whether the interference had been justified and necessary in a democratic society.

It appeared that the only reason for disciplining the applicant had been the formal incompatibility of his actions with the prison schedule and the authorities’ attempt to ensure full and unconditional compliance with that schedule by every prisoner. Although the Court recognised the importance of prison discipline, it could not accept such a formalistic approach, which palpably disregarded the applicant’s individual situation and did not take into account the requirement of striking a fair balance between the competing private and public interests.

It was of particular importance for the applicant to comply with his duty to perform acts of worship at the time prescribed by his religious belief. That duty had to be complied with every day, not least during Ramadan. There was nothing to suggest that the applicant’s adherence to acts of worship at night-time posed any risks to prison order or safety. The applicant had not used dangerous objects or sought to engage in collective worship in a large group together with other prisoners. Moreover, the applicant’s worship had not disturbed the prison population or the prison guards, because he had performed Salah while in solitary confinement, without any noise or other disturbing factors. Lastly, it did not appear that performing Salah had left the applicant exhausted or could have undermined his health or his ability to participate in criminal proceedings.

The prison schedule did not explicitly set out “time for worship” or “personal time” which could be used at the discretion of prisoners as recommended by the European Prison Rules.  In the circumstances of the case no special arrangements on the part of the authorities would have been required to have respected the applicant’s wish to worship.

Lastly, being a form of disciplinary punishment, the reprimand had not only decreased the applicant’s chances of early release, mitigation of the prison regime, or of obtaining a reward, but also had a chilling effect on other prisoners. The proportionality of that sanction had not been assessed by the domestic courts in a meaningful manner. The latter had confined their inquiry to whether or not the applicant’s conduct had breached the prison schedule. They had failed to identify the legitimate aim of the impugned interference in the applicant’s freedom of religion, or to carry out a balancing exercise.

In the light of the above, the interference with the applicant’s freedom of religion could not be regarded as having been necessary in a democratic society.

Conclusion: violation of Article 9 (unanimously).

Article 41: EUR 2,600 in respect of non-pecuniary damage.

© Council of Europe/European Court of Human Rights

 

 14 May 2020

Astruc v. France (dec) - application no. 5499/15

Article 3 (substantive+procedural) • Solitary confinement •Prisoner placed in solitary confinement for two and a half months for having acquired illicit but not dangerous items • Minimum procedural guarantees aimed at avoiding any risk of arbitrariness observed • No indication of a worsening of the state of mental health

Facts – The applicant was held in pretrial detention. The prison administration had intercepted his telephone calls and found out that the applicant used outside contacts to obtain prohibited services. After that, he was placed in solitary confinement as it was found that he possessed items brought to him from outside the prison. Mr Astruc appealed this decision, but the complaint was rejected. He was later admitted to the prison hospital’s psychiatric unit but left it two days later and was returned to the solitary confinement.

A subsequent application from Mr Astruc followed wherein he requested a stay of execution of the confinement decision, arguing that his state of health had deteriorated and the possession of the items (such as personal hygiene products) did not pose any risk to the prison or other individuals. This appeal was also dismissed.

After the seizure of the prohibited items, the applicant was placed in confinement in an ordinary cell for seven days. This measure was subsequently lifted. The appeal of Mr Astruc was declared inadmissible.

Law – The Court first noted that the decision to place the applicant in solitary confinement was based not on the degree of danger from the items illegally possessed by him but on his significant financial capacities that enabled him to obtain services from outside contacts, which breached public order in the prison. The measure had as its aim to investigate the method that allowed Mr Astruc to procure unauthorised times and prevent him from continuing to do it.

As regards the state of health of the applicant, the Court found that there was no indication that it had worsened after Mr Astruc was released from the hospital. He had also been regularly monitored by the medical teams and he did not require any adaptation of his detention conditions. 

On account of the procedural safeguards, the Court has noted that there had been an adversarial hearing regarding the applicant’s solitary confinement where he and his lawyer had been present, as well as the prior written submissions by Mr Astruc. He also had an opportunity to appeal to the urgent applications judge several times, and his last application was accepted. Therefore, there was no infringement of his procedural rights under Article 3 by the State.

The Court rejected the application as manifestly ill-founded.

Conclusion: no violation of Article 3.

 

Kadagishvili v. Georgia - application no. 12391/06

Art 3 (material) • Degrading treatment • Poor conditions of detention • Overcrowding

Art 3 (material) • Inhuman and degrading treatment • Inadequate medical supervision and treatment while in prison

 Art 34 • Hinder the exercise of the right of application • State failure to comply with interim measure indicated by the Court under Rule 39

Facts – The first and the third applicants complained that they had not received adequate medical care in prison. They further submitted that the conditions of their detention had been contrary to the standards established under Article 3 of the Convention.

As regards the medical treatment in prison, the first applicant submitted that he had not been provided with adequate care for his diabetes – with which he had been diagnosed before incarceration – as well as various other health issues of his. Daily insulin injections had been routinely administered with a delay of thirty to sixty minutes. Those injections, as well as other medication and examinations for his various health conditions had been, according to the first applicant, provided to him by his family rather than the State. Until the indication of an interim measure by the Court, the first applicant had been checked by a doctor on only occasionally. The first applicant further maintained that he had not received the special diet required by his health condition as prescribed by a specialist doctor.

The third applicant submitted that his state of health had deteriorated during the time spent in prison and that the Government had failed to administer the necessary treatment and a special diet, as expressly admitted by the prison authorities. He also submitted that he had refused to undergo surgery offered to him by the Government following the indication of interim measures by the Court, as the Government had failed to provide him with a less painful but more expensive procedure which he eventually underwent at his own expense. In any event, that procedure was, according to the third applicant, belated.

After the complaint was lodged with the ECtHR, the representatives of the first and third applicants have informed the Court of the deterioration of the applicants’ state of health due to the inadequate treatment and requisite diet in the prison. The President of the Section has advised the Government to transfer the applicants to a special medical establishment capable of providing adequate treatment of their diseases. The Government argued that there was no need for the placement of applicants to a medical establishment as they have already been moved to the recently refurbished prison with eight doctors and a dentist, and their state of health was stable.

Law –

Article 3 of the Convention

(a) Medical care

i. Admissibility

The Court has already assessed the effectiveness of the remedies referred to by the Government (see Goginashvili v. Georgia, no. 47729/08, §§ 51-61, 4 October 2011). In this connection, the core of the first and the third applicants’ complaint relates to the period prior to 1 October 2010, the date when the Penal Code entered into force and established a clear complaints procedure (ibid., §§ 58 and 60). Considering that the applicants alerted the prison authorities to their health-related issues and needs, the Prison Service was well aware of the first and the third applicants’ medical conditions necessitating treatment and of their complaints in that connection.

ii. Merits

The Court has examined the complaints of the first applicant concerning the inadequacy of the medical care for his diabetes and related health issues, the alleged delay in the administration of insulin injections, the failure of the prison authorities to provide him with the necessary special diet, and the supplementation of his medication and medical care by his family. The Court has found a violation of Article 3. As no medical records on the state of health of the first applicant were available, his condition has aggravated, allegedly due to inadequate medical treatment. He was not provided with a special diet, therefore, the Court has found no indication that the first applicant’s environment in detention was adapted to his state of health.

As regards the third applicant, the Court has noted that various diagnoses (such as a benign brain tumour and complaints of weakness, insomnia, and permanent headaches) were known to the prison authority. It was not clear to which extent conservative therapy prescribed by an external medical expert was provided to the third applicant. No medical history has been established regarding the applicant during his detention in the ordinary prison cells of Tbilisi prison no. 5 and Rustavi prison no. 2. No diet necessary for his conditions was provided to the third applicant in Rustavi prison no. 2. The Court has concluded that there has been a violation of Article 3 in respect of the third applicant’s medical treatment in prisons.

Conclusion: violation of Article 3 of the Convention.

(b)  Conditions of detention

As regards the inadequate conditions of detention of cell no. 130 of Tbilisi prison no. 5, the ECtHR has established on several occasions that those conditions, especially prison overcrowding, were not compatible with Article 3 of the Convention. Additionally, the applicants’ descriptions of the prison conditions corresponded to the findings of the CPT and Human Rights Watch. The Government has not submitted any observations to counter the submissions of the applicants in that regard. The Court has, therefore, declared that the State has violated Article 3 in respect of the conditions of detention in cell no. 130 of Tbilisi prison no. 5.

Conclusion: violation of Article 3 of the Convention.

Article 34 of the Convention

The Court stresses that the provision of a generic note of a duty doctor of that prison, stating that the first applicant’s condition was stable and that he had been provided with adequate treatment on the medical ward of the prison cannot suffice to support the Government’s argument that there was no need to place him at an external or dedicated prison medical facility. The main purpose of the interim measure in the present case was to prevent the applicants’ exposure to inhuman and degrading suffering in view of their poor health. In its interim measure, the Court therefore advised the Government to transfer the applicants to a medical establishment capable of dispensing adequate medical treatment for each of their diseases. The Government’s failure to provide the Court with the relevant medical documents and its insistence that there was no need to place the first applicant in an external or dedicated prison medical establishment, without demonstrating that the facility where the first applicant was placed had been able to provide him with the adequate treatment for each of his diseases, impaired the content and purpose of the interim measure. Accordingly, in so far as the first applicant is concerned, the Government failed to demonstrate to the Court that the interim measure was complied with.

The Court concludes that the respondent State has failed to comply with the interim measure indicated under Rule 39. By contrast, the Government complied with the interim measure indicated by the Court in so far as the third applicant is concerned.

Conclusion: violation/ no violation of Article 34 of the Convention.

 

26 May 2020

I.E. v. the Republic of Moldova - application no. 45422/13

Art 3 (substantive) • Positive obligations • Failure to prevent ill-treatment in prison • Juvenile with mental disability in pre-trial detention placed in cell with violent crime offenders, plus insufficient reaction to clear and medically confirmed indications of injuries

Art 3 (procedural) • Positive obligations • Investigation into allegations of beating and rape by cellmates • Failure to react at first signs, even without formal complaint • Prison guard aware detainee had been beaten • Belated medical examination rendering it useless

Facts – The case concerned the placement of a minor with a mental disability in a prison cell with detainees accused of serious crimes, including rape. The applicant was 17 years old at the time of his arrest.

The applicant was placed in a cell with four detainees who had been convicted of serious offences, such as murder and sexual violence, as well as the rape of a minor. After prison staff noticed the applicant limping and an injury under his eyebrow, he was seen by a doctor. He was subsequently seen by a doctor with new injuries. When questioned about the first incident, he said that he had slipped and hurt himself.

The applicant later admitted that he had been severely beaten and anally raped by his five cellmates. The prosecutor has not opened an investigation, based on the examination by a proctologist who found no sign of penetration. After that decision was annulled, a new investigation was opened and the applicant’s cellmates were indicted on charges. The investigations were completed. The applicant was diagnosed as slightly mentally retarded. The proceedings were still ongoing at the time of the examination of the case by the ECtHR.

Law -

(a)   The State’s positive obligation to prevent ill-treatment

The Court recalls that international standards allow for a certain degree of latitude relating to the manner in which the separation of juvenile and adult offenders is to be effected, including the placement of juvenile offenders in separate parts of institutions normally designed for adult inmates. This, in itself, does not amount to a breach of Article 3 and the Court needs to assess whether the conditions of detention, taken as a whole, comply with the State’s obligation (Kuparidze v. Georgia, no. 30743/09, § 60, 21 September 2017).

It further proceeded to the assessment of the applicant’s situation as a minor with a suspected mental disability who was placed in pre-trial detention for the first time. The situation of his placement in a prison cell with four other detainees accused of grave offences, including the rape of a minor, itself created a risk of the applicant being abused. The Court has emphasised the duty of authorities to react to signs of ill-treatment even in the absence of a formal complaint, which did not happen in the present case.

The Court concludes that (i) the applicant’s placement in a cell with persons already convicted of very serious, violent offences, (ii) his special vulnerability as a minor and as a person with mental disability, and (iii) the insufficient reaction to clear and medically confirmed indications of ill-treatment, all contributed to the creation of conditions in which he was exposed to a serious risk of ill-treatment by co-detainees. Conclusion: violation of Article 3 of the Convention (substantive limb).

(b)   Investigation into the applicant’s ill-treatment and rape

The Court has noted that the prosecutor initially refused to open a criminal investigation owing to the conclusion of the proctologist who did not observe any visible signs of anal penetration. However, more than a week elapsed between the alleged rape and the examination of the applicant, which could lead to the disappearance of any visible signs. The proctologist did not indicate in the medical report that medical evidence could neither confirm nor deny the applicant’s allegations, and the prosecutor has used the report of the proctologist as definitive proof of the absence of signs of rape. Despite the vulnerability of the applicant and the signs of injuries, the authorities did not initiate an investigation. Additionally, no such investigation was opened after the subsequent injuries had been inflicted. Four months elapsed between the alleged ill-treatment and the beginning of a criminal investigation, and the case was pending before the first-instance court for five years.

As to the argument that the applicant’s own failure to report the abuse until several weeks after the events in question contributed to the length of the investigation and to difficulties in verifying the allegations, the Court reiterates that according to the long-standing case-law, the authorities must take into account the particularly vulnerable situation of victims and the fact that people who have been subjected to serious ill‑treatment will often be less ready or willing to make a complaint.

The Court considers that the manner in which the applicant’s abuse in prison has been investigated, including the delays due to the authorities’ failure to interview a key specialist at the relevant time and their failure to react to clear signs of ill-treatment (even before a formal complaint was made) – together with the long overall period during which not a single judgment was adopted – allow it to conclude that the authorities have not properly discharged their positive obligation to investigate effectively.

Accordingly, the Government’s objection that the applicant had not exhausted the available domestic remedies by lodging his application without awaiting the result of the investigation must be rejected.

Conclusion: violation of Article 3 of the Convention (procedural limb).

 

28 May 2020

Dîrjan and Ştefan v. Romania  (dec.) - applications nos. 14224/15 and 50977/15

National mechanism of compensation for poor conditions of detention • Loss of victim status.

Facts – Following the pilot judgment Rezmiveș and Others v. Romania (61467/12 et al., 25 April 2017, ), Law no. 169/2017 introduced compensation in the form of a reduction in the prison sentence to be served, which was expressly granted in the event of poor conditions of detention in various prisons or police cells in the period from 24 July 2012 to 20 December 2019.

The applicants were granted a reduction of sentence in that context. The eligibility of the first applicant for release on licence was brought forward by two months and for the second applicant the reduced length of imprisonment had already been served; thus they were both released early.

Law – Article 3 (substantive limb): As the two detailed conditions below had been fulfilled, the Court reached the conclusion that the applicants had lost their status as “victims” of the poor conditions of detention in which they had been held.

(a) The national authorities acknowledged the violation of Article 3 of the Convention – This acknowledgment had been given in essence, through Law no. 169/2017, the aim of which was to compensate the applicants for the period of detention in conditions which breached Article 3.

The assessment of those conditions was made by a board specially created by law on the basis of criteria in line with the minimum standards of the Council of Europe and the Court’s case-law (living space, the possibility of engaging in activities outside the cells, light, ventilation and temperature of cells, use of sanitary facilities and respect for hygiene, and the state of the cell walls).

(b) The redress had been appropriate and adequate – On a general level the Court found as follows:

– The reduction in sentence granted to the applicants corresponded to six days for each thirty-day period of detention in poor conditions, this being greater than the reduction already found appropriate by the Court in Stella and Others v. Italy (dec.) (49169/09 et al., 16 September 2014, I): one day of reduction for ten days of detention).

– The calculation of the reduction to be applied had been carried out by the detention management offices and the direct benefit of the reduction had been the early release of the prisoners.

– Under Romanian law the procedure for release on licence was initiated either by the prisoners themselves or by release boards, and such requests were in principle examined once a week.

In the present case the applicants had thus benefitted from a reduction in sentence of 324 and 318 days respectively, in that context, enjoying the direct effect of their early release and thus an end to the alleged violation.

Even though the compensatory remedy in question was only temporary, the Secretariat of the Council of Europe had confirmed that it had a measurable impact on the length of sentence and contributed to a reduction in prison overcrowding, and the Committee of Ministers itself had found this compensation to be effective in cases concerning detention conditions (CM/Del/Dec(2018)1310/H46-13, 15 March 2018).

Conclusion: inadmissible (loss of victim status).

© Council of Europe/European Court of Human Rights

 

2 June 2020

N.T. v. Russia - application no. 14727/11

Art 3 • Inhuman and degrading treatment • Life prisoners automatically placed, for the first ten years of their sentence, under a strict regime involving segregation, limited outdoor exercise and a lack of purposeful activity • Confinement in double cell having negative effects similar to those of solitary confinement and thus requiring adequate justification • Failure to respect European Prison Rules requiring that security measures be the minimum necessary and regularly reviewed • Routine prolonged handcuffing exceeded legitimate requirements of prison security

Art 46 • General measures • Systemic problem • Reform of regulatory framework required

Facts – Under Russian law, all persons sentenced to life imprisonment have to spend the first ten years of their sentence under a strict regime. Under this regime, the applicant, a life prisoner, was detained separately from other convicts in cells holding no more than two people. Several years of his sentence were spent in solitary confinement. Locked up in his cell without any purposeful activity, such as work or education, he was allowed to leave it only for 90 minutes of outdoor exercise. His contact with the outside world and ability to spend money were significantly restricted. In addition, during the first five years of his imprisonment, the prison guards routinely handcuffed the applicant, even when he had to empty his heavy thirty-litre lavatory bucket into a cesspool outside the building. This caused him physical pain.

Law–

Article 3 (substantive aspect)

(a) Strict regime of imprisonment – Confinement in a double cell might have negative effects similar to those of solitary confinement. Only particular security reasons, which had obtained throughout detention, might justify prolonged isolation. By the same logic, adequate justification was required for the prolonged detention of prisoners in double cells if the intensity and duration of their segregation were so significant that the effect was comparable to solitary detention, particularly regarding their well-being and social skills.  The government had not provided any justification for the applicant’s solitary confinement. The applicant had been segregated for years solely on the ground of his life sentence, which, in the Court’s view, was not sufficient to warrant such a measure. That situation had run counter to the Recommendation Rec(2003)23 of the Committee of Ministers of the Council of Europe and the European Prison Rules. The first instrument highlighted the importance of the principle of non‑segregation and the second explicitly required that the security measures applied to prisoners be the minimum necessary to ensure their custody and that they be reviewed at regular intervals throughout a person’s imprisonment.

Taken cumulatively, the applicant’s isolation, limited outdoor exercise and lack of activity had resulted in intense and prolonged feelings of loneliness and boredom, causing him significant distress. Moreover, due to the lack of appropriate mental and physical stimulation, that situation could have resulted in the loss of social skills and individual personal traits.

(b) Routine handcuffing – While the applicant had been registered on the list of dangerous prisoners, during the entire period of his detention in a highly secure facility he had never breached prison discipline. His systemic handcuffing for more than five years had therefore palpably exceeded the legitimate requirements of prison security. It had diminished his human dignity and caused him feelings of inferiority, anguish and accumulated distress going far beyond the unavoidable suffering and humiliation inherent in a sentence of life imprisonment.

Conclusion: violation of Article 3 (unanimously).

Article 46: The violation found stemmed in large part from the relevant provisions of domestic law and therefore disclosed a systemic problem. A further reform of the existing regulatory framework was required. The choice of instruments remained fully at the discretion of the respondent government, which  might decide to remove the automatic application of a strict regime to all life prisoners, put in place provisions envisaging that such a regime could only be imposed – and maintained – on the basis of an individual risk assessment of each life prisoner and be applied for no longer than strictly necessary and (or) mitigate the modalities of the regime, particularly those concerning physical restrictions, isolation and access to various activities for the purpose of socialisation and rehabilitation.

Article 41: EUR 3,000 in respect of non-pecuniary damage.

© Council of Europe/European Court of Human Rights

 

Potoroc v. Romania (application no. 37772/17)

Art 3 (substantive) • Inhuman and degrading treatment • Inadequate medical care and assistance during the detention for two years and seven months of a seriously ill person confined to a wheelchair • Domestic courts’ decisions assessing the compatibility of the detention with the applicant’s health based on medical reports confirming his ability to remain in prison under the impugned conditions of detention • No adequate measures to accommodate his needs for daily assistance despite help from other inmates • Conditions of detention incompatible with respect for human dignity

Facts – The applicant was serving a sentence of 15 years’ imprisonment. He has various medical disorders, including in particular brain damage following several strokes, and has to use a wheelchair. He had been in various hospitals up until his release in 2017. For two years, from March 2015 until September 2017, he had been held in prison. Several proceedings first confirmed that adequate medical care was available in prison and that the applicant could get all necessary treatment in the prison hospital, however, he needed constant help from a personal assistant.

The applicant complained that he had never gotten a personal assistant and only had received help from the inmates, which cannot be considered as appropriate. He also complained that the conditions of detention amounted to exceptional hardship owing to his advanced age, significant health problems, and the inadequacies of the medical treatment he had received.

Law – The Court observed the circumstances of the applicant’s complaint regarding the incompatibility of his detention with his state of health. Some of the national courts, having examined the medical reports, concluded that the applicant’s state of health was compatible with the conditions of detention, provided that he would be medically supervised in specialist medical units and with the assistance of a personal assistant. There were, however, other judgments of the national courts who granted him a release on humanitarian grounds, as his state of health was described as being “dreadful”. However, the Court observed that the sole reason provided in the national legislation is the report of the medical expert that confirms the incompatibility of the accused person’s health with the detention. Therefore, the Court concluded, the present case is not about the question of the applicant’s fitness for the serving of his sentence, but rather the quality of the medical treatment provided.

The ECtHR proceeded to examine whether the quality of medical care corresponded to the level required and needed by the applicant in the particular circumstances.

The domestic courts confirmed that the applicant was in need of a personal assistant, especially after the ischemic stroke suffered by Mr Potoroc. Instead of being provided with the assistant, the applicant received some help from inmates who provided collective assistance or, unofficially, by other fellow inmates. However, the Court has emphasised that such unqualified help could not constitute adequate help for an individual suffering from a serious illness. The applicant has also suffered from organic brain syndrome and sometimes had symptoms of depression; therefore, the help of inmates could not be considered either suitable or sufficient. The wheelchair was provided to him at his own expense, as no assistance from the prison authorities was provided to that effect. After the overall assessment, the Court concluded that the care provided to the applicant in view of his state of health does not demonstrate that the State worked to ensure that the applicant was detained in conditions compatible with respect for his human dignity. Therefore, there has been a violation of Article 3 of the Convention.

Conclusion: violation of Article 3 of the Convention (substantive limb).

 

9 June 2020

Erlich and Kastro v. Romania (application nos. 23735/16 and 23740/16)

Art 9 • Positive obligations • Adequate measures by the prison authorities in the execution of a judgment recognising the right of prisoners of the Jewish faith to eat kosher meals • Tailor-made solution applicable without delay and palliating the absence of a specific regulatory framework for prisoners of the Jewish faith • Requirement of strict special conditions for the preparation of kosher meals having an impact on the extent of the margin of appreciation allowed to the State • Importance of the prison authorities' collaboration with a Jewish religious foundation • Provision of a separate kitchen for the preparation of meals by the prisoners in question • Possibility for the claimants to obtain the necessary products by their own means and to seek reimbursement of the costs by means of a separate civil action

Facts – The two applicants are Israeli nationals of Jewish faith detained in prison. They complained of an infringement of their freedom of religion on account of the failure of the prison authorities to provide them with meals complying with the precepts of their religion.

Law – The applicants’ complaints were examined in light of the positive obligations flowing from Article 9.

Judaism is one of faiths religions officially recognised by the Romanian State. National legislation sets out the procedure for implementing the exercise of the right to freedom of religion in prison, including provisions on foodstuffs required for the observance of religious precepts. The relevant legislation contains a sufficiently foreseeable and detailed general prescriptive framework. The decision of whether or not to adopt detailed regulations on the practical exercise of a given religion in prison falls within the margin of discretion available to the State authorities. At the material time, only eight persons of Jewish faith were detained in Romanian prisons.

The court of first instance (the court) had come down in favour of a customised solution tailored to the applicants’ specific needs, thus offsetting the lack of a specific statutory framework for Jewish prisoners and providing a solution which could be implemented immediately. The court ordered the prison authorities to ensure that the applicants could receive kosher meals on a daily basis and in sufficient quantity to meet their personal needs, to distribute the meals under the same conditions as for other prisoners, and to arrange for their storage for days on which they could not be delivered. The national courts had therefore duly examined the applicants’ requests and promptly issued a judicial decision in their favour. That judgment had been executed by the prison authorities.

The situation in the present case was different from that in Jakóbski and Vartic (no. 2), where the applicants had requested vegetarian meals which had not required any special mode of preparation, cooking or service, nor had the provision of such meals had any negative consequences in terms of prison management or the quality of the meals provided to other prisoners. In this case, the kosher meals had to contain special ingredients obtained by following very specific rules, and had to be prepared separately, in separate containers and with separate utensils, in a particular manner and under the supervision of a representative of the religion in question.

The prison authorities co-operated with a Jewish religious foundation in implementing the judgment. In agreement with this foundation, a separate area was fitted out in the prison kitchen. Jewish prisoners helped prepare the meals. In accordance with the European Prison Rules, that approach allowed the prisoners to discover the positive aspects of communal life. The foundation had subsequently been present in the prison during Jewish religious festivals, supplying the applicants with specific foodstuffs for the occasion. The foundation’s involvement, although not decisive, was an important criterion for assessing how the domestic authorities had fulfilled their positive obligations under Article 9.

Furthermore, the court had permitted the applicants to obtain, by derogation from the applicable rules, foodstuffs which could be cooked and prepared on the spot. They had obtained those products by their own means. Although such an arrangement was not contrary to the European Prison Rules per se, it was not supposed to impose an objectively intolerable financial burden on the applicants. In that regard, the court had informed them that they could apply for reimbursement of any expenses by lodging a separate civil action. The applicants had apparently failed to do so, and had not stated any objectives reasons that might have prevented them from doing so. Nor had they put forward any argument casting doubt on the effectiveness of such civil proceedings. Furthermore, they had at no stage claimed that they had presented the prison authorities with a specific detailed request for reimbursement and had had their request turned down.

A whole set of appropriate measures had thus been put in place by the prison authorities, and the domestic authorities had done all that could reasonably have been expected of them to respect the applicants’ religious convictions, particularly since kosher meals had to be prepared under special, strict conditions.

The national authorities had thus honoured their positive obligations to a reasonable degree given the particular circumstances of the case.

Conclusion: no violation of Article 9 (unanimously).

© Council of Europe/European Court of Human Rights

 

Pshibiyev and Berov v. Russia – application no. 63748/13

Art 8 - Private and family life • Short visits for detainees in pre-trial detention excluding any physical contact in the presence of a guard•Absence of elements demonstrating the dangerousness of the detainee or the existence of a security risk or collusion to justify these arrangements• Impossibility for these unconvicted prisoners to benefit from long visits for more than ten years • Restrictions applied generally • Internal failures regarding the reasonable length of pre-trial detention and criminal proceedings adversely affecting the right to respect for private and family life • Exceptionally long period of pre-trial detention without physical contact, preventing the maintenance of acceptable or reasonably good contact with families

Facts - The applicants complained about the impossibility of receiving either short visits under properly substantiated procedures or long visits from members of their families while their detention in the remand prison in Nalchik.

The applicants were suspected of an armed attack of state institutions and remanded in custody in the framework of the investigation. When moved from that custody to remand prison in Nalchik, the applicants submitted requests to the Supreme Court of the Kabardino-Balkarian Repulic for long visits from their family members. The court rejected their requests based on the provisions of national law that allow only short family visits lasting no longer than three hours and supervised by the prison guard for the individuals held in remand prison. The second request that was submitted by the applicants was also rejected by the court. The applicants then appealed to the Constitutional Court of the Russian Federation, which also dismissed their complaint.

Law – The ECtHR reiterated that restrictions on the frequency, duration and different modalities of family visits constitute an interference with the right to respect for private and family life. The Court pointed to its previous case law where it has found that the separation of the detainees with the visitors by a glass wall preventing any physical contact was unjustified in the absence of the specific elements demonstrating dangerousness of the detainee or the existence of a risk of security or conspiracy. In the present case, the Court held that the Government did not demonstrate that such restrictions during family visits were necessary in light of the need to ensure security in prison. Therefore, there has been a violation of Article 8 of the Convention as to the modalities of short family visits of the applicants in the prison.

As regards the restriction on long family visits, the Court reiterated that such restriction indeed constitutes an interference with the right to respect for private and family life. It further noted that although any detention results in the restriction of the private and family life of the detainee, it is important to respect the right to respect for private and family life by allowing the person to have contacts with their close family members. Referring to the national law prohibiting in a general manner any long visits of family members for detainees in remand prison, the Court found that this restriction of rights is applicable in a general manner independently from any factors including the reasons of pre-trial detention, stage of the procedure, or security grounds.

Taking into account the excessive length of the pre-trial detention of the applicants, as they were held in remand prison for ten years, the impact on their personal and family life was exceptionally negative, which was capable of having serious consequences for the possibility of the applicants to sustain and develop family relations.

Taking into account the modalities of short family visits of the applicants that were held with no physical contact and the impossibility for them to obtain authorisation of long family visits, the ECtHR concluded that there has been a violation of Article 8 by the state as regards the guarantee for the right to respect for private and family life of the applicants while held in remand prison.

Conclusion: violation of Article 8 of the Convention.

 

16 June 2020

George-Laviniu Ghiurău v. Romania – application no. 15549/16

Art 3 (material)• Degrading treatment • Conditions of detention • Overcrowding for almost eight months in cells of less than 4 m2 • Strong presumption of violation not refuted

Art 3 (material) • Degrading treatment • No overcrowding for more than six months in a living space of more than 4 m2 • Duration representing about half of the detention, adequate activities outside the cell and daily shower after work • Poor hygienic conditions alone not leading to a violation.

 

Facts – The applicant complained about the length and the alleged unfairness of the criminal proceedings against him on account of a lack of impartiality of the judicial formation which had heard his appeal and a failure to take evidence from a witness against him. The applicant also complained about his conditions of detention in Oradea Prison. He alleged that the living space allocated to him in Oradea Prison had been inadequate and that his conditions of detention there were poor.

Law – The Court notes that the Government conceded that from 16 September to 6 November 2015 and from 1 March to 1 September 2016 the applicant had been held in cells where he had had personal space varying between 1.72 sq. m. and 2.76 sq. m. Such a lack of personal space gives rise to a strong presumption of a violation of Article 3 of the Convention (see Muršić v. Croatia [GC], no 7334/13, §137).

The applicant had been able to leave his cell to carry out his work programme and to walk around the prison yard and had thus had sufficient freedom of movement outside the cell. However, the duration of his detention in such conditions cannot be qualified as short, occasional and minor, since it was spread over periods totalling seven months and twenty-one days.

Moreover, the applicant's allegations concerning poor hygienic conditions in the toilets, the lack of privacy in the toilets and the presence of parasitic insects are consistent with the Court's findings in the Rezmiveș and Others judgment, in which it identified a general problem which had its origin in a structural dysfunction peculiar to the Romanian prison system. It follows that there has been a violation of Article 3 in respect of the applicant's conditions of detention during these two periods.

The Court further notes that the government indicated that during two further periods, from 6 November 2015 to 1 March 2016 and from 1 September to 29 November 2016, the applicant was provided with a living area of 4.33 m2. Since the applicant did not submit any evidence to cast doubt on the veracity of that official information, the Court accepts that, during the periods indicated by the government, the applicant had been provided with a living space of more than 4 m2. It follows that there was no situation of overcrowding in prison during those periods. The Court must therefore consider whether the other aspects of the applicant's detention were so problematic as to amount to a violation of Article 3 of the Convention (Muršić, § 140). In this respect, it takes into account the fact that the applicant was able to enjoy sufficient freedom of movement and adequate activities inside and outside the prison for periods which, taken together, account for approximately half of his detention. It follows that there was no violation of Article 3 in respect of the applicant's conditions of detention during the two periods referred to above.

Conclusion: violation, no violation of Article 3 of the Convention.

 

16 July 2020

Dikaiou and Others v. Greece, no. 77457/13

Art 3 (+ Art 14) • Degrading treatment • Discrimination • Satisfactory general conditions of detention of HIV-positive women prisoners in a women's prison, placed together in one cell without any intention of segregation, and without endangering their life and health • Improvement of conditions following a complaint to the supervising prosecutor of the prison • Regrouping in the same cell, but in a wing accommodating ordinary prisoners, for reasons of efficiency and to avoid increasing the feeling of anxiety of others • No failure by the authorities to fulfil their obligation to provide them with medical assistance in accordance with the requirements of their state of health

Art 13 (+ Art 3) • Ineffectiveness of the preventive and compensatory remedies available to detainees • Response of the prosecutor only to part of the complaints covered by the preventive remedy concerning the improvement of detention conditions • Compensatory remedy, effective only after the release of the person concerned and not during detention, in the absence of preventive character

Facts – The applicants were held in Thebes prison between 2012 and 2015 before or after a final conviction. They lodged complaints with the prosecutor supervising the prison alleging a violation of their rights under various articles of the Convention regarding the conditions of their detention as persons living with HIVor diagnosed with AIDS. Their complaints included lack of appropriate medical and pharmaceutical care, as well as insufficient doctors and individual medical support. They also reported stigmatisation as a result of being placed together in the same collective cell, entailing their “ghettoisation and stigmatisation”. The general conditions of detention were unsatisfactory, as there were problems with heating, the supply of hot water and running water, unsatisfactory food and duration of outdoor exercise. Therefore, the applicants submitted that the State has violated its obligations under Article 3 and could not provide an effective remedy by which the applicants could submit their complaints under Article 3 of the Convention.

Additionally, in accordance with the prescriptions of the national Criminal Code, the applicants were deprived of a possibility to apply for release in health grounds, unlike the HIVpositive convicts who were serving a final sentence. Therefore, relying on Article 14 of the Convention, the applicants complained about discrimination against them.

Law –

(i) complaints regarding the conditions of detention taken in conjunction with the alleged discrimination (Article 3 read alone and in conjunction with Article 14)

The Court first dealt with the question of general conditions of detention. The Court has pointed out that the applicants had sufficient personal space, they had also been provided with a water heater and an electric heater to mitigate the negative impact of the absence of centralised heating. They could also go outside to exercise for two hours in the morning and two hours in the afternoon. The applicants, due to their state of health, had been provided with better and higher-quality meals, a bleach for foom disinfection and free hygiene products if needed. The Court has concluded, therefore, that their general conditions of detentions corresponded to the standards enshrined in Article 3 of the Convention.

As regards the alleged “ghettoisation and stigmatisation” of the applicants on account of their placement together in one cell, the Court has not seen any intention of the prison administration to segregate them. It was more the consideration of efficiency as well as attempts to prevent anxiety among other inmates. The applicants also could spend time with other inmates while exercising outdoors and shared the same freezer with them. The Court has found that grouping the applicants together pursued a legitimate aim and was proportionate to the aim pursued.

Concerning the appropriateness of the medical care, the Court has noted that the Government has provided a very detailed file with the documents on the applicants’ health conditions, medical reports, as well as the results of medical examinations and prescriptions. The arguments of the applicants, namely, that due to their illness prison was not a suitable place for them to be and they should be released under the provisions of the Criminal Code or transferred to a hospital, were not supported by the ECtHR that stated that their state of health has never been endangered throughout the period of their detention and the medical assistance provided was appropriate. The Court has concluded that there had been no violation of Article 3 either separately or taken in conjunction with Article 14 of the Convention as regards the applicants’ conditions of detention.

(ii) Article 3 combined with Article 13 regarding conditions of detention

While examining the issue of availability of effective remedy, the Court has referred to the case of Ulemek v. Croatia (application no. 21613/16), which has provided for an obligation of the State to ensure that there are always available two types of remedy, such as the preventive remedies and compensatory remedies. The Court has examined the circumstances of the present case and its previous conclusions in the case law relating to Greek prisons and remedies in case of human rights violations and concluded that there have been neither preventive remedies nor compensatory remedies available to applicants in the present case. In particular, in view of the prosecutor's inaction in this case, the Court considers that there is no reason for it to depart from its past case-law concerning this remedy mechanism. Therefore, there was a violation of Article 13 of the Convention.

(iii) Article 14 on the prohibition of discrimination taken in conjunction with Article 3

. The Court has examined allegations as to the unavailability of the mechanism of the release on health grounds for the people living with HIV/AIDS who were not finally convicted. The circumstances of the case demonstrated that three applicants were released after the final conviction under the Criminal Code provisions. Two other applicants were released based on another provision of the Criminal Code and the section of national law concerning carriers of AIDS. The Court has not found any difference in treatment and violation of Article 14 as regards these five applicants. The sixth applicant was released after being sentenced to a suspended prison term by the Court of Appeal. However, she could but has not evoked the provisions of the Code of Criminal Procedure and the Greek courts’ case law to ask for the suspension of her detention. Therefore, the court has rejected these allegations as manifestly ill-founded.

Conclusion: no violation of Article 3 taken separately or in conjunction with Article 14, violation of Article 13, part of the complaint on Article 14 in conjunction with Article 3 was rejected as manifestly ill-founded.

21 July 2020

Dimitar Angelov v. Bulgaria, application no. 58400/16

Art 3 (substantive) • Inhuman treatment • Insufficient judicial consideration of life prisoner’s complaint about prolonged isolation and lack of purposeful activities under “special regime” of detention • Degrading treatment • Obviously low compensation at domestic level in respect of material conditions of detention in the past

Art 34 • Victim • Inadequate compensation awarded at domestic level • Victim status upheld

Art 35 § 1 • Exhaustion of domestic remedies • Effective domestic remedies • Life prisoner complaining about isolation or lack of activities, both in the past and in order to end the situation • Specific preventive remedy (from 2017 onwards): effective, depending on the decisions of prison governors and domestic courts • General preventive remedy: effectiveness dependent on courts’ practice • Compensatory remedy (from 2017 onwards): effectiveness in respect of past treatment dependent on level of awards made by competent courts

Facts – The applicant has been in detention with some interruptions since 1999 for various offences. In 2013 he was transferred to Pazardzhik Prison to serve his life sentence and was placed under a strict regime, the so-called “special regime”. The applicant complained to the national courts regarding the conditions of his detention, in particular, the use of the bucked as a toiled owing to the lack of sanitary facilities and running water in the cell, as well his isolation for almost 24 hours a day without being able to work or study. The courts have partially satisfied his claim and awarded him 500 euros as compensation for poor conditions of detention for almost five years. The latest available information regarding the applicant was that he was placed with another life prisoner in a shared cell of 15 sq. m., equipped with separated toilet and shower.

Law – The Court has examined whether the procedures that were available to the applicant may be regarded as effective remedies in respect of his complaint about the application of the “special regime” and his treatment as a life prisoner.

As to the mechanism of judicial review of the prison governor's decision to maintain the special regime (the specific preventive remedy), the ECtHR noted that the prison governor must issue a reasoned order, based on reports prepared for that purpose and that a decision refusing to change the regime to the lighter one can be challenged in the administrative court. The Court found that meet the requirement elaborated in the Court’s case-law.

As to the effectivity of the remedy of general application in the context of inhuman conditions of detention, the Court estamated it cannot be concluded that that the domestic courts will fail to rule on applications concerning the negative effects of insufficient physical activities and prolonged isolation.

Eventually, the Court found that the two preventive remedies, as well as the compensatory remedy, can be regarded as effective with respect to complaints of inhuman or degrading conditions of detention in the specific circumstances related to life prisoners.

The Court noted that the applicant failed to appeal against the refusal of the prison governor in March 2018 to change his detention regime and to use the general preventive remedy at any point in time after it entered into force in May 2017. It therefore rejected his complaint for non-exhaustion of domestic remedies.

As regards the applicant’s complaint about a breach of Article 3 as regards past periods of detention, the Court found that the question of the victim status is closely bound up with the merits of the complaint. Having regard to the fact that the applicant attempted proceedings domestically, it dismisses the objection of non-exhaustion in respect of the complaint regarding past periods of detention.

The Court further proceeded with the examination of the applicant’s conditions of detention. It pointed to the fact that domestic courts did not analyse his situation comprehensively as regards the absence of access to purposeful stimulating activities and one hour of outdoor walks. Such conditions could not be regarded as appropriate, therefore the Court has found a violation of Article 3 of the Convention as regards past periods of detention of the applicant.

Additionally, the Court has found that the satisfaction awarded by the domestic courts, namely, 500 euros, was not sufficient and is several times lower than the one usually awarded by the ECtHR in similar cases. Accordingly, in view of the above, particularly the insufficient judicial consideration of the applicant’s complaint concerning his isolation and the lack of activities under the “special regime”, as well as the low amount of damages awarded to him, the applicant could be considered as a victim of the State’s violation of Article 3 of the Convention.

The Court has rejected the claim regarding Article 13 as manifestly ill-founded as the national remedies provided by national law that were examined in the admissibility part of the judgment were found to be effective.

Conclusion: violation of Article 3 (past periods of detention), inadmissible under Article 3 and Article 13.

23 July 2020

Lautaru and Seed v. Greece (no. 29760/15)

Art 3 (substantial) • Degrading treatment • Poor conditions of detention in a prison due to overcrowding and other shortcomings • Detainee having to sleep on a flooded floor for 1 year and 4 months • Budgetary restrictions having multiple repercussions on the conditions of detention • No recreational or sports activities outside the cell

Art 13 (+ Art 3) • Ineffective remedies to denounce detention conditions

 

Facts – The applicants were held in Malandrino Prison, then transferred to another prison. During the period of their detention, they have lodged a complaint with the supervising prosecutor of the prison and requested urgent measures such as to relieve the overcrowding problem and improve the conditions of detention.

The Government admitted that in 2015 the population in the prison was 500 inmates, with the official capacity of 440 inmates. Additionally, for short periods in 2014-2015, one chamber of the central corridor housed up to 15 inmates.

Law –

Article 3: The Court has first confirmed that the requirement of 3 sq. m. of floor space per prisoner (including the space occupied by furniture, but not that occupied by sanitary facilities) in a collective cell must remain the relevant minimum standard for the purposes of assessing conditions of detention under Article 3 of the Convention.

The Court considered that the surface area to be taken into consideration in the instant case was that of the room from which the toilet area should be deducted, i.e. a total surface area of 32 sq. m. It follows that the personal space of each detainee, and hence of the applicants, when the room was occupied by a total of 10 persons, amounted to 3.2 m². However, the room sometimes housed 15 detainees. It, therefore, follows that during these periods five detainees, including the first applicant, did not have a bed. The personal space of each detainee, when the room accommodated 15 people, would then be reduced to 2.1 m². The Court also observes that, according to the Government's assertions, the room was equipped with a table and ten chairs, which further reduced personal space.

The Court has considered that both the first applicant, throughout the period of his detention, and the second applicant, for a certain period of time, lived in conditions contrary to Article 3 as regards overcrowding, as the personal space of each detainee was less than 3 sq. m., but also certain other aspects of their detention, relating in particular to the food, cleanliness and general state of their room and the absence of any recreational or sporting activity outside the room.

Article 13: The applicants also complained of a lack of an effective remedy for denouncing their conditions of detention. In the Court's view, an application to the supervising prison prosecutor would amount to inviting him to investigate facts or allegations relating to conditions of detention for which he also bears partial responsibility. The Court has found a violation of Article 13 of the Convention in conjunction with Article 3 of the Convention.

Conclusion: violation of Article 3 of the Convention, violation of Article 13 taken in conjunction with Article 3 of the Convention.

 

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