Newsletter no. 2021/2 - Round-up of the ECtHR case-law (May 2021)

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TABLE OF CONTENTS

 May 2021

Epure v. Romania (no. 73731/17) – placement in a maximum security prison of a detainee with mental disorders and history of self-aggression, needing regular medical care, supervision and personal assistance; failure to correctly identify the needs of a metally ill prisoner: violation of Article 3.

Manzano Diaz v. Belgium (no. 26402/17) – Reporting judge’s draft decision sent to the advocate-general but not to the applicant ahead of the Court of Cassation hearing: no violation of Article 5-4; Advocate-general’s submissions presented for the first time orally at the hearing, without being sent to the applicant in advance: no violation of Article 5-4.

Lapshin v. Azerbaijan (no. 13527/18) – ineffective investigation into prison incident putting the applicant’s life at risk; State’s failure to satisfy burden of proof by providing satisfactory and convincing explanation as regards the incident: violation of Article 2 (procedural and substantive limbs).

 

SUMMARIES

 

11 May

Epure v. Romania (no. 73731/17)

Art 3 (substantive) • Degrading treatment • Placement in a maximum security prison of a detainee with mental disorders and history of self-aggression, needing regular medical care, supervision and personal assistance • Assistance by fellow inmates, without first-aid training and on somewhat occasional basis, unsuitable or insufficient and not part of any effective State assistance ensuring compatibility of detention conditions with respect for his dignity • Measures taken repeatedly at prison level sanctioned him for disciplinary misdemeanours • Authorities’ failure to correctly identify applicant’s medical needs and to provide him with comprehensive therapeutic treatment and supervision as required by his complex medical condition

Facts – The case concerns the allegations that the domestic authorities inadequate responded to the applicant’s medical needs while in detention, in particular having regard to the state of his mental health. The applicant had been serving an eight-year sentence for rape dating from 2014. During this time, he had been held under a maximum-security regime in three different Romanian prisons. He complained, in particular, that the prison regime under which he had been placed was incompatible with his mental condition; that he had not received appropriate medical treatment for his mental disability; and that he had not been provided with a personal care assistant on a permanent basis, as required by his state of health.

Law – Article 3 (conditions of detention)

The complaints concerned alleged violation of Article 3 of the Convention. The applicant, who has been suffering from epilepsy and has been diagnosed on several occasions with slight to moderate mental impairment, was held under a maximum security prison regime based on his aggressive behaviour. The Court, having analysed the facts of the case, has concluded that the placement of the applicant, in spite of his complex condition and history of self-aggression, under such a restrictive prison regime for a significant period of time has not facilitated his rehabilitation or deterred him from committing further offences. Most importantly, it has had severely negative psychological and emotional effects entailing a deterioration in his mental condition, as underlined by the medical authorities and by the courts.

The next aspect of analysis by the Court concerned the personal care assistant assigned to the applicant. The ECtHR has highlighted that the evidence from various medical sources confirmed that the applicant had several serious medical conditions which over time required more regular medical care and supervision. Thus being said, the applicant should have been entitled, according to the national law, to the help of a personal care assistant, without having to make any special request. However, during several periods, he has not received any aid from personal assistant. The Court has noted that this in itself provides for a strong presumption of a violation of Article 3 of the Convention. The quality of assistance provided to the applicant by his fellow inmates is doubtful and the manner in which the applicant’s personal assistants were assigned appears to have been based on an assessment of their adequate physical shape and of whether they had or had not been subjected to disciplinary sanction, rather than on whether they had followed any type of medical training. Having referred to its previous case law, the Court has highlighted that the absence of personal assistance who would provide care to a detainee, and instead he would rely on his fellow inmates, was considered a violation of Article 3 of the Convention. Finally, the Court considered that the help offered by the applicant’s fellow inmates did not form part of any effective assistance by the State to ensure that the applicant was detained in conditions compatible with respect for his human dignity. Such help could not therefore be considered suitable or sufficient.

Regarding the appropriateness of the medical care that has been provided to the applicant, the Court has noted that even when the applicant was under the direct supervision of medical staff, like in the prison hospital, he managed to harm himself. No additional measures were taken by prison administration to prevent further episodes associated with the applicant’s serious metal illness. The Court has also noted that, despite the fact that the applicant has not been cooperating well enough with the prison medical staff, the duty to provide suitable care on the basis of individualised treatment lies primarily with the relevant authorities. The overall conclusion of the ECtHR was that the applicant had not received appropriate care. Therefore, in the present case in view of the applicant’s state of health and his disability, in so far as concerns the relevant period, the national authorities failed to implement and provide a coherent and appropriate therapeutic strategy capable of responding adequately to the applicant’s medical needs, so as to avoid subjecting him to treatment contrary to Article 3 of the Convention.

Conclusion: violation of Article 3.

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

 

18 May

Manzano Diaz v. Belgium (no. 26402/17)

Article 5(4) • Procedural safeguards for review of lawfulness of detention • Draft judgment of the reporting-judge communicated before the hearing of the Court of Cassation to the advocate-general and not to the applicant • Advocate-general at the Court of Cassation not acting as a party to the proceedings • No adversary and therefore no possible breach of equality of arms • Draft judgment drawn up by the reporting-judge, Draft judgment drawn up by the reporting-judge, internal working document of the court, covered by secrecy, not subject to the adversarial principle • Conclusions of the Advocate-general presented orally for the first time at the hearing, without prior communication to the applicant • Applicant not in a situation of a clear disadvantage

Facts – The applicant brought proceedings in the Court of Cassation challenging the order for his continued compulsory confinement adopted by the Higher Social Protection Board. The present application concerned the sending of the reporting judge’s draft decision to the advocate-general and alleged exchanges between the latter and the Court of Cassation, or at least the reporting judge. The applicant relied on Article 6 § 1 of the Convention.

Law – Article 5 § 4:

Even assuming Article 6 § 1 to be applicable under its civil head, Article 5 § 4 constituted a lex specialis in relation to that provision.

1. The applicant complained that the sending of the reporting judge’s draft decision to the advocate-general and not to the applicant himself, and the exchanges between the reporting judge and the advocate-general ahead of the public hearing, had breached the principle of equality of arms and the adversarial principle.

Under Belgian law the advocate-general at the Court of Cassation did not have the status of a party to the proceedings. He or she was a member of State Counsel’s office at the Court of Cassation, which – unlike the public prosecutors’ offices attached to the lower courts – did not conduct public prosecutions save in exceptional circumstances not applicable in the present case, did not bring cases before that court and did not have the character of respondent. The advocate-general’s main task was to assist the Court of Cassation and ensure consistency in the case-law, acting with the strictest objectivity.

Accordingly, the principle of equality of arms could not be invoked in a case like this one in which there had been no prosecuting party or other opposing party in the proceedings before the Court of Cassation. The fact, referred to by the applicant, that the advocate-general at the Court of Cassation was not a member of the bench of that court did not suffice to demonstrate why he should then be regarded as the applicant’s opponent in the proceedings, which was a prerequisite for alleging a breach of the equality-of-arms principle. On the other hand, since the opinion of the advocate-general was designed to advise the court and hence influence its decision, the adversarial principle had to be observed.

The draft decision of the reporting judge, who was a member of the bench examining the case, was not an item of evidence adduced by a party and liable to influence the court’s decision, but a document produced within the court as part of the preparation of the final decision. Accordingly, an internal working document of this kind, which was confidential, was not subject to the adversarial principle.

In preparing his submissions and adopting the position which he submitted publicly to the court, the advocate-general, whether or not he followed the line taken by the reporting judge, referred, inter alia, to the latter’s draft decision. These submissions, in so far as they incorporated the views of the reporting judge, therefore potentially afforded the parties an insight into the decisive evidence in the case and the court’s interpretation of it. This particular feature thus gave them an opportunity to respond before the judges took their decision. Consequently, it could not be said in itself to undermine the fairness of proceedings in the Court of Cassation.

Furthermore, there had been no discussion in the present case between the reporting judge and the advocate-general after the draft decision had been sent.

2. The applicant also alleged a breach of the equality-of-arms principle and of the adversarial principle on account of the fact that the advocate-general’s submissions had not been communicated before the public hearing, at which they had simply been presented orally, while the Court of Cassation had allegedly been acquainted with those submissions ahead of the hearing.

Besides the fact that it had not been shown why the advocate-general should be regarded as the applicant’s opponent in the proceedings before the Court of Cassation, the applicant had failed to provide concrete evidence in support of his claim that the Court of Cassation had been acquainted with the advocate-general’s submissions ahead of the hearing, or that it had taken its decision before those submissions had been presented in public at the hearing. Accordingly, the applicant, the Court of Cassation and the public had all learned of the content and the thrust of the advocate-general’s submissions when he had presented them orally at the hearing on the basis of a memorandum prepared by him.

Hence, the applicant could not validly argue that he had been placed at a substantial disadvantage vis-à-vis anyone because he had not been acquainted with the submissions of the advocate-general ahead of the public hearing. Moreover, a party to proceedings could not derive from the right to equality of arms a right to have disclosed to him or her, before the hearing, submissions which had not been disclosed to the other party or to the reporting judge or the judges of the trial bench.

Lastly, under the Judicial Code the applicant had had the possibility of replying to the advocate-general’s oral submissions by making his observations orally at the hearing, seeking an adjournment or requesting leave to file a memorandum for the deliberations within a specified period. The applicant had not demonstrated that he had been prevented from making use of that possibility in the circumstances of the case.

In view of the foregoing, the applicant could not claim to have been placed in a situation contrary to the requirements of Article 5 § 4.

Conclusion: no violation (unanimously).

(See also K.A. and A.D. v. Belgium, 42758/98 and 45558/99, 17 February 2005; Marc-Antoine v. France (dec.), 54984/09, 4 June 2013)

© Council of Europe/European Court of Human Rights

 

20 May

Lapshin v. Azerbaijan (no. 13527/18)

Art 2 (procedural) • Ineffective investigation into prison incident putting the applicant’s life at risk • Omissions and unexplained discrepancies in the domestic authorities’ conduct • Art 2 applicable given the serious and imminent risk to the applicant’s life, his survival due to urgent medical intervention, his ensuing critical condition and constant medical treatment.

Art 2 (substantive) • Positive obligations • State’s failure to satisfy burden of proof by providing satisfactory and convincing explanation as regards the incident • Court unable to conclude that version of attempted suicide version held up

Facts – The applicant, Alexander Valeryevich Lapshin, is an Israeli, Russian and Ukrainian national who was born in 1976 and lives in Haifa (Israel). The case concerned an incident during the applicant’s imprisonment in Azerbaijan in 2017 for having crossed the State border outside the checkpoints during journeys to Nagorno-Karabakh, and the ensuing inquiry by the prosecutor’s office into the incident. The authorities asserted that the incident had been a suicide attempt, while the applicant alleged it had been attempted murder. The applicant was resuscitated and hospitalised in an intensive-care unit. The following day the applicant was pardoned by the President of Azerbaijan and, upon his discharge from the hospital three days later, was expelled to Israel.

According to the applicant, on 10 September 2017, he was attacked and beaten in his prison cell by a group of masked men, one of whom attempted to strangle him with his bare hands. He regained consciousness two days later in an intensive-care unit. According to the Azerbaijani authorities, prison officers found the applicant hanging from a towel hook (a nail) in his in-cell sanitary facility, a shoulder strap from a bag around his neck. He was immediately given artificial respiration and then taken to hospital where he was admitted to a resuscitation unit.

The applicant has complained of an attempt that had been made on his life, in prison, and that the domestic authorities had failed to investigate the circumstances of the case. Other complaints concerned ill-treatment and humiliation during his transfer to and his stay in prison in Azerbaijan, and alleged that he had been kept in solitary confinement for a period of seven months.

Law – Article 2 (right to life)

The Court has examined the allegations of the applicant regarding the serious and imminent jeopardy of his life and that his survival necessitated prompt medical intervention, otherwise he would die. According to the applicant, his situation had remained critical for several days and had required constant medical treatment, including resuscitation and intravenous feeding.

Procedural limb

The Court observed that there had been serious deficiencies and inconsistencies in the manner in which the inquiry had been conducted and in the investigator’s findings closing the inquiry. There has been no forensic examination of the injuries of the applicant, which could have enabled the reaching of crucial conclusions as to the existence, time and nature of such injuries. The investigator has not sought to obtain the video surveillance recordings that might have been supplementary evidence of who had entered the applicant’s cell and what had actually happened on the day of the incident. Therefore, there have been serious inconsistencies in the testimonies of prison staff that were not verified or clarified during the inquiry.

The Court has additionally examined the circumstances surrounding the alleged suicide attempt that, from the point of view of the Government, could have happened in a prison cell. There has been no solid evidence proving that the applicant managed to get a strap into his prison cell. In the Court’s view, it was also quite difficult to accept on the basis of the evidence available that an adult of the applicant’s stature could have hanged himself on a 3-cm-long wall nail 1.9 m off the ground using a 0.9-m-long bag strap. That should have been examined more thoroughly, for example, through a reconstruction of the event. The Court, therefore, concluded that the inquiry into the incident in prison had been ineffective and violated Article 2 of the Convention.

Substantive limb

As the parties, both the applicant and the Government, presented different views on the circumstances of the incident and pointed to diverging evidence, the national courts should have examined both positions in-depth in the domestic proceedings. The role of the ECtHR was not to serve as a first-instance tribunal of fact.

Though the Court was not bound by the domestic findings and remained free to make its own appreciation in the light of all the material before it, it had to work on the relevant findings reached by the domestic authorities, or a lack thereof, and draw the necessary inferences. It, therefore, sufficed for the Court to note that the applicant’s allegation of attempted murder, with the alleged crime being disguised as attempted suicide, was plausible, despite certain inconsistencies in his recollection of the facts, which might be linked to the trauma suffered.

Having analysed the arguments presented by the respondent State, the Court has concluded that the Government has not provided plausible evidence suggesting that the applicant attempted to commit suicide. The respondent State had failed to satisfy the burden of proof resting on it to provide a satisfactory and convincing explanation as regards the incident during which the applicant’s life had been in danger. There had accordingly been a violation of Article 2 of the Convention under its substantive limb.

Conclusion: violation of Article 2 (procedural and substantive limbs).

Article 3

The Court considered that, in light of its conclusions regarding Article 2, there is no need for a separate ruling on complaints regarding Article 3 of the Convention.

Article 41: EUR 30,000 in respect of non-pecuniary damage.

 

 

 

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