Newsletter no. 2021/3 - Round-up of the ECtHR case-law (October 2021)

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TABLE OF CONTENTS

 

October 2021

 

Syrianos v. Greece (no. 49529/12)* – unjustified disciplinary penalty for refusal to undergo body searches during pre-trial detention: violation of Article 8 of the Convention.

Panchenko and others v. Ukraine [committee] (nos. 66179/14 and 3 others) – refusal to satisfy the requests of prisoners sentenced to life imprisonment for transfer to other detention facilities close to their relatives’ places of residence: violation of Article 8; lack of effective domestic remedies and access to the court with regard to protection of their right to family life: violation of Article 6 § 1 and Article 13.

Danilevich v. Russia (no. 31469/08) – unjustified and disproportionate general ban on telephone calls for life prisoners under strict regime in special-regime correctional colonies: violation of Article 8. Applicant’s inability to attend hearing in civil proceedings which he had instituted to challenge the refusal of telephone calls to his family: violation of Article 6 § 1 (civil).

Bancsók and László Magyar (no. 2) v. Hungary (nos. 52374/15 and 53364/15) – life sentences for applicants whose eligibility for release is reviewable only after serving forty years, not regarded as reducible: violation of Article 3.

 

 SUMMARIES

 

7 October

Syrianos v. Greece (no. 49529/12)*

Art 8 • Private life • Transfer to another prison for refusing to undergo body searches during pre-trial detention • Lack of relevant and sufficient grounds • Disproportionate punishment

The case concerns the transfer of the prisoner to another prison as the disciplinary penalties imposed on the applicant for refusing to undergo strip-searches in Diavata Prison (Thessaloniki) and Nigrita Prison (Serres), where he was held in pretrial detention. In 2011 and 2012 four sets of disciplinary proceedings were brought against the applicant. The disciplinary board of the prison would impose a penalty on the applicant in a form of detention in a “special cell” for the reason of disobedience. In the fourth set of proceedings the applicant was first placed in a “reception room” in semi-isolation. He was afterwards transferred to another prison. The domestic courts dismissed the appeals lodged by the applicant against these decisions. He relied on Article 3 (prohibition of inhuman or degrading treatment) and Article 8 (right to respect for private life) to complain about the disciplinary penalties imposed on him each time he refused to obey an order by the prison authorities to undress and undergo an anal inspection.

Admissibility

The Court has dismissed to examine the complaint regarding the first and the second disciplinary punishment for failure to comply with the six-month time limit, in accordance with the Article 35 §§ 1 and 4. It then dismissed the third complaint regarding disciplinary proceedings against the applicant for failure to exhaust domestic remedies. The complaint regarding the fourth set of disciplinary proceedings was declared admissible by the Court.

Article 3 and Article 8

The Court began its assessment noting that the case concerns the disciplinary penalty imposed on the applicant for refusal to submit to body searches, although there has been no indication that he was obliged to do so. The ECtHR then proceeded to analyse the case in light of the three-step test, which takes into account whether there has been interference, whether it has been justified and, finally, whether it has been necessary in a democratic society. It was established that, indeed, the transfer to another prison establishment amounted to interference with the exercise by the applicant of his right to private life protected by Article 8 § 1. The court agreed that the interference was provided for by Greek law and also pursued a legitimate aim of the prevention of criminal offences. It then proceeded with the assessment of the proportionality and necessity in a democratic society of the penalty.

The Court first pointed to the fact that the body searches were carried out after the transfer of the prisoner to the criminal court but for the period of transfer and his participation in the court hearing he has not had any contact with anyone except for the prison guards and prison officers, so there has been no reason mentioned that would justify carrying out of searches under these conditions. The Court further observes that the applicant had not been convicted for reasons relating to drug trafficking (see, mutatis mutandis, Iwańczuk v. Poland, no 25196/94, § 53, 15 November 2001). What is more, he was not considered dangerous by the prison authorities for another reason. Indeed, the competent authorities failed to provide any reason that would justify the suspicion that the applicant might be carrying drugs concealed in his anus. Additionally, the national court did not take into consideration the arguments of the applicant that such searches amounted to a violation of Article 3 and Article 8 of the Convention. As to the severity of the disciplinary sanction imposed on the applicant after he refused to submit himself to the body search, his transfer to another prison establishment was a severe sanction which could have serious consequences for a prisoner who had already resided for a long time in a prison establishment. The Court has concluded that the national authorities have not provided relevant and sufficient reasons to justify the imposition of the disciplinary penalty on the applicant, that the penalty was not proportionate to the legitimate aim pursued, and that this conviction did not meet a “pressing social need” and was therefore unnecessary in a democratic society.Accordingly, there has been a violation of Article 8 of the Convention.

Conclusion: violation of Article 3.

Article 41: EUR 2,000 in respect of non-pecuniary damage.

 

14 October

Panchenko and others v. Ukraine (Applications nos. 66179/14 and 3 others) –Committee

Art 8 • Placement in remote prisons • Maintaining contacts with family members • Formalistic and restrictive approach taken by national authorities • Requirement for consideration of personal situation of the prisoner for the assessment of the need for transfer in a less remote prison

Art 6 §1 (civil) • Access to a court •Disagreement between the general and administrative courts on the competence to examine the applicant’s claim, which resulted in denial of justice

Art 13 • No effective domestic remedies to challenge resfusal of transfer to another prison •  Broad discretional powers in examining transfer requests within the structure of the prison authorities • Lack of clarity as to the jurisdiction of the domestic courts

Facts –

All the applicants, serving a life sentence, complained that, as a result of their placement in remote prisons and the authorities’ rejections of their transfer requests, they had been deprived of the possibility to enjoy visits from their relatives. They believed that such placement was contrary to Article 8. Some applicants, namely Mr Panchenko, Mr Baylo and Mr Kus, also complained of the denial of access to a court, lack of effective domestic remedies as regards protection of the right to family life. Mr Sili also complained of the lack of effective domestic remedies in respect of his Article 8 complaint.

Law –

Article 8

Admissibility

Panchenko v. Ukraine (Application no. 66179/14)

The applicant complained of his placement in the prison that was situated very far from his mother’s place of living, which allegedly amounted to an arbitrary and disproportionate interference with his right to maintain contact with her. He also complained that he was placed in another prison but not the one he requested. However, the Court has pointed to the fact that the applicant did not provide any details on the state of health of his mother, the difficulty or impossibility of transport arrangements between the prison and his mother’s place of residence or any other factors that could impede proper organisations of her visits to the applicant detained in prison 400 km far. The applicant objected his placement to this less remote prison for no reason and requested being placed in a specific prison, finding no other solution acceptable.

Conclusion: inadmissible.

Sili v. Ukraine (Application no. 58700/16) 

In the present application, Mr Sili argued that the procedure for the transfer of prisoners on the national level was unclear, thus ineffective. Even after the Supreme Court’s Grand Chamber decision of 10 April 2019 was adopted, its effectiveness was still quite limited. The Government maintained that the applicant did not exhaust domestic remedies, namely, did not appeal the decision of the central commission’s refusal for transfer request to the administrative courts.

The applicant had been trying to obtain a transfer closer to his daughter’s place of residence since 2014. That happened right after the amendments to the domestic law have been introduced providing for the opportunity for prisoners to be transferred to a prison near their close relatives’ place of residence. The applicant also applied to the newly created central commission, which rejected his request in 2017. It was also unclear at that point which courts were competent to examine complaints against that commission’s decisions.

Conclusion: admissible.

Baylo v. Ukraine (Application no. 58829/16)

The applicant argued that he was deprived of the opportunity to maintain his contacts with his mother, who has died several days after the request for transfer, had been submitted. He also mentioned his sisters, wife and brother at the stage of reply to the Government’s objections. However, he never mentioned any other relatives, except for mother, in his transfer request to the prison administration. Therefore, he could not subsequently blame the domestic authorities for any alleged difficulties in maintaining his contact with relatives.

Conclusion: inadmissible.

Kus v. Ukraine (Application no. 38002/17)

Conclusion: admissible.

Merits

Sili v. Ukraine (Application no. 58700/16) and Kus v. Ukraine (Application no. 38002/17)

The Court, having referred to the similar cases already examined by it, namely, Vintman v. Ukraine and Rodzevillo v. Ukraine has pointed to the fact that the national authorities took a formalistic and restrictive approach in interpreting and applying the relevant legislation. They did not attempt to consider the applicants’ and their relatives’ arguments concerning their personal situation. As the Court has found violation to the right to family life in the cases with similar circumstances in the past, it has maintained that the legal assessment and conclusions in the present cases would be no different from the ones in Vintman and Rodzevillo.

Conclusion:  violation of Article 8.

Article 6 § 1

The Court noted that the role of Article 6 in relation to Article 13 is that of a lex specialis, the requirements of Article 13 being absorbed by the more stringent requirements of Article 6, leading the Court to only examine the applicants’ complaints under Article 6 § 1.

Admissibility

Panchenko v. Ukraine (Application no. 66179/14)

Although the Government has not objected to the compatibility ratione materiae of the complaint of Mr Panchenko with the criminal limb of Article 6 § 1, the Court nevertheless examined this point. It has highlighted that the applicant’s attempt to get access to a court did not concern the determination of any criminal charge against him. Therefore, his complaint in this regard does not fall within the criminal limb of Article 6. The civil limb of Article 6 requires that there be a genuine dispute over a right that can be said to be recognised in domestic law. The applicant has argued that he has the right to be transferred to a one particular prison and challenged his transfer to another detention facility, which was closer to the place of residence of his relative than the one where he was detained initially. There is no right to serve a sentence in one particular prison of the prisoner’s choice, therefore, the present complaint is incompatible ratione materiae with the civil limb of Article 6 § 1.

Conclusion: inadmissible.

Baylo v. Ukraine (Application no. 58829/16)

The courts of three levels of jurisdiction examined the applicant’s administrative claim on the merits. The fact that he was not satisfied with the outcome of those proceedings does not mean that he was denied access to a court. It follows that this complaint is manifestly ill-founded.

Conclusion: inadmissible.

Kus v. Ukraine (Application no. 38002/17)

The Court notes that this complaint is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

Conclusion: admissible.

Merits

Kus v. Ukraine (Application no. 38002/17)

The Court declared admissible only the application of Mr Kus. It examined the complaint of the applicant that he did not have access to the court in order to challenge the refusal for his transfer to another prison. The ECtHR has noted that the general and administrative courts had a disagreement on the competence to examine the applicant’s claim as a result of which it was never examined on the merits. In the Court’s view, such a situation amounted to a denial of justice impairing the very essence of the applicant’s right of access to a court.

Conclusion: violation of Article 6 § 1.

Article 13

Mr Sili complained that he had no effective domestic remedies in respect of his complaint under Article 8. He maintained that all possible administrative steps were taken by him to obtain a transfer to a prison close to the place of residence of his daughter. However, until 2019, it had been unclear which courts had the competence to examine such claims. The ECtHR referred to the case of Vintman, where the similar ambiguity, at least until 2019 in the present case, existed as to which courts should be addressed. The broad discretional powers in examining transfer requests within the structure of the prison authorities and the lack of clarity as to the jurisdiction of the domestic courts made it virtually impossible for the applicant to obtain effective remedy with regard to his right to family life.

Conclusion: violation of Article 13.

Article 41: to Mr Sili and Mr Kus EUR 3,000 each, in respect of non-pecuniary damage; to Mr Sili EUR 1,650 in respect of costs and expenses; to Mr Kus EUR 2,500 in respect of costs and expenses.

 

19 October

Danilevich v. Russia (application no. 31469/08)

Art 8 • Respect for family life • Unjustified and disproportionate general ban on telephone calls for life prisoners under strict regime in special-regime correctional colonies • Imposition of ban solely on account of applicant’s life sentence irrespective of any other relevant factors • Importance of preventing breakdown of prisoners’ family ties by maintaining all forms of contact, including by telephone

Art 6 § 1 (civil) • Fair hearing • Applicant’s inability to attend hearing in civil proceedings which he had instituted to challenge the refusal of telephone calls to his family

Art 37 § 1 (b) (+ Art 3) • Striking out applications • Matter before Court resolved • Applicant no longer subjected to routine handcuffing and complaint adequately and sufficiently remedied by measures ordered by domestic courts

Facts –

The applicant has been serving a life sentence in a specialregime correctional colony situated over 1000 km from his family and in another correctional colony, about 600-700 km from his family. He was deprived of telephone contact with his relatives, including his young son born in 2002. That was due to a general ban on telephone calls for prisoners serving life sentences under the strict regime for at least the first ten years of their sentences. He was allowed telephone calls only in “exceptional personal circumstances” such as death or life-threatening illness of a close relative. In 2011, the applicant complained to the national court that, by refusing to allow telephone calls to his relatives, the prison administration had been preventing him from maintaining contact with his family, in breach of Article 8 of the ECHR. He argued that, in view of his son’s young age, it was impossible to correspond with him by letter, and telephone calls would be the only way of maintaining a proper family relationship with him. The court examined the case in his absence, as domestic law did not provide for convicted prisoners to appear in court in civil cases. His complaint was dismissed. Mr Danilevich appealed, the appelate court upheld the judgment at a hearing held in the absence of the parties.

Law –

Article 8

The ECtHR analysed the ban on telephone communication of the applicant in light of paragraph 2 of Article 8 and concluded that there indeed has been an interference with the rights to private and family life of the applicant.

It also agreed that there has been legal ground enshrined in the provisions of the Code of Execution of Criminal Sentences and other domestic regulations.

Having had the opportunity in a number of cases to examine the compatibility with Article 8 of such restrictions on prisoners’ telephone communications with their families (including under high-security prison regimes) as monitoring, frequency, duration, language that could be used, the Court was struck by the severity of the total ban on life-sentenced prisoners’ telephone communications with their relatives, except in an emergency, under the conditions of the strict regime.

The applicant had not received any visits from his relatives living a significant distance away, which had left him – in the absence of any possibility of communicating by telephone – with written correspondence as the only way of maintaining contact with them. That means of communication had been seemingly insufficient for various reasons, including the time it took for letters to be delivered and the difficulty for the applicant to have an effective contact with his only child, who had been for many years too young for written correspondence. Given the child’s age (seven years old at the beginning of the applicant’s imprisonment in the special‑regime correctional colony under the strict regime), those years had been crucial for developing a family relationship between them. The very scarce occasions on which the applicant had been allowed to telephone his family in “exceptional personal circumstances” did not appear to change that situation.

Having referred to the Khoroshenko case, the Court has highlighted that the ban on telephone calls was imposed directly by law and concerned the applicant solely on account of his life sentence and irrespective of any other factors. The regime was imposed for a fixed period of ten years, which could be extended in the event of poor behaviour while serving the sentence but could not be shortened. It is also worth noting that national courts did not take into account the applicant’s arguments concerning the difficulties for his relatives to visit him in view of the remoteness of the prison and their lack of financial means, the age of his son and the availability of technical means for telephone calls from the prison. Therefore, the restriction was of general nature and did not differentiate among the prisoners based on the potential danger or security concerns.

The Court found in Khoroshenko that the very strict nature of the regime concerned prevented life-sentence prisoners from maintaining contact with their families and thus seriously complicated their social reintegration and rehabilitation instead of fostering and facilitating it. In the present case, the Court maintained its position and reiterated that the restrictions on telephone calls for the applicant as a life prisoner under the strict regime were not “necessary in a democratic society” and amounted to a disproportionate interference with his right to respect for his private and family life.

Conclusion: violation of Article 8.

Article 6 § 1

The Court has examined the complaint of the applicant regarding the national court’s refusal to examine the request of the applicant to attend the hearing in his civil case concerning the ban on telephone calls to his family and that the hearing had been held in his absence. The national courts did not examine whether the nature of the dispute was such as to require the applicant’s attendance. Nor did they consider any procedural arrangements to ensure the effective participation of the applicant in the proceedings. In these circumstances, the Court finds that the applicant was deprived of the opportunity to present his case effectively before the court to ensure respect for the principle of a fair trial. Therefore, there has been a violation of Article 6 § 1 of the Convention.

Conclusion: violation of Article 6 § 1.

Article 3

The applicant complained that he had been routinely handcuffed when taken for walks in the prison yard while in detention in SIZO-2 in Moscow. The Court has pointed to the fact that the national courts have already examined the routine handcuffing of the applicant for the period after his arrest, treating it as a continuous period, which included detention in SIZO-2. The national courts declared unlawful the decision to systematically handcuff the applicant and ordered that the prison administration not subject him to handcuffing unless there would be valid security reasons for that. Having applied Article 37 § 1 (b) of the Convention, the Court has struck the application regarding routine handcuffing of the applicant out of its list of cases.

Conclusion: inadmissible.

Article 41: EUR 3,400 in respect of non-pecuniary damage; EUR 1,300 in respect of costs and expenses.

 

28 October

Bancsók and László Magyar (no. 2) v. Hungary (application nos. 52374/15 and 53364/15)

Art 3 • Inhuman and degrading punishment • Life sentences for applicants whose eligibility for release is reviewable only after serving forty years, not regarded as reducible despite ability to seek presidential clemency without limitation

Facts –

The applicants are both serving sentences in the form of life imprisonment. Each of the applicants lodged constitutional complaints in 2015, arguing that setting the earliest date of release once a term of 40 years had been served was contrary to the case-law of the Court and constituted inhuman treatment and that it was contrary to Hungary’s obligations under the Convention. The proceedings are still pending in both cases on the national level.

Law –

Article 3

The Court has analysed the Hungarian law and practice that provide for the possibility of a judicial review of the life sentence. In the present case, the applicants could only apply for and be considered for release on parole after having served at least forty years of their term. The ECtHR then proceeded to examine whether the mechanism for review of life sentence was compatible with the criteria elaborated in its case law. The Court has noted that the term of forty years is significantly longer than the maximum recommended time frame after which the review of a life sentence should be guaranteed. Additionally, contrary to the Government’s allegations regarding the presidential clemency opportunity, the Court has reiterated that the possibility of being granted a pardon or release on compassionate grounds for reasons related to ill health, physical incapacity or old age does not correspond to the notion of “prospect of release”. The ECtHR has regarded the requirement to serve at least forty years to ask for release from life sentence as irreducible for the purposes of Article 3 of the Convention. Therefore, I line with its argumentation in Vinter and Others, the Court has concluded that such a long, continued detention before the occurrence of the right for requesting parole cannot be justified on legitimate penological grounds.

Conclusion:violation of Article 3.

Article 41: EUR 3,000 to the first applicant, EUR 10,600 to the second applicant in respect of costs and expenses. The finding of a violation constituted in itself just satisfaction for any non-pecuniary damage sustained.

 

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