Round-up of the ECtHR prison case-law #25 (March-April 2018)

 
 Round-up of the ECtHR case-law
(March – April 2018)

Summary

Ebedin Abi v. Turkey (no. 10839/09)Health care. The case concerned the applicant’s diet while he was in detention. He complained of not having been provided with meals compatible with the diet that doctors had prescribed for him, and of a deterioration in his health as a result (violation of Article 3).

 

Dobrowolski and Others v. Poland (dec. no. 45651/11 and others)discrimination / work. The applicants were employed while serving prison sentences. They complained that the regulation allowing those engaged in work while imprisoned to be paid half of the basic minimum wage system had been discriminatory (inadmissible).

 

Igranov and Others v. Russia (nos. 42399/13 and others)fair trial / structural problem. The case concerned the fact that the applicants, who had been detained at the time, could not attend court hearings for civil claims they had made related to their imprisonment (violation of Article 6§1).

 

Aleksandr Aleksandrov v. Russia (no. 14431/06)discrimination / homelessness. The applicant alleged that the only reason he had been given a custodial sentence had been because he had not had a permanent place of residence in the region in which he had been tried and that his had been discriminatory (violation of Article 14 taken in conjunction with article 5)

 

Danilczuk v. Cyprus (no. 21318/12) – Material conditions of detention. The applicant complained about inadequate conditions of detention (violation of Article 3)

 

13 MARCH 2018

 

Ebedin Abi v. Turkey (no. 10839/09)

The applicant suffers from type 2 diabetes and from coronary artery disease. He asked the management of the prison where he was detained from April 2008 to March 2009 to provide him with meals appropriate to the diet prescribed for him by doctors. When the management refused his request he applied to the domestic courts. His application was rejected on the grounds that the daily allowance in respect of each prisoner was insufficient to allow more than one type of meal to be provided each day.

Relying on Article 2 and Article 5, the applicant complained that the meals served to him had been incompatible with the diet that doctors had prescribed for him. He alleged that his health had deteriorated as a result and complained of being detained in those circumstances. The Court decided to examine the applicant’s complaints from the standpoint of Article 3 of the Convention.

Firstly, in the Court’s view, the refusal to ensure that Mr Abi’s diet conformed to the medical prescriptions issued for him could in no way be justified on economic grounds, given that the law in force at the relevant time provided for a separate budget for prisoners with health problems. In that connection the Court noted that neither the public prosecutor nor the Assize Court had sought to ascertain whether the prison management had approached the competent authorities with a view to obtaining an increase in the daily allowance in order to meet the dietary needs of prisoners in poor health, as provided for by the law. Furthermore, the Government argued that the applicant could have paid in order to procure meals compatible with his diet. The Court took the view that a situation entailing costs for the applicant was incompatible with the State’s duty to organise its prison system in such a way as to respect prisoners’ human dignity, notwithstanding the logistical and financial difficulties.

Secondly, with regard to the alleged deterioration in Mr Abi’s health as a result of his inability to follow the diet prescribed by doctors, the Court observed that Mr Abi had made use of all the available remedies in order to raise before the national authorities his complaints concerning the incompatibility of the meals served with his diet and the deterioration in his health allegedly linked to his food intake. The national authorities had failed to respond adequately to Mr Abi’s repeated requests. Moreover, the Court considered that the domestic authorities should have arranged for a specialist to study the standard menu offered by the prison and for Mr Abi to undergo a medical examination at the same time specifically geared to his complaints. Hence, in failing to act, the domestic authorities had not taken the measures necessary for the protection of Mr Abi’s health and well-being. They had thus failed to ensure that the applicant’s conditions of detention were adequate and respected his human dignity. There had therefore been a violation of Article 3 of the Convention.

 

Dobrowolski and Others v. Poland (dec. no. 45651/11 and others)

Facts The applicants were employed while serving prison sentences, receiving a salary equal to half of the statutory minimum wage guaranteed to other employees. The law was amended on 8 March 2011 and the minimum wage of convicted persons was aligned with that of other employees.

Nine applicants lodged civil claims against the State on the basis that the Constitutional Court had established the unconstitutionality of the relevant legislation. The applicants sought reimbursement of the difference between full and half the minimum wage for the periods of their employment prior to 8 March 2011. The domestic courts dismissed all actions lodged stating that the salary received by the applicants for their work had been calculated in accordance with the law.

In the Convention proceedings, the applicants relied on Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. They complained, inter alia, that the regulation allowing those engaged in work while imprisoned to be paid half of the basic minimum wage system had been discriminatory.

 

Law […] The Court observed that the application concerned relations between prisoners carrying out remunerated work and their employers. The applicants’ work was not compulsory and they had been aware of the financial conditions before accepting them. The Court noted that the State regulated the minimum wage of prisoners to not less than half the minimum statutory wage but placed no limit on the maximum amount they could in theory reach. The applicants’ belief that prior to the law changing on 8 March 2011 their pay should have been equal to that of ordinary workers had not been recognised by law or any judicial decision.

The Constitutional Court’s judgment declaring the impugned provision unconstitutional did not create an enforceable claim to the full minimum wage as the Constitutional Court expressly postponed its application until 8 March 2011. It was clearly provided that the unconstitutional provision of the domestic law would not lose its binding force until twelve months after the official publication of the judgment. Prior to the judgment and the subsequent amended legislation, the applicant did not have a legitimate expectation which could give rise to an issue under Article 1 of Protocol No. 1 to the Convention.

In sum, the applicants had not shown they had a claim which was sufficiently established to be enforceable, and therefore could not argue that they had a “possession” within the meaning of Article 1 of Protocol No. 1. Since Article 14 of the Convention was not autonomous, and since the facts of the cases did not fall within the ambit of Article 1 of Protocol No. 1, Article 14 could not apply in the instant case.

 

Conclusion: inadmissible (ratione materiae).

© Council of Europe/European Court of Human Rights

 

 

20 MARCH 2018

 

Igranov and Others v. Russia (nos. 42399/13 and others)

The case concerned the fact that the applicants, who had been detained at the time, could not attend court hearings for civil claims they had made related to their imprisonment (regarding the material conditions of detention, the lack of adequate medical care, etc…) as “there was no domestic legal provision for bringing detainees to court” (§7).

The Court first recalled that it had found a violation of Article 6§1 in similar cases (see Yevdokimov and Others v. Russia, nos. 27236/05 and others, 16 February 2016) and that the Russian authorities acknowledged a violation of Article 6§1. The Court noted it saw no reason to depart from this conclusion: “[…] in the instant case, the courts did not verify whether the nature of the disputes called for the applicants’ personal testimony and whether their attendance was essential to ensure the overall fairness of the proceedings. The courts denied the applicants the opportunity to attend the hearings by reference to deficiencies in Russian law, irrespective of the subject matter of the proceedings. Even though the applicants’ involvement could have been ensured by making alternative procedural arrangements, for example, by using video-link facilities or conducting an off-site hearing, the courts did not consider those options” (§35). It therefore concluded that “the applicants were deprived of an opportunity to present their cases effectively before the court” in breach of Article 6§1 of the Convention.

The Court went on to note that the problem identified is widespread as “more than a hundred cases in which Russian courts had refused to secure the attendance of imprisoned applicants wishing to take part in hearing of their civil claims” have been examined since 2007 (§47). The Court observed that despite important rulings of Russia’s highest courts pointing to the issue, the situation had not much changed. Therefore, the Court concluded that the “unjustified restriction on the applicants’ right to present their cases effectively before civil courts because of their position as remand or convicted prisoners” was a structural problem giving “rise to repetitive applications” (§47).

However, the Court decided to abstain from applying the pilot-judgment procedure considering that it had “provided a comprehensive outline of the issues that need to be addressed by the Russian courts, and of the counterbalancing measures that they need to put in place, in order to secure the incarcerated litigants’ right to a fair trial” (§48) in the leading judgment Yevdokimov and Others v. Russia that was adopted less than two years ago.

In its concurring opinion, Judge Keller stated that the Court missed the “opportunity to adopt a pilot-judgment approach, through which the Court could have provided the respondent Government with concrete indications in how the structural and systemic problem [identified] should be resolved” (CO, §2). It pointed that while it is true that Yevdokimov and Others was decided only two years ago, this was not the first case of its kind on this issue and not much seems to have changed since then” (CO, §13). Therefore “by failing to implement a pilot-judgment procedure in this case, the Court is avoiding a problem it will inevitably find itself faced with time and time again in the future” (idem) as “numerous applicants […] will continue to appeal to it for relief they are unable to obtain in their domestic courts as a result of a system-wide shortcoming in the Russian judicial system” (CO, § 16).

 

 

27 MARCH 2018

 

Aleksandr Aleksandrov v. Russia (no. 14431/06)

Facts – In 2005 a district Court in Moscow found the applicant guilty of kicking a police officer while intoxicated and sentenced him to one year’s imprisonment. When deciding on the appropriate sentence, the court listed a number of mitigating circumstances which made the applicant prima facie eligible for a non-custodial sentence, such as probation or a fine. It held, however, that two elements affected the applicant’s entitlement to a more lenient sentence, the first being “the particular circumstances in which the offence had been committed”, and the second being his lack of a permanent place of residence within the Moscow Region, which was not the region of the applicant’s habitual residence but the region where the offence had been committed and the sentence had been pronounced. The applicant’s appeal was dismissed.

Law – […] In so far as the applicant’s place of residence had been explicitly mentioned as a factor in the sentencing decision, it had introduced a difference of treatment based on this ground between the applicant and other offenders convicted of similar offences and eligible for a sentence of probation or a fine. The difference in treatment did not seem to follow from domestic law. The Criminal Code provided for the possibility for a person serving a suspended sentence to change his place of residence under certain conditions.

In deciding whether or not a non-custodial sentence would be appropriate to attain the objectives of criminal justice, domestic courts could be called upon to consider the impact of the offender’s personal circumstances on the manner of its enforcement. Nevertheless, reliance on any grounds protected under Article 14 would require a justification that was capable of passing for an objective and reasonable one.

While acknowledging the existence of strong social links in the applicant’s home town, the district court had not justified why the benefit of a non-custodial sentence should have been conditional on the applicant’s ability to have a permanent residence outside his home region and near the place where he had been tried and sentenced. The appellate court had neither addressed the discrimination argument made by the applicant’s lawyer nor offered any justification for the difference in treatment.

Accordingly, it had not been shown that the difference in treatment had pursued a legitimate aim or had an objective and reasonable justification.

 

Conclusion: violation of Article 14 taken in conjunction with article 5 (unanimously).

© Council of Europe/European Court of Human Rights

 

3 APRIL 2018

 

Danilczuk v. Cyprus (no. 21318/12)

The applicant spent the entire period of his detention from September 2010 to May 2012 in three different blocks at Nicosia Central Prisons.

Relying on Article 3 of the European Convention on Human Rights, the applicant complained of overcrowding, lack of adequate light, cold cells and poor hygiene. In connection to the latter he complained in particular of difficulties in accessing the toilets (there had been no toilets in the cells) and that when the cells had been locked, he had been forced to urinate in a bottle and defecate in a waste bag.

The Court pointed out that both the CPT and the Ombudsman raised concerns in their respective reports about, inter alia, the general problem of overcrowding and access to the toilets at night in these prisons. In their submissions the Government had admitted that, depending on the number of the inmates detained with him in the larger cell or the dormitory, the applicant would have had under 3 sq. m. of personal space during part of his detention. The Court found that a strong presumption of a violation of Article 3 arose in the case at issue and that the period during which the applicant would have been held in those conditions (about one month and a half) could not be considered as a short, occasional and minor reduction in the required personal space that could have rebutted that presumption. The Court also held that the CPT’s and the Ombudsman’s reports regarding the hygiene conditions lend credence to the applicant’s allegations. It therefore found that the conditions of the applicant’s detention subjected him to hardship going beyond the unavoidable level of suffering inherent in detention and thus amounted to degrading treatment prohibited by Article 3 of the Convention.

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