Round-up of the ECtHR prison case-law #26 (May – June 2018)

Round-up of the ECtHR case-law
(May – June 2018)

Summaries

Lutskevich v. Russia (nos. 6312/13 and 60902/14) – material conditions of detention / transfer conditions / hearing conditions. The applicant complained under Article 3 about the conditions of his detention in his remand prison, in the holding room at Moscow City Court and during his transfers between the remand prison and the court of hearing. In addition, he complained about being held in glass cabins and metal cages during his court hearings (violation of Article 3)

Pilalis and Others v. Greece (no. 5574/16) – material conditions of detention / effective remedy. The applicants complained of their conditions of detention, of the lack of adequate medical treatment and of the lack of an effective remedy in that regard (violation of article 3, no violation of Article 3, violation of Article 13)

Zabelos and Others v. Greece (no. 1167/15) – material conditions of detention / effective remedy. The applicants complained about the conditions of their detention in the Prison hospital and that in respect of their complaints they had had no effective remedy (violation of Article 3, violation of Article 13 in conjunction with Article 3)

Gafà v. Malta (no. 54335/14) – release on bail. the applicant alleged that he had been held in custody past the maximum of 20 months allowed by law because he could not afford to pay the bail bond necessary for his release (violation of Article 5 §3)

Pocasovschi and Mihaila v. the Republic of Moldova and Russia (no. 1089/09) – material conditions of detention / effective remedy. The case concerned the applicants’ complaint about being held in poor conditions in a Moldovan prison whose electricity and water had been cut off by the separatist “Moldavian Republic of Transdnestria” (violation of Article 3 by the Repubilc of Moldova, violation of Article 13 by the Republic of Moldova)

Kartvelishvili v. Georgia (no. 17716/08) – fair trial. The case concerned a penknife found during a search of the applicant’s cell. The domestic courts refused the applicant’s requests to have his cellmates, who were present during the search, called as witnesses in the proceedings (violation of Article 6 §§ 1 and 3).

Lakatos v. Hungary (no. 21786/15) – pre-trial detention / pilot judgement procedure. The case concerned the applicant’s complaint about being held in pre-trial detention for more than three years without any reasonable suspicion against him (violation of Article 5 §3, no pilot judgment procedure)

15 MAY 2018

Lutskevich v. Russia (nos. 6312/13 and 60902/14)

The applicant complained under Article 3 about the conditions of his detention in his remand prison, in the holding room at Moscow City Court and during his transfers between the remand prison and the court of hearing. In addition, he complained about being held in glass cabins and metal cages during his court hearings.

As regards the applicant’s detention conditions

The Court observed that the applicant was afforded sufficient personal space in the cells in which he was detained and was not impeded to move freely in it (§57). The Court further noted that the applicant “was allowed one hour of outdoor exercise per day” and had “unobstructed access to natural light” (§58). The Court acknowledged that the “frequency of showers limited to once per week [had previously…] been considered […] as manifestly insufficient for maintaining proper bodily hygiene” (§58 – see Ananyev and Others v. Russia, no. 42525/07 and 60800/08, §158, 10 January 2012). Nevertheless, taking into account the overall detention conditions, the Court did not consider that these conditions “although far from adequate, reached the threshold of severity required to characterize the treatment as inhuman or degrading within the meaning of Article 3 of the Convention”.

As regards the applicant’s conditions of transfer to and from court

The Court recalled it had examined the conditions of transfer to and from court in a similar case in which it found a breach of Article 3 “on account of a lack of sufficient rest and sleep on the days of court hearings, overcrowding and generally poor conditions in the holding cells” and saw no reason to depart from those findings (§63 – see Yaroslav Belousov v. Russia, no. 2653/13 and 60980/14, 4 October 2016).

As regards the applicant’s confinement in glass cabins and metal cages during court hearings

The Court recalled it had ruled on an identical case in which it had found a violation of Article 3. It saw no reason to reach a different conclusion (§70 see Yaroslav Belousov v. Russia, no. 2653/13 and 60980/14, 4 October 2016).

 

17 MAY 2018

Pilalis and Others v. Greece (no. 5574/16)

The applicant claimed that the prison was overcrowded, that the lack of water supplies had dramatic consequences on the inmates’ hygiene, and that food provisions were scarce. They further claimed that they were not afforded adequate medical treatment.

Complaint under Article 3

The Court observed that the applicants did not contest the fact that they could leave their cells from 7:45 to 12:15 and from 15:00 until sunset, nor that the facility’s courtyard covered an area of 500 sq.m. and that they could have access to a library, a gym and two sports fields. Furthermore the Court noted that their claims that their cells were overcrowded and that they were not afforded enough food provisions were insufficiently substantiated (§54). As a result the Court considered that the applicants’ detention conditions went beyond the unavoidable level of hardship inherent in detention and reached the threshold of severity required by Article 3 of the Convention (§55, see Muršić v. Croatia [GC], no. 7334/13, §§ 99 and 101)

As regards the alleged lack of medical treatment the Court concluded from the medical certificates submitted by the Government that their obligation to provide the detainees with adequate medical care had been fulfilled. Therefore, there had been no violation of Article 3.

Complaint under Article 13

The applicants complained that they had no legal remedy in respect of their complaint regarding their detention conditions. The Court recalled that it had found on numerous occasions a violation of Article 13 in similar cases and saw no reason to depart from this conclusion (§64, see i. a. D.M. v. Greece, no. 44559/15, §§42-45, 16 February 2017). Therefore, there had been a violation of Article 13.

 

Zabelos and Others v. Greece (no. 1167/15)

The applicants complained about the conditions of their detention in the Prison hospital and that in respect of their complaints they had had no effective remedy.

Complaint under Article 3

As regards the personal space available to the applicants the Court noted that “all national and international bodies which visited the Prison hospital commented on the fact that it was overcrowded” (§81), including the CPT whose visit was carried out four months after the lodging of the application. However, the Court considered itself unable “to verify the accuracy of the parties’ submission and the exact space available to the applicants” (§82) during the period referred to in their applications as “the parties provide[d] conflicting accounts and [….] differ[ed] on factual elements” (§78).

The Court therefore turned to examine the general detention conditions. In that respect it noted that the applicants’ submission that the wards were “filthy and insufficiently heated”, “that the sanitary conditions were poor”, that the inmates lacked “recreational activities” (§83) were corroborated “at national level by the findings of the Ombudsman, and at international level by the Parliamentary Assembly of the Council of Europe and the CPT” (§84). The Court further observed that it had previously found a violation of Article 3 on account of the detention conditions in this facility (§84 – see Martzaklis and Others v. Greece, no. 20378/13, 9 July 2015). The Government “did not adduce any detailed argument capable of rebutting the applicant’s allegations” (§84). Therefore “the above-mentioned conditions coupled with the applicant’s vulnerability and the duration of their detention” amounted to a breach of Article 3.

Conversely the Court found that there had been no violation of Article 3 as regards the tenth applicant as “his detention for short periods [twenty-four days] should not automatically lead to a finding of violation of Article 3” (§86).

Complaint under Article 13

As regards the applicants’ complaint that they had no effective remedy in respect of their complaint regarding their detention conditions, the Court noted that it had ruled on many occasions that the remedies available cannot be deemed effective (§91 – see Papakonstantinou v. Greece, no. 50765/11, 13 November 2014) and saw no reason to depart from this assessment. The early release scheme provided for in Greek law cannot be deemed an effective remedy at the disposal of detainees suffering harsh detention conditions as “the conditions of detention do not figure among the grounds on which a detained person could be granted early release” (§92). Therefore, there had been a violation of Article 13.

22 MAY 2018

Gafà v. Malta (no. 54335/14)

The applicant was granted bail subject to financial conditions after 20 months in pre-trial detention. However he had been held in custody for twelve more months as he could not afford to pay the bail bond necessary for his release. He was eventually release after the domestic authorities accepted his request that his mother stand as surety.

The Court recalled that the right to liberty enshrined in Article 5 of the Convention is a fundamental right. Therefore, “the authorities must take as much care in fixing appropriate bail as in deciding whether or not continued detention is indispensable” and “the amount set for bail must be duly justified in the decision fixing bail and must take into account the accused’s means” (§70 – see Mangouras v. Spain [GC], no. 12050/04, §§79-80).

In the present case, the Court observed that the applicant filed four substantiated applications requesting the reduction of the amount to be deposited and that these applications were all rejected “on the basis of the seriousness of the crime and the fear of tampering with evidence, despite the fact that bail had already been granted” (§75). The Court noted that “none of those decisions explained how the amount of bail had been set by reference to the applicant’s assets and his means” nor did they “assess the applicant’s capacity to pay the sum required” (§75) Furthermore “despite the continued detention following the granting of bail subject to the contested financial conditions as a result of his inability to pay, at no stage […] did the court consider it adequate to decrease the amount of deposit allowing him a real possibility to benefit from bail” (§75).

Therefore, there had been a violation of Article 5§3.

 

29 MAY 2018

Pocasovschi and Mihaila v. the Republic of Moldova and Russia (no. 1089/09)

The applicants are Moldovan nationals serving sentences in the Transdniestria region. The region is under Moldova’s jurisdiction, however the town in which the facility is located is controlled by the separatist Moldovan Republic of Transdniestria.

The Court noted at the outset that “regardless of whether or not the applicants came under the jurisdiction of the Russian Federation” the complaints against this State were lodged “outside the time-limit […] and must be rejected as inadmissible” (§50)

Complaint under Article 3

In September 2002 the local authorities cut off the prison’s water, power and heating supplies. The applicants, who were both ill with tuberculosis, were therefore unable to have their disease properly treated, “were deprived of conditions of basic hygiene, and the food they received did not meet the minimum standards of quality” (§8).

The Court observed that the applicants’ detention conditions were “considered by the domestic courts [of the Republic of Moldova] to be inhuman” (§62). The Court saw no reason to depart from this assessment and concluded that the applicants were held in inhuman detention during the period referred to.

The Court then assessed the monetary compensation offered by the Moldovan authorities. It noted that the applicants were awarded the equivalent of EUR 1,266, which “is considerably below” the sum it awarded “in cases in which it [had] found a violation of Article 3 in respect of the Republic of Moldova concerning conditions of detention” (§66). In the light of the above, the Court declared that the applicants can still claim to be victims of a violation of Article 3.

Complaint under Article 13

The applicants argued that they had no effective remedies in respect of their complaint regarding their detention conditions. As regards the first applicant, the Court recalled that it found in previous similar cases that “the remedy of a court action in the form suggested by the Moldovan Government does not have a preventive effect” (§76) but solely a compensatory effect, and therefore could not be deemed as effective (see Shishanov v. the Republic of Moldova, no. 11353/06, §§124-139, 15 September 2015). The Court found therefore a violation of Article 13.

As regards the second applicant, as he had already been transferred to another facility when he lodged his claim to the domestic court “he could not ask for an improvement in his conditions of detention […] but only an acknowledgement of a breach of his rights and compensation” (§79). Since he was able to obtain both of these before the domestic courts, the Court concluded that he had at his disposal available effective remedies.

 

7 JUNE 2018

Kartvelishvili v. Georgia (no. 17716/08)

The case concerned a penknife found during a search of the applicant’s cell. The domestic courts refused the applicant’s requests to have his cellmates, who were present during the search, called as witnesses in the proceedings.

The Court observed that the domestic courts’ refusal to call the applicant’s cellmates as witnesses had been predicated on doubtful grounds that cannot be deemed as being in compliance with the Court case-law. The domestic courts stated inter alia that the applicant “had failed to explain why it had been important to hear evidence from the witnesses concerned, or that the witnesses in question were not trustworthy people because they were serving criminal sentences or that the facts had already been sufficiently established” (§64).

As a result the applicant was unable to challenge the accusation put forward against him. Therefore, the Court concluded that the domestic courts’ refusal to call the applicants’ cellmates as witnesses in the proceedings “rendered the trial as a whole unfair” in breach of Article 6 §§1 and 3 d) of the Convention.

 

26 JUNE 2018

Lakatos v. Hungary (no. 21786/15)

The case concerned the applicant’s complaint about being held in pre-trial detention for more than three years without any reasonable suspicion against him (violation of Article 5§3, no pilot judgment procedure)

Complaint under Article 5§3

The Court recalled that the existence of reasonable suspicion that the accused had committed a serious offense “cannot on its own justify pre-trial detention and must be supported by additional grounds” (§57, see Gábor Nagy v. Hungary (no.2), no. 73999/14, 11 April 2017). The Court observed that “when justifying the need to detain the applicant during the criminal proceedings against him, the domestic judicial authorities reasoned that he might abscond or interfere with the administration of justice” (§58). However the Court noted that the domestic courts failed to demonstrate these risks existed (§§59-65) and did not give “proper consideration to the possibility of ensuring the applicant’s attendance [in court] by the use of other ‘preventive measures’” (§66). Therefore, the Court concluded that there had been a violation of Article 5§3 of the Convention.

Application of Article 46

As regards the suitability of applying a pilot judgment procedure, the Hungarian Helsinki Committee and the Human Rights Litigation Foundation argued that “there was a systemic problem in Hungary as regards the extension of pre-trial detention” (§77) as pre-trial detention in Hungary lasted in general “for an excessive period of time and was based on formulaic, repetitive and abstract court decisions which did not take into account the individual circumstances of defendants” (§78).

The Court admitted that “since the adoption of the Committee of Ministers’ Resolution in 2011 in respect of the execution of four cases against Hungary concerning the length of detention on remand, in a number of similar cases in recent years it has held that the reasons relied upon by the domestic courts in their decisions to extend pre-trial detention were not relevant and sufficient to justify an applicant’s continued detention, and that the authorities had failed to envisage the possibility of imposing other preventive measures expressly foreseen by the Hungarian law to secure the proper conduct of criminal proceedings” (§85). The Court also acknowledged the fact “that while the relevant provisions of the domestic law define detention as the most extreme preventive measure, it appears that it is applied most frequently by the domestic courts” (§87). However, the Court noted that “the respondent State has already taken certain steps to remedy the problems related to pre-trial detention” (§88) and therefore did not “find it necessary to engage in a pilot-judgment procedure at this stage” (§89).

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