Newsletter no.7 (23 November 2015) - Round-up of the ECtHR case-law (October 2015)

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Summary

Boris Ivanov v. Russia (no.12311/06) – obligation to protect / procedural obligation. The applicant alleged that he was subjected to ill-treatment by other prisoners in the presence of a prison officer. The Court concluded that the authorities failed to comply with their obligation to protect and to conduct an effective investigation (violation of Article 3).

Sergeyev v. Russia (no.41090/05) – overcrowding / material conditions of detention. The applicant complained that he was held in an overcrowded cell and that his conditions of detention amounted to degrading treatment (violation of Article 3).

Kavaklıoğlu and others v. Turkey (no.15397/02) – use of force in security operation / Right to life / ill-treatments. Some of the applicants complained that their relatives were killed during a security operation in prison, the others complained that they were subjected to ill-treatment, all of them complained that there was no effective investigation on the events (violation of Article 2, violation of Article 3).

Sellal v. France (no.32432/13)– suicide/ positive obligation / mental health. The applicants’ brother committed suicide in detention. The Court considered that the authorities took all measures necessary to protect the detainee’s mental health, and that they could not have foreseen the suicide (noviolation of Article 2).

Sergey Denisov v. Russia (no.21566/13) / Tselovalnik v. Russia (no.28333/13) – healthcare / disability / effective remedy. The applicants complained of inadequate medical care in detention and of an absence of effective remedy for their complaint (no violation of Article 3, violation of Article 13).

Manea v. Romania (no.77638/12) – overcrowding. The applicant was held in a cell with less than 3 sq. m. of living space (violation of Article 3).

Karambelas v. Greece (no.50369/14) – healthcare. The applicant complained of inadequate medical care in detention. The Court however considered that the authorities have fulfilled their positive obligation under Article 3 (no violation of Article 3).

Simeonovi v. Bulgaria (no.21980/04)  – healthcare / material conditions of detention. The applicant complained that the authorities have failed in their obligation to provide him with adequate medical care after he contracted tuberculosis in detention. He also complained of the detention regime under which he had been placed (violation of Article 3 on account of his detention regime).

Şakar and others v. Turkey (no.38062/08) – overcrowding. The applicants complained that there were held in an overcrowded cell. (violation of Article 3).

Lunev v. Ukraine (no.4725/13) / Savinov v. Ukraine (no.5212/13) / Sergey Antonov v. Ukraine (no. 40512/13) / Sokil v. Ukraine (no.9414/13) – healthcare / effective remedy / right to individual petition. All four cases concern allegations of inadequate medical care in detention for prisoners suffering from HIV. The applicants also complained that they had no effective remedy for their complaint in respect of the lack of appropriate medical assistance (violation of Article 3, violation of Article 13). One of the applicants also complained that the authorities hindered his right to individual petition (violation of Article 34).

Brânduşe v. Romania (no.2) (no.39951/08) – material conditions of detention / right to free elections. The applicant complained that his conditions of detention were in breach of Article 3, and that he was allowed to vote to parliamentary elections because of a ban on prisoners’ voting rights in Romanian law (violation of Article 3, violation of Article 3 of Protocol No.1).

Kalamiotis and Other v. Greece (no.53098/13) – overcrowding / material conditions of detention. The applicant complained that his conditions of detention were in breach of Article 3. The Court however considered that he provided no element proving neither overcrowding nor one of the multiple dysfunction he evoked – lack of hygiene, restricted access to hot water, lack of activities (no violation of Article 3).

Story and Others v. Malta (nos.56854/13, 57005/13 and 57043/13)– overcrowding / material conditions of detention. The applicants complained that there were held in overcrowded cells and that the cumulative effect of their detention conditions constituted a degrading treatment. The Court firstly considered the allegation of overcrowding not substantiated. Secondly the Court declared itself not convinced that the general detention conditions amounted to a violation of Article 3 (no violation of Article 3).

 

6 October 2015

Boris Ivanov v. Russia (no.12311/06)

The applicant complained under Article 3 that he was subjected to inhuman and degrading treatmentby his fellow prisoners (in the presence of a prison officer), and that no effective investigation had been carried out into his complaints.

 First, the Court concluded that there had been a violation of the procedural limb of Article 3. The applicant’s allegations were confirmed by a certificate drawn up by the facility’s doctor who noted several injuries to the applicant’s head and body (§35). The applicant contended that he addressed several complaints of ill-treatment to the prosecutor’s office but that the prison authorities did not send them on.

Whatever happened, the Court considered that the authorities new that the applicant was complaining about the ill-treatment he endured (§36), and that in spite of it all they opened an investigation only more than a year after the incident. Moreover, after four years, the investigation had been suspended during three years. Last but not least, the investigation had not been thorough (limited medico-legal expertise, no confrontation between the victim and its aggressors or the prison guard who witnessed the incident). The investigation lacked thoroughness and promptness, and could not be considered as effective (see Menecheva v. Russia, §67). Therefore the Court concluded that there had been a violation of Article 3 under its procedural limb (§§34-39).

 Second, the Court noted that the authorities failed to contradict the applicant’s version of events – i.e. that he had been subjected to ill-treatments during hours and in the presence of a prison officer. The duration of the alleged ill-treatments and the absence of reaction of the prison officer who witnessed them lead the Court to conclude that the authorities failed to comply with their obligation to protect the applicant’s integrity (see Premininy v. Russia, §67). Accordingly, there had been a violation of Article 3 under its substantive limb.

 

Sergeyev v. Russia (no.41090/05)

The case concerned the applicant’s allegations of poor conditions of detention. He was detained in detention facility IZ-40/1 and in the temporary detention centre (IVS) at the Babininski district police station in the Kaluga Region.

With regard to his detention in prison, he complained in particular of overcrowding (he often had less than 3 sq. m. of living space). With regard to his detention in the IVS, he complained in particular of poor hygiene standards, lack of privacy, of natural light, of heating system and of outdoor time. He also complained of the duration of his detention (up to 14 days) in this facility which is designed for short-term detention (§§48-51).

The Court notes that in case of dispute on the conditions of detention, “there is no need for the Court to establish the veracity of each and every allegation, because it finds a violation of Article 3 on the basis of facts presented to it which the respondent Government have failed to refute” (§ 43, see also Grigorievskikh v. Russia, §55). In the case, the Government has failed to refute the applicant’s version of events. Based on all these elements, the Court concludes that there has been a violation of Article 3.

 

Kavaklıoğlu and others v. Turkey (no.15397/02)

The applicants are 74 Turkish nationals. The case concerns the operation launched on 26 September 1999 to quell an uprising in Ulucanlar Central Prison in Ankara. Nine of the applicants are relatives of eight prisoners who died, while the remaining 65 are prisoners who were injured during the operation. Relying on Article 2 and 3, nine of the applicants maintain that their relatives were killed by the security forces. The remaining applicants complain of the ill-treatment to which they were allegedly subjected during and after the operation carried out in the Prison. The applicant allege that the investigation carried out were inadequate and ineffective.

Complaint under Article 2

The Court considers in a first step that the goal followed by authorities was compatible with Article 2 § 2 a) since they had anticipated a violent reaction of prisoners. Nevertheless, regarding the amount of dead and injured persons during the attack of security forces, it must questioned if the degree of force exercised there was legitimate and appropriate. In this regard, the fact that, since 1996, the Ulucanlar prison was no longer under the control of the administration is of no consequence under Article 2, not only because no explanation was provided on concrete actions which have been envisaged to prevent the escalation of these problems over the years, but also because in any event, it does not relieve the state of its responsability for the planning and execution of the operation. A failure to ensure the normal functioning of a prison, even for years, cannot absolve States from their obligations towards the inmates.

 As all dead or injured persons were under the State’s responsibility, the Turkish government must provide a satisfying and convincing explanation to justify this violence, otherwise there is a presumption of deliberated action (see Aydan, §§ 68-71). The Court notes that the authorities haven´t evaluated the nature of the threat in order to implement non-lethal manoeuvres and haven´t planned any negotiation towards peaceful surrender. The court considers that the operation in Ulucanlar was deliberately conducted as it happened, and that the use of force as it was made was absolutely not necessary according to Article 2 § 2. There was a violation of Article 2 regarding the death of eight prisoners.

 Complaint under Article 3

The authorities are not able to provide any evidence that the prisoners have assaulted with arms the gendarmes, nor that they have participated to the violent events. The evidence of injuries suffered by gendarmes are also insufficient. Consequently, the injuries suffered by prisoners can´t be linked to unproved violence, so that there is a violation of Article 3 with prisoners as victims.

 Procedural aspect Articles 2 and 3

There were not sufficient inquiries after the death of prisoners to find responsibilities among security forces, so that the Court considers a violation of Articles 2 and 3 in their procedural aspects.

 

8 October 2015

Sellal v. France (no.32432/13)

The applicants complained under Article 2 that the prison authority did not take all measures necessary to prevent their brother’s suicide in detention. The Court recalled that the States have to comply with the positive obligation to protect the detainees’ life – included against suicidal risks (Tanrıbilir v. Turkey, §70). The applicants’ brother had mental health problems, and should have benefitted from specific preventive measures (Renolde c. France, §83).

The Court recalled however that Article 2 should not impose on the authorities an unbearable burden (§47). The Court considered that the authorities provided the applicants’ brother with the appropriate medical attention (he endured forced hospitalization at the beginning of his detention), and that that no element (medical or administrative) could have foreseen his suicide (§§ 52-55).

The Court noted that the applicant had apparently been doubly vulnerable, as a person deprived of his libertyand as a person suffering from mental disorders, which disorders had been acknowledged by the domestic authorities. It is a well-known fact that schizophrenics present a high suicide risk. However, neither A.S.’s medical file nor his criminal records comprised data pointing to any risk of suicide, and in fact his detention had apparently helped to keep his disorders under control. Nor did the “Form for identifying detainees presenting a suicide risk” which was filled in on A.S.’s committal to prison mention a suicide risk. A.S. had caused no trouble while in detention, and had rather set out plans for his future and accepted his treatment.

The Court considered that the domestic courts were justified in concluding that A.S.’s behaviour did not point to any risk of suicide. Consequently, there was no basis for a claim that the national authorities should have known that there was a real and immediate risk, at the relevant time, of A.S. taking his own life. Therefore, they had been under no obligation to adopt any specific measures in addition to the medical support which was actually provided in the present case.

 The Court therefore concluded that the authorities did not fail to fulfill their obligation under Article 2 (§58).

 

Sergey Denisov v. Russia (no.21566/13) / Tselovalnik v. Russia (no.28333/13)

Both cases principally concern allegation of inadequate medical care in detention.

Complaint under Article 3

The Court observes that the applicant complained of inadequate medical assistance in relation to his three diseases: HIV infection, hepatitis C, and penile cancer. Having assessed the evidence, the Court is not convinced that the quality of the medical care provided to the applicant was inadequate.

Firstly, the Court stresses that the Russian authorities formulated and commenced the antiretroviral therapy in compliance with the guidelines of the World Health Organization in force at the relevant time and the domestic legal requirements. Both handwritten and typed medical records show that the applicant was regularly monitored in relation to his HIV infection. Furthermore, the Court notes that the case file contains no evidence to show that the police had indeed seized drugs belonging to the applicant at the moment of his arrest. The Court notes that the medical records demonstrate convincingly that the applicant’s condition did not deteriorate in detention and that his HIV infection was not progressing.

To sum up, the Court considers that the domestic authorities afforded the applicant comprehensive, effective and transparent medical assistance throughout the period of his detention. There has accordingly been no violation of Article 3 of the Convention.

 Complaint under Article 13

The Court’s task in the present case is to examine the effectiveness of the various domestic remedies suggested by the Russian Government and not merely to determine whether the applicant had made his grievances sufficiently known to the Russian authorities.

The Court concludes that the legal avenues put forward by the Russian Government did not constitute an effective remedy that could have been used to prevent the alleged violations or their continuation and provide the applicant with adequate and sufficient redress for his complaints under Article 3 of the Convention. Consequently, there was a breach of Article 13 of the Convention.

 

13 October 2015

Manea v. Romania (no.77638/12

The applicant complained that the prison in which he was detained was overcrowded. The Court noticed that according to the elements transmitted by the Romanian Government, the applicant had a “very restricted” living space, sometimes even of only 1.65 sq. m. (§66). Moreover, the Court noticed that the applicant’s description of his detention conditions (pointing a restricted access to running water and sanitary facilities, and the poor hygiene conditions) are very similar to the CPT and Apador-CH findings (§67). The applicant endured these conditions of detention during four years. Accordingly, the Court declared that there had been a violation of Article 3.

 

15 October 2015

Karambelas v. Greece (no.50369/14)

Relying on Article 3, the applicant complained about the authorities’ refusal to provide him with adequate medical care. The Court however noted that the authorities provided care to the applicant and followed the recommendations of doctors to control the evolution of his disease (§45). The applicant underwent several medical examinations outside the prison.

Moreover, immediately after the entry into force of the new version of the Code of Criminal procedure allowing defendants with serious health problems to benefit from less restrictive measures, the applicant asked for his release and his request was granted (§46).

Given the circumstances of the case, the Court considered that the authorities have fulfilled their positive obligation to provide the applicant with adequate medical assistance. Accordingly, the Strasbourg Court found no violation of Article 3 of the Convention (§50).

 

20 October 2015

Simeonovi v. Bulgaria (no.21980/04)

The case concerned in particular the applicant’s complaints regarding his allegedly poor conditions of detention and the detention regime under which he had been placed.

On the alleged inadequate health care: the Court does not consider that the Bulgarian prison authorities have failed in their obligation to provide the applicant with adequate medical care – he contracted tuberculosis in prison. Such a fact is not sufficient in itself to engage the responsibility of the State in terms of Article 3 of the Convention, if the prison authorities have taken all necessary measures to ensure the prisoner adequate medical treatment. The file shows that the applicant was treated in the prison hospital and was the subject of continuous and regular monitoring by the prison doctors appears that the hospital treatment and ongoing medical. The Court further observes that the reports on the CPT's visits to Sofia Prison contain no specific criticism of medical care of prisoners suffering from tuberculosis (§ 72). Therefore, the complaint is manifestly ill-founded and must be rejected under Article 35 § 3 (a) and 4 of the Convention (§ 73).

On the regime and the material conditions of detention: the Court considers that the poor conditions of detention of the applicant, taken together with the restrictive regime execution of his life sentence and the length of the period of imprisonment concerned amounted in a violation of Article 3 because the applicant was put in a situation of continuous breach of his right not to be subjected to inhuman and degrading treatment (§ 94, see also Harakchiev and Tolumov v. Bulgaria, §§203-214). The applicant was locked in his cell 23 hours a day, he was isolated from the other prisoners, he could go to the church only twice a year.

 Şakar and others v. Turkey (no.38062/08)

Relying on Article 3, the applicants notably complained of their conditions ofdetention in the disciplinary cell of Osmaniye Prison.

Assuming that the cell was occupied by twelve then eight inmates - as claimed by the Government - it must be noted that every prisoner had an individual living space of approximately 1.60 m2 (four days) then 2.40 m2 (for twenty four days). This space was also further restricted by the presence of furniture in the cell and toilets whose dimensions are not specified (§ 39).

The Court attaches special importance to the statements made by the director of the prison itself, which reported a general problem of overcrowding in the institution (§ 41).

Therefore there has been a violation of Article 3 of the Convention on account of the absence of sufficient personal space for applicants (§ 43).

 

22 October 2015

Lunev v. Ukraine (no.4725/13) / Savinov v. Ukraine (no.5212/13) / Sergey Antonov v. Ukraine (no. 40512/13) / Sokil v. Ukraine (no.9414/13)

All four cases concern allegations of inadequate medical care in detention for prisoners suffering from HIV. Relying on Article 3, all four applicants complain about the inadequate medical care provided to them during their detention. Two of the applicants alleged under Article 13 that national legislation did not provide for effective remedy with which to complain about inadequate medical care in detention. One applicant also complains under Article 34 that he was subjected to psychological pressure to dissuade him from maintaining his application to the ECtHR. One applicant further alleged under Article 3 and Article 34 that he was ill-treated in detention by two police officers who wanted to intimidate him into withdrawing his complaint to the Court about the inadequate medical care.

The Court considers that the “adequacy” of medical assistance remains the most difficult element to determine. The Court notes also that the issue of inadequate medical assistance for people with HIV in Ukrainian detention facilities has already been addressed by the Court in a number of cases (see Kats and Others v. Ukraine, no. 29971/04, 18 December 2008; Pokhlebin v. Ukraine, no. 35581/06, 20 May 2010; and Salakhov and Islyamova v. Ukraine, no. 28005/08, 14 March 2013).

The Court finally concludes that the failure of the authorities to promptly diagnose the applicant’s condition and to provide prompt and comprehensive medical assistance to the applicant while in detention amounted to inhuman and degrading treatment in breach of Article 3 of the Convention.

The Court concludes also that there has been a violation of Article 13 of the Convention on account of the lack of an effective and accessible remedy under domestic law for the applicants’ complaint in respect of the lack of appropriate medical assistance.

Thirdly, the Court considers that one applicant (Antonov) was indeed approached by the authorities to induce him to make statements which would undermine his application before this Court. In these circumstances the State has failed to fulfil its obligation under Article 34 not to hinder the effective exercise of the right of individual petition.

 

27 October 2015

Brânduşe v. Romania (no.2) (no.39951/08)

The applicant alleged that he was detained in conditions which do not comply with Article 3 of the Convention. In addition, the complained that he was not allowed to vote in parliamentary elections due to a blanket ban on prisoners’ voting.

Complaint under Article 3

The Court recalled that it had already found violations of Article 3 of the Convention on account of the material conditions of detention in Jilava Prison in which the applicant was detained, especially regarding overcrowding and lack of hygiene (§28 ; see i. a. Iacov Stanciu v. Romania, §§ 173 and 179) underlined by the CPT (§11). The Government failed to put forward any argument that would allow the Court to reach a different conclusion (§29). Accordingly, the Court concluded that there had been a violation of Article 3.

 Complaint Under Article 3 of Protocol No.1

The Court has established in Hirst v. the UK, that there is a violation of Article 3 of Protocol No 1 when disenfranchisement affects a group of people generally, automatically and indiscriminately, based solely on the fact that they are serving a prison sentence, irrespective of the length of the sentence and irrespective of the nature or seriousness of their offence and their individual circumstances (§45).

In several cases against Romania, the Court has found a similar restriction to be incompatible with the requirements of Article 3 of the First Protocol in so far as, according to Romanian law as it was applied by the domestic courts at that time, all convicted prisoners serving prison sentences received a secondary penalty in the form of a general, automatic and indiscriminate restriction on the right to vote (see, notably, Calmanovici v. Romania, no. 42250/02, §§ 150-151). Accordingly, the Court concluded that there had been a violation of Article 3 of Protocol No. 1 to the Convention.

 

29 October 2015

Kalamiotis and Other v. Greece (no.53098/13)

The applicant complained that his conditions of detentions were in breach of Article 3. First he complained that the prison was overcrowded. The Court however noticed that according to the information provided by the Government and not contested by the applicant, the former had a living space of more than 3 sq. m. Such situation is not in itself a violation of Article 3 (§39 – see G. C. v. Italy).

The applicant complained of multiple dysfunctions (lack of hygiene, restricted access to hot water, lack of activities – see §40). The Court however noted that the applicant provided no evidence of these problems, whereas the Government did provide administrative and accounting records suggesting that the conditions of detention were not in breach of Article 3 (weekly menu, cleaning and disinfecting activities in the applicant’s cell, list of activities available, “etc. – §§40-41). Accordingly, the Court concluded that there had been no violation of Article 3.

 

Story and Others v. Malta (nos.56854/13, 57005/13 and 57043/13)

The applicants complain that their detention conditions were inhuman and degrading, in breach of Article 3.

As regards overcrowding, the Court however considered that since the applicants’ “statement was not accompanied by any [precise] information [it] cannot consider this allegation to be substantiated” (§110). As a result, “it does not appear that there is a problem of overcrowding in Division 3” (§110).

As regards the general conditions of detention, the Court noticed a number of important dysfunctions (lack of natural light, lack of ventilation, no adequate heating system, no fully functioning sanitary facilities – §§115-124) that were already highlighted by the CPT and local NGOs. The Court noted also “a number of other applications have been lodged and are currently pending before the Court in their preliminary stages by detainees of Division 3 who complain about the same circumstances” (§107).

However, the Court recalled that “special attention must be paid to the availability and duration of outdoor exercise and the conditions in which prisoners could take it” (§126), and noted that the detainees “were free to move around and access the exercise yard, as well as other recreational facilities, for more than ten hours a day” (§126).

In conclusion, the Court declared itself “not convinced […] that the overall conditions of detention […] subjected [the applicants] to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention” (§128). Accordingly, there had been no violation of Article 3.

In his “partly dissenting opinion” Judge Casadevall argued however that the cumulative effect of the applicants’ detention conditions “constitute degrading treatment and a violation of Article 3 of the Convention” (Parly Dissenting Opinion, §1) and found “somewhat shocking the arguments put forward to reject” the applicants’ complaints regarding general conditions of detention (PDO, §6).

 

 

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