Newsletter no.8 (14 December 2015) - Round-up of the ECtHR case-law (November 2015)

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Summary

Chyła v. Poland (no. 8384/08) – security measures / special regime / strip search / shackles. The applicant complained about his “dangerous detainee” regime (violation of Article 3).

Chukayev v. Russia (no.36814/06) – material conditions of detention / overcrowding / monitoring of correspondence. The applicant complained about his conditions of detention, and about the monitoring of his correspondence with the Court by prison authorities (violation of Article 3, violation of Article 8).

Filippopoulos v. Greece (no.41800/13) – material conditions of detention / overcrowding / sanitary conditions / effective remedy. The applicant complained about his detention conditionsand of the lack of domestic remedy by which to complain of those conditions (violation of Article 3).

Butko v. Russia (no. 32036/10) / Morozov v. Russia (no. 38758/05) – material conditions of detention / overcrowding / sanitary conditions / possibility of movement / effective remedy The applicants complained about their conditions of detention and the absence of an effective remedy for their complaints (violation of Article 3, violation of Article 13).

Korkin v. Romania (no. 48416/09) – material conditions of detention / overcrowding / transfer. The applicant complained in particular about the conditions of his transfer between the remand prison and the court-house (violation of Article 3).

Bamouhammad v. Belgium (no. 47687/13) – security transfer / security measures / mental health / conditional release / effective remedy. The applicant complained that he had endured many security transfers during his detention, that he had no effective remedy to complaint about these special measures, and that in spite of the decline of his mental health the authorities persisted in their refusal to improve his situation in the form of day release or prison leave (violation of Article 3, violation of Article 13).

Dimitrov and Ribov v. Bulgaria (no. 34846/08) / Radev v. Bulgaria (no. 37994/09)  – K. The (violation) – whole life sentence / security measures / special regime / relative social isolation / effective remedy. The applicants complained about the regime and conditions of their whole life sentences and about the lack of effective domestic remedy (violation of Article 3, violation of Article 13).

Verdeş v. Romania (no. 6215/14) – material conditions of detention / overcrowding / sanitary conditions. The applicants complained that the conditions of his detention were in breach of Article 3 due to overcrowding and poor sanitary conditions (violation of Article 3).

 

 3 November 2015

Chyła v. Poland (no. 8384/08)

The case concerned the application of a “dangerous detainee” regime. The applicant also complains of a violation of Article 8, both on account of the censorship of his correspondence and on account of the “dangerous detainee” regime. Finally, he complained that his inability to vote in the European Parliament elections in June 2009 violated his rights under Article 3 of Protocol No.1.

The Court noted that there is no dispute over the fact that from 3 January 2007 to 25 November 2010, that is, for three years and ten months, the applicant, a remand prisoner, was continually classified as a so-called “dangerous detainee” and, in consequence, subjected to high-security measures and various restrictions.

The measures applied in the applicant’s case comprised confinement at a special high-security prison ward and increased supervision of his movement within and outside the remand centre, which meant that he had to wear shackles at all times. The measures involved his segregation from the prison community and limitations on contact with his family. Also, every time he left or entered his cell he was subjected to a routine “full strip-search”.

The Court noted that the decision of 3 January 2007 imposing the “dangerous detainee” regime on the applicant was a legitimate measure, warranted by the fact that the applicant had been charged with numerous violent offences. However, for the reasons stated below, the Court cannot accept that the continued, routine and indiscriminate application of the full range of measures that were available to the authorities under the so-called “N” regime for three years and ten months had been necessary in order to maintain prison security and were compatible with Article 3 of the Convention.

Furthermore, the Court was not convinced that shackling the applicant was indeed necessary on each and every occasion. The Court wass even more concerned about the full body search to which the applicant was likewise subjected daily, or even several times a day, whenever he left or entered his cell. The strip-search was carried out as a matter of routine and was not linked to any specific security needs, nor to any specific suspicion concerning the applicant’s conduct. The Court found that the duration and severity of the measures taken exceeded the legitimate requirements of security in prison and that they were not necessary in their entirety to attain the legitimate aim pursued by the authorities.

There had accordingly been a violation of Article 3 of the Convention. The Court considered that the applicant’s complaints under Article 8 and Article 3 of Protocol No.1 were closely linked to his complaint under Article 3, and declared therefore that it will make no separate finding.

 

5 November 2015

Chukayev v. Russia (no. 36814/06)

The applicant alleged that the conditions of his detention on remand amounted to inhuman and degrading treatment because of the severe overcrowding in the facility. Moreover he complained that his correspondence with the Court had been opened and read by the prison authorities, in breach of Articles 8 and 34.

Complaint under Article 3

Having regard to the information submitted by the applicant and the Government’s acknowledgement that the conditions of his detention on remand had been inadequate (cells overcrowded and infested with insects, lack of ventilation system, electric lighting always on, toilet not separated from the rest of the cells, …), the Court considers that the applicant was subjected to inhuman and degrading treatment in breach of Article 3 of the Convention (§85).

Complaint under Article 8

The applicant claimed that at least seven of the Court’s letters had been opened by the prison administration. The Court considers that the opening of the letters addressed to the applicant constituted an interference with his rights under Article 8. Such an interference must be applied “in accordance with the law”; it must pursue one or more of the legitimate aims listed in paragraph 2; and, in addition, must be justified as being “necessary in a democratic society”. At the relevant time, Article 91 of the Code of Execution of Sentences expressly prohibited the monitoring of correspondence between a detainee and the Court (§137). Thus, the Court’s letters were opened in breach of domestic law, which provided for no exception to the regulation in question. Therefore the Court holds that there has been a violation of Article 8 the Convention.

 

12 November 2015

Filippopoulos v. Greece (no. 41800/13)

The case concerned the conditions of the applicant’s detention and the lack of domestic remedy by which to complain of those conditions.

Complaint under Article 3

The applicant was held in a cell of 9 sq. m. together with four to six other inmates. The applicant had a personal space of less than 3 sq. m. Moreover the toilet inside the cell had no doors, and the cell lacked appropriate ventilation: these two factors worsened the overcrowding situation. Accordingly, the Court concluded that there had been a violation of Article 3.

Complaint under Article 13

The applicant also alleged under Article 13 that Greek legislation did not provide for effective remedy with which to complain about his conditions of detention. The Court recalled that she had considered in a previous affair when a complaint concerns not an individual situation but general conditions of detention (such as overcrowding), the remedies provided for by Greek law are not considered effective, given the reduced competence of the judicial authorities concerned (§53, see also Papakonstantinou v. Greece, §51). Accordingly, there had been a violation of Article 13.

 

Butko v. Russia (no.32036/10) / Morozov v. Russia (no. 38758/05)

These cases essentially concerned allegations of appalling conditions of detention and the absence of an effective remedy for their complaints.

Complaint under Article 13

The Court noted that the applicants’ complaints were related to a problem of a structural nature (general overcrowding of the facility, lack of sanitary installation) affecting the entire facility population, and did not solely concern their personal situation (Butko §42, see also Ananyev and Others v. Russia, § 99). The Court considered that the Government was unable to show what redress could have been afforded to the applicant by a prosecutor, a court, or any other State agency (§42): a civil claim “cannot offer the applicant any redress other than purely compensatory award and cannot put an end to a situation involving an ongoing violation” (§46); the ombudsman can’t issue legally binding decisions (§44); periodic checks by prosecuting authorities “are not geared towards providing preventive or compensatory redress to the aggrieved individual” (§45). Accordingly, the Court concluded that it had no reason to depart from its conclusion drawn in the Ananyev judgement, and that there had been a violation of Article 13 (§47).

Complaint under Article 3

In the Morozov case, the Court noted that the applicant had been held in cells with less than 3 sq. m. of personal space (§§69-71). Accordingly it concluded that there had been a violation of Article 3.

In the Butko case, the Court firstly noted that the applicant lacked personal space (§§57-58), and that he had been held in insalubrious conditions (§59). Second, the Court noted that the applicant “could not work or exercise if he so wished” (§60). Thirdly, the Court went on the note that the sanitary facilities and “the conditions for maintaining personal hygiene” (§63) could hardly be considered satisfactory. Accordingly, the Court found “that the effect of overcrowding aggravated on account of a lack of purposeful activities and inadequate state of sanitary installations exposed the applicant to treatment which must be considered inhuman and degrading within the meaning of Article 3 of the Convention” (§64).

 

Korkin v. Russia (no. 48416/09)

Relying on Article 3 the applicant complained in particular about the conditions of his transfer between the remand prison and the court-house.

The Court observed that the Government was unable to provide any specific information on the conditions in which the applicant was transported to and from the court-house. The Court, however, could not accept the Government’s argument that the sole reason for such omissions on their part was the applicant’s failure to indicate the dates of those journeys, as the applicant’s complaint expressly referred to the dates of the court hearings in his case which were well-known to the Government (§71).

Having examined the parties’ arguments, the Court considered that the Government had not provided a satisfactory explanation for their failure to submit the information on the conditions of the applicant’s transport to and from the court-house and accepts as credible the applicant’s allegations on the issue (§72).

The Court observed that the applicant was transported together with eleven other inmates in a prison van measuring 3 sq. m. The personal space afforded to the applicant was therefore no more than 0.25 sq. m. The applicant had to endure those cramped conditions twice a day, on the way to and from the court-house, and he was transported in such conditions ninety-eight times during the period between 20 July 2007 and 10 April 2009 (§73). The journeys lasted as long as six hours.

In view of these facts, the Court concluded that the applicant was transported in overcrowded prison vans, the negative effects of which were exacerbated by the duration of the journeys (see Idalov v. Russia [GC], § 106).

The above considerations are sufficient for the Court to find that the applicant was subjected to inhuman and degrading treatment in breach of Article 3 of the Convention (§75).

 

17 November 2015

Bamouhammad v. Belgium (no. 47687/13)

 The case concerned the applicant’s conditions of detention and numerous transfers and the resulting decline in his mental health. This former prisoner suffers from Ganser syndrome (or “prison psychosis”). From January 2006 to November 2014 the applicant was transferred about 40 times from one prison to another.

The  Court  found  in  particular  that  the  manner  of  execution  of  the applicant’s detention, involving continuous transfers between prisons and repeated special measures, together with the prison  authority’s  delay  in  providing  him  with  therapy  and  refusal  to  consider  any  alternative  to custody  despite  the  decline  in  his  state  of  health,  had  subjected  him  to  distress  of  an  intensity exceeding the inevitable level of suffering inherent in detention.

The level of seriousness required for treatment to be regarded as degrading, within the meaning of Article 3, had thus been exceeded. Furthermore, the Court recommended under Article 46 (binding force and execution of judgments) that Belgium should introduce a remedy under Belgian law for prisoners to complain about transfers and special measures such as those imposed on the applicant.

Complaint under Article 3

First, the Court considered that the numerous transfers endured by the applicant during his detention were not all justified on security grounds (§127, see contra Khider v. France), and have impacted the applicant’s health. The Court therefore declared itself not convinced that these transfers were the result of a well-informed decision based on a balance between the needs of security and the requirement to ensure human conditions of detention.

Second, the Court noted that the applicant had been maintained during seven year in isolation, and had been subjected to several security measures (handcuffing, full body search) for most of this period that were not all justified on security grounds. The Court noticed furthermore that the authorities decided the extension of this regime with stereotyped decisions, without taking into account neither the effect of such a regime on the applicant’s health, nor the threat he constituted for the prison’s security.

Third, the Court noted that the applicant was eligible for prison leave and to release on license, and that he requested to benefit from these measures. However these requests (i.a. a prison leave to undergo psychotherapy outside the prison) were all denied by the authorities. The Court observed that the reports written by professionals with direct knowledge of the applicant’s detention, had repeatedly taken the view that the applicant’s imprisonment, which had been virtually continuous since 1984, no longer satisfied its legitimate objectives, and had advocated alternative arrangements. In particular, the Court took note of the report of the prison governor, whereby the applicant’s incarceration is described as a “total failure” (§150).

Despite these professionals’ views and the decline of the applicant’s state of health, the prison authorities had persisted in their refusal to improve his situation in the form of day release or prison leave. The Court declared that the authorities failed to consider the possibility for the applicant to benefit from an alternative to custody because of the decline of his state of health.

Accordingly, the Court declared that there had been a violation of Article 3.

Complaint under Article 13

The  Court  noted  that,  on  account  of  the  repeated  prison  transfers  –  circumstances  voluntarily created  by  the  authorities  –  the  protection  available  from  the  urgent  applications  judge  had  not proved  effective.  It  was  because  of  the  repeated  transfers  that,  on  two  occasions,  proceedings brought by the applicant had either become without object or had not enabled him to prove the urgency of the matter such as to justify the jurisdiction of that judge. The Court concluded that Farid Bamouhammad had not had an effective remedy by which to submit his complaints under Article 3.

There has accordingly been a violation of Article 13 taken together with Article 3.

 

Dimitrov and Ribov v. Bulgaria (no. 34846/08) / Radev v. Bulgaria (no. 37994/09)

The cases essentially concerned the applicants’ complaints about the regime and conditions of their whole life sentences.

The applicants, Stoyan Dimitrov, Ivan Ribov and Kamen Radev, are Bulgarian nationals who are all serving whole life sentences. All three men are detained in locked cells under heightened security supervision. Mr Dimitrov and Mr Ribov argued, in particular, that they were allowed out of their cells for between one and two hours a day and that due to the size of their cell they were forced to spend most of their day either lying or sitting on their beds. They complained about the poor conditions of the canteen and kitchen, the poor quality of the food and inadequate medical services. Mr Radev alleged that throughout his entire period of detention he had been held in permanently locked cells. All three men complained that there were no toilets in their cells and that they had limited access to a toilet having to use a bucket in their cell. Relying on Article 3, the three men complained about the stringent prison regime and conditions in which they were serving their life sentences. Furthermore, relying on Article 13 Mr Dimitrov and Mr Ribov complained that there was no effective remedy for them to complain about these conditions.

Complaint under Article 3

The Court reminds the applicable general principles laid down in paragraphs 199-202 of Harakchiev and Tolumov (nos. 15018/11 and 61199/12). More specifically, as regards the effects of isolation on a prisoner’s personality, the Court reiterates that all forms of solitary confinement without appropriate mental and physical stimulation are likely, in the long term, to have damaging effects resulting in deterioration of mental faculties and social abilities. Also, the automatic segregation of life prisoners from the rest of the prison population and from each other, in particular where no comprehensive out-of-cell activities or in-cell stimuli are available, may in itself raise an issue under Article 3 of the Convention (see Savičs v. Latvia, no. 17892/03, § 139, 27 November 2012). Furthermore, isolation must be justified by particular security reasons.

Turning to the present case, the Court notes that it has not been disputed that the applicants were kept in permanently locked individual cells, isolated from the rest of the prison population and subjected to strict security arrangements in accordance with the “special regime” applied to them. The Government has not sought to invoke convincing security reasons requiring the applicants’ isolation. The Court holds that such automatic isolation, even in application of the relevant statutory provisions, was incompatible with Article 3 of the Convention.

In terms of the material conditions of the applicants’ detention, the Court notes in particular the CPT findings in respect of life prisoners in its report on its 2014 visit to Burgas Prison (see paragraph 16 above). In those circumstances, the Court considers that the conditions of their detention and prison regime were, taken together, serious enough to qualify as inhuman and degrading treatment. There has therefore been a breach of Article 3 of the Convention (Dimitrov and Ribov v. Bulgaria, §40; Radev v. Bulgaria, §57).

Complaint under Article 13

In the case Dimitrov and Ribov, the Court reiterates its recent findings in the case Neshkov and Others v. Bulgaria (nos. 36925/10, 21487/12, 72893/12, 73196/12, 77718/12 and 9717/13, §§ 206 and 212, 27 January 2015), namely that neither a claim under the State and Municipalities Liability for Damage Act 1988 nor a complaint to the prosecutor in charge of supervising the respective correctional facility could be considered an effective domestic remedy in respect of complaints about conditions of detention. In addition, the Court does not consider that a complaint to the prison governor could be considered an effective remedy, given that the prison authorities would not have a sufficiently independent standpoint to satisfy the requirements of Article 13 (see, on this point, Ananyev and Others v. Russia, nos. 42525/07 and60800/08, §§ 105-06, 10 January 2012). Therefore, the Court finds that the applicants did not have an effective domestic remedy in respect of their complaints about the conditions of their detention, in breach of Article 13 of the Convention (§44).

 

 24 November 2015

Verdeş v. Romania (no. 6215/14)

 Relying in essence on Article 3, the applicant complained in particular about the conditions of his detention.

First, the Court noted that “even at the occupancy rate put forward by the Government, the applicant’s living space […] seems to have been less than that required by the Court’s case-law and as low as 2.51 square meters” (§76). Second, the Court noted that “even though it appears that for the better part of his detention in Timişoara Prison, where the applicant spent most of his sentence, his living space met the required size standard, the Court notes that the cells in the aforementioned prison were squalid” (§77). Third, the Court was not convinced “that the applicant had enjoyed sufficient natural light in his cells during his detention” (§78) since the Government had failed to submit evidence the applicant’s statement that bunk beds were placed against the windows. Accordingly, there had been a violation of Article 3.

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