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

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TABLE OF CONTENTS

 

June 2021 

Denis and Irvine v. Belgium [GC] (nos. 62819/17 and 63921/17)– Refusal to discharge offenders with persisting mental disorders from compulsory confinement after new law reserving its use for most serious offences: no violation of Article 5 § 1; three-year probationary period requisite for discharge from compulsory confinement not decisive in view of the offenders’ persisting mental disorders: no violation of Article 5 § 4.

Palfreeman v. Bulgaria [committee] – (no. 840/18) – Prisoner beaten by prison guards; investigations not sufficiently independent and thorough: violation of Article 3 (substantive and procedural limbs).

Zagaynov and Others v. Russia [committee] – 5666/07 and 4 others – Multiple episodes of violence against prisoners in different prisons; lack of serious investigation: violation of Article 3 (substantive and procedural limbs).

Sándor Varga and Others v. Hungary (nos. 39734/15, 35530/16, and 26804/18) – Whole life sentence subject to mandatory pardon procedure after 40 years lacking de facto reducibility for Article 3 purposes: violation of Article 3.

Starenkyy and others v. Ukraine [Committee]  (no. 71848/13) – Prisoners subjected to violence during a fire evacuation from one prison to another; no effective domestic investigation into that matter: violation of Article 3 (substantive and procedural limbs).

 

July 2021

Lesław Wójcik v. Poland (no. 66424/09)– Prison governor’s refusal of convicted prisoner’s requests for unsupervised conjugal visits, impugned measure part of system of privileges for prisoners linked to their conduct and with inherent element of discretion: no violation of Article 8.

Kasilov v. Russia (no. 2599/18) – Poor conditions of detention in the remand center, and routine full body searches: violation of Article 3; lack of a legitimate aim in accordance with the general interest of the retention of the security for eleven months between the delivery of the judgment of conviction and the delivery of the appeal judgment: violation of Article 1 of Protocol No. 1.

Sili v. Ukraine (no. 42903/14) – Poor conditions of detention in prison: violation of Article 3; unsuccessful attempts to obtain a disability pension: no violation of Article 1 of Protocol No. 1.

Polgar v. Romania (no. 39412/19) – Following on from its pilot judgment in 2017, Rezmiveș and Others v. Romania, in which it found a structural problem, the Court reviewed the conditions of detention in Romanian prisons: violation of Article 3; and the effectiveness of the domestic remedies: violation of Article 13.

 

September 2021

Dadusenko and Others v. Russia [dec.] (no. 36027/19 and al.) – Prisoners’ failure to exhaust a new remedy to vindicate their right to family life in the context of their allocation to remote penal facilities: inadmissible

Drovorub v. Moldova and Russia (no. 33583/14) –  Death due to inadequate medical assistance in prison in the self-proclaimed “Moldovan Republic of Transdniestria”, lack of an effective investigation: violation of Article 2 (substantive and procedural limbs) by the Russian Federation; no violation of Article 2 by the Republic of Moldova

 

SUMMARIES

1 June

Denis and Irvine v. Belgium [GC] - 62819/17 and 63921/17

Art 5 § 1 • Lawful arrest or detention • Refusal to discharge offenders with persisting mental disorders from compulsory confinement after new law reserving its use for most serious offences • Domestic courts’ approach recognising validity of confinement measures imposed under previous law neither arbitrary nor manifestly unreasonable • All three Winterwerp conditions for a lawful detention of a person “of unsound mind” met • Art 5 not requiring authorities to take into account the nature of the acts committed by the individual concerned, when assessing the persistence of the mental disorders

Art 5 § 4 • Review of lawfulness of detention • Three-year probationary period requisite for discharge from compulsory confinement not decisive in view of the offenders’ persisting mental disorders

Facts – After committing, respectively, the offences of theft and attempted aggravated burglary, the applicants, who were mentally unstable, were placed in compulsory confinement by the criminal court under the Social Protection Act of 1930. On 1 October 2016 a new law, the Compulsory Confinement Act (“CCA”), entered into force reserving compulsory confinement to the two most serious categories of offences involving an assault on the “physical or mental integrity” of third parties. The applicants applied for permanent release, arguing that the acts they had committed no longer fulfilled the conditions for confinement under the new law. Their applications were dismissed on the ground that their mental disorders were not sufficiently stabilised and that they had not completed the three-year probation period prescribed by law in order to benefit from permanent release. The Court of Cassation dismissed their appeals on points of law.

In a judgment of 8 October 2019, a Chamber of the European Court found unanimously no violation of Article 5 §§ 1 and 4. The case was referred to the Grand Chamber at the applicants’ request.

Law –

Article 5 § 1:  The Court found the applicants’ detention continued to have a valid legal basis and that their deprivation of liberty was lawful. In particular:

(a) As to the ground for the deprivation of liberty – It had not been disputed that the applicants’ deprivation of liberty fell withing the scope of Article 5 § 1 (e): they had not been convicted of an offence and no penalty had been imposed but had been found to lack criminal responsibility on account of the mental disorders from which they suffered; their compulsory confinement was a security measure of a preventive and not punitive nature.

(b) As to the lawfulness of the deprivation of liberty – the Court took into account the following:

(i) The legislative amendment in issue and the question raised before the Court: Although the CCA applied in principle to all pending cases it did not set out a specific transitional measure for persons, such as the applicants, who had been placed in confinement on the basis of the previous legal regime and who had committed acts which did not reach the new and higher threshold required. Accordingly, the question to be determined was whether this threshold affected the lawfulness of their detention, having regard to the requirements of Article 5 § 1 (e).

(ii) The application of the new legislation by the domestic courts:  The domestic courts held that the lawfulness of the applicants’ compulsory confinement had not been affected by the legislative amendment in issue. More specifically, the Court of Cassation held that the decisions in the applicants’ cases had become res judicata and the compulsory confinement orders issued against them final. Article 5 § 1 did not mean that a final compulsory confinement measure was no longer lawfully or legally imposed due to a change of legislation during the execution phase. Moreover, the assessment of the mental state and the ensuing dangerousness of the person was not made solely on the basis of the offences for which he or she had been placed in confinement but also on account of a range of risk factors. It thus transpired that the domestic system envisaged two successive phases of compulsory confinement which were governed by different provisions and criteria. The first phase was that of the judicial proceedings resulting in the decision to impose compulsory confinement. This decision remained valid throughout that confinement so long as no final judgment for discharge was given. After the measure’s imposition, the second phase began, during which the social protection divisions at the post-sentencing courts (CPS) reviewed the situation of persons in confinement at regular intervals and examined requests made by the detainees for a change in practical arrangements or their discharge.  Different rules applied, in particular with regard to the conditions for final discharge, for which the CPS had to assess whether the mental disorder of the individual had stabilised sufficiently and, having regard to a range of risk factors, whether there was a risk that the punishable acts in question would be committed again. Having regard to the domestic law as interpreted by the Court of Cassation, given that the applicants had not been granted final discharge, their deprivation of liberty continued to be validly based on the court decisions which, though taken under the previous legislation, maintained their binding force.

With regard to individuals placed in compulsory confinement on the basis of a decision which had become res judicata prior to 1 October 2016, the effects of the CCA were limited to decisions on extending the measure, the practical arrangements of its execution and on those individuals’ possible discharge. In the Court’s view the domestic courts’ approach in the present case was neither arbitrary nor manifestly unreasonable.

(iii) As to the compatibility of the approach taken with Article 5 § 1 (e): In the instant case, it had not been contested that the three conditions of the Winterwerp v. the Netherlands (1979) judgment were met: notably, it had been reliably shown that the applicants were of unsound mind, that their mental disorders were of a kind or degree warranting compulsory confinement, and that the disorders persisted throughout the entire period of the confinement. The Convention did not require the authorities, when assessing the persistence of the mental disorders, to take into account the nature of the acts committed by the individual concerned which had given rise to his or her compulsory confinement. As to the persistence of the disorder, domestic law introduced an automatic periodic review during which individuals in compulsory confinement were able, among other things, to argue that their mental-health condition had stabilised and that they no longer represented a danger to society as well as to request various practical arrangements for the execution of the order, including as in the applicants’ case, their final discharge. Under section 66 of the CCA this could only be granted under two cumulative conditions: first, the completion of a three-year probationary period; and second, that the mental disorder had sufficiently stabilised, to ensure that it could no longer reasonably be feared that the person placed in confinement, on account of his or her mental disorder, possibly combined with other risk factors, would commit fresh offences causing harm to or threatening the physical or mental integrity of third parties. Thus, only the current, mental-health condition of the confined person and the current risk of reoffending, at the time that the review was carried out, were considered in deciding on an individual’s release or continued placement in compulsory confinement.  It was in the light of those considerations that the CPS had examined the applicants’ requests for final discharge.  The nature of the punishable acts they had committed, which had formed the basis of their detention, had not been taken into account. In contrast, the CPS had assessed whether their mental disorders had stabilised to a sufficient degree and found in view of the information available that they had not. In doing so, the CPS had examined whether the mental disorders persisted as required by Article 5 § 1 (e). In any event, during the most recent periodic review of the applicants’ situation the CPS had considered that there still existed a high risk that they would commit violent crimes.

Conclusion: no violation (unanimously)

Article 5 § 4: Given the conclusion that the applicants’ detention was lawful, Article 5 § 4 did not require in the present case that their immediate release should be ordered.  Further, the applicants had benefited from annual automatic judicial review by the CPS, to which they had been able to submit, inter alia, their discharge requests, and had been able to appeal to the Court of Cassation.  Less than a month had elapsed between the CPS’s judgments and the appeal ones. The applicants had not argued that they did not have a judicial remedy at their disposal ruling promptly on the lawfulness of their detention and on their release applications. Their sole complaint was rather that it was impossible to secure their immediate and final discharge on account of the three-year probationary period imposed by the new law.

Indeed, that requirement seemed in principle to thwart the right, enshrined in Article 5 § 4, to obtain a judicial decision ordering the termination of detention if it proved unlawful.  The Court, however, had to limit itself to verifying whether the manner in which the law had been applied in the particular circumstances of the case complied with the Convention and not to take a decision in abstracto. In the present case, the domestic courts had refused the applicant’ request for final discharge on the grounds that neither of the two cumulative conditions under section 66 of the CCA had been met. The probation condition had, therefore, not been decisive as their state of mental health had also not improved sufficiently. Further, the Court welcomed the fact that in the meantime the Court of Cassation had interpreted section 66 in the light of Article 5 §§ 1 and 4, ruling that an individual who was no longer dangerous must be granted final discharge, even if the three-year probationary period had not yet been completed.

Conclusion: no violation (unanimously)

(See also Winterwerp v. the Netherlands, 24 October 1979; Radomilja and Others v. Croatia [GC], 37685/10 and 22768/12, 20 March 2018 ; Ilnseher v. Germany [GC], 10211/12 and 27505/14, 4 December 2018)

© Council of Europe/European Court of Human Rights

 

8 June

Palfreeman v. Bulgaria [committee] – 840/18,

Article 3 (substantive) • use of force not strictly necessary • allegations of violence consistent with the CPT's observations on the prison concerned

Article 3 (procedural)• “preliminary investigation” rather than criminal investigation • investigation entrusted to a police officer whose duty station was in prison

Facts –

The applicant was serving a prison sentence in Sofia Prison. The applicant’s conviction and the serving of his sentence have attracted considerable public attention and extensive media coverage in Bulgaria. The applicant alleged that he was hit (including with truncheons), kicked and pushed by prison guards without justification during a roll-call, and that the investigation of that incident was not independent and thorough.

Law –

Article 3 – procedural limb

In relation to the Sofia district prosecutor’s office decision to order a “preliminary investigation” by the police rather than directly opting for a criminal investigation, the Court has recalled its conclusions in similar cases against Romania, Russia and Ukraine that such choice may often be problematic. The Court has also highlighted some of the limitations of that procedure in Bulgaria. But the Court has highlighted that it is up for the national authorities to choose whether to first carry out a preliminary investigation or to directly open criminal proceedings. What matters is whether the investigation complied with the standards or suffered from deficiencies.

The Court has analysed the proceedings and concluded that there indeed have been some deficiencies in the preliminary investigation. First, it was entrusted solely to a police officer whose duty station was in Sofia Prison. His de facto proximity to the prison guards who have allegedly ill-treated the applicant undermines the possibility of seeing him as sufficiently independent in practical terms. Additionally, the Sofia district prosecutor’s office on all four occasions when the officer reported back to it, it simply copied nearly word for word his reports, without itself analysing the material in the case. It was also reluctant to ensure that the officer duly complied with the instructions by the higher prosecutor’s offices for additional investigative steps. Secondly, the investigation was limited to taking statements from those involved in the incident, with no apparent efforts to interview them in some detail. Last but not least, the medical examination undergone by the applicant after the incident was cursory, apparently taking no more than two or three minutes, and was carried out by a medical doctor who – by his own admission – was not suitably qualified to give an opinion about the origin of the applicant’s injuries. Overall, the investigation was neither sufficiently independent nor capable of answering convincingly the main questions arising in the case: what sort and degree of force had prison guards used against the applicant, and whether that force had been made strictly necessary by his own conduct. The Court has concluded that there has been a breach of Article 3 under its procedural limb.

Conclusion: violation of Article 3 (procedural limb).

Article 3 – substantive limb

The Court did not dispute the fact thatsome sort of incident requiring the intervention of prison guards in the applicant’s cell and the use of force towards prisoners took place in the morning of 17 October 2013. It has pointed to the existence of two contemporaneous reports that attested to that, albeit not in detail. Some other proof indicated that there has been use of force against the applicant and his cellmates on that day. The Court has recalled the burden of proof that was on the State authorities to explain convincingly the origin of the applicant’s injuries, and to show that the use of force with respect to him had been indispensable and not excessive, as the incident occurred in a State prison.

The normal way for the authorities to discharge that burden was by investigating the incident effectively. But because it was full of deficiencies and flaws, the Court could not rely itself on the findings of the investigation. The Court concludes that the Government failed to submit sufficient information or evidence calling into question the applicant´s version of the events. Having turned to the CPT’s findings during its two subsequent visits to Sofia Prison in which similar allegations similar allegations of ill-treatment of foreign inmates have been recorded, it concluded that the applicant’s account is more credible than the one of the Government. The Court has concluded that the use of any force with respect to a detainee which has not been made strictly necessary by his or her own conduct diminishes human dignity and amounts to “degrading treatment”, which happened in the present case, therefore, there has been violation of Article 3 of the Convention.

Conclusion: violation of Article 3 (substantive limb).

Article 41: EUR 5,200 for non-pecuniary damage.

 

15 June

Zagaynov and Others v. Russia [committee] – 5666/07 and 4 others

Article 3 (substantive) • violence having the character of torture • use of force not strictly necessary amounting to inhuman and degrading treatment

Article 3 (procedural)• “preliminary investigation” rather than criminal investigation • lack of reasonable steps available to them to secure and examine the evidence

Facts –

The applications concern the alleged ill-treatment of the applicants in penal facilities between 2005 and 2012, and the alleged ineffective investigation in that regard.

Law –

The Court cannot see anything which might have prompted the need to use rubber truncheons against Mr Gayazov, Mr Zagaynov and the other applicants in application no. 5666/07. Even though some of them appear to have disobeyed or resisted the officers’ orders, no attempt was made to apprehend or restrain them. The use of rubber truncheons against the applicants was retaliatory in nature. The purpose of that treatment was to debase them and drive them into submission. In addition, the truncheon blows must have caused them intense mental and physical suffering, even though they did not result in any long-term damage to health. Having regard to the injuries inflicted, the    applicants were subjected to inhuman and degrading treatment. Having regard to Mr Pulyalin’s injuries (no. 5264/10) in the form of the contusion on his right eye, the Court finds that he was subjected to inhuman and degrading treatment. In the case of Mr Gayazov, the injuries resulted in long-term damage to his health. It took at least four months for the injuries to heal. The Court finds that Mr Gayazov was subjected to torture. As to Mr Aleksandrov (no. 21396/11) and Mr Seliverstov (no. 51153/14), the Court notes that, apart from bruises, abrasions and bone deformities, the applicants sustained skin tears, a fractured rib and a pneumothorax. The Court finds that the ill-treatment inflicted on them in a detention context must have caused severe physical and mental suffering. In such circumstances, the Court finds that Mr Aleksandrov and Mr Seliverstov were subjected to torture.

The Court observes that in the cases of Mr Pulyalin and Mr Aleksandrov, the applicants’ credible allegations that their injuries resulted from violence on the part of the colony officers were dismissed by the investigating authorities as unfounded based mainly on the statements of those officers denying any ill-treatment of the applicants. In the case of Mr Seliverstov, after refusing to open a criminal case into the alleged ill-treatment the authorities opened an investigation, which was eventually terminated for lack of a criminal event.

 The Court considers that the authorities did not make a serious attempt to find out what had happened. In particular, in the case of Mr Pulyalin, the investigator referred to the video recorded on the day of the alleged ill-treatment. The video clearly lacked any recording at the time of the alleged ill-treatment. The investigator did not explain the lack of video recordings. The Court further notes that the investigators failed to explain Mr Aleksandrov’s injuries, such as the broken nose and scar on his left eyebrow, recorded by a forensic medical expert. He merely concluded that the applicant had not sustained any serious injuries. In addition, as regards the quality of the medical evidence, the Court reiterates that proper medical examinations are essential safeguards against ill-treatment.  In this connection, the Court observes that, in some of the cases, the forensic medical examinations were conducted with a significant delay after the events or after the applicants had complained of ill‑treatment. By the time the applicants were examined, precious time had been lost and it was impossible to determine the cause or origin of their injuries.

In respect of Mr Gayazov (no. 12892/08) and Mr Zagaynov and the other applicants in application no. 5666/07, the authorities failed to demonstrate that the physical force used against the applicants had been made strictly necessary by their conduct. Neither in the reports on the use of rubber truncheons nor in the refusals to open a criminal case did the authorities or domestic courts assess the proportionality of the force used.

 

17 June 2021

Sándor Varga and Others v. Hungary – nos. 39734/15, 35530/16, and 26804/18

Art 3 (substantive) • Inhuman or degrading punishment • Whole life sentence subject to mandatory pardon procedure after 40 years lacking de facto reducibility for Article 3 purposes

Art 35 § 1 • Exhaustion of domestic remedies • Applicants not expected to pursue a constitutional complaint • Issues of “constitutionality” or “compatibility” did not arise as life imprisonment without possibility of release on parole part of the constitutional legal order

 Facts -

The cases concern the applicants’ life sentences without the possibility of release on parole, which they consider inhuman and degrading punishment contrary to Article 3 of the Convention.

Law - 

Admissibility

The Government argued that recourse to the Constitutional Court provided an effective remedy for the applicants either through challenging the constitutionality of the final court judgments or of the underlying legal provision. The Court notes that the wording of the relevant provisions of the Constitutional Court Act provides for a right to lodge a constitutional complaint only in circumstances in which an individual considers that a legal provision or a judicial decision is incompatible with a legal provision of the Fundamental Law.

However, life imprisonment without the possibility of release on parole is explicitly provided for by the Fundamental Law and, as concluded by the Kúria, the possibility of exclusion of eligibility for parole was part of the constitutional legal order. Consequently, it cannot be said that any issues of “constitutionality” or compatibility with the Fundamental Law of either the court judgments or the provisions of the Criminal Code applied in the applicants’ case arise. In such circumstances the Court considers that the constitutional complaint referred to by the Government did not constitute an effective remedy for the applicants’ grievances. It concludes that the applicants’ complaints cannot be rejected for non-exhaustion of domestic remedies.

Merits

The Court has examined the arguments of the parties and concluded that the whole life sentence and the mandatory pardon procedure after forty years of imprisonment was the primary subject of scrutiny in the judgment in T.P. and A.T. v. Hungary. There, the ECtHR has already held that the mandatory pardon procedure that was possible only after fourty years of imprisonment served by the applicants amounted to a de facto absence of reducible whole life sentences. Therefore, the new Hungarian legislation providing for this procedure and lack of sufficient procedural safeguards in the second part of the procedure led the Court to the conclusion that there has been violation of Article 3 of the Convention in the case T.P. and A.T. v. Hungary. In the present case, the Government submitted similar arguments as in the case of T.P. and A.T. v. Hungary, which does not allow the Court to depart from its previous findings. Therefore, it concluded in the present case that there has been violation of Article 3 of the Convention.

Conclusion: violation of Article 3 of the Convention.

Article 41: the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the second and third applicants; the first and fourth applicants did not submit any claims for just satisfaction.

 

24 June 2021

Starenkyy and others v. Ukraine [Committee] – no. 71848/13

 Art 3 (substantive) • inhuman and degrading treatment •

Arti 3 (procedural) • investigation based mainly on the testimony of prison staff

Facts –

The applicants, who were serving life imprisonment, complained that they had been subjected to violence during a fire evacuation from one prison to another in March 2012 and that there had been no effective domestic investigation into that matter. They claimed that they sustained numerous hits with truncheons, sticks and electric cables, as well as punches and kicks, during their passage through the “live corridor” of fifty to seventy metres long during an evacuation from the Sokal Prison in the Lviv region. They also claimed to have been handcuffed in an extremely tight manner for a considerable amount of time. As a result, the hands of many had turned violet and had become numb. Additionally, the prisoners’ relatives were prevented from contacting them for about three weeks from the time of the evacuation.

Law –

Article 3 (procedural limb)

The applicants complained of ineffective investigation as the Prosecutor’s Office refused to institute criminal proceedings or discontinued the investigation eleven times having relied on testimonies of numerous staff members, who denied having applied or having witnessed application of force against prisoners. The Prosecutor’s Office relied on testimonies of the staff members of the Lviv SIZO where prisoners were transferred, who submitted that no injuries or complaints had been reported during the applicants’ medical examination upon arrival. There has been however no records of incidents, injuries, complaints or requests for medical assistance in the prison and the SIZO logbooks. Despite ECtHR’s repeated requests, the Government never provided any proof of medical examination that has not revealed any physical injuries on the applicants’ bodies. The prisoners themselves claimed having gotten during the passage through the “live corridor” one or several head injuries, a tooth knocked out, a suspected nose fracture, a dislocated shoulder, a back injury and a knee injury. The earliest forensic medical expert examinations were carried out in respect of some applicants almost a year after the incident, which, according to the Court, obviously could not be regarded as reliable proof establishing the absence or presence of physical injury sustained during the events that took place in March 2012.

The ECtHR has pointed to numerous deficiencies in the investigation: repeated discontinuation of the investigation without forensic medical examination, failure to carry out any investigative measures in respect of the material evidence adduced in February 2013, refusal of one applicant’s pertinent requests on the grounds that he had no formal status of victim, etc. Regarding the investigation into the circumstances of the passage though the “live corridor” formed by members of the Lviv regional rapid response unit, no attempts were made to establish the composition of that unit let alone identify the officers concerned. The proceedings were also discontinued and resumed many times because the investigation had been found to be incomplete and inadequate. Given the considerable lapse of time, the chances to shed light on the circumstances became quite limited.

Conclusion: violation.

Article 3 (substantive aspect)

The Court has noted the very detailed, specific and consistent description of the fire evacuation from Sokal Prison provided by the applicants. It has also turned its attention to the fact that there has been no medical evidence in the case file in support of the applicants’ allegations. However, it has reiterated that the absence of such evidence cannot immediately lead to the conclusion that the allegations of ill-treatment are false or cannot be proven. Were it otherwise, the authorities would be able to avoid responsibility for ill-treatment by not conducting medical examinations and not recording the use of physical force or special means of restraint (Karabet and Others, § 315). Having analysed in detail the circumstances surrounding the absence of medical reports, the Court concluded that such an absence should be interpreted in favour of the applicants, taking into account the absence of any explanation for Government’s failure to provide the Court with copies of the applicants’ medical files. Having regard to the vulnerability of the prisoners, who remained under the full control of the authorities, and noting the allegation of pressure on witnesses, the Court cannot accept the Government’s argument that the absence of ill-treatment complaints from each and every one of the sixty-eight evacuated prisoners indicated that the applicants’ allegation of mass beating during the fire evacuation was implausible. The restriction on family visits for three weeks after the incident also appeared to be inexplicable, taking into account the anxiety of the relatives who have been observing the news about the fire in Sokal Prison.

The Court noted that the applicants have described the events very consistently and in detail, they did not have any medical reports at hand as a main proof of ill-treatment inflicted on them and could not collect any additional evidence because of isolation from the outside world, and, on the other hand, the Government’s failure to provide the Court with any reasons, let alone evidence, to cast doubts on the credibility of the applicants’ allegations. Therefore, the Court has presumed that the applicants were indeed subjected to the treatment alleged, namely that they sustained numerous hits with truncheons, sticks and electric cables, as well as punches and kicks, during their passage through the “live corridor”. The applicants complied with all the orders of the prison administration, did not manifest any violence or attempts to escape during the evacuation prior to the passage through the “live corridor”, therefore, the Court sees no justification for any brutality against them. It has also taken into account the fact that the applicants had to wait for their evacuation from the prison for at least six hours in particularly stressful conditions, therefore, they were exhausted physically and mentally. They were also shocked by the unexpected violence applied to them. Altogether, the analysis of the circumstances of the case allowed the Court to conclude that the applicants indeed became the victims of inhuman and degrading treatment.

Conclusion: violation of Article 3 of the Convention (substantive limb).

Article 41: EUR 12,000 to each of the applicants in respect of non-pecuniary damage; EUR 3,500 to four applicants jointly in respect of costs and expenses.

 

1 July

Lesław Wójcik v. Poland –  no. 66424/09

Art 8 • Family life • Prison governor’s refusal of convicted prisoner’s requests for unsupervised conjugal visits adequately reasoned, and not arbitrary or manifestly unreasonable in the circumstances • Impugned measure part of system of privileges for prisoners linked to their conduct and with inherent element of discretion

Art 35 § 1 • Interlocutory appeal lodged with a regional court effective domestic remedy against the prison governor’s refusal

Facts –

The case concerned conjugal visits for the applicant during his time in prison. .

Law –

Article 8

The Court has noted that the conjugal visits are qualified as rewards under the national law and were up to the discretionary power of prison governor or his deputy. Moreover, some specific conditions, such as the outstanding good behaviour of the prisoner, are to be applied for the assessment whether the visit should be granted. The ECtHR has drawn distinction between this case and other cases against Poland, such as the ones pertaining to supervised family visits (Wegera v. Poland, no. 141/07, 19 January 2010) or those concerning compassionate leaves responding to punctual requirements of family life, arising in specific circumstances (Płoski v. Poland, no. 26761/95, § 38, 12 November 2002; Giszczak v. Poland, no. 40195/08, § 36, 29 November 2011; and Czarnowski v. Poland, no. 28586/03, § 26, 20 January 2009).

The Court then proceeded to the evaluation of the system of incentives as such for the encouragement and motivation of prisoners and concluded that the nature of such a privilege presupposes that the access and the enjoyment of such measures will depend on the very specific circumstances of the case and the specific individual behaviour of the concerned person, which will have to be necessarily assessed on a case-by-case basis. Therefore, the discretion of the prison authorities are an inherent part of the process, as well as the verification whether the specific conditions justifying the granting had been fulfilled. However, Article 8 of the Convention cannot be interpreted as excluding a system of incentives granted to prisoners as rewards for good conduct.

The three-step test was applied in the present case and the first component of the test included the assessment whether there has been an interference with the right of the applicant. From its point of view, even if conjugal visits constitute a privilege, their refusal may be seen a particular type of interference with the applicant’s right to respect for his family life within the meaning of the Convention. The next step is to verify whether the interference was according to the law which was the case here. The ECtHR also noted that, in restricting the applicant’s access to private visits from his wife, the authorities pursued legitimate aims – namely to ensure discipline among prisoners and rehabilitation of prisoners.

The final criterion of the assessment is to see whether the national authorities have struck a fair balance between the legitimate aim and the right to family life of the applicant, i.e., to see whether the authorities’ refusals to grant the applicant the conjugal visits in question were arbitrary or manifestly unreasonable. The arguments the applicant used to ask for conjugal visits included the need to preserve the family bonds with his wife as they have only recently got married and planned to have another baby. He also referred to the advanced stage of his resocialisation and his exceptional commitment and submitted that he deserved a reward or, alternatively, a motivational measure.

The next step of the ECtHR was to look at whether the national courts have examined in full and in an individualised manner the complaints of the applicant and remedied the above-mentioned deficiency. The Court has assessed the reasoning of the decision of the penitentiary judge where the national court made reference to the applicant’s insolence and the numerous disciplinary punishments that he had incurred. The penitentiary judge explained that such behaviour had disqualified the applicant from obtaining any reward. Moreover, it was hinted to the applicant, albeit in general terms, that a steady and active rehabilitation (rather than occasional displays of good conduct) was necessary for a conjugal visit to be granted. Lastly, the penitentiary judge considered that the refusal to authorise a conjugal visit had not hindered family bonding because such bonding was at the material time being maintained through supervised visits, correspondence and telephone calls.

The ECtHR concluded that “overall, the reasons given for the refusal of the applicant’s requests for conjugal visits had been sufficient for the purpose of justifying a denial of a reward for outstanding good behaviour and that the applicant’s conduct in prison and his family contacts at the material time had been taken into consideration” (§ 132). Therefore, the interference complained of has not stemmed from “a blunt instrument” which indiscriminately stripped one category of prisoners of their Convention rights or imposed a blanket or automatic restriction on all convicted prisoners. The Court has also took into account numerous disciplinary punishments applied against the applicant and considered that the refusals to grant conjugal visits were not arbitrary or manifestly unreasonable.

Conclusion: no violation of Article 8 of the Convention.

 

6 July

Kasilov v. Russia (no. 2599/18)*

Art 3 • Degrading treatment • Poor conditions of detention in the remand center, including routine full body searches
Art 1 P1 • Respect for property • Lack of a legitimate aim in accordance with the general interest of the retention of the security for eleven months between the delivery of the judgment of conviction and the delivery of the appeal judgment

Facts –

The case concerned Mr Kasilov’s detention following the delivery, at first instance, of a judgment convicting him to a five-and-a-half years’ imprisonment; the applicant’s conditions of detention in a remand prison; and the retention of a security (totalling some 23,590 euros) which he had paid in 2015 for his release on licence during the trial, and which was refunded to him in 2018 following the delivery of the appeal judgment.

Law –

Article 3

The applicant alleged that his conditions of detention in remand center, including body searches, amounted to inhuman and degrading treatment,. There has been a disagreement between the applicant and the Government as to the calculation of the area of the cell and its maximum capacity: the applicant submitted that the cell measured 15.6 sq. m. (due to the fact that 1.3 sq. m. must be deducted from this area to take into account the toilets in the cell), and the Government submitted that the surface of the cell was 16.9 sq. m.

The Court has reiterated that, although the total area of ​​the cell must not include that of the sanitary facilities, the calculation of the available area in the cell must include the space occupied by the furniture (Muršić v. Croatia [ GC], no.7334 / 13, § 116, 20 October 2016). Accordingly, the ECtHR considered that the relevant area of ​​the cell was, as the applicant maintained, 15.6 sq. m. As to the second point of disagreement, the Court relied on the response of the administration of the remand center, according to which the cell in question accommodated five people, including the applicant, and was overcrowded. It therefore estimates that the person concerned had 3.12 sq. m. of space. In such a case, the Court will find a violation of Article 3 if the lack of space is accompanied by other poor material conditions of detention (see Muršić, § 139). In the present case the conditions of detention clearly indicated degrading treatment in relation to the applicant. The applicant also referred to routine body searches with no justification, which is also contrary to Article 3 of the Convention.

Conclusion: violation of Article 3 of the Convention.

Article 5 § 4

The applicant complained that it was impossible to appeal against the detention decision indicated in the conviction at first instance. The Court has highlighted that Article 5 § 4 of the Convention, which establishes the right of persons arrested or detained to obtain “promptly” a judicial decision on the lawfulness of their detention, does not normally come into play in the case of detentions governed by Article 5 § 1 a) of the Convention (lawful detention after conviction by a competent court). As soon as a person is deprived of their liberty following the pronouncement of a conviction by a competent court, the control required by Article 5 § 4 is incorporated into the decision rendered at the end of the trial, and no further checks are required (De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, p. 76, Series A no. 12). An accused person is considered to be detained “after conviction by a competent court” within the meaning of Article 5 § 1 a) as soon as the judgment has been rendered at first instance, even if this is not yet final. In the present case, there has been conviction by a competent court within the meaning of Article 5 § 1 a). Therefore, although the court qualified the detention as a “security measure” and as “pre-trial detention” within the meaning of Russian law (see paragraphs 6, 21 and 22 above), the review of the legality of the applicant's detention, required by Article 5 § 4, was incorporated in the judgment of conviction, and a separate review was not required. The ECtHR has rejected this part of a complaint as manifestly ill-founded.

Conclusion: rejected as manifestly ill-founded.

Article 1 of Protocol No. 1 to the Convention

The applicant complained of the retention of the security between the delivery of the conviction and the delivery of the appeal judgment. The applicant complained that for more than 11 months, from 3 July 2017 to 7 June 2018, there were simultaneously two measures with the same aim of ensuring the appearance of the person concerned at his appeal trial: detention and security. He considered that the security has become unnecessary from the time of his detention. The Government considered that the retention of the surety did not constitute an interference with the right of the applicant and his wife to respect for their property, as, under Russian law, on the one hand, the simultaneous application of two security measures is not possible, but, on the other hand, the order for the return of the security can be executed only from the moment when the judgment of conviction becomes final, unless expressly indicated otherwise by the court.

​​The Court considered that, contrary to the Government's argument, the retention of the security amounted to an interference with the applicant's right to peaceful enjoyment of his property, and more particularly , into a “regulation of the use of property”, within the meaning of the second paragraph of Article 1 of Protocol No. 1 to the Convention. In the present case, the court which convicted the applicant at first instance ordered the return of the security, without imposing a time limit for such return. This court subsequently rejected the request for restitution on the grounds that the conviction had not yet become final, even though the applicant had already been placed in detention. This situation resulted in the simultaneous application of two security measures, within the meaning of Russian law, contrary to Article 97 of the CCP according to which only one security measure can be applied, this having also been confirmed by the Government.

The Court agreed that the aim of ensurance of the appearance of the suspect or the accused has already been achieved by the immediate placement of the applicant in detention. In this situation, the retention of the security has lost its necessity. It has then concluded that there has been violation of Article 1 of Protocol No. 1 to the Convention.

Conclusion: violation of Article 1 of Protocol No. 1 to the Convention.

Article 41:  EUR 6,500 (six thousand five hundred euros) for non-pecuniary damage; EUR 1,500 for costs and expenses.

 

8 July

Sili v. Ukraine (no. 42903/14)

Art 3 (substantive) • Degrading treatment • Inadequate material conditions of detention in prison

Article 1 of Protocol No. 1• Unsuccessful attempts to obtain a disability pension in detention.

Facts –

The applicant is serving a life sentence in Ukraine. The case concerns the conditions of the applicant’s detention in prison and his unsuccessful attempts to obtain a disability pension. Relying on Article 3 and Article 1 of Protocol No. 1, the applicant complained that he was detained in appalling conditions, in particular owing to overcrowding, and alleged that the prison administration ignored his requests to help him with the formalities to receive a disability pension.

Law –

Article 3

The Court has noted that, although the applicant complained that he had been detained in overcrowded conditions and provided detailed information as regards the numbers of the cells in which he had been detained and the names of his cellmates, he never specified how many square metres of floor space each inmate had at his disposal, nor did the Government. The Court has referred to the Ombudsman’s reports published following the monitoring visits to Romny Prison no. 56: that cells of 6 sq. m were shared by two inmates whereas those measuring 12 sq. m accommodated four inmates (see paragraph 28 above). Given that the parties did not contest the accuracy of that information and failed to provide any alternative data, the Court proceeds on the assumption that that was the applicant’s situation in the present case. In other words, it appears that he had only 3 sq. m of personal space during his detention in Romny Prison no. 56.

Having taken into account the allegations of lack of privacy in using the toilet, the presence of foul odours and poor hygienic conditions, lack of privacy, as well as inadequate ventilation, heating and lighting, as well as the fact that the applicant remained confined to his cell most of the time, the Court concluded that the material conditions of his detention in Romny Prison no. 56 amounted to degrading treatment, in breach of Article 3 of the Convention.

Conclusion: violation of Article 3 of the Convention.

Article 1 of Protocol No. 1 to the Convention

The applicant submitted that he had the right to a disability pension under domestic law, which had been denied to him in practice for many years. He emphasised that, being a prisoner, he was particularly vulnerable and fully dependant on the authorities. While being legally obliged to help him in every possible way with all the formalities to facilitate his receipt of a disability pension, the prison administration allegedly ignored his requests to that effect.

The Ukrainian system of disability pensions operates on the basis of two cumulative eligibility criteria: firstly, a “health condition”, and, secondly, a “pensionable service condition”, under which a person must have performed a pensionable service of a certain minimum duration.

The applicant has consistently referred to the first condition but never claimed having fulfilled the second-mentioned one. The applicant also received the information note from the administration of Romny Prison no. 56 with a detailed explanation of the procedure to follow in order to get a disability pension in accordance with the national legislation. The Court has concluded by stating that the applicant has failed to substantiate his allegation of a lack of assistance regarding the procedure to apply, therefore, the complaint was rejected as being mainfestly ill-founded.

Conclusion: rejected as being manifestly ill-founded.

Article 41: EUR 10,000 in respect of non-pecuniary damage; EUR 1,450 in respect of costs and expenses.

 

20 July

Polgar v. Romania (no. 39412/19)

Art 3 • Degrading treatment • Personal space in prison less than 3 m²

Art 13 (+ Art 3) • New case law making effective the civil action in tort to obtain compensation for moral damage suffered during poor conditions of detention or transport • Effective remedy for any person who is no longer, at the time of bringing an action, held in conditions denounced • Ineffective remedy for the applicant, used before January 13, 2021, starting point for recognition of its effectiveness

Art 46 • Execution of judgment • Respondent State required to ensure the continuity of reforms aimed at reducing the size of the prison population and keeping it at manageable levels

Facts –

The applicant was incarcerated. He complained of his poor condition of detention and the remedy, a civil-law action for liability in tort, used to obtain compensation in respect of the non-pecuniary damage sustained.

Law –

Article 3: The domestic courts had held, at final instance, that during his detention in Deva Prison (from 27 February 2014 to 29 April 2015 and from 14 May to 25 May 2015), the applicant had disposed of less than 3 sq. m² of personal space.

In the pilot judgment Rezmiveș and Others v. Romania, the Court had already found a violation of Article 3 in factual circumstances similar to those in the present case.

Conclusion: violation (unanimously).

Article 13 taken together with Article 3: In arguing that there had been no violation of Article 13 in the present case, the Government relied on a remedy resulting from case-law developments following the above-mentioned Rezmiveș and Others judgment, which, they submitted, allowed the numerous individual cases arising from the problem of poor conditions of detention in Romanian prisons to be resolved.

(a) Creation of a new domestic remedy – On the basis of the material available in the file, the Court was unable to confirm whether all of the cited domestic decisions had become final. However, given the significant number of examples from the case-law and the findings by the domestic courts, the Court was able to make the following observations.

Firstly, with regard to the accessibility of the remedy, the burden of proof incumbent on complainants did not appear to have been excessive. In the majority of these examples, the complainants had used easily obtainable evidence, such as such as descriptions of the impugned conditions of detention or transport, and sometimes witness statements, so that the burden had then been on the authorities to refute the allegations in question.

Secondly, with regard to the procedural guarantees, the majority of the proceedings had lasted less than two years, for one or two levels of jurisdiction. Only four sets of proceedings had lasted a little longer than two years, for one or two levels of jurisdiction. In this connection, although the legislation in force did not lay down a specific time period within which a decision was to be issued in such disputes, the time taken by the domestic courts to examine the actions in tort did not appear to have been unduly long. In addition, the rules with regard to court fees did not seem to have placed an excessive burden on the complainants. Under Romanian law, individuals wishing to bring an action against the State in order to obtain compensation for poor conditions of detention or transport were not required to pay court fees in this respect.

Thirdly, the domestic courts had analysed the civil actions concerned in conformity with the standards laid down in the Court’s case-law. They had evaluated whether the degree of gravity required for a violation of Article 3 had been attained, having regard to the States’ positive obligations under that provision, had taken account of the consequences of severe overcrowding in determining whether there had been a violation of Article 3 and had accorded particular importance to the reasonableness of the compensation awarded in respect of non-pecuniary damage, having regard to the duration of the poor conditions in question.

Fourthly, a finding of inadequate conditions of detention or transport gave rise to a presumption of non-pecuniary damage.

Fifthly and lastly, on the question of whether the complainants had received adequate and sufficient redress, the Court verified, on the one hand, whether this redress had covered the whole of the period complained of, and, on other, whether the sums awarded by the judicial authorities were unreasonable by comparison with what the Court had awarded in respect of just satisfaction in similar cases.

(i) Did the redress cover the entire period complained of? – The majority of the courts had acknowledged the violation of Article 3 and had compensated the entirety of the periods complained of. In examining a civil action in tort for inadequate conditions of detention, one court had limited the relevant period for calculating the compensation payable to the complainant, holding that each transfer to another prison triggered a new three-year limitation period. Two other courts had taken a different position, in that they had rejected as time-barred those periods of detention which were interrupted by the complainants’ release and were outside the three-year time-limit from the lodging of the civil action.

In order for a domestic remedy to be considered effective, the national courts had to analyse the complaints under Article 3 in accordance with the principles and standards established by the Court in its case-law. This was especially important where certain complainants alleged that they had been in detention for periods that were longer than the statutory limitation period. However, only a very limited number of courts had ruled on this question and this line of case-law could not therefore be regarded as widespread and consistent. In the Court’s view, only a systematic refusal by the domestic courts, confirmed by an established case-law refusing to apply the concept of a “continuing situation” as developed in the Court’s case-law on Article 3 could call into question the effectiveness of the remedy in issue. That was not the situation here.

(ii) Was the amount of the redress adequate and sufficient? – The domestic courts had applied the rules governing actions for liability in tort and had determined on an equitable basis the amount of compensation awarded in respect of the non-pecuniary damage sustained by the complainants. Furthermore, they had not awarded sums lower than those awarded by the Court in similar cases.

In the light of these considerations and of the general standard of living in the respondent State, the compensation obtained by the complainants, taken as a whole, did not disclose a structural problem of inadequate redress as regards the sums awarded by the national courts.

(iii) Conclusion – Having regard to the criteria adopted by the national courts for assessing poor conditions of detention and compensating the non-pecuniary damage sustained by complainants, the domestic case-law had developed significantly since the Rezmiveş and Others pilot judgment.

This case-law had been consolidated with the judgement delivered on 19 February 2020 by the High Court, which had set out the base-line criteria to be applied in remedies of this type. That judgment, which had been notified to the parties on 14 April 2020, had been available for consultation on the case-law database from 13 July 2020 and the public could no longer have been unaware of it six months after its publication, that is, from 13 January 2021.

Thus, an action for liability in tort, as interpreted consistently by the national courts, had represented since 13 January 2021 an effective remedy for individuals who considered that they had been subjected to inadequate conditions of detention or transport, and who were no longer, when they lodged their action, being detained in those conditions.

Were the domestic courts to refuse systematically to examine complaints of inadequate conditions of detention in conformity with the principles and standards laid down by the Court in its case-law, this could call into question the effectiveness of the remedy. The Court retained its jurisdiction for the ultimate review of any complaint by applicants, who, in accordance with the subsidiarity principle, had exhausted the available domestic remedies.

(b) The effectiveness of the remedy in the applicant’s case – The applicant had availed himself of an action for liability in tort, which had not enabled him to have the violation of the Convention acknowledged in full and to receive adequate and sufficient compensation. The final domestic decision was issued on 13 February 2019, that is, well before the date identified by the Court as being the date from which the domestic remedy in question could be considered effective.

Conclusion: violation (unanimously).

Article 46: With regard to the preventive remedies, the Court noted with interest that the level of prison overcrowding had begun to fall just after the adoption of the pilot judgment and that applications to the post-sentencing judges enabled the domestic courts to assess the situations of overcrowding complained of by certain prisoners. However, the downwards trend in prison overcrowding had stopped in June 2020 and numbers had risen again for six months, with an overcrowding rate of 119.2% in December 2020. This upward trend was also confirmed by recent data available on the national prison administration’s website. As a result, the Court was unable to reach a different conclusion from that in the Rezmiveş and Others pilot judgment. Although the national legislation provided for a preventive remedy, without a clear improvement in detention conditions in Romanian prisons, especially in terms of prison overcrowding, there was nothing to suggest that this remedy was likely to provide prisoners with an effective possibility of bringing those conditions into line with the requirements of Article 3. The Court urged the Romanian State to ensure that the reforms to reduce prison overcrowding were pursued and to keep the prison population at manageable levels.

With regard to the compensatory remedy, the Court considered that since 13 January 2021 a civil-law action for liability in tort had afforded, in principle, appropriate redress for complaints of a violation of the Convention to individuals who considered that they had been subjected to poor conditions of detention in police detention facilities or in prisons and who were no longer, when their actions were lodged, being held in conditions that were allegedly contrary to the Convention, and also to persons complaining about poor conditions of transport.

Article 41: EUR 2,500 in respect of non-pecuniary damage.

(See also Rezmiveș and Others v. Romania, 61467/12 et al., 25 April 2017, and Brudan v. Romania, 75717/14, 10 April 2018)

© Council of Europe/European Court of Human Rights

 

7 September

Dadusenko and Others v. Russia (dec.) - 36027/19, 47807/20, 4241/21 et al.

Article 35-1 •Exhaustion of domestic remedies •Effective domestic remedy •New remedy to vindicate their right to family life in the context of allocation to remote penal facilities

Facts –

The five applicants complained of a violation of their right to respect for family life on account of their or their relatives’ allocation to remote penal facilities and their subsequent inability to obtain a transfer elsewhere, all their transfer requests having been refused by the Federal Service of Execution of Sentences (“FSIN”). Only the fifth applicant challenged the refusal. He was successful at last instance before the Supreme Court which held it to be unlawful, quashed all previous courts’ decisions confirming it and sent the case for re-examination. The latter proceedings were still pending on the date of the Court’s examination of the present applications.

Law –

Article 35 § 1: In 2020, in response to the Court’s findings in the leading cases of Polyakova and Others v. Russia and Voynov v. Russia concerning the lack of adequate legal protection against abuses as concerned decisions on prisoners’ allocation to penal facilities as well as the lack of an effective remedy regarding an alleged violation of the right to respect for family life stemming from such decisions, the Russian authorities adopted amendments to the relevant provisions of the Code on the Execution of Criminal Sentences (“CES”) to bring them into line with the Convention requirements.

In particular, the convicted persons’ family situation was now expressly listed as one of the factors to be considered at the time of their initial allocation to a penitentiary facility (Article 73 §§ 1, 2and 2.1 of the CES) and it was possible for convicted persons to request a transfer to another penitentiary institution located closer to the place of residence of their family members (Article 81 § 2). Such a request could also be lodged by a convicted person’s relatives. A refusal by the FSIN to take account of prisoners’ family situation either at the point of their initial allocation to a penitentiary institution or when examining their request for a subsequent transfer was amenable to a judicial review. With the inclusion of the specific reference to family-related reasons as a relevant decision-making factor on prisoners’ allocation or transfer, the Russian courts were no longer prevented from exercising the review of the proportionality of the FSIN’s decisions. Hence, applicants now had an avenue whereby they could adequately vindicate their right to respect for family life. Indeed, the Supreme Court’s decision in the fifth applicant’s case corroborated this assessment. That court had concluded that the inability of a convict to maintain family ties while serving his sentence constituted “exceptional circumstances” within the meaning of Article 81 § 2 of the CES and was one of the reasons for a prisoner to be relocated closer to his relatives’ place of residence. The Court was particularly mindful of that example, which had been included in the Review of judicial practice in administrative cases issued by the Presidium of the Supreme Court, as the fifth applicant belonged to one of the specific categories which had been excluded from the general distribution rule (pursuant to that rule, those sentenced to deprivation of liberty, save for those falling under several specific categories, should serve their sentences in correctional penal facilities in the region where they resided prior to their conviction or where they were convicted). Consequently, now all prisoners, and notably those excluded from the general distribution rule, could vindicate their right to respect for family life at the domestic level.

It was true that the domestic proceedings in the fifth applicant’s case had not yet been concluded, their outcome under the new provisions could not as yet be ascertained and, more generally, the domestic courts had not so far been able to develop any extensive case-law under the new amendments. At this stage, however, the Court could not see any reason for believing that the amended CES provisions, as interpreted and applied by the Supreme Court, would not afford the applicants the opportunity to remedy their grievances at the domestic level or that they would offer no reasonable prospects of success. In any event, once recourse had been made by the applicants to the relevant national remedy, the Court could then assess, in every individual case, the question of whether, in view of the outcome of the domestic proceedings, they had lost victim status.

Given its subsidiary role to the national systems safeguarding human rights, the Court considered that the applicants had at their disposal a new remedy allowing the national authorities to restore at the domestic level their rights envisaged by Article 8. The Court was particularly mindful of the fact that the aforementioned reform had been adopted in response to its previous judgments and in order to provide the national authorities with an opportunity to put matters right at domestic level, thus preventing numerous repetitive applications before it. This also justified departure from the rule that the assessment of whether domestic remedies had been exhausted was normally carried out with reference to the date on which the application was lodged. Lastly, as in the case of the present applicants, in virtually all the cases pending before it concerning this issue, convicts or their convicted relatives were still serving their sentences, and therefore retained possibility of lodging a transfer request with the FSIN and/or of challenging the proportionality of its refusal before the domestic courts.

Thus, the applicants had to exhaust this remedy before their complaints could be examined, including those - in the instant case the first applicant- who had lodged their application before the adoption of the amendments.

Conclusion: inadmissible (non-exhaustion of domestic remedies)

(See also Polyakova and Others v. Russia, 35090/09, 7 March 2017,; Voynov v. Russia, 39747/10, 3 July 2018; Shmelev and Others v. Russia (dec.), 41743/17, 17 March 2020)

© Council of Europe/European Court of Human Rights

 

28 September

 Drovorub v. Moldova and Russia (no. 33583/14) –  

Art 2 (substantive) • death due to inadequate medical assistance

Art 2 (procedural) • lack of an effective investigation

Facts –

The case concerns the applicant’s son’s detention and demise while in detention in the self-proclaimed “Moldovan Republic of Transdniestria” (the “MRT”).The medical death certificate listed “tuberculosis infection” as cause of death and “disseminated tuberculosis of the lungs” and HIV as R.’s underlying medical condition.

Law –

Article 2 (substantive limb)

The Court notes that R. died in a civil hospital two days after being transferred from a prison, from complications of tuberculous meningitis, disseminated pulmonary tuberculosis (TB) and HIV/AIDS. It observes that R. appears to have contracted TB and HIV possibly in prison in 2006. Therefore R. was already suffering from these diseases for more than five years at the time of his arrest and detention in 2011 and the prison authorities were aware of this. Even so, R. was allegedly offered treatment once in July 2013, that is more than 19 months after his arrest, and subsequently on four occasions in October 2013. Furthermore, although the prison authorities had noted the deterioration in R.’s state of health in July 2013, they admitted him to the prison medical section only in early October 2013 and transferred him to a civil hospital only in late October 2013 shortly before his death.The applicant disputes the availability in the “MRT” prisons of adequate treatment for R.’s condition and, therefore, its provision on the dates indicated by the prison administration. Other sources refer to the existence of treatment for TB and HIV in the “MRT” prisons, even if substandard. The Court was not presented R.’s medical file to ascertain if he had indeed been provided medical assistance. Even assuming that the requisite treatment was available and that R. had been administered such treatment, it cannot be said that those measures were sufficient and undertaken in a timely manner. In particular, R.’s cause of death appears to be a foreseeable complication of his medical condition, if left untreated or treated incorrectly or in an untimely manner. Assuming that treatment was provided as of July 2013 on a total of five occasions, the above mentioned delays alone are sufficient to have rendered it inefficient. Such omissions could have been prevented by proper medical screening and timely treatment and placement in a medical section or a hospital specialised in the treatment of TB and HIV co infections.

Conclusion: violation (unanimously).

Article 2 (procedural limb)

The Court recalled that, when a detainee dies from an illness, the authorities must of their own motion and with due expedition open an official probe in order to establish whether medical negligence might have been at stake. It does not mean that recourse to the criminal law is always required; under certain circumstances, an investigation conducted in the course of disciplinary proceedings would suffice. In the present case, despite the fact that the applicant died in a civil hospital one day after being transferred from a prison hospital, which is a public institution directly engaging the State’s responsibility, the issue of the individual responsibility of the clinicians in charge of the applicant’s treatment was never, according to the case file, subjected to an independent, impartial and comprehensive enquiry. In particular, because R.’s death was not violent, but a consequence of his illnesses, there was no attempt to examine how he had been treated right before his hospitalisation, the critical condition in which he had been brought to the clinical hospital directly from the prison. There was no investigation if the persons tasked to supervise his health in prison had been eventually responsible of medical negligence. Furthermore, the applicant, as R.’s next of kin, was refused access to all medical and other personal information about R. held by the prison administration and the civil hospital. Instead of submitting the results of a meaningful probe, the applicant was provided with the explanatory memos from the “MRT” Prison administration, which authority was directly in charge of the prison hospital, and of the doctor who had been treating the applicant in that hospital. However, since those very persons were, by virtue of their functions, directly responsible for the quality of the treatment provided to the applicant in prison, their memos, in which the cause of death was attributed to the applicant’s previous medical condition, clearly cannot be accepted by the Court as a reliable and sufficient account of R.’s death.

Conclusion: violation (unanimously).

Article 41: EUR 26000 in respect of non-pecuniary damage

 


 

 

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