Newsletter no.9 (21 January 2016) - Round-up of the ECtHR case-law (December 2015)

---
---

Summary

Kushch v. Ukraine (no. 53865/11) – health / access to care / security measures. The applicant complained that he did not have adequate specialists or facilities to provide him with the medical care, and that he had been subjected to unjustified security measures during his hospitalisation (violation of Article 3).

 Yaroshovets and Others v. Ukraine (nos. 74820/10, 71/11, 83/11 and 332/11) – material conditions of detention / overcrowding / transport / health / access to care. Four applicants complained that during their detention pending trial they were transported to and from court hearings in very poor conditions (violation of Article 3). One applicant, who was diagnosed with chronic prostatitis during his detention, maintained that he was not provided with adequate medical assistance for his condition (noviolation of Article 3).

 Mironovas and Others v. Lithuania (nos. 40812/12, 29292/12, 69598/13, 40163/13, 66281/13, 70049/13 and 70065/13) – material conditions of detention / overcrowding / possibility of movement / sanitary conditions/victim status (article 34)/effective remedy. The applicants complained their conditions of detention were in breach of Article 3. Some of the them were awarded insufficient sums by domestic courts. Those six applicants therefore retain their victim status (victim status upheld under Article 34). It further considered that the detention conditions of two applicants, although far from adequate, did not reach the threshold of severity required to characterise the treatment as inhuman or degrading (no violation of Article 3). As regards the remaining cases the Court declared there had been a violation of Article 3.

 Szafrański v. Poland (no. 17249/12) – material conditions of detention / privacy. The case mainly concerned the applicant’s complaint about lack of privacy when using the toilet in the various cells where he had been detained during his incarceration (no violation of Article 3 ; violation of Article 8).

 Ivko v. Russia (no. 30575/08) – health / access to care / effective remedy. The case concerned the applicant’s complaint that he had not been provided with appropriate medical care while in detention and that he had not had an effective remedy available in respect to this complaint (violation of Article 3 ; violation of Article 13).

 Khalvash v. Russia (no. 32917/13) – health / access to care / effective remedy. The applicant alleged that he had not been provided with adequate medical care whilst in detention and that he had not had effective avenues through which to complain about a violation of his right to adequate medical treatment (violation of Article 3 ; violation of Article 13).

 Gurban v. Turkey (no. 4947/04) – life sentence / sentence adjustment. The applicant complained he was denied any prospects of release and any possibility of having his life sentence reviewed (violation of Article 3).

 

3 December 2015

Kushch v. Ukraine (no. 53865/11)

The applicant submitted that the establishment, in which he had been detained, did not have adequate specialists or facilities to provide him with the medical care he required. He noted that his health had drastically deteriorated in detention and blamed the authorities for that. The applicant drew the Court’s attention, in particular, to the delays with which his examinations and treatment in the civilian hospitals had been undertaken after the need for them had been acknowledged by the prison authorities themselves. In this connection, he pointed out the cumbersome and lengthy procedure for detainees in Ukraine to prove their specific medical needs and to receive the respective authorisations from the investigator or the court. Lastly, the applicant alleged that he had never in fact been administered the medicines which had been prescribed to him.

The Court considered that the authorities’ unjustified delays in putting into practice their own decisions to take the applicant to a civilian hospital, the contradictions in the medical findings as regards his need for hospitalisation and, moreover, the failure to act on them, as well as the subsequent deterioration of the applicant’s health in detention, were sufficient indications of a serious failing on the part of the respondent State to provide him with appropriate medical care while in detention, which amounted to inhuman and degrading treatment in breach of Article 3 of the Convention.

Furthermore, in the absence of any clearly discernible security or other considerations justifying this restrictive and humiliating measure and having regard to the applicant’s frail health, the Court considers that his handcuffing in hospital amounted to inhuman and degrading treatment.

There have therefore been severalviolations of Article 3 of the Convention in this regard.

 
 

Yaroshovets and Others v. Ukraine (nos. 74820/10, 71/11, 83/11 and 332/11)

 Four applicants complained that during their detention pending trial they were transported to and from court hearings, on more than 200 occasions, in very poor conditions. One applicant, who was diagnosed with chronic prostatitis during his detention, maintained that he was not provided with adequate medical assistance for his condition.

 Lack of medical assistance

After having reiterated that “the health of detainees has to be adequately secured” (§ 92) and that “the mere fact that a detainee was seen by a doctor and prescribed a certain form of treatment cannot automatically lead to the conclusion that the medical assistance provided was adequate” (§ 93), the Court observeds that, on the whole, it cannot be suggested that the authorities addressed the applicant’s complaints of specific health problems inadequately (§ 95). In particular, he was examined by a number of doctors and underwent various tests on numerous occasions; he remained under their supervision throughout the entire period of his detention; he was provided with a treatment determined by qualified doctors. Therefore the Court finds that the applicant “was provided with adequate medical assistance in detention”. Accordingly “there has been no violation of Article 3 of the Convention in this regard” (§ 97).

 Poor conditions of transportation

The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. In view of the size of detainees’ compartments in prison vans and of the transit cells, the high number of journeys undertaken by the applicants and the amount of time they spent either in prison vans or in transit cells in the SIZO, and the fact that these elements were supported by the international and domestic reports examined by the Court in previous cases and by the findings of the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) during its visit to Ukraine in September 2009, the Court found that these conditions were in breach of Article 3 of the Convention (§ 104 – see also Andrey Yakovenko v. Ukraine).

 

 

8 December 2015

Mironovas and Others v. Lithuania (nos. 40828/12, 29292/12, 69598/13, 40163/13, 66281/13, 70049/13 and 70065/13)

 The applicants complained under article 3 about the conditions of their detention in different Lithuanian prisons.

 Admissibility (Victim status under Article 34)

(a) Acknowledgement of a violation – In all seven cases the domestic courts had admitted a violation of the domestic legal norms, taking into account the ECtHR’s case-law. In spite of certain limited shortcomings, under the domestic law as interpreted and applied by the domestic courts, a claim for damages could in principle have secured a remedy in respect of the  allegations of poor conditions of past detention, in that it offered a reasonable prospect of success.

 (b) Compensation awards – The Court considered that one of the applicants may no longer claim to be a victim of a violation of Article 3. His case had been examined by domestic courts and received compensation for his damage (2,300 EUR). While still lower than the amount the ECtHR had awarded in similar cases the national court had analysed the applicant’s complaints constructively in accordance with the ECtHR’ standards. The award had thus been sufficient. His application had therefore been declared inadmissible. However, Judge Pinto De Albuquerque argued in his partly dissenting opinion that the above mentioned applicant “must be considered a victim, in so far as the compensation paid to him at the national level was clearly insufficient under Convention standard” (PDO, §26). In doing so he disagreed with the Court’s acceptance to consider “the celerity of the domestic court proceedings and living standard in the country [to] be relevant criteria when examining whether the award at the domestic level was sufficient” (§96 – see Stella and Others v. Italy, §§58-62).

As regards the others six applicants the Court consider that they may retain their victim status since the Lithuanian courts made no award or insufficient awards.

 (c) Preventive remerdy – As regards to the Government’s argument that the applicants’ removal from inadequate prison conditions could be considered an effective remedy, the prison authorities’ decisions on the transfer of inmates between prisons had been to a great extent discretionary, based either on the inmate’s state of health, or on other “exceptional circumstances”. It was unlikely that either of those criteria had been triggered by issues such as cramped or insalubrious prison conditions. Furthermore inmates did not have a right to be transferred if they so requested.

Given the financial difficulties of the prison administration, any attempt to seek an improvement of the conditions of detention from within the penal system would not have sufficient prospects of success. Even in the event of a judicial or administrative decision requiring the prison authorities to redress a violation of the applicants’ rights, their personal situation in an already overcrowded facility could have been improved only at the expense and to the detriment of other detainees. Moreover, the prison authorities would not have been in a position to grant a large number of simultaneous requests, given the structural nature of the prison overcrowding problem and the absence of reforms to tackle it.

 Merits

As regards the detention conditions the applicants complained about, the Court found that they reached a sufficient level of severity to amount to treatment prohibited by of Article 3 in four cases out of six.

The Court considered that Mr. Klintovič’s and Mr Gaska’s lack of personal space (less than 3 sq. m.) “was compensated by the possibility for him to move about freely within the confines of the correctional home during the day in order to have unobstructed access to natural light and air” (§134). Accordingly, the Court concluded that “the distress and hardship endured by Mr Klintovič did not exceed the unavoidable level of suffering inherent in detention such as to amount to degrading treatment within the meaning of Article 3 of the Convention” (§136, see also §140).

As regards the four other cases, three of them strictly concerned material conditions of detention that were dire enough to lead the Court to find a violation of Article 3. The applicants endured overcrowding that had been compounded by “gross violations of hygiene standards” (§131), a “lack of toilet facilities” (§131), “a lack of sufficient heating in winter and poor ventilation” (§142), a “lack of out-of-cell activities” (§143), and by the fact that their cells were “dilapidated and damp” (§149). What is more their detention in these conditions lasted up to two years and therefore there suffering “could not be described as short-term or occasional” (§131). The Court could only conclude that there had been a violation of Article 3 in all these cases.

The last examined case considered Mr. Mironova’s conditions of detention in the Prison Department Hospital. In addition to the fact that the applicant had been kept in overcrowded cells with only 3 and 4 sq. m. per bed (the domestic law requirement is 7 sq. m.) the Court declared it had “serious reservations as to whether conditions in which prisoners are held in a facility, albeit one categorised as a hospital, that operates without a hygiene certificate and where the showers, toilets and other parts of the premises are not properly cleaned and disinfected, where patients are obliged to take showers with other patients suffering from open tuberculosis and psychiatric patients […] are of any benefit to prisoners in terms of healing” (§127). Given this “context of the provision of health care” (§128) and the general conditions of detention, the Court declared there had been a violation of Article 3.

 

15 December 2015

Szafrański v. Poland (no. 17249/12)

The case mainly concerned the applicant’s complaint about lack of privacy when using the toilet in the various cells where he had been detained during his incarceration.

 Complaint under Article 3

The Court noted that in previous cases where the insufficient partition between sanitary facilities and the rest of the cell was at issue, other aggravating factors were present and only their cumulative effect allowed it to find a violation of Article 3 of the Convention (see Canali v. France, §§ 52-53).

In contrast, in the present case, the only hardship that the applicant had to bear was the insufficient separation of the sanitary facilities from the rest of the cell. Apart from that, the cells were properly lit, heated and ventilated. The applicant also had access to various activities outside the cells.

Taking into consideration the foregoing, the Court considers that the overall circumstances of the applicant’s detention in Wronki Prison cannot be found to have caused distress and hardship which exceeded the unavoidable level of suffering inherent in detention or went beyond the threshold of severity under Article 3 of the Convention.

There has accordingly been no violation of this provision in the present case.

 Complaint under Article 8

As noted above, the applicant was detained in Wronki Prison, and in seven of the ten cells where he was kept, the sanitary facilities were only separated from the rest of the cell by a fibreboard partition. The sanitary facilities were situated at the entrance to the cell and had no doors.

The domestic authorities have a positive obligation to provide access to sanitary facilities which are separated from the rest of the prison cell in a way which ensures a minimum of privacy for the inmates.

The Court notes that between 31 March 2010 and 6 December 2011, the applicant was placed in ten cells, seven of which had sanitary facilities not fully separated off. In these cells he had to use the toilet in the presence of other inmates, was deprived of a basic level of privacy in his everyday life. The applicant raised the matter with the prison authorities and requested that at least a curtain be hung in place to separate off the sanitary facilities.

It follows that in the present case the domestic authorities failed to discharge their positive obligation of ensuring a minimum level of privacy for the applicant when he was detained in Wronki Prison.

The Court concludes that there has been violation of Article 8 of the Convention in this regard.

 

Ivko v. Russia (no. 30575/08)

 The case concerned the applicant’s complaint that he had not been provided with appropriate medical care while in detention and that he had not had an effective remedy available in respect to this complaint.

 Complaint under Article 3

The applicant, who suffered from several illnesses, including a severe form of tuberculosis and hepatitis C, was placed in custody in October 2007. In 2009 his tuberculosis recurred, he started coughing up blood, and several years later he died from tuberculosis whilst in detention (his partner then took over the proceeding). While in the correctional colony, he received no medical care or medication, despite his numerous requests for treatment. The temporary detention facilities, where he was kept between October 2007 and June 2009, and between July and October 2013, 6 were not equipped to accommodate seriously ill detainees. By the time he was transferred to a more appropriate facility, his tuberculosis had become barely curable.

The Court observed that the applicant belonged to a category of detainees who require special medical attention in order to prevent a relapse of their tuberculosis. Although the authorities were aware of his hepatitis C, they took no steps to consider whether the applicant’s treatment regimen was compatible with his liver disease, even when the applicant directly asked them to do so.

Therefore the Court found there was a violation of Article 3 of the Convention (§ 112).

Complaint under Article 13

The applicant also argued that his numerous complaints to the authorities, including oral complaints to the detention authorities, had been fruitless and that he had therefore had no effective remedy by means of which to complain about the quality of his treatment.

In view of the applicant’s grave health problems and the seriousness of his allegations about the way they were faced, the Court considers that he had an “arguable claim” of inadequate medical care in detention and that the authorities, accordingly, had an obligation to ensure the availability of an effective remedy to deal with the substance of his complaint. The Court notes that the applicant attempted to draw the authorities’ attention to his state of health, and that this fact alone has on many occasions been sufficient for the Court to dismiss a Government’s objection of non-exhaustion (see i. a. Gurenko v. Russia, §78). Taking into account the circumstances of the present case and the aforementioned case-law, the Court concludes that “the legal avenues put forward by the Government did not constitute an effective remedy that could have been used to prevent the alleged violations or their continuation and provide the applicant with adequate and sufficient redress for his complaints under Article 3 of the Convention” (§ 87). Accordingly the Court finds a violation of Article 13 of the Convention.

 

 Khalvash v. Russia (no. 32917/13)

The case concerned the applicant’s complaint of not having been provided with adequate medical care in detention.

Complaint under Article 3

The applicant stated that he was in need of brain surgery and in-patient treatment in a specialised medical institution and that the detention authorities were unable to provide either of these. He also asserted that authorities had disregarded his doctor’s recommendations, having sent him to a colony in a northerly region to serve his sentence, where the cold could have led to an increased risk to his life and limb.

The Court observed that in detention the applicant remained under close dynamic medical supervision by a number of specialists, including a neurologist. The prison authorities were compliant with the requirement to maintain a complete medical file and to send it promptly to every detention facility to which the applicant was transferred. The prisons’ medical personnel were therefore immediately aware of his health problems and were in a position to duly respond to them should the need arise. The applicant was transferred, without any particular delay, subsequent to the prison doctors’ recommendations, to specialist medical institutions for an in-depth analysis of his condition. The Court further noted that the prison medical personnel made use of various medical procedures, including some high-tech and very complex ones, to assess the progress of the applicant’s illness, prescribe appropriate drug therapy, and to adjust his treatment when necessary. “There is no objective data suggesting any serious deterioration in the applicant’s health throughout the years of his detention which the Court can attribute to the authorities’ negligence or failure to provide the applicant with the adequate medical care” (§ 65).

The Court reiterated that Article 3 of the Convention cannot be interpreted as ensuring that every detainee should receive medical care at the same level as that offered “in the best civilian clinics” (§67 – see Mirilashivili v. Russia). Therefore, “the Court conclude[d] that the domestic authorities afforded the applicant appropriate medical care as guaranteed by Article 3 of the Convention” (§ 68). There had accordingly been no violation of Article 3 of the Convention (§ 69).

Complaint under Article 13

The Court noted the Government’s argument that the applicant did not exhaust domestic remedies and that he should have at least raised his complaints before the administrations of the detention facilities, a prosecutor or a court.

The Court however recalled the prison authorities have not a sufficiently independent standpoint to deal with complaints concerning breaches of domestic regulations governing the provision of medical care to detainees – and therefore that such a remedy could not satisfy the requirements of Article 35 of the Convention (see also Koryak v. Russia).

The Court also stressed that even though review by a supervising prosecutor plays an important part in securing appropriate medical care in detention, a complaint to the supervising prosecutor falls short of the requirements of an effective remedy because of the procedural shortcomings that have been previously identified in the Court’s case-law (see Koryak v. Russia, § 80-81).

As regards a civilclaim for compensation under the tort provisions of the Civil Code, the Court has held that such a claim could not offer an applicant any redress other than a purely compensatory award, and could not put an end to a situation where there is an ongoing violation, such as inadequate medical care (see Reshetnyak v. Russia). Moreover, the Court has found that such a remedy did not offer reasonable prospects of success, in particular because the award was conditional on the establishment of fault on the part of the authorities, which was extremely improbable in a situation where domestic legal norms prescribed the application of a certain measure, for instance certain conditions of detention or level of medical treatment (§ 50).

Therefore, the Court found that the applicant did not have at his disposal an effective domestic remedy for his complaint, in breach of Article 13 of the Convention (§ 52).

 

Gurban v. Turkey (no. 4947/04)

 The case concerned in particular the applicant’s complaint of having no prospects of conditional release.

The applicant complained that the imposition of an irreducible life sentence in accordance with section 1/B, paragraph 2 of the Law no. 4771 without any prospects of review and release amounted to torture or inhuman or degrading treatment or punishment under Article 3 of the Convention.

The Court noted that the applicant was sentenced to aggravated life imprisonment for his crimes against the security of the State and, according to the clear terms of the relevant legislation, he was similarly denied any prospects of release and any possibility of having his life sentence reviewed.

In its former case-law, the Court considered that “the absence of any mechanism that would allow the review of a life sentence after a certain minimum term, as well as the absence of the possibility of the release of the life prisoner, was in breach of the requirements of Article 3 of the Convention” (see Öcalan v. Turkey (no.2) and Kaytan v. Turkey). The Court saw no reasons which would require it to depart from its findings in those judgments.

Accordingly, the Court concludes that there had been violation of Article 3 of the Convention in this regard.

---