Newsletter no.10 (15 February 2016) - Round-up of the ECtHR case-law (January 2016)

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Summary

Cătălin Eugen Micu v. Romania (no. 55104/13) – material conditions of detention / overcrowding / health / access to care. The applicant complained about his conditions of detention – particularly about overcrowding in the prison in which he was kept (violantion of Article 3). He also alleged contamination in prison with Hepatitis C and complained about a lack of medical treatment (no violation of Article 3).

Bergmann v. Germany (no. 23279/14) – preventive detention / lawful detention / principle of legality. After having served a fifteen-year sentence, the applicant was maintained in preventive detention on the basis of medical advices stating that he could reoffend. This ten-year preventive detention was again extended under a law enacted after the applicant had committed his offences. The applicant complained this extension had breached his right to liberty (no violation of Article 5§1) and violated the prohibition on retrospective punishment (no violation of Article 7§1)

Karykowski v. Poland (no. 653/12) / Prus v. Poland (no. 5136/11) / Romaniuk v. Poland (no. 59285/12) – security measures / strip search / handcuffs and shackles / special regime / video monitoring / visits.All three applicants complained under Article 3 about the special high-security regime to which they had been subjected following their classification as dangerous detainees (violation of Article 3).

Khayletdinov v. Russia (no.2763/13) – health / access to care / effective remedy / preventive remedy. The applicant complained that he had not received appropriate medical care in detention. He also complained of not having an effective remedy in respect of his complaint (violation of Article 3, violation of Article 13).

Rodzevillo v. Ukraine (no. 38771/05)– material conditions of detention / effective remedy / contact with the family. The applicant complained about poor detention conditions as well as the authorities’ refusal to transfer him to a prison colony closer to his home. He also complained that he had no effective remedy in respect of his complaints under Article 3 (violation of Article 3, violation of Article 13, violation of Article 8).

Kalda v. Estonia (no. 17429/10) – Access to the internet. The applicant complained about the authorities’ refusal to grant him access to several internet websites, preventing him thereby to carry out legal research. The applicant was involved in a number of legal disputes with the prison administration and needed access to those websites in order to be able to defend his rights in Court (violation of Article 10).

Cîrnici v. Romania (no. 35030/14) – material conditions of detention / overcrowding / food. The applicant complained of the poor conditions of detention in the various establishments in which he had been placed (violation of Article 3). He also complained about the fact he could not be provided with a vegetarian menu, and that he was kept in a cell with smokers (rejected)

Konstantinopoulos and Others v. Greece (no. 69781/13) – material conditions of detention / overcrowding / effective remedy / preventive remedy. The applicants complained of their conditions of detention in Greneva prison, and about the lack of an effective remedy in this regard (no violation of Article 3, violation of Article 13).

Patrikis and Others v. Greece (no. 50622/13) – material conditions of detention / overcrowding / effective remedy / preventive remedy. The applicants complained of their conditions of detention in Greneva prison, and about the lack of an effective remedy in this regard (violation of Article 3, violation of Article 13).

 

5 January 2016

Cătălin Eugen Micu v. Romania (no. 55104/13)

The case concerned Mr Micu’s conditions of detention in the Bucarest-Jilava prison. In addition, he alleged contamination in prison with hepatitis C and complaint about a lack of medical treatment.

As regards material conditions of detention, the Court observed that the applicant had been kept in overcrowded cells where he had a living space of less than 2 sq. m. (§46) during one year and nine months. The Court went on to note that it found a violation of Article 3 in very similar situations concerning the same prison (see i.a. Banu v. Romania, §§36-37). The Court was no reason to depart from these conclusions and concluded there had been a violation of Article 3.

As regards the applicant contamination with hepatitis C and the alleged lack of medical treatment, the Court first-of-all declared that eventhough the applicant was diagnosed with hepatitis C while in detention, he failed to provide any evidence to support his allegation that he was contaminated in prison. Therefore, the Court could not conclude that the authorities failed to fulfill their obligations under Article 3 (§56). Moreover, once the applicant was diagnosed he received adequate medical treatment – he received medical assistance of a specialized doctor and was prescribed proper medication (§57-61). The Court therefore concluded that there had been no violation of Article 3.

7 January 2016

Bergmann v. Germany (no. 23279/14)

The applicant was sentenced to fifteen years of imprisonment in 1986. Moreover the competent Regional Court decided to order a ten-year preventive detention on the basis of a medical advice stating that the applicant presented a “danger to the general public” (§10) and that his “personality disorder could no longer be treated because his sexually deviant aggressive behavior had lasted for decades and because he would be unable to pursue psychotherapy in view of his limited intellectual capacity” (§11). By 2011 he had served ten years in preventive detention. The courts responsible for the execution of sentences ordered the extension of the applicant’s preventive detention under a law enacted after the applicant had committed his offences.

The applicant complained that the court order extending his preventive detention beyond the maximum period of ten years had breached his right to liberty (Article 5§1) and violated the prohibition on retrospective punishment (Article 7§1).

Complaint under Article 5§1

The Court first-of-all recalled that “in deciding whether an individual should be detained as a person ‘of unsound mind’, the national authorities are to be recognised as having a certain discretion” (§98). Then it considered “that the mental disorder the domestic courts found [on the basis of a recent objective psychiatric report] the applicant to suffer from was sufficiently serious” (§114) as to warrant compulsory confinement, in accordance with Article 5§1(e) (§116, see also on the criteria to fulfill Winterwerp v. Netherlands). The Court was also satisfied that the applicant was detained in an institution suitable for mental health patients (§§118 et s.). The Court therefore concluded that there had been no violation of Article 5§1.

Complaint under Article 7§1

The Court observed that the applicant’s deprivation of liberty had no maximum duration and had been imposed following conviction for a criminal offence and determined by courts belonging to the criminal justice system. However, the Court went on to note that the fact that the measure was ordered because of and with a view to the need to treat his mental disorder changed its very nature. The applicant’s preventive detention “was not effected in an ordinary prison” but in a specific preventive detention center, located in a separate building, governed by distinct legal rules and “where he was offered treatment” (§164). The Court therefore considered the measure should no longer be classified as a penalty. Accordingly, the Court concluded there had been no violation of Article 7§1 (see contraM. v. Germany).

 

12 January 2016

Karykowski v. Poland (no. 653/12) / Prus v. Poland (no. 5136/11) / Romaniuk v. Poland (no. 59285/12)

All three applicants complained under Article 3 about the special high-security regime to which they had been subjected following their classification as dangerous detainees – on different legal basis though. Namely they complained about their solitary confinement, their isolation from their families, the outside world and other detainees, their shackling whenever they were taken out of their cells, the routine daily strip searches and constant monitoring of their cells and sanitary facilities via closed-circuit television (on this specific regime see Piechowicz v. Poland, §§166 et s.).

The authorities justified their decision to subject M. Karykowski and M. Prus to this regime arguing that their activities in prison had put the prison’s security at risk. In the first case “they had found in his cell a ‘protest letter’ signed by some 135 criticising changes to the Code of Execution of Criminal Sentences” affecting the possibility of shipping during prison visits (Karykowski, §33). In the second case the main argument was “the applicant’s alleged participation in a planned collective remonstrance in the prison” (Prus, §32) – the applicant refused to eat his breakfast together with other inmates. In both cases, the Court declared itself not convinced that “the so-called ‘dangerous detainee’ regime had been necessary to maintain prison security” (Prus, §34; Karykowski, §35), due to the cumulative effects of this strict regime on the applicants. Moreover the decision to extend this three-month regime lacked proper justifications based on the applicants’ situation (Karykowski, §38; Prus, §37). Accordingly, the Court found a violation of Article 3.

As regards M. Romaniuk, he was classified as a ‘dangerous detainee’ because of the gravity of the charges laid against him. The Court acknowledged that “it was not […] unreasonable on the part of the authorities to consider that, for the sake on ensuring prison security” to subject the applicant to tighter security controls (§38). However, the Court observed that these measures were routinely usedwithout any assessment of their necessity, and that the regime lasted almost three years while the applicant was in pre-trial detention. Moreover the regime was extended without proper justification. The Court therefore declared that there had been a violation of Article 3.

Khayletdinov v. Russia (no. 2763/13)

The case concerned the applicant’s complaint that he had not received appropriate medical care in detention. He also complained of not having an effective remedy in respect of his complaint under Article 3, in breach of Article 13.

Complaint under Article 3

The applicant, who was diagnosed with HIV in 2004 and had been receiving antiretroviral therapy since 2011, had been remanded in custody since May 2012. His pre-trial detention was extended on several occasions and his appeals against those orders on medical grounds were dismissed. In August 2013 the trial court sentenced him to seven years’ imprisonment. According to Mr Khayletdinov, his health deteriorated significantly in detention because of the lack of adequate medical care and of an appropriate diet.

The Court observed first-of-all that the authorities “failed to ensure the continuity of [the applicant’s] antiretroviral treatment” (§72) – the documents submitted by the applicant attested that his therapy was interrupted between May and August 2012. This interruption led to a deterioration of the applicant’s health (§74).

Second, the Court noted that the effectiveness of the therapy on the applicant’s health was never questioned and that “the issue of an alternative regimen was never discussed, despite the growing number of the applicant’s non-communicable illnesses” (§75)

Third, the Court stressed the fact that “the prison authorities did not fully implement the doctors’ recommendation that [the applicant] needed a special diet in order to maintain his health” (§76).

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

Complaint under Article 13

He also complained of not having had an effective remedy in respect of his complaint under Article 3, in breach of Article 13 (right to an effective remedy). The Courts considered that the civil claim for compensation under the tort provisions of the Civil Code could not offer any other redress than a purely compensatory award and could not put an end to a situation contrary to the Convention such as inadequate medical care. Moreover, the Court found that such a remedy does 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 (§ 108). 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 (§ 110).

 

 14 January 2016

Rodzevillo v. Ukraine (no. 38771/05)

The case concerned the applicant’s allegation of poor detention conditions as well as the authorities’ refusal to transfer him to a prison colony closer to his home. He also complained that he had no effective remedy in respect of his complaints under Article 3.

Complaint under Article 3

As regards material conditions of detention, the Court noted that the applicant spent most of his detention in a cell he shared with other inmates, where he had some 3.5 sq. m. of personal space – “which is less than the minimum standard recommended for Ukraine by the [CPT]” (§52). The applicant was largely confined into his cell throughout the day. The Court further noted that it had “examined and found violations of Article 3 in respect of similar allegations regarding the conditions of detention” in the same facility and found that “the conclusions reached by in those cases [were] equally pertinent in the present case” (§54 – see i.a. Iglin v. Ukraine, §§51-56). Therefore the Court concluded that there had been a violation of Article 3.

As regards the allegation of ill-treatment, the Court noted that there was no medical evidence to substantiate it, nor any evidence that the applicant “properly brought his complaint before the domestic authorities” (§61). The Court therefore rejected this part of the application as manifestly ill-founded (§66).

Complaint under Article 13

The Court observed that “the Government [had] not proved that the applicant had an opportunity in practice to secure effective remedies for his complaint” (§70 – see i.a. Melnik v. Ukraine, §§113-116). Therefore it concluded that there had been a violation of Article 13.

Complaint under Article 8

The applicant submitted that his placement in a colony situation far away from his family amounted to arbitrary and disproportionate interference with his right to maintain contact with the latter. The Court founded that though legal, such as interference was indeed “not necessary in a democratic society”: it appeared to the Court that “the competent authorities took a formalistic and restrictive approach” (§85) in not considering the personal situation of the applicant’s and his family’s personal situation – and above all the ability of the latter to visit the former. Therefore the Court concluded that there had been a violation of Article 8 (see i.a. Vintman v. Ukraine, §§100-104).

 

19 January 2016

Kalda v. Estonia (no. 17429/10)

The case concerned the applicant’s complaint about the authorities’ refusal to grant him access to several internet websites, preventing him thereby to carry out legal research. The applicant declared he was involved in a number of legal disputes with the prison administration and needed access to those websites in order to be able to defend his rights in Court. The sites included the Council of Europe Information Office in Tallinn’s website (containing translations into Estonian of the rulings of the European Court of Human Rights), and the Chancellor of Justice’s and the Estonian Parliament’s website. The applicant challenged this decision before domestic court – and eventually before the Estonian Supreme Court. The latter concluded that the access to Internet sites beyond those authorised by the prison authorities “[…] was justified by the need to achieve […] the need to secure public safety […]. Moreover, granting detainees access to these Internet sites could increase the risk of their engaging in prohibited communication; this in turn would necessitate increased levels of control (and therefore costs). Thus, there were no alternative, equally effective means […] of achieving the legitimate aim in question” (§§16-17). The applicant’s complaint concerned “a particular means of accessing – specifically, via the Internet – the information published on certain websites and thus freely available in the public domain” (§43).

The Court recalled that imprisonment inevitably involved a number of restrictions on prisoners’ communications with the outside world, including on their ability to receive information. Article 10 could not be interpreted as imposing a general obligation to provide access to the Internet, or to specific Internet sites, for prisoners. However, in the circumstances of the case, given that under domestic law prisoners were granted limited access to the Internet – including access to the official databases of legislation and judicial decisions, the restriction of access to other sites that also contained legal information had constituted an interference with the applicant’s right to receive information.

The Court acknowledged that the restriction on prisoners’ use of the internet was prescribed by law: prisoners can only have access to certain sites containing information. However the Court considered that the restriction was not necessary. The websites to which the applicant wished to have access “predominantly contained legal information and information related to fundamental rights, including the rights of prisoners [… and] were meant for legal researches rather making specific requests” (§50). Moreover, the Court went on to note that “an increasing amount of services and information is only available on the Internet” including legal information (§52).

As regards the security argument, the Court declared that “that the domestic courts undertook no detailed analysis as to the security risks allegedly emerging from the access to the three additional websites in question, also having regard to the fact that these were websites of State authorities and of an international organisation” (§53). As regards the budgetary argument put forward by the authorities, the Court observed that “that the Supreme Court and the Government have failed to convincingly demonstrate that giving the applicant access to three additional websites would have caused any noteworthy additional costs” (§53). Accordingly, the Court found a violation of Article 10.

Judge Kjølbro expressed a dissenting opinion on that matter. Although he shared “the view of the majority that the interference was prescribed by law and pursued legitimate aims [… he disagreed] with the majority that the interference was not ‘necessary in a democratic society’ as required by Article 10 of the Convention” (DO, §3). According to him, this judgment “is close to recognising a right of prisoners to access to relevant webpages on the Internet” (DO, §13). Such a significant step, he argued, should not be taken without anassessment of the law and practices in the Contracting states. Overall “The question of prisoners’ right to access to the Internet, in general or in some restricted form, is a novel issue in the Court’s case-law” (DO, §4). Therefore, “the question should […] not have been decided by a Chamber, but by the Grand Chamber” (DO, §15).

 

26 January 2016

Cîrnici v. Romania (no. 35030/14).

Relying on Article 3, the applicant complained in particular of the poor conditions of detention in the various establishments in which he had been placed. He also complained about the fact he could not be provided with a vegetarian menu, and that he was kept in a cell with smokers.

These two last points were rejected by the Court. First, because the applicant failed to bring any prima facie evidence that he was subjected to passive smoking (§45). Second, because Court considered that the fact the applicant was not allowed to receive vegetarian food during his detention did not reach the gravity threshold necessary to fall under Article 3 (§47, see also Krowiak v. Poland, §§33-34).

As regards the applicant’s detention conditions, the Court noted that the applicant had a personal space of less than 2 sq. m. in the several cells in which he was kept. This very fact is enough to conclude that there had been a violation of Article 3 (§54).

 

28 January 2016

Konstantinopoulos and Others v. Greece (no. 69781/13)

Relying on Articles 3 and 13, the applicants complained of their conditions of detention in Greneva prison, and about the lack of an effective remedy in this regard. The Court rejected the application of 10 applicants out of 31 because they were not in custody anymore or had been transferred to another prison when they lodged their application – and could have had use the domestic compensatory remedy at their disposal (§§31-39).

Complaint under Article 3

The Court estimated that the applicants had a living space of 3 sq. m. each. This situation led it to examine whether if the lack of space was compensated by the everyday life conditions in the prison. The Court observed however noted the applicants did not precise to what extent they suffered individually from the general context of overcrowding, and declared that it therefore could not establish if their situation raised an issue under Article 3. Therefore it concluded that there had not been a violation of Article 3.

Complaint under Article 13

The Court recalled its conclusion reached in previous cases (i.a. Vaden v. Greece, §§30-33) – that there was no effective preventive remedy in the Greek legal system available for detainees wishing to complaint of their conditions of detention. The Court declared it had no reason to depart from this conclusion, and concluded that there had been a violation of Article 13.

Patrikis and Others v. Greece (no. 50622/13)

Relying on Articles 3 and 13, the applicants complained of their conditions of detention and about the lack of an effective remedy in this regard. The Court rejected the application of 7 applicants out of 12 because they were not in custody or had been transferred to another prison when they lodged their application – and could have had use the domestic compensatory remedy at their disposal (§§31-34). Three other applicants agreed on a friendly settlement with the Government – their application was therefore struck out (§§24-27).

Complaint under Article 3

The Court noted that the Government failed to contradict the applicants’ allegations concerning overcrowding in Diavata prison (ten inmates shared a cell of 20.91 sq. m.), allegations supported by the CPT’s findings (§47). Accordingly, the Court found that there had been a violation of Article 3.

Complaint under Article 13

The Court recalled its conclusion reached in previous cases (i.a. Papakonstantinou v. Greece, §§51) – that there was no effective preventive remedy in the Greek legal system available for detainees wishing to complaint of their conditions of detention. The Court declared it had no reason to depart from this conclusion, and concluded that there had been a violation of Article 13.

 

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