Newsletter no.13 (30 May 2016) - Round-up of the ECtHR case-law (April 2016)

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Summary

Ali Cheema and Others v. Greece (no. 7059/14) – material conditions of detention / overcrowding / effective remedy. Relying on Article 3 and Article 13, the applicants complained of the conditions of their detention in Larissa prison and of the lack of effective remedies to protest against those conditions (violation of Article 3, violation of Article 13).

Bagdonavičius v. Lithuania (no. 41252/12) – health / sentence adjustment. Relying of Article 3, the applicant complained of a lack of proper medical care in detention, alleging that his heart condition had been caused and then aggravated by the poor conditions of his detention, and that, in any case, his state of health was incompatible with imprisonment (no violation of Article 3).

Karwowski v. Poland (no. 29869/13) – special regime /security measures / strop searches / handcuffs and shackles / video monitoring / review mechanism. Relying on Article 3, the applicant complained about the special high-security measures to which he had been subjected during his classification as a dangerous detainee (violation of Article 3).

Gheorghe Dima v. Romania (no. 2770/09) – ill-treatment / effective investigation. Relying on Article 3, the applicant alleged that he had been subjected to ill-treatment by State agents during a fight that took place between two inmates in the prison corridor, and that no effective investigation had been carried out in that regard (violation of Article 3).

[GC] Murray v. the Netherlands (no. 10511/10) – life sentence / review mechanism / access to care. The applicant complained of the imposition on him of a life sentence with possibility of a review and of the lack of any treatment for his mental disorder (violation of Article 3).

Seagal v. Cyprus (no. 50756/13) – ill treatment / effective investigation. Relying on Article 3, the applicant complained in particular that he had been seriously injured as a result of the ill-treatment to which he had been subjected by other prisoners (violation of Article 3).

Cristoglo v. the Republic of Moldova (no. 24163/11)– material conditions of detention / overcrowding / effective remedy / systemic problem. Relying in particular on Article 3, the applicant complained that the conditions of detention had been inhuman and degrading, in particular in account of overcrowding and poor hygiene (violation of Article 3).

Balajevs v. Latvia (no. 8347/07) – ill-treatment / effective investigation. Relying on Article 3, the applicant complained of having been ill-treated by three escort officers and maintained that the investigation into the accident had not been thorough and impartial, and that it had taken unreasonably long time (violation of Article 3).

 

7 April 2016

Ali Cheema and Others v. Greece (no. 7059/14)

The case concerns 23 applicants from different citizenships (Albanian, Bulgarian, Greek, Pakistan, etc.). They all complained of the conditions of their detention in Larissa Prison, and of the lack of effective remedy in this respect.

Complaint under Article 3

The Court first observed that the cells in which the applicants were held had a surface of 23 sq. m. with 6 to 9 inmates inside, and concluded that in the latter hypothesis their personal space was of less than 3 sq. m. Moreover, the Court noted that both the CPT 2013 report and official data indicated that this prison was overcrowded at the time the applicants were detained in it. The Court noted that the government was unable to contradict this finding and declared accordingly that there had been a violation of Article 3 due to a lack of personal space in respect of 21 applicants.

Complaint under Article 13

The Court recalled that in numerous occasions it declared there was no effective remedy available to detainees in Greece to protest against general conditions of detention (see, Papakonstantinou v. Greece, §51). The Court saw no reason to depart from this conclusion and declared accordingly that there had been a violation of Article 13.

19 April 2016

Bagdonavičius v. Lithuania (no. 41252/12)

Relying on Article 3, the applicant complained of a lack of proper medical care in detention, alleging that his heart condition bad been caused and then aggravated by the poor conditions and that, in any case, his state of health was incompatible with imprisonment.

The Court first-of-all observed that the present case differed from other cases touching the topic of healthcare in prison since the applicant’s health condition did not “affect his everyday functioning in the same way as many serious illnesses do” (§77). The Court also noted that “although the applicant’s heat illness was detected two years into his detention, nothing in the file suggests that it came about because of his being imprisoned rather than by natural causes” (idem). The Court however admitted that given his illness the applicant “could have experienced considerable anxiety as to whether the medical care provided to him was adequate and whether it could be properly provided within the prison setting” (idem).

As regards the treatment received the Court first noted that the applicant was transferred to public hospitals immediately after his infarction and was transferred back to the prison only once his condition became stable (§§78-79). The Court further observed that he underwent follow-up examinations by various specialists doctors (§80). The Court also noted that eventhough it is “prepared to accept that [the prison medical personnel] may not have the same professional experience as specialists doctors working in the best civilian clinics” (§80), it had not been demonstrated by the applicant that they “were not capable of providing appropriate medical assistance to him” (§80). Concerning the applicant’s allegation that he his 2012 consultation in a public hospital and been carried out with a few months’ delay, the Court considered that this delay was not faulty ‘in the absence of any negative developments in [the applicant’s] health” (§81); and recalled that “there is no obligation to provide prisoners with better health care than the general population” (§81, see Prestieri v. Italy, §70). Concerning the applicant’s allegation that he did not receive the specific diet the doctors prescribed, the Court observed that “taking into account the applicant’s overall health situation, the diet element alone is not sufficient to conclude that the […] authorities tangibly failed in their obligation to protect the applicant’s health” (§82). Lastly, the Court noted that “the applicant undoubtedly acted himself in a way which contributed to his ailment” (§83). Accordingly, the Court declared that there had been no violation of Article 3.

As regards the applicant’s release on health grounds, as suggested by a local clinic report, the Court took note of the Government’s argument that this clinic “is in a lower category than the Kaunas Clinics […] or the Prison Department Hospital, wherein the applicant had […] been admitted and treated” (§84). Moreover, the Court noted that this local clinic “did not examine the applicant in person, but simply assessed his health on the basis on his medical records” (§84) and declared therefore that it could not be regarded as conclusive. What’s more the Court observed that the Kaunas Regional Court “ordered an expert medical opinion in order to assess whether the applicant’s illness warranted his release”. The Court therefore declared that “the domestic courts gave serious consideration to the applicant’s state of health in connection with his detention”. In view of the foregoing, the Court concluded that there had been no violation of Article 3.

Karwowski v. Poland (no. 29869/13)

Relying on Article 3, the applicant complained about the special high-security measures to which he had been subjected during his classification as a dangerous detainee, namely his solitary confinement, routine daily strip searches and constant monitoring of his cell via closed-circuit television.

The authorities had justified their decision to subject the applicant to this regime on the fact that “he had been charged with many violent offences” (§36). The Court considered that such a decision was “not unreasonable on the part of the authorities” (§36). However, the Court recalled it “cannot accept that the continued, routine and indiscriminate application of the full range of measures […] for almost eight years was necessary in order to maintain prison security” (§37). Moreover, the Court noted that the authorities made no effort “to counteract the effects of the applicant’s isolation”(§38).What’s more, the Court pointed the fact that the authorities’ decisions extending the applicant’s special regime relied on the fact that the reasons relied on previously had not ceased to exist. Consequently “the procedure for review of the applicant’s dangerous detainee status became a pure formality, being limited to the repetition of the same grounds in succession decisions” (§42, see also Piechowycz v. Poland, §177). Accordingly, the Court concluded that there had been a violation of Article 3.

Gheorghe Dima v. Romania (no. 2770/09)

Relying on Article 3 the applicant alleged that he had been subjected to ill-treatment by State agents during a fight that took place between two inmates in the prison corridor, and that no effective investigation had been carried out in that regard.

Substantial aspect

The Court considered that this part of the complaint should be rejected for non exhaustion of domestic remedies since a legal action was still pending before the domestic courts (§§87-89).

Procedural aspect

The Court considered that the delay in the investigation implied that it was not effective for the purposes of Article 3 of the Convention. First, the agents involved were heard more a year after the facts, which increased the risk of collusion between them (§105, see also [GC] Ramsahai and Others v. The Netherlands, §330). Second, the Court found regrettable that these agents changed radically their declarations between two rounds of questioning (§106) and recalled that witnesses and suspects should be heard following legal procedures that would safeguard the validity of the evidences collected (§107, see also Lyapin v. Russia, §133). Third, the Court observed that whereas the aggression had been captured on videotape, neither the prison administration nor the others authorities asked to save a copy of the video (§109). Accordingly, eventhough a legal procedure is still pending before the domestic courts, the Court concluded that the investigation had not been thorough, in breach of Article 3 (§110).

26 April 2016

[GC] Murray v. the Netherlands (no. 10511/10)

The applicant was sentenced to life imprisonment in the Netherlands Antilles in 1980. At his trial, the applicant was diagnosed with various mental health problems. He complained under Article 3 of the imposition on him of a life sentence with no possibility of a review and of the lack of any treatment for his mental disorder. The Court considered that since the applicant’s repeated requests for a pardon were rejected i.a. because of the continued existence of a risk of recidivism, the different aspects of this complaint were interrelated and should therefore be examined jointly (§114). After the applicant passed away in 2014, the Court permitted his son and sister to pursue the application (§80).

The Court first recalled and largely developed the general principles applicable to life sentences and the objective of rehabilitation (§§99-112):

(a) Life sentences – The imposition of a sentence of life imprisonment on an adult offender is not incompatible with Article 3, provided it is not grossly disproportionate and, from the date of imposition of the sentence, there is both a prospect of release and possibility of review. In line with existing comparative and international standards, the review should be guaranteed no later than twenty-five years after the imposition of the life sentence, with further periodic reviews thereafter, and should allow the domestic authorities to consider whether, in the course of the sentence, any changes in the life prisoner and progress towards his or her rehabilitation are of such significance that continued detention is no longer justified on legitimate penological grounds. This assessment must be based on rules having a sufficient degree of clarity and certainty and be based on objective, pre-established criteria, surrounded by sufficient procedural guarantees.

(b) Rehabilitation and prospect of release for life prisoners – The review should permit the authorities to assess any changes in the life prisoner and any progress towards rehabilitation. In European and international law there is clear support, also endorsed by the Court, towards the principle that all prisoners, including those serving life sentences, be offered the possibility of rehabilitation and the prospect of release if rehabilitation is achieved. The State’s positive obligation is one of means and be achieved, for example, by setting up and periodically reviewing an individualised programme that encourages the prisoner to develop so as to be able to lead a responsible and crime-free life.

(c) Health care for prisoners with mental-health problems – A lack of appropriate medical care for persons in custody can engage the State’s responsibility under Article 3 of the Convention. Obligations under that provision may go so far as to impose an obligation on the State to transfer prisoners to special facilities where they can receive adequate treatment. In the case of mentally ill prisoners, the assessment of whether particular conditions of detention are incompatible with the standards of Article 3 has to take into consideration the prisoners’ vulnerability and, in some cases, their inability to complain coherently or at all about how they are being affected by any particular treatment. It is not enough for them to be examined and a diagnosis made; proper treatment for the problem diagnosed and suitable medical supervision should also be provided.

(d) Life prisoners with mental disabilities and/or mental-health problems – Life prisoners who have been held criminally responsible may nevertheless have certain mental-health problems which could impact on the risk of their reoffending. States are required to assess such prisoners’ needs for treatment with a view to facilitating their rehabilitation and reducing the risk of their reoffending and to enable them to receive suitable treatment – to the extent possible within the constraints of the prison context – especially where it constitutes a precondition for the life prisoner’s possible, future eligibility for release. However, States also have a duty to take measures to protect the public from violent crime and the Convention does not prohibit them from subjecting a person convicted of a serious crime to an indeterminate sentence allowing for the offender’s continued detention where necessary to protect the public.

As to the specific circumstances of the instant case, the Court first noted that the applicant’s contention that he was never provided with any treatment for his mental condition during the time he was imprisoned finds some support in various witness testimonies (§118) and  in “CPT reports on visits […] to the prisons in Curaçao and Aruba […], according to which mental health care in those two institution was insufficient” (§118). The Court therefore concluded that the applicant was not offered possibilities of rehabilitating himself during the period of his imprisonment. The Court further noted that “it transpires from the decisions of the [domestic courts] that there was a close link […] between the persistence of the risk of the applicant’s reoffending on the one hand and the lack of treatment on the other” (§122). In other words, whereas a psychiatric treatment constituted, in practice, a precondition for the applicant to have the possibility to progress towards rehabilitation, the applicant was not offered such a treatment.

The Court recalled that “States have a wide margin of appreciation in the determination of what facilities or measures are required in order to give a life prisoner the possibility of rehabilitating himself or herself to such an extent that he or she may one day become eligible for release” (§124). However the court observed that “although the applicant […] was […] prior to being sentenced to life imprisonment, assessed as requiring treatment, it does not appear that any further assessment were carried out – either when he started serving his sentence or thereafter – of the kind of treatment that might be required” (§124).

In view of the foregoing, the Court found that “the lack of any kind of treatment or even of any assessment of treatment needs and possibilities meant that, at the time the applicant lodged his application with the Court, any request by him for a pardon was in practice incapable of leading to the conclusion that he had made such significant progress towards rehabilitation that his continued detention would no longer serve any penological purpose” (§125). In other words, the applicant’s life sentence was not de facto reducible, in breach of Article 3. The mere fact that the punishment imposed on the applicant did not foresee an obligation to undergo treatment, and that he had never made a request for such a treatment did not relieve the respondent State from its obligations concerning the duration of the applicant’s incarceration and the provision of appropriate medical care for his rehabilitation.

In his partly concurring opinion, Judge Pinto de Albuquerque expressed his regrets that the Court decided not to evaluate the review mechanism in Curaçao, neither before November 2011 (when a new law was enacted), nor after this date (PCO, §18). Judge Pinto de Albuquerque stated that the review mechanism currently in force is not satisfactory. First, the review criteria “are not sufficiently determined” (PCO, §19). Second, “the fact that the position of the victims or their relatives is included in the examination of the question whether the continued execution of a life sentence can still be justified confuses the assessment of legitimate penological grounds with an exercise of quenching the victims’ – or their relatives’ – thirst for revenge” (PCO, §19).

Seagal v. Cyprus (no. 50756/13)

Relying on Article 3, the applicant complained in particular that he had been seriously injured as a result of the ill-treatment to which he had been subjected by other prisoners.

The Court noted that whereas the applicant’s previous medical records did indicate any ailment, the medical reports following the incident stated that he “had a perforated eardrum and blood in the ear canal”. The Court further observed that no statement were taken from the prisoners allegedly involved, and that the applicant himself was not heard: the prison administration only collected the written statements of three prison guards – none of which “gave a detailed picture of exactly what had happened” (§120). Moreover, the authorities “did not seek medical opinions as to the possible cause of the injury” (§120). In the light of the above, the Court considered that “no meaningful investigation [had been] conducted by the authorities capable of establishing the true facts of the incident” (§121). Accordingly, there had been a violation of Article 3, both in its substantive and procedural aspects.

Cristioglo v. the Republic of Moldova (no. 24163/11)

Relying in particular on Article 3, the applicant complained that the conditions of his detention had been inhuman and degrading, in particular on account of overcrowding and poor hygiene. The Court noted that the applicant’s allegations were supported by both the UN Special Rapporteur on torture and by the Moldovan Ombudsperson. In the absence of any evidence of considerable improvements, the Court considered that there was no reason to depart from the conclusions reached in its previous judgements (see i.a. Pisaroglu v. the Republic of Moldova). The Court therefore concluded that there had been a violation of Article3 and urged the authorities “to take appropriate measures in order to put an end to what seems to be a systemic problem” (§24).

28 April 2016

Balajevs v. Latvia (no. 8347/07)

Relying on Article 3, the applicant complained of having been ill-treated by the three escort officers and maintained that the investigation into the accident had not been thorough and impartial, and that it had taken unreasonably long time.

As regards the substantive aspect of the complaint, the Court noted not only that “it was common ground between the parties that the escort officers had used some force against the applicant” (§87) but also that the allegation of ill-treatment was corroborated by some medical evidence and a testimony of an inmate (§88). The Court further noted that the Government had given no evidence to explain the applicant’s diagnosis, and therefore considered that the authorities had “failed to discharge their burden of proof” (§94). Accordingly, the Court considered that “the applicant’s injuries diagnosed shortly after the incident at issue were sustained as a result of the use of force by the escort officers against him” (§94). Moreover, since it had not been show “that the recourse to physical force against the applicant was made strictly necessary by his own conduct”, the Court considered it had been “unnecessary and excessive” (§95), in breach of Article 3.

As regards the procedural aspect of the complaint, the Court first noted that sufficient evidence had been collected with considerable delay – after a second round of investigation conducted more than nine month after the events. The Court further noted that the investigators did not “inquired into the diagnosis of a left kidney contusion made at the prison hospital”, and that the expert medical report “was based only on the applicants medical records” because the expert “did not examine to applicant in person” (§105). Most importantly, the Court observed that the investigators failed to assess the proportionality of the officers’ use of force. What’s more, the Court noted that despite the fact that “several discrepancies between the applicant’s statements and other evidence” remained, no more thorough assessment of the case had been required (§108). Last, “in response to the Government’s objection that the applicant had failed to appeal to a higher prosecutor against the prosecutor’s decision” refusing to institute criminal proceedings, the Court noted that in the latter “the prosecutor noted that it was impossible to establish when the injuries on the applicant had been caused” (§109); which means that “a third round of appeals within the hierarchy of the prosecution service would have had no prospect of success” (§110) since “investigation becomes more problematic with the passage of time” (§110). In view of the foregoing, the Court concluded that there had been a violation of Article 3.

 

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