Newsletter no.14 (16 July 2016) - Round-up of the ECtHR case-law (May - June 2016)

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Summary

Derungs v. Switzerland (no. 52089/09) – preventive detention / right to a hearing. Relying on Article 5§3, the applicant complained that the length of time between his application on 21 August 2008 to end his preventive detention, and the Administrative Court’s decision of 15 July 2009 as excessive (violation of Article 5§4). Under the same Article, he complained about the administrative Court’s refusal to hold a hearing (no violation of Article 5§4)

Topekhin v. Russia (no. 78774/13) – health / material conditions of detention / transfer / medical release. Relying on Article 3 the applicant alleged inadequate medical care in detention (no violation of Article 3). He complained about the conditions of his detention on remand (violation of Article 3) and of his 16-hour transfer to the correctional colony in March 2014 (violation of Article 3). Relying mainly on Articles 5§3 (no violation of Article 5§3), the further complained about the length of his detention despite the serious state of his health.

Makshakov v. Russia (no. 52526/07) – material conditions of detention / health / effective remedy. Relying on Article 3, the applicant complained about the appalling conditions of his detention (no violation of Article 3) and inadequate medical care (violation of Article 3), arguing that there had been no effective remedies for such complaints in the Russia legal system (violation of Article 13)

Sadretdinov v. Russia (no. 17564/06) – material conditions of detention / pre-trial detention. Relying on Article 3, the applicant complained about the appalling conditions of his detention (violation of Article 3). Further relying on Article 5§3 (violation of Article 5§3) and Article 5§4 (violation of Article 5§4) he also complained that the length of his detention on remand had been excessive and had lacked justification and that two of his appeals had not been examined.

Yunusova and Yunusov v. Azerbaijan (no. 59620/14) – health / interim measures. The applicants complained in particular that they had not been provided with adequate medical treatment in detention and that their state of health had not been compatible with their conditions of detention. They also complained under Article 34 that the Government had failed to comply with the interim measure indicated by the European Court in September 2014 (violation of Article 3, violation of Article 34)

Petschulies v. Germany (no.6281/13) – preventive detention. The applicant complained under Article 5§1 that his preventive detention went beyond the maximum period of 10 years permissible under the law in force at the time of his offences (no violation of Article 5§1)

Mekras v. Greece (no. 12863/14) – health / medical release. Relying on Article 3, the applicant complained that his detention had caused an irreversible deterioration of his health, and that he had not been given the medical treatment prescribed for him and that he had not received either an appropriate diet or treatment for his motor difficulties (noviolation of Article 3). Relying on Article 5§3 he complained that his application for release on licence had been rejected without taking into account his health or examining the possibility of replacing his detention with less restrictive measures (violation of Article 5§3)

Urazov v. Russia (no. 42147/05)– material conditions of detention / overcrowding / transfert / health / trial conditions. The applicant made a number of allegations under in particular Article 3 and Article 13 notably about: poor conditions of detention in the remand prison on account of overcrowding and lack of hygiene; appalling conditions of transport between the remand prison and the courthouse for the hearings on his case; inadequate medical care during his detention on remand; and his confinement in a metal cage before the trial court (violation of Article 13, violation of Article 3, violation of Article 6, violation of Article 5)

Biržietis v. Lithuania (no. 49304/09) – privacy. Relying on Article 8, the applicant complained about the prohibition on his growing a beard in prison, alleging that it had caused him feelings of humiliation and distress (violation of Article 8)

Pugžlys v. Poland (no. 446/10) – material conditions of detention / high-security / trial conditions. Relying on Article 3, the applicant notably complained about the special high-security measures to which he had been subjected during his classification as dangerous detainee for nine years (violation of Article 3). Also relying on Article 3, he complained of further stringent and humiliating measures during hearings on his case when he was placed in a metal cage (violation of Article 3)

Eze v. Romania (no. 80529/13) – material conditions of detention. Relying on Article 3, the applicant complained about his conditions of detention in Rahova prison (violation of Article 3)

G. v. Russia (no. 42526/07) – health / material conditions of detention / overcrowding / pre-trial detention. Relying on Article 3, the applicant alleged that the authorities had failed to provide him with medical care during his detention (violation of Article 3). He further complained that the conditions of his detention had been inhuman and degrading, particularly on account of overcrowding and lack of privacy in the cells (violation of Article 3). He made a further complaint under Article 5§3 alleging that the reasons for extending his pre-trial detention had not been sufficiently justified, especially given his poor health (violation of Article 5§3)

Vasenin v. Russia (no. 48023/06) – health / mental health / trial / defence. Relying on Article 3, the applicant complained that he had been infected with tuberculosis in detention and that the authorities had failed to provide him with adequate medical care either for those illnesses or his mental condition (no violation of Article 3). Further relying on Article 5§1 he also complained about his delayed admission to a mental institution (violation of Article 5§1). He further complained under Article 6 that it had not been possible for him to attend his trial, that his legal assistance had been poor and that he had been stripped of his right to appeal against the judgment of the trial court (violation of Article 6)

Truten v. Ukraine (no. 18041/08) – material conditions of detention. The applicant complained that the conditions of his detention had been in breach of Article 3 (violation of Article 3)

Özçelik v. the Netherlands (no. 69810/12) – compensation for unlawful detention. Relying in particular on Article 5 § 4, the applicant alleged that it had taken the Court of Appeal too long to decide his appeal of June 2011 against the continuation of his detention (violation of Article 5§4). Further relying on Article 5 § 5, he also complained that, although the Court of Appeal had recognised a violation of his rights, it had failed to order his immediate release or to award him compensation (violation of Article 5§5)

Janusz Wojciechowski v. Poland (no. 54511/11) – material conditions of detention. Relying in particular on Article 3, the applicant notably alleged that his conditions of detention had been inadequate (violation of Article 3).

Kagia v. Greece (no. 26442/15) – material conditions of detention / effective remedy. Relying on Article 3 (no violation of Article 3) and Article 13 (violation of Article 3) of the European Convention, Mr Kagia complained of his conditions of detention in Ioannina and Trikkala Prisons and of the lack of an effective remedy in the Greek courts.

 

10 May 2016

Derungs v. Switzerland (no. 52089/09)

The applicant was sentenced in 2002 to five months’ imprisonment for drunken driving; that judgment was subsequently partly upheld by a higher court, which also ordered his preventive detention on psychiatric grounds. On 21 August, the applicant’s application for release was rejected. He appealed to the Administrative Court against that decision, and his appeal was dismissed on 15 July 2009. Relying on Article 5§4, the applicant complained that the length of time between his application between his application on 21 August 2008 to end his preventive detention and the Administrative Court’s decision of 15 July 2009 was excessive. Under the same Article, he complained about the Administrative Court’s refusal to hold a hearing.

The Court observed that a period of almost 11 months had elapsed between the applicant’s application for release and the Administrative Court’s decision, and considered that such a lengthy period was hard to reconcile with the “speediness” requirement as set out in the Convention. The Court noted that the applicant’s case had not been particularly complex from a material standpoint, especially in terms of its medical dimension. Therefore, the Court concluded that there existed no exceptional reasons explaining the delay in ruling on the application for release, and that there had been a violation of Article 5§4.

As regards the Administrative Court’s refusal to hold a hearing, the Court noted that the applicant had been heard in person by the prison authorities, in the presence of his lawyer, as part of the automatic annual assessment, on 21 August 2008 – i.e. only a few months before his request to be heard by the administrative court. The Court considered that the applicant had not provided any relevant information or any evidence concerning his personality that was such as to make a new hearing necessary. The Court added that the applicant had access to all the material in the case file and had been able to express his views, with the help of his lawyer, at the different stages of the proceedings, and that he had thus had an opportunity to give his opinion and to respond to the arguments against his release. The Court therefore concluded that the Administrative Court had not been obliged to hear the applicant in person, and that there had been no violation of Article 5§4.

Topekhin v. Russia (no. 78774/13)

Complaint under Article 3: the Court observed that the applicant did not dispute the authenticity or quality of the many medical documents submitted by the Government covering the entire period of the detention and showing that as soon as the authorities became aware of the applicant state of health, they provided him sufficient medical attention (drug regimen, admission to the prison medical unit, examination by specialists, see §75). As a result the Court concluded that since it found “no evidence to support the applicant’s assertion that the deterioration of his health had been brought about by insufficient or poor treatment” (§76) there had been no violation of Article 3.

As regards the applicant’s conditions of detention the Court observed the Government failed to demonstrate that the detention authorities had arranged the necessary general care and assistance for the applicant, who had been clearly unable to care for himself independently and had to rely on his cellmates (§§84-85). In addition, the Court noted that “the conditions of the applicant’s detention were further exacerbated by the failure to provide him with […] a hospital bed or any other equipment […] which could have afforded him at the very least a minimum level of comfort” (§87). As a result, there had been a violation of Article 3.

As regards the applicant’s conditions of transfer, the Court observed that the applicant had been first transported in standard train carriages and prison vans with no special equipment installed to meet his needs, and that therefore the trip “had an evident detrimental effect on” his health (§91). The Court further observed that during the following part of the trip the applicant “was lying on the floor of the prison van”, which “exposed him to vibrations from the road during the journey” (§92). In view of the cumulative effect of the material conditions of the applicant’s transfer and the duration of the trip, the Court concluded that there had been a violation of Article 3.

Complaint under Article 5§3: the Court observed that while extending the applicant’s detention, the Russian courts attached particular weight to the risk of him absconding, the evidence before them showing that such a risk existed (§105-106). Theses courts considered that this risk was not entirely eliminated when the applicant entirely lost the use of his legs “given his resourcefulness both when it came to his financial situation and his ability to organized his escape” (§107). The Court considered that the Russian courts thoroughly evaluated the risk in question and found no violation of Article 5§3 of the Convention on account of the continued detention on remand of the applicant. The Court further observed that the applicant was held in detention on remand for less than six months and that nothing in the material submitted suggested any significant period of inactivity of the part of the prosecution of the Court. There had been no violation of Article 5§3 on that account neither.

 

24 May 2016 

Makshakov v. Russia (no. 52526/07)

As regards the applicant’s detention conditions: the Court observed that according to the evidences presented by the parties, the applicant disposed of at least 4 sq. m. of personal space and therefore concluded that “it cannot be said that the overall dimension of his cells were so small as to restrict the inmates’ freedom of movement beyond the threshold tolerated by Article 3 of the Convention” (§61, see also Sergey Cheboratev v. Russia, §42). What is more, the Court noted that the windows in the cell allowed sufficient natural light to penetrate into the cell, that the sanitary and hygiene conditions were satisfactory, and that the applicant had been allowed a daily hour-long exercise period in the recreation yard (§§62-63). As a result, the Court did not consider “that the conditions of the applicant detention reached the threshold of severity required to characterize the treatment as inhuman or degrading within the meaning of Article 3 of the Convention” (§65). However, the Court recalled that it had already found in Ananyev and Others v. Russia that the Russian legal system did not provide an effective preventive remedy to complain about conditions of detention. Since the Government have presented no arguments or evidence to enable the Court to reach a different conclusion in the case at hand, the Court concluded that there had been a violation of Article 13.

As regards the quality of medical treatment: the Court first observed that the applicant attempted in numerous occasions to draw the authorities’ attention to his state of health and the inappropriate quality of the medical care he had been afforded in detention. The Court recalled it had on many occasions examined the effectiveness of the domestic remedies suggested by the Government and established that none of the legal avenues constituted an effective preventive remedy (see Patranin v. Russia, §86). The Court saw no reason to depart from its previous findings on the issue and concluded that there had been a violation of Article 13 of the Convention (§88). As regards the alleged violation of Article 3, the Court first observed that “the Government failed to comply with its request to provide medical documents covering the entire period of the applicant’s detention” (§97) and declared that “in absence of accurate information on the applicant’s treatment […], in particular the absence of medical prescription, [it] accepts the applicant’s argument” that he received no special anti- tuberculosis therapy during the initial period of his detention” (§98). The Court further noted that the authorities failed to perform a drug-susceptibility test whereas “it was impossible to choose an appropriate treatment regimen for the applicant without testing him for drug resistance” (§99). Against this background the Court rejected the Government’s submissions that the applicant’s uncooperative behavior undermined the efficiency of his therapy since the applicant interrupted for the first time his treatment more than a year and a half after the initiation of his therapy which had proved to be ineffective (§100). In conclusion, the Court declared that the authorities’ failure to provide the applicant with the requisite medical amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention.

Sadretdinov v. Russia (no. 17564/06)

As regard the adequacy of medical care: taking into account a written complaint to the detention authorities by nine inmates, the record of the interview of three detainees describing the applicant’s grave health condition, and the fact that two of the episodes of the applicant’s epileptic seizures had occurred during the courts hearings and were recorded by the emergency teams in attendance at the time, the Court rejected “the Government allegations that the authorities had been unaware of the applicant’s medical condition […] and accordingly his need for anti-epilepsy treatment” (§72). The Court further observed that upon his admission to the remand prison, the applicant informed the medical authorities of his disability but that this did not prompt the prison authorities to look into the nature of that disability or to try to obtain the applicant’s previous medical history. The Court also noted that for months he applicant’s health was monitored “mostly by a prison paramedic who […] completely disregarded the applicant’s condition” (§73). The Court also found that “the lack of any information in the prison record about the applicant’s medical treatment in detention leads to the conclusion that he was not subjected to any medical examination and that he did not receive the treatment required for his epilepsy” (§74). Accordingly, the Court noted a “grave failure on the part of the Russian authorities to acknowledge the applicant’s medical needs and afford him the appropriate level of medical care in detention” in breach of Article 3 (§75).

As regards the applicant’s pre-trial detention: the Court recalled it had already, on a large number of occasions, examine similar complaints in respect of the Russian courts’ failure to provide sufficient and relevant grounds for applicants’ detention (see i.a., Dirdizov v. Russia, §§108-111) and had noted the fragility of the reasoning employed by the Russian courts to authorize an applicant’s remaining in custody. In the case at hand the Russian courts “gave no heed to important and relevant facts that supported the applicant’s pleas for liberty and reduced the risks of absconding or collusion” (§85) such as his “fragile health, his strong community ties or the lack of any evidence that he had never attempted to contact the victims or witnesses in the course of the criminal proceedings” (idem). As a result, the Court considered the authorities failed to justify the applicant’s continued deprivation of liberty for a period of almost a year, in breach of Article 5§3. The Court also observed that the domestic court refused to examine the applicant’s appeal against the decisions of 15 February and 4 April 2006 rejecting his application for release, in breach of Article 5§4 (see also Makarenko v. Russia, §§121-125).

 

2 June 2016

Yunusova and Yunusov v. Azerbaijan (no. 59620/14).

The case concerned the allegation by Mr Yunusov and Ms Yunusova, husband and wife and wellknown human rights defenders and civil society activists, that their medical care in detention had been inadequate. They were convicted in August 2015 and sentenced to eight and a half years’ imprisonment. This decision was subsequently quashed on appeal in December 2015 and the couple was given a conditional sentence of five years’ imprisonment. Ms Yunusova was immediately released. Her husband had in the meantime (in November 2015) been released on health grounds at the request of the Prison Service’s medical department. Both Ms Yunusova and her husband had several serious medical problems prior to their arrest. According to the applicants, they were unable to obtain adequate medical care in detention and that this had led to a serious deterioration in their condition. They thus made a request under Rule 39 of the Rules of Court (interim measures) in September 2014 to the European Court of Human Rights to be provided with adequate medical care in prison. The European Court granted this request and indicated to the Azerbaijani Government to provide both applicants with adequate medical treatment in prison, and if such treatment was unavailable in prison, to ensure Ms Yunusova’s immediate transfer to an appropriate medical facility. Following this measure, in November 2014 the Government provided the European Court with a letter confirming that the applicants’ state of health was stable and did not require their transfer to a specialist medical facility. Similar letters containing general information about the applicants’ health and medical examinations in detention were sent on a monthly basis from then on and until Ms Yunusova’s release in December 2015. The applicants claim, however, that none of these monthly letters contained any medical prescriptions or recommendations made by the doctors who had examined them. The Government, on the other hand, claimed that the applicants had been under constant medical supervision in prison and had received comprehensive medical treatment; there had therefore been no deterioration in their health. Moreover, they had both been transferred to the prison’s medical department (in October and November 2015, respectively) at the request of doctors.

Relying on Article 3 (prohibition of inhuman or degrading treatment), the applicants complained in particular that they had not been provided with adequate medical treatment in detention and that their state of health had not been compatible with their conditions of detention. The Court observed that the medical evidence in the case file confirmed – and it was not disputed by the parties – that, when detained, the applicants had had several serious medical problems requiring appropriate medical care on a regular, systematic and comprehensive basis. However, Ms Yunusova had only been examined in the first few months of her detention – from August to November 2014 – by a specialist endocrinologist and not once by a virologist, despite the fact that she was suffering from hepatitis C. Furthermore, during that period, it appeared that the main medical assistance provided to her had been medication brought in by her friends and occasional examinations with the prison doctor. Ms Yunusova had subsequently been regularly examined by a German doctor (from December 2014) and undergone various medical tests; however, neither the Court nor Ms Yunusova had been provided with the medical prescriptions or recommendations made by the German doctor or the other doctors following those medical examinations. Similarly, Mr Yunusov had not been provided with any medical prescriptions or recommendations concerning his treatment in detention. The Government’s failure to provide the Court with full information on the medical treatment provided to the couple meant that it could not examine whether the treatment prescribed had constituted a comprehensive therapeutic strategy aimed at adequately treating their health problems. It could therefore draw inferences from the Government’s conduct and found that the couple had not been provided with adequate medical treatment in detention. Indeed, the Government’s argument that there had been no deterioration in the couple’s health during their detention was contradicted by the very fact that they had both been transferred to the Prison service’s medical department. Moreover, that department had then requested Mr Yunusov’s release from detention precisely on health grounds. The Court therefore believed that, as a result of inadequate medical treatment, the couple had been exposed to prolonged mental and physical suffering, amounting to inhuman and degrading treatment, in violation of Article 3 of the Convention (§§150-151).

Relying on 34 (right of individual petition), the applicants also complained that, although the Azerbaijani Government had informed the European Court, on a monthly basis, that their state of health was stable and that they were under constant medical supervision, they had failed to provide any medical evidence to back this up. The couple therefore alleged that the Government had failed to comply with the interim measure indicated by the European Court in September 2014. The Court observed that, although the Government had sent monthly reports to it from November 2014 to December 2015 with information about the applicants’ state of health and medical treatment, none of those reports contained any supporting medical documents. Without such medical documents, it had been impossible for the Court to assess the quality of the treatment the applicants had been receiving in prison and whether their detention conditions had been adequate for their medical needs. Nor had it been able to assess whether, if adequate treatment had been unavailable in prison, Ms Yunusova should have been transferred to an appropriate medical facility, as indicated in the interim measure of September 2014. The Government’s failure to provide the Court with relevant medical evidence in their monthly information reports had thus impaired the very purpose of the interim measure, namely to prevent the couple’s exposure to inhuman and degrading suffering in view of their poor health and to ensure that they received adequate medical treatment in prison. Consequently, the Court concluded that Azerbaijan had failed to comply with the interim measure indicated under Rule 39 of its Rules of Court, in breach of its obligation under Article 34 to provide all the necessary facilities to make possible the proper and effective examination of applications (§§119-120).

Petschulies v. Germany (no.6281/13)

The applicant complained in particular that his preventive detention went beyond the maximum period of 10 years permissible under the law in force at the time of his offences and conviction had been in breach of Article 5§1. On 7 May 1990 the applicant, having fully served his term of imprisonment, was placed for the first time in preventive detention. In view of the execution of another three-months’ prison sentence imposed for defamation, he had served ten years in preventive detention on 7 August 2000. By decision of 18 April 2005 the Regional Court ordered the further execution of the applicant’s preventive detention in a psychiatric hospital (Article 63 of the Criminal Code) instead of a detoxification facility as the applicant’s rehabilitation could be better promoted thereby. On 19 July 2011 the Göttingen Regional Court again ordered the applicant’s preventive detention, executed in a psychiatric hospital, to continue under another article (Art. 67d § 3 of the Criminal Code). The Regional Court found that the stricter criteria set up by the Federal Constitutional Court in its judgment of 4 May 2011 for a person’s preventive detention to continue beyond the former ten-year time-limit during the transitional period until 31 May 2013 were met in the applicant’s case. The applicant’s preventive detention was necessary in the circumstances and thus not arbitrary, despite the fact that at the relevant time it had already exceeded twenty years. The domestic courts had regard to the fact that, despite the considerable duration of his preventive detention, there was still a high risk that he would commit further extremely serious violent offences, such as dangerous assaults, if released (see paragraph 19 above). The Court considers that that assessment does not disclose any unreasonableness. The applicant’s detention was therefore “lawful” and “in accordance with a procedure prescribed by law” for the purposes of Article 5§1.

 

9 June 2016

Mekras v. Greece (no. 12863/14)

Relying on Article 3, the applicant complained that his detention had caused an irreversible deterioration of his health, and that he had not been given the medical treatment prescribed for him and that he had not received either an appropriate diet or treatment for his motor difficulties. Relying on Article 5§3 he complained that his application for release on licence had been rejected without taking into account his health or examining the possibility of replacing his detention with less restrictive measures.

Complaint under Article 3: the Court first observed that the authorities took sufficient measures to ensure an adequate medical supervision of the applicant’s health (§33). However the Court noted that the applicant had not been given the pharmaceutical treatment he had been prescribed, did not receive the special walking stick he need, and did not benefit from a special diet adapted to its pathology. As a result, the Court concluded that there had been a violation of Article 3.

Complaint under Article 5§3: the Court observed that the domestic courts rejected the applicant’s application for release on licence without mentioning the applicant’s state of health. The Court further observed that the applicant remained sixteen months in detention, whereas in similar cases the Court found a violation of Article 5§3 when the applicants had been detained for seven months (Nerattini v. Greece) or eleven months (Koutaidis v. Greece). In view of the foregoing, the Court concluded that there had been a violation of Article 5§3.

 

14 June 2016

Urazov v. Russia (no. 42147/05)

The case concerned a number of complaints brought by a former police officer about the humiliating and degrading conditions of his pre-trial detention and trial on fraud charges. The applicant, Sergey Urazov, is a Russian national who was arrested in June 2004 and placed in detention pending investigation. His detention was extended until June 2006, when he was convicted and sentenced to six and a half years’ imprisonment and a fine. This judgment was upheld on appeal in January 2007. He obtained conditional early release in January 2009. During his detention he had numerous health problems, including acute toothache, hypertension and chronic gastritis, and complained to various authorities, notably the head of the remand prison, the prosecuting authorities, the Ombudsman and a judge of a district court, about the inadequate medical care he was receiving, without success.

Relying on Article 3 (prohibition of inhuman or degrading treatment) and Article 13 (right to an effective remedy) the applicant complained of the poor conditions of detention in the remand prison on account of overcrowding and lack of hygiene; the appalling conditions of transport between the remand prison and the courthouse for the hearings on his case; the inadequate medical care during his detention on remand (Mr Urazov complained in particular about the Government’s refusal to disclose a copy of his remand prison medical file). On the basis of all the material placed before it and taking into account the Government’s failure to provide a copy of the applicant’s medical file covering the period of his detention, the Court accepted the applicant’s argument that he was not provided with adequate medical assistance while in the remand prison (§75). The Court found therefore that the authorities’ failure to provide the applicant with the requisite medical care amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention (§76). By a letter submitted on 30 September 2015, the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised under Articles 3 and 13 of the Convention on account of the conditions of the applicant’s detention in the remand prison, the conditions of his transport between the remand prison and the courthouse and the absence of an effective domestic remedy in this respect (§48). Taking note of the terms of the Russian Government’s declaration, the Court considered that it was appropriate to strike out of the list the part of the application concerning the inhuman and degrading conditions of the applicant’s detention in remand prison, the inhuman and degrading conditions of his transport to and from the courthouse and the absence of an effective domestic remedy for the above grievances (§60).

Biržietis v. Lithuania (no. 49304/09).

The applicant, Rimantas Biržietis, is a Lithuanian national who served a prison sentence at the Marijampolė Correctional Facility from November 2006 to December 2009. During this time he was prohibited from growing a beard by the internal rules of the facility. Those rules – shown to and signed by Mr Biržietis on the first day of his sentence at the facility – placed an absolute prohibition on prisoners growing a beard, irrespective of its length, tidiness or any other considerations and did not allow for any exceptions. During his detention, he made two requests to the prison authorities to allow him to grow a beard, submitting that he had undergone radiation treatment for tongue cancer and shaving therefore irritated his skin. Both his requests were, however, rejected after a medical examination did not identify any such health problems. Mr Biržietis therefore brought judicial proceedings in December 2007 to complain about the prohibition. The courts found in his favour at first instance, but this judgment was subsequently overturned in March 2009 by the Supreme Administrative Court.

It was not in dispute between the parties that the prohibition on Mr Biržietis growing a beard while in prison had constituted an interference with his right to respect for his private life. Furthermore, the Court was prepared to accept that that interference had had a legal basis in domestic law, as established in the Internal Rules of the Marijampolė Correctional Facility and as shown to and signed by Mr Biržietis on his first day in that facility. However, the Court considered that the absolute prohibition on prisoners growing a beard, irrespective of its hygienic, aesthetic or other characteristics, had not been proportionate to the aim, submitted by the Government, of – among other things – preventing disorder and crime among prisoners. Indeed, in a similar complaint lodged before the Parliamentary Ombudsperson and decided around the same time as Mr Biržietis’ complaints had been examined by the Lithuanian courts, the Ombudsperson had concluded that such a prohibition could not be justified by hygiene requirements or by the need to identify prisoners. Lastly, in Mr Biržietis’ case the prohibition had not apparently affected other types of facial hair, such as moustaches or sideburns, thus raising concerns that the ban only on beards had been arbitrary (§57). The Court therefore concluded that the Government had failed to demonstrate that there was a pressing social need to justify an absolute prohibition on Mr Biržietis deciding to grow a beard while in prison, a decision which had been related to his right to express his personality and identity as protected under Article 8 of the Convention (§58). There had therefore been a violation of Article 8 of the Convention.

Pugžlys v. Poland (no. 446/10)

From 21 October 2003 to 25 July 2012, that is to say, for over eight years and nine months, the applicant was classified as a so‑called “dangerous detainee” and, in consequence, was subjected to high‑security measures and various restrictions. The measures applied in the applicant’s case comprised confinement in a special high-security prison wing and increased supervision of his movements inside and outside the cell, which meant that he had to wear so‑called “joined shackles” (handcuffs and fetters joined together with chains) whenever he was taken outside his cell. The measures involved his segregation from the prison community and restrictions on contact with his family. Also, every time he left or entered his cell he was routinely subjected to a “full strip search” – a thorough inspection of his body and clothes in which he was required to strip naked and make deep knee bends in order to enable an examination of his anus to be conducted. In addition, his cell, including the sanitary facilities, was constantly monitored via closed-circuit television. The Court cannot accept that the continued, routine and indiscriminate application of the full range of measures – cumulative effects – that were available to the authorities under the so-called “dangerous detainee” regime for almost nine years had been necessary in order to maintain prison security. There has accordingly been a violation of Article 3 of the Convention.

 

21 June 2016

Eze v. Romania (no. 80529/13)

The applicant complained about his conditions of detention in Rahova prison. The Court first noted that the occupancy rate put forward by the Government show that the applicant’s living space had always been less that that specified in the Court case-law, and sometimes as little as 1.88 sq. m. The Court further observed that the information provided by the National Prisons Agency confirmed the applicant’s claim that warm water was only available twice a week: the Court declared itself “not convinced that the situation did not prove detrimental to the applicant’s personal hygiene and hygiene in general in the prison” (§57). The Court also noted that the applicant’s submissions in this regard “correspond to the findings of the Romanian Helsinki Committee and the CPT in respect of Romanian prisons in general and in respect of Rahova prison in particular” (idem). In view of the foregoing, the Court declared that there had been a violation of Article 3.

G. v. Russia (no. 42526/07)

As regards the applicant’s state of health, the Court noted that it was “not disputed by the parties that the applicant suffered from colon cancer and that his condition could only be addressed by colorectal surgery” (§83). The Court further noted that two specialists doctors described the applicant’s condition as serious and insisted on the urgency of the surgery, whereas the authorities “delayed surgery for almost a year and only performed it in response to the interim measure applied by the Court” (§86). Since no circumstances justified such a lengthy delay in the treatment, the Court declared there had been a violation of Article 3.

As regards the applicant’s detention conditions, the Court first noted that the Government failed to submit copies of registration logs recording cell population and showing the names of inmates detained together with the applicant in the relevant period, and declared that “taking into account the general problem of overcrowding in Russian remand prisons […], [it had] doubt as to the Government’s submission that the authorities allocated detention cells measuring around 40 sq. m. and suitable for ten inmates for the applicant’s exclusive use” (§99). On the other hand, the Court considered the documents provided that the applicant (included written statements by three co-detainees) convincing enough to establish that he “share cells with other inmates and was afforded less than 2.5 sq. m. of living space for a considerable amount of time” (§101). What is more, the Court noted that the applicant’s situation was exacerbated by a lack of privacy (§103). Accordingly, the Court declared there had been a violation of Article 3.

As regards the complaint under Article 5§3, the Court noted that when extending the applicant’s pre-trial detention, the domestic authorities mainly referred to the gravity of the charges against him and a risk of him absconding and interfering with the administration of justice by putting undue pressure on witnesses. The Court noted that “the existence of a risk that the applicant might abscond was not established” and that “the applicant’s health condition made the risk of absconding very slight as he was mostly bedridden and had difficulties walking on his own” (§116). The Court also noted that “in ordering the extensions of the applicant’s detention, the national courts used identical or similar wording repeatedly”, which suggests that “there was no genuine judicial review of the need for detention at each extension of detention” (§118). Accordingly, the Court declared that there had been a violation of Article 5§3.

Vasenin v. Russia (no. 48023/06)

As regards the complaint under Article 3, the Court noted that according the medical reports, although the applicant suffered from a serious mental disorder, there was no need for urgent treatment with medication. Moreover, the Court observed that the applicant’s stay in the temporary detention facility was not particularly lengthy (see, by contrast, Kudła v. Poland, §84). In these circumstances, the Court concluded that “having regard to the fact that the applicant did not invoke any physical or mental suffering or additional aggravating factors related to the material conditions of his detention” it “cannot find that the applicant’s pre-trial detention in a regular detention facility reached the minimum level of severity provided for by Article 3 of the Convention” (§101). Moreover, the Court found the authorities took all the necessary steps to safeguard the applicant’s physical well-being concerning his tuberculosis and his hepatitis. Accordingly, there had been no violation of Article 3.

As regards the complaint under Article 5§1, the Court noted that on 3 May 2006 the domestic court ordered the applicant’s detention in a psychiatric hospital and that this judgment had been enforced twenty-nine days later, on 11 June 2006. The Court noted that during this period, the applicant was detained in a regular shared cell and was not receiving any treatment to improve or a least to maintain his mental condition. Therefore, this cell “could not be regarded as an institution appropriate for the detention of persons of unsound mind” (§117). Even though the Court had already held that domestic authorities may need a certain amount of time to select the most appropriate custodial clinic for a convicted applicant suffering from a mental disorder (Proshkin v. Russia, §§76-82 ; Mocarska v. Poland, §§41-49), it declared that “particular weight should be given to the applicant’s right to liberty, taking into account that a significant delay in admission to a custodial clinic […] could adversely affect the course of treatment” (§118). Noting that the Government had failed to provide any explanation for the applicant’s delayed admission to a mental institution, and “even if the duration of the applicant’s detention in itself was not particularly lengthy” (§119), the Court declared there had been a violation of Article 5§1.

As regards the complaint under Article 6§1, the Court first noted that the applicant’s trial was held in his absence. The authorities maintained that Russian law did not call for his presence in view of his mental condition. The Court recalled that “the mere fact that an individual suffers from a mental illness or has been declared legally incapacitated cannot automatically lead to the exclusion of the exercise” of the right of being heard in court (§139). In the present case, the Court saw no evidence “convincingly demonstrating that the applicant’s behavior or his mental condition precluded his stating his case in open court” (§139), and declared that “the presence of defence counsel and the applicant’s legal could not compensate for the applicant’s inability to state his own case by appearing before court” (§140). Accordingly there had been a violation of Article 5§1. On the latter point, the Court noted that “during the trial the defence was essentially passive” (§143) and did not challenge “the admissibility of evidence, included the self-incriminating statements made by the applicant […] despite the fact that the applicant himself had fiercely disputed the accusation” (idem). As a result, the Court concluded that “the legal assistance provided to the applicant at the trial was seriously deficient” (§144). In such circumstances, “it was up to the Russian courts to intervene and to appoint new legal-aid counsel or to adjourn the hearing until such time as the applicant could be adequately represented” (§146, see also Eduard Rozhkov v. Russia, §25). Accordingly, the Court declared there had been a violation of Article 6§1.

 

23 June 2016 

Truten v. Ukraine (no. 18041/08)

The applicant complained that the conditions in the detention center had been in breach of Article 3. The Court observed that the available evidence indicates that during his detention, the applicant lack personal space – for twenty-eight days he was held in a cell allowing 2,6 sq. m. of personal space, and for more than a year he was held in a cell where 3,1 sq. m. personal space was available to him. Moreover, the applicant had no freedom of movement and was confined to his cells at all times. Accordingly, the Court found a violation of Article 3, particularly due to the lack of personal space afforded to the applicant combined with the lack of access to outdoor activities for the whole period of his detention. 

 

28 June 2016

Özçelik v. the Netherlands (no. 69810/12)

Relying in particular on Article 5 § 4, Mr Özçelik alleged that it had taken the Court of Appeal too long to decide his appeal of June 2011 against the continuation of his detention. Further relying on Article 5 § 5, he also complained that, although the Court of Appeal had recognised a violation of his rights, it had failed to order his immediate release or to award him compensation. The Court´s jurisprudence considers that there is a violation of Article 5§4 of the Convention when the applicant’s appeal against the rejection for his request for release from a Persistent Offenders Institution was not decided “speedily”. Having regard to its abundant case-law in the matter (see, among many other authorities, Musiał v. Poland [GC], no. 24557/94, § 43 ; and S.T.S. v. the Netherlands, no. 277/05, § 43), the Court sees no reason to hold otherwise. It accordingly finds a violation of Article 5 § 4. Further, the Court recalls that in Emin v. the Netherlands (no. 28260/07, §§ 22-25, 29 May 2012), the Court held as follows: “22. The Court has stated the applicable principles as follows (see, as a recent authority, Stanev v. Bulgaria [GC], no. 36760/06, § 182): possibility to apply for compensation and a.o. the effective enjoyment of the right to compensation guaranteed by Article 5 § 5 must be ensured with a sufficient degree of certainty.” Since in the present case these requirements were not fulfilled, there was thus no possibility of compensation and there has accordingly been a violation of Article 5 § 5 of the Convention.

Janusz Wojciechowski v. Poland (no. 54511/11)

Relying in particular on Article 3, Mr Wojciechowski notably alleged that his conditions of detention had been inadequate. For 309 days of his total period of detention in Koszalin Remand Centre, the applicant was held in cells which did not conform with the statutory minimum size of 3 sq. m per person. More particularly, the applicant had between 1.9 to 2.6 sq. m of personal floor space in his cells. Moreover, up until 2008 or 2009 the toilet areas were not separated from the living areas in the cells. The applicant had one hour of outdoor exercise per day and only four or five showers per month. Having regard to the circumstances of the case and their cumulative effect on the applicant, the Court considers that the distress and hardship which resulted from overcrowding, lack of separation of the toilet facilities from the cell’s living area and limited opportunities for outdoor exercise and keeping clean, exceeded the unavoidable level of suffering which is inherent in detention and went beyond the threshold of severity under Article 3. There has accordingly been a violation of Article 3 of the Convention.

 

30 June 2016

Kagia v. Greece (no. 26442/15)

The applicant, Ali Kagia, complained of the conditions of his detention in Ioannina and Trikala Prisons (Greece). Mr Kagia was imprisoned in Ioannina Prison on 25 February 2014. He was subsequently transferred to Komotini Prison, where he stayed until 11 March 2014. He then went back to Ioannina Prison. Lastly, on 20 June 2014, he was transferred to Trikkala Prison, where he stayed until he was released on 24 November 2015. The Court didn’t find that there had been a violation of Article 3 on account of the material conditions of detention (§§49-50). However, the Court considered that, taking account on its previous case-law, the lack of a domestic effective remedy for these grievances amounted to a violation of Article 13 (§§54-57)

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