Newsletter no.5 (8 September 2015) - Round-up of ECtHR Cases on Prison Issues

(June 23rd – July & August)

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SUMMARY

Costel Gaciu v. Romania (no.39633/10) – overcrowding / material conditions of detention / private and family life / discrimination: The applicant had a personal space of less than 4m² (violation of Article 3) ; because he was not a convicted prisoner, his requests for conjugal visits were refused (violation of Article 8)

Lutanyuk v. Greece (no.60362/13) – overcrowding: The applicant had a living space of less than 3m² (violation of Article 3)

Anatoliy Kuzmin v. Russia (no.28917/05) – overcrowding / material conditions of detention: Waiting for the hearings, the applicant was held in an overcrowded court’s convoy cell. However the Court could not establish beyond reasonable doubt that the conditions amounted to a violation of Article 3 of the Convention (no violation of Article 3)

Serce v. Romania (no.35049/08) – overcrowding / material conditions of detention: The applicant had available less than 4m², which, given his poor state of health that made him vulnerable, caused him distress that exceeded the unavoidable level of suffering inherent in detention. The Court used the report of a Romanian NGO (APADOR-CH) to support the applicant’s allegations (violation of Article 3)

[GC] Khoroshenko v. Russia (no.41418/04) – private and family life: Because he is a life-sentence prisoner, the applicant endures specific restrictions on contact with his family members. Russia is the only Contracting State to have specific rules for life-sentence prisoners regarding visits. The Court considered that that situation narrows Russia’s margin of appreciation. Therefore it concluded that the measure is disproportionate as to the aims invoked (violation of Article 8)

Kardišauskas v. Lithuania (no.62304/12)  – obligation to investigate / violence: The applicant complained that the authorities had failed to ensure his safety in prison and that the investigation into the circumstances surrounding his injury in prison had been ineffective. However the court declared the application inadmissible for failure to exhaust the appropriate domestic remedies (substantive aspect) and considered that the investigation had been effective enough (no violation of Article 3 – procedural aspect)

Martzaklis and Others v. Greece (no.20378/13)  – healthcare / discrimination / overcrowding / effective remedy: the applicants are HIV-positive persons. As such they were placed in a specific wing of the prison hospital, which was in fact overcrowded: their living space was of less than 2m² and they could not benefit from an adequate medical treatment (violation of Article 3). Moreover, their confinement due to their illness was not justify since an appropriate treatment was lacking (violation of Article 3 in conjunction of Article 14). What’s more they had no remedy that could have enabled them to complaint of their conditions of detention (violation of Article 13)

Gégény v. Hungary (no.44753/12) – overcrowding / material conditions of detention / effective remedy: The applicant spent several months in overcrowded cells (violation of Article 3) and had no effective available to complaint (violation of Article 13)

Ciprian Vlăduț and Ioan Florin Pop v. Romania (nos. 43490/07 and 44304/07) – overcrowding: the applicant was held in overcrowded cells with less than 2m² of living space (violation of Article 3)

Sanatkar v. Romania (no.74721/12) – overcrowding: the applicant was held in overcrowded cells with less than 2m² of living space (violation of Article 3)

Temchenko v. Ukraine (no. 30579/10) – healthcare / effective remedy: In spite of his state of health, well know to the authorities, the applicant did not benefit from an adequate medical treatment until the Court took an interim measure (violation of Article 3). Moreover, the applicant had no effective remedy available to complaint of the situation (violation of Article 13).

Patranin v. Russia (no. 12983/14) – healthcare, effective remedy, interim measures: Because of the gravity of the applicant state of health, the Court ask the Russian government to enable the applicant to be examined by independent experts. The Russia government failed to comply with this obligation (violation of Article 34). The Court further noted that the applicant did not benefit from an adequate medical treatment (violation of Article 3) and that he had no effective remedy available to complaint of the situation (violation of Article 13).


23 June 2015

 Costel Gaciu v. Romania (no.39633/10) – overcrowding / material conditions of detention / private and family life / discrimination

Relying on Article 3 (prohibition of torture and of inhuman or degrading treatment), the applicant alleges in particular that the prisons in which he was detained were overcrowded and had poor ventilation and hygiene. He also complains about the refusal of his requests for conjugal visits during his pre-trial detention solely because he was not a convicted prisoner, in breach of Article 8 (right to respect for private and family life) and Article 14 (prohibition of discrimination).

Complaint under Article 3: “The Court notes that the applicant’s personal space turns out to have been most of the time significantly less than the minimum number of square metres recommended by the CPT […] and in the instant case even lower than three square metres. The Court further points out that these figures were even lower in reality, taking into account the fact that the cells also contained detainees’ beds and other items of furniture”(§37). Such conditions of detention “raises an issue under Article 3 of the Convention” (§37 (-- see Iacov Stanciu v. Romania, §173). The prison in which the applicant was detained is already well known to the Court because of its poor conditions of detention (§38): in several occasion it found a violation of Article 3 concerning identical situation and “the Government have failed to put forward any argument that would allow the Court to reach a different conclusion in the current case” (§39). Accordingly, the Court concludes that there has been a violation of Article 3 of the Convention (§40).

Complaint under Article 8 in conjunction with Article 14: The applicant complained that his requests for conjugal visits were refused because he was not a convicted prisoner – but in pre-trial detention. After having recalled that “a wide margin of appreciation applies in questions of prisoners and penal policy” (§56) the Court went on to note that both the CPT and the European Prisons Rules recommend that untried prisoners benefit from conjugal visits when possible (§59). Last, the Court pointed that “the applicant’s wife was neither a witness nor a co‑accused in the criminal case against her husband, which removed the risk of collusion or other forms of obstructing the process of collecting evidence” (§60). “The Court therefore considers that the particularly lengthy period of the applicant’s pre-trial detention (one year and ten months) reduced his family life to a degree that could not be justified by the inherent limitations involved in detention. It therefore finds that by refusing to allow the applicant conjugal visits when detained on remand the authorities failed to provide a reasonable and objective justification for the difference in treatment, and thus acted in a discriminatory manner” (§61). There has therefore been a violation of Article 14 in conjunction with Article 8 of the Convention.

 
25 June 2015

Lutanyuk v. Greece (no.60362/13) – overcrowding

The case concerns the conditions of detention in the Corfu Prison: relying on Article 3, the applicant, a Ukrainian national, complained of the conditions in which he was detained during more than two years. The applicant was detained in a cell of 5.5 m² he shared with one or two persons: he had at his disposal far less than 3m² (§40). The Court recalled that when a prisoner is detained in such conditions there is a strong presumption of violation of Article 3 – unless the Government can prove that these conditions were counterbalanced by a better access to other places of the building (§39 – see Muršić v. Croatia, no 7334/13, 12 March 2015). In the present case, the Government could not prove that other aspects of the detention had offset the fact that the applicant was detained in an overcrowded cell. Accordingly, the Court concluded that there had been a violation of Article 3 (§44).

 

Anatoliy Kuzmin v. Russia (no.28917/05) – overcrowding / material conditions of detention


The applicant is a Russian national. He complained that the conditions of his detention during the trial in Tsentralniy District Court of Chelyabinsk were in breach of Article 3 (prohibition of inhuman or degrading treatment). Waiting for hearings he was detained in the court’s convoy cell “a barred room measuring approximately 4 sq. metres with one bench” (§13) which he usually shared with six other accused, and for an average time of 4 hours. “The cell did not have a toilet and the detainees were taken to the toilet on the wardens’ orders. Though the accused leaving for a court were provided with a packed lunch, no hot meal or hot water was distributed. The accused were not allowed to smoke” (§13). However the Court concluded that there had been no violation of Article 3.

Firstly because the applicant “did not provide the exact dates of his detention in the courthouse” (§35), and “that the applicant did not describe the conditions of his detention in any particular detail” (§39). Secondly, and as a result, because to the best of the Court’s knowledge “cannot establish beyond reasonable doubt that the conditions were such as to amount to a violation of Article 3 of the Convention” (§44). The Court compared the applicant’s situation with a previous case where a person was detained in similar conditions in a convoy cell, but this person was at the same time detained in pre-trial detention where she endured extremely hard conditions of detention: “taking into account the brevity of the applicant’s stay in the convoy cell, the fact that it did not alternate with inhuman and degrading conditions of his detention in the remand prison and transport […] the Court does not consider that the conditions of the applicant’s detention on 29 June 2005, although far from adequate, reached the threshold of severity required to characterise the treatment as inhuman or degrading within the meaning of Article 3 of the Convention” (§144 – see Moiseyev v. Russia, no. 62936/00, § 143, 9 October 2008).


30 June 2015

 

Serce v. Romania (no.35049/08) – overcrowding / material conditions of detention

Relying on Article 3 (prohibition of inhuman or degrading treatment), the applicant complained of the inhuman conditions of his detention, alleging in particular poor hygiene, aggravated by lack of activities or work and inadequate food for his diabetes. The Court considered that “Even though there are no relevant CPT reports concerning the above-mentioned prisons, the applicant’s allegations are supported by the reports of APADOR-CH, a Romanian NGO which visited the said prisons” (§45). Moreover, these findings are consistent with several cases concerning these facilities in which the Court held that the conditions of detention breached the safeguards of Article 3 of the Convention (see Iacov Stanciu c. Romania, no. 35972/05, §§ 113‑16, 24 July 2012). “The Court takes the view that the applicant’s state of health made him vulnerable and that his detention in unhygienic conditions must have been aggravated by the lack of activities or work as well as the overcrowding. It results from the information submitted by the Government that the applicant had available in Rahova Prison less than four sq. m of personal space. The Court considers that such a level of overcrowding cannot but increase the difficulties encountered by the authorities and the prisoners in maintaining an adequate level of hygiene” (§47 -- see Ion Ciobanu v. Romania, no. 67754/10, § 42, 30 April 2013). “In view of the foregoing, the Court considers that the cumulative conditions of the applicant’s detention caused him distress that exceeded the unavoidable level of suffering inherent in detention and that attained the threshold of severity under Article 3” (§48)

 

[GC] Khoroshenko v. Russia (no.41418/04) – private and family life

The applicant complained that the restrictions on contacts with his family members under the strict regime in the correctional colony during ten years (between October 1999 and October 2009) had been in breach of his rights under Article 8.

Under this regime the applicant could correspond in writing with the outside world, but there was a complete ban on telephone calls except in situations of emergency, and severe restrictions were imposed to visits from relatives: “[d]uring this period the applicant was allowed to have one short-term visit from his relatives every six months. The visits lasted no longer than four hours. During the meetings the applicant communicated with his visitors via a glass partition or through metal bars, under conditions which allowed no physical contact. A warden listened in to the conversations with his visitors.”(§23)

The Court insisted on “the general evolution in European penal policy towards the increasing relative importance of the rehabilitative aim of imprisonment, particularly towards the end of a long prison sentence” (§121) and recalled its precedent rulings concerning long sentences were it stated that “the emphasis on rehabilitation and reintegration has become a mandatory factor that the member States need to take into account in designing their penal policies” (§121 – see Vinter and Others v. the United Kingdom [GC], nos. 66069/09, 130/10 and 3896/10, § 111‑116)

Further, the Court went on to note that “the majority of the Contracting States do not draw any distinction in this sphere between life‑sentence and other types of prisoners” and that “Russia appears to be the only jurisdiction within the Council of Europe to regulate the prison visits of all life-sentence prisoners as a group by combining an extremely low frequency of prison visits and the lengthy duration of such a regime”(§135). As a result, even if “States enjoy a wide margin of appreciation in questions of penal policy” (§132), this situation “is indicative of a narrowing of the margin of appreciation left to the respondent State in the assessment of the permissible limits of the interference with private and family life in this sphere” (§136). Similarly “the position of international-law instruments and the practice of international courts and tribunals” (§143) support this conclusion.

The Court therefore concluded “that the interference with the applicant’s private and family life resulting from such a low frequency of authorised visits, solely on account of the gravity of a prisoner’s sentence was, as such, disproportionate to the aims invoked by the Government. It further note[d] that the effect of this measure was intensified because it was applied over such a long period of time, as well as by various rules on the modalities of prison visits” (§146). In other words “that the measure in question did not strike a fair balance between the applicant’s right to the protection of private and family life, on the one hand, and the aims referred to by the respondent Government on the other, and that the respondent State has overstepped its margin of appreciation in this regard” (§148).

As a result, the Court ruled that there had been a violation of Article 8 of the Convention (§149). 




7 July 2015


Kardišauskas v. Lithuania (no.62304/12)  – obligation to investigate / violence

Relying on Article 3 (prohibition of inhuman or degrading treatment), the applicant complained that the domestic authorities had failed to ensure his safety in prison, and that the investigation into the circumstances surrounding his injury in prison had been ineffective.

Substantive Aspect of Article 3: The Court declared the application inadmissible for failure to exhaust the appropriate domestic remedies.  Firstly, as to the civil claim: the Court noted that the applicant had at his disposal an effective remedy before the Administrative Court he failed to use within the proper time-limit (§37). As a result, noting that “it is not its task to take the place of the domestic courts” (§49), and notably in matters of “interpretation […] of rules of a procedural nature, such as time-limits for lodging claims”, the Court declared that the complaint inadmissible (§50). Secondly and similarly, as to the Prosecutor’s refusal to investigate whether the prison authorities had failed to act and to protect the applicant’s safety and health in prison, the Court noted that neither the applicant’s mother, nor the applicant himself appealed against this decision (§51). As the result, the Court declared the complaint inadmissible (§52).

Procedural Aspect of Article 3: The Court declared that there had been no violation of Article 3 in the light of the investigations conducted by the Government. The Court observed that on the day the crime was committed against the applicant the pre-trial investigation was opened, the scene of the incident was inspected, and the Prosecutor “was informed about the incident and oversaw the investigation” (§69). It also noted that the investigation enabled to promptly gather evidences (witnesses were questioned, forensic examination were carried out). As a result, recalling that “the obligation on the State to conduct an effective investigation is one of means, not of result” (§75), and notwithstanding the fact that “to this day the pre-trial investigation has lasted for nearly twelve years, but the perpetrators are yet to be identified” (§75), the Court concluded that the investigations had been effective enough and that the authority did not fail to comply with their positive obligations under Article 3 of the Convention (§76).

It is worth mentioning that the Court usefully recalled, against the Government argument’s “that the applicant himself was not active enough in speeding up the proceedings” (§72), that “as regards the States’ positive obligations under Article 3 of the Convention, the State authorities cannot leave it to the initiative of the victim or his family members to take responsibility for the conduct of any investigative procedures” (§72).
 


9 July 2015

 
Martzaklis and Others v. Greece (no.20378/13)  – healthcare / discrimination / overcrowding / effective remedy

Complaint under Article 3 taken alone and in conjunction with Article 14 (prohibition of discrimination): The applicants complained of their conditions of detention in Korydallos Prison Hospital, their “ghettoisation” in a separate wing of the hospital and the authorities’ failure to consider whether those conditions were compatible with their state of health. The Court noted that the Prison Hospital was clearly overcrowded (200 persons for 60 places), with persons suffering from different contagious diseases. As a result, the prisoners had a personal living space of less than 2m² (§67) and could not benefit from an adequate medical treatment (§73) – the treatment was prescribed without appropriate diagnosis and could stop without explanations for several weeks (§68). The Court went on to note that the decision to place the applicants in a specific wing of the hospital amounted to a discriminatory treatment: firstly because they were placed there even before the development of the disease made it necessary (§72); and secondly because such isolation should have led to a better treatment which was in fact lacking (§71). As a result, this segregation lacked an objective and reasonable justification. Accordingly, the Court concluded that there had been a violation of Article 3 taken alone and in conjunction of Article 14 of the Convention (§75).

Complaint under Article 13 (right to an effective remedy): The Court noted that the government did not give any example of a successful application through the national remedy it mentioned. As a result the Court concluded that the applicant had no remedy that could have enabled them to complaint effectively of their conditions of detention, and that there had been a violation of Article 13 of the Convention (§§56 and 79 –see Papakonstantinou v. Greece, no. 50765/11, § 51, 13 November 2014)



16 July 2015


Gégény v. Hungary (no.44753/12) – overcrowding / material conditions of detention / effective remedy

Relying on Article 3 (prohibition of inhuman or degrading treatment) and Article 13 (right to an effective remedy), the applicant complained that he endured  inhuman and degrading conditions of detention and that he has no effective remedy available with which to complain.

Complaint under Article 13: The Court referred to its ruling in the Varga and Others v. Hungary judgment, where it concluded that there was no effective remedy for “that could be used to prevent the alleged violation or its continuation and provide the applicants with adequate and sufficient redress in connection with a complaint of inadequate conditions of detention” (§18). The Court found in the present case no reason to depart from this conclusion. Accordingly, the Court concluded that there had been a violation of Article 13 of the Convention (§19).

Complaint under Article 3: The applicant “spent 63 months with eleven other inmates in three different cells […] measuring 27 square metres each, including sanitary facilities. The cells were equipped only with one tap and a toilet, separated from the living area only by a curtain. The dining table was fixed to the floor just a metre away from the toilet. The applicant had a daily one‑hour‑long outdoor activity. The yards were closed premises measuring 40 by 20 metres, about 100-150 persons being taken to the yard at a time” (§6). The Court furthermore noted that “the difficulty of the applicant’s situation was not in any significant way attenuated, for instance by virtue of the time spent outside his cell” (§28). The Court went on to note that that the situation was not temporary since the applicant was serving a long term of imprisonment, and he had been held “in such conditions, lacking any privacy, for more than thirteen years” (§30 – contra, Dmitriy Rozhin v. Russia, no. 4265/06, 23 October 2012, §53). The Court therefore considered “that the applicant was subjected to inhuman and degrading treatment in breach of Article 3 of the Convention” (§31)

 

Ciprian Vlăduț and Ioan Florin Pop v. Romania (nos. 43490/07 and 44304/07) – overcrowding –  (only the second application complained about his detention conditions)

The applicant complained that he was placed in overcrowded cells he had to share with smokers, although he was a non-smoker himself. During his detention, his personal living space was on average 1.91m². The applicant brought to the authorities’ attention his complaints, but they were either dismissed (see paragraph 36 above) or ignored (see paragraph 40 above). The Court reiterates having found, in numerous similar cases regarding complaints about material conditions of detention relating to structural issues such as overcrowding or dilapidated institutions, that the legal actions suggested by the Romanian Government do not constitute effective remedies (see, i. a., Petrea v. Romania, no. 4792/03, § 37, 29 April 2008). Moreover, the second applicant’s submissions in respect of the overcrowding correspond to the general findings by the CPT in respect of Romanian prisons.  There has accordingly been a violation of Article 3 of the Convention in respect of the material conditions of the second applicant’s detention.

 

Sanatkar v. Romania (no.74721/12) – overcrowding

Relying on Article 3 (prohibition of inhuman or degrading treatment), the applicant complains of overcrowding in the prisons where he was held. The government admits the situation. The prisons in which the applicant are already well known to the Court: it concluded in several judgment that there had been a violation of Article 3 because of the lack of personal space (see i. a. Banu v. Romania, no.60732/09, 11 December 2012). There has accordingly been a violation of Article 3 of the Convention in respect of the material conditions of detention.

 

Temchenko v. Ukraine (no. 30579/10) – healthcare / effective remedy

Relying mainly on Article 3 (prohibition of inhuman or degrading treatment) and Article 13 (right to an effective remedy), the applicant complained that he was not provided with adequate medical treatment during his detention and that he did not have an effective remedy in that respect.

Complaint under Article 3: The Court noted that both medical experts and prison administration admitted that the medical treatment provided to the applicant had been inadequate (§§85 and 89). The Court went on to note that the applicant was placed in an outside medical institution only after application of Rule 39 by the Court (interim measure – §90). The applicant made several requests for release that were rejected by the national courts; however it “appears that the courts were satisfied that in detention the applicant received some medical treatment and did not even attempt to examine whether it had been adequate” (§91). Lastly, the Court observed that the applicant was transported to court hearings in “a vehicle without specific medical equipment” despite the fact “that the authorities were fully aware of the applicant’s poor state of health” (§92). Accordingly, the Court considered that “the above findings are sufficient to conclude that the State failed to comply with its obligations under Article 3 of the Convention” (§93).
 
Complaint under Article 13: The Government “contended that the applicant had not exhausted domestic remedies because he had not raised the above complaints before the domestic courts in the framework of separate judicial proceedings” (§82). However the Court ruled in several judgments that the remedy available could not be considered as effective (see, i. a. Koktysh v. Ukraine, no. 43707/07, § 87, 10 December 2009). “The Government provided no information which would enable the Court in the present case to depart from its findings” (§83). Having regards “to its conclusion as to the exhaustion of domestic remedies (see paragraph 83 above) and also to the lack of thorough examination by the domestic courts of the applicant’s complaints, [the Court] consider[ed] that the applicant had no effective remedy in respect of his allegations of inadequate medical assistance in detention. Accordingly, there ha[d] been a violation of Article 13 of the Convention” (§94)


 
23 July 2015

 
Patranin v. Russia (no. 12983/14) – healthcare, effective remedy, interim measures

The applicant alleged he had not benefited from adequate medical care in detention, had not had an effective remedy for his complaint about poor medical services, and that his right of individual application to the Court had been hindered (§3)

Complaint under Article 34: The applicant asked for an independent expertise to be carried out on his state of health. Non-independent experts had decided that his state of health did not warrant release, which he complained about (§§9-18). The Court „in response to the applicant’s request under Rule 39 of the Rules of Court, decided to indicate to the Government that the applicant should be examined immediately by medical experts independent of the penal system” (§19). Given the applicant’s state of health the interim measure „also meant to ensure that the applicant could effectively pursue his case before the Court” (§51). However, the Court noted that „the aim of the expert examination, the result of which was set in the report, was to compare the applicant’s condition against the exhaustive list of illnesses provided for by the Governmental Decree, which could have warranted his early release [...].The reports therefore have little relevance to the implementation of the interim measure indicated by the Court to the Russian Government in the present case” (§53). Accordingly, the Court concluded that „the authorities failed to comply with their obligation under Article 34 of the Convention” (§56). Therefore „the Court [did] not deem it necessary to deal with the applicant’s allegations of pressure put on him with the aim of making him withdraw his application” (§56)

Complaint under Article 3: The applicant forwarded a large number of expert opinions saying that “his condition was extremely serious, or even life‑threatening, particularly given that he had not received adequate medical care in detention” (§70). The Court therefore considered that “that the burden of proof should shift to the respondent Government” (§74). The Court found that “the Government have failed to demonstrate conclusively that the applicant received effective medical treatment for his illnesses while in detention” (§75). „The authorities’ failure to provide the applicant with the medical care he needed amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention [...] Accordingly, there was a violation of Article 3 of the Convention” (§§76-77)

Complaint under Article 13: The Court concluded that there had been a violation of Article 13. Firstly because the existing remedy is purely compensatory and „could not put an end to a situation where there is an ongoing violation, such as inadequate medical care” (§86). Secondly because „did not offer reasonable prospects of success, in particular because the award was conditional on the establishment of fault on the part of the authorities, which was extremely improbable in a situation where domestic legal norms prescribed the application of a certain measure, for instance certain conditions of detention or level of medical treatment” (§86 – see A.B. v. Russia, no. 1439/06, § 96, 14 October 2010).

 

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