Newsletter no.17 - Round-up of the ECtHR case-law (December 2016)

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Summaries

Trapeznikova and Others v. Russia (no. 45115/09)right to life. A member of the applicants’ family died while serving his prison sentence. The applicants complained that the authorities did not comply with their obligation to protect his life (violation of Article 2 under its substantive and procedural limb)

Kanalas v. Romania (no. 20323/14)conditions of detention / permission to attend funeral. The applicant complained about the conditions in which he was held in the prisons of Oradea and Rahova (violation of article 3) and about the refusal of the prison authorities to grant him permission to attend his mother’s funeral (violation of Article 8).

Chernetskiy v. Ukraine (no. 44316/07) right to marry. The applicant complained that while a divorce was granted to him while he was imprisoned, he was unable to remarry as he was not able to collect his divorce certificate whilst in prison (violation of Article 12)

Kolomenskiy v. Russia (no. 27297/07)material conditions of detention / overcrowding / effective remedy. The applicant alleged that he had been held in poor conditions, that he did not receive adequate dental care, and that he did not have an effective remedy available for complaining about these detention conditions (violation of Article 3; violation of Article 13 in conjunction with article 3).

Evlem Kaya v. Turkey (no. 26623/07)contact with the outside world / Correspondence with lawyer. The case concerned in particular the authorities’ systematic monitoring of the applicant’s correspondence with her lawyer (violation of Article 8).

Dumikvan v. Russia (no. 2961/09)material conditions of detention / sanitary conditions. The applicant complained that the conditions of is detention were appalling and that he did not have access to adequate medical care (violation of Article 3).

Idalov v. Russia no.2 (no. 41858/08)material conditions of detention / effective investigation / effective remedy / transport. The applicant complained about ill-treatment in custody, the lack of effective investigation in response to his complaints about ill-treatment, and the inadequate conditions of his detention and transport (violation of Article 3, violation of Article 13).

Yunzel v. Russia (no. 60627/09)material conditions of detention / sanitary conditions / health. The applicant complained about the conditions of his pre-trial detention during which the authorities had failed to provide him with timely and adequate dental treatment (violation of Article 3).

Žirovnický v. the Czech Republic (nos. 60439/12 and 73999/12)effective remedy. The applicant complained about his detention conditions in several Czech prisons (application inadmissible due to non-exhaustion of domestic remedies)

Radzhab Magomedov v. Russia (no. 20933/08)detention conditions / transport conditions. The applicant complained about his detention conditions (no violation of Article 3) and transport conditions to and from court (violation of Article 3).

 

1 December 2016

Trapeznikova and Others v. Russia (no. 45115/09)

The applicants complained that the authorities did not comply with their obligation to protect a member of their family’s right to life while serving a prison sentence.

Procedural limb

The Court first noted that it had previously ruled in a number of cases against Russia that the authorities of this country failed to open a proper criminal investigation in a situation where an individual had died while in state of custody (Kleyn and Aleksandrovich v. Russia, no. 40657/04, 3 May 2012, §56). The Court then noted that the Government had “not put forward any fact or argument capable of persuading it to come to a different finding in the present case” (§36). In view of the foregoing, there had been a violation of Article 2 under its procedural limb.

Substantive limb

In the absence of an effective examination it had not been established that the applicants’ relative’s death was an homicide (§39). However, the Court noted that the administration of the correctional colony was aware of this person’s unstable psychiatric condition (drug addiction, previous attempt to intentionally harm himself, suicidal tendencies). In spite of this, this person had no access to psychiatric care. In view of the above, the Court considered that “the failure on the part of the authorities to take any measures in order to ensure that [the applicants’ relative] was properly examined and treated resulted in death” (§42). Accordingly, there had been a violation of Article 2 under its substantive limb.

 

6 December 2016 

Kanalas v. Romania (no. 20323/14)

Complaint under Article 3

The Court first-of-all recalled it had previously found that the condition of detention in Romanian prisons, particularly with regard to overcrowding and poor hygiene, constituted a structural problem (Iacov Stanciu v. Romania, no. 35972/05, 24 July 2012, §195). The Court then observed that the applicant allegations about a lack of appropriate lighting and ventilation, and the poor quality of the food, reflected actual conditions that it had already observed in the past as regards the prisons in question (Ardelean v. Romania, no. 28766/04, 30 octobre 2012 and Constantin Aurelian Burlacu v. Romania, no. 51318/12, 10 June 2014). Having regard in particular to the fact the he had personal space of less than 3 sq.m. together with the length of the deprivation of liberty, the Court concluded that there had been a violation of Article 3

Complaint under Article 8

In 2014, the applicant asked the governor of Oradea prison to grant him leave so that he could attend his mother’s funeral, but his request was rejected on the ground, in particular, that his remaining sentence left to serve was too long and that he had already been rewarded in the same month. The Court first recalled it had acknowledged “the merit of measures – such as temporary release – permitting the social reintegration of prisoners even when they have been convicted of violent crimes” (Mastromatteo v. Italy, no. 37703/97, 24 October 2002, §72). Furthermore, the Court noted that the authorities did not contemplate the possibility to form an escort so as to enable the applicant to attend the funerals. Accordingly, there had been a violation of Article 8.

 

8 December 2016

Chernetskiy v. Ukraine (no. 44316/07)

The case concerned the applicant’s complaint that he had been prevented from remarrying while serving a prison sentence. In 2005, while in prison, his wife filed for a divorce. Although he received a notification about the divorce, he was not able to obtain the divorce certificate because domestic law provided that the certificate had to be fetched in person but not that prisoners could be escorted to the registry for such purpose.

As a result he could not marry with his new partner until 2008 when he managed to obtain a divorce certificate in prison following the introduction of certain amendments to the domestic legislation.

Furthermore, until the new marriage was registered, the applicant could solely request short meetings with his new partner, which would last no longer than four hours and would be held in the presence of a prison officer.

The Court concluded that there had been a violation of Article 8 of the Convention.

 

13 December 2016

Kolomenskiy v. Russia (no. 27297/07)

The applicant complained that he had been held in poor conditions in Kirov prison and in the district court, and that he did not have any effective remedy available for complaining about the detention conditions.

Complaint under Article 3

With regard to overcrowding in Kirov prison, the Russian government submitted an unilateral declaration acknowledging that the applicant had been held in inadequate conditions and stating it was prepared to compensate the harmed suffered. The Court therefore held that it was no longer necessary to continue examining this part of the complaint.

With regard to overcrowding in the district court, the Court first noted that the applicant did not submit any piece of evidence supporting his allegation that he had been held in overcrowded cells. However, the Court observed that the applicant had not been fed on the days of his hearing – at a point when he needed all his powers of mental alertness (see also Kovaleva v. Russia, no. 7782/04, 2 December 2010, §§64-65). The Court recalled that the Government had acknowledged that the applicant had been held in overcrowded cells in prison. In view of the above the Court concluded that there had been a violation of Article 3.

With regard to dental care in the prison, the Court established from the applicant’s medical records that he was given regular check-ups by doctors and that at no point had he complained about dental problems or asked to see a dentist. Moreover, the Court noted that the applicant had not submitted any document demonstrating a worsening of his general health as a result of his alleged dental problems. The Court considered that Mr Kolomenskiy had not submitted sufficient and convincing arguments to show that the alleged lack of dental care was such as to amount to a violation of Article 3 of the Convention. This part of the complaint was manifestly ill-founded (§63).

Complaint under Article 13 in conjunction with Article 3

Regarding Article 13 taken together with Article 3, the Court concluded that the Russian judicial system did not afford effective domestic remedies in relation to a complaint concerning the conditions of detention in prisons. With regard to the conditions of detention in the district court, the Court did not find that the remedies proposed by the Government were in substance different from those that it had already examined and that it had found to be incompatible with the requirement of effectiveness within the meaning of Article 13 of the Convention (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, 10 January 2012, §§25-54)

 

Eylem Kaya v. Turkey (no. 26623/07)

The applicant complained that her correspondence with her lawyer regarding her application before the ECtHR had been monitored by the prison authorities. She submitted a copy of a letter, which had been stamped with the word “read” by the prison administration’s panel for reading the prisoners’ correspondence.

The Court noted that the applicant’s correspondence had been monitored systematically by the prison administration. The Court observed that Turkish law did not set sufficient guaranties aiming at protecting the applicant’s fundamental right to the confidentiality of this correspondence: the monitoring to which the applicant was subjected was performed by the prison administration and not by and independent judge bound by professional secrecy and was not limited to specific circumstances (§45). Therefore, there had been a violation of Article 8 of the Convention.

 

Dumikvan v. Russia (no. 2961/09)

The applicant complained that he was not provided with adequate medical care while in detention. The Court noted that although his “grave health condition was evidence to the authorities” (§61), was left without medical attention and assistance and as placed in a overcrowded cell without a sleeping place during the week following his arrest (§33). After his admission to the prison hospital, the applicant was not subjected to a key medical test regarding his illness; the doctors in charge failed to make a proper in-depth analysis of his state of health; and no follow-up on the necessity of the treatment prescribed by civilian doctors was carried out by the prison medical staff. Furthermore, the Court observed that due to the lack of medical treatment received in detention the applicant developed a perpetual limp and had to use a walking stick (§62). After his admission to the prison hospital, the applicant had been transferred between several cells, some of which were overcrowded (§41).

Due to the cumulative effects of the  inadequate medical care and the inappropriate conditions in which the applicant had been held the Court considerend that there had been a violation of Article 3 of the Convention (see also Kalashnikov v. Russia, no.47095/99, 15 July 2002, §98).

 

Idalov v. Russia no.2 (no. 41858/08)

The applicant claimed that he had been ill-treated on a number of occasions during his custody. In all these incidents, the applicant sustained multiple injuries, which were recorded in subsequent medical reports. The Court observed that “the applicant provided a clear account of the events in respect of the alleged incidents of ill-treatment in custody” (§86) and that “the injuries inflicted on the applicant were sufficiently serious to amount to ill-treatment within the meaning of Article 3” (§89).

The authorities opened a formal inquiery in each case: in all but one of the incident the related investigations are still pending (the length of the investigation periods ranging from four to seven years). The Court therefore declared that the authorities did not fulfill their obligation to carry out an effective investigation into the appilcant’s allegation of ill-treatment. Accordingly, there had been a violation of Article 3 under its procedural limb.

With regard to the conditions of detention in a temporary detention centre and remand prisons and to the applicant’s conditions of transport, the Court, in the absence of any piece of evidence submitted by the government that would enable it to reach a different conclusion, concluded that there had been a violation of Article 3. Furthermore, relying on its earlier findings in previous cases against Russia, the Court also considered that “the applicant did not have an effective remedy enabling him to complain about his conditions of detention and transport. There has accordingly been a violation of Article 13 of the Convention” (§115).

 

Yunzel v. Russia (no. 60627/09)

The applicant complained about the conditions of his pre-trial detention during which the prison authorities had failed to provide him with timely and adequate dental treatment.

Concerning the applicant’s detention in the temporary detention unit, the Court considered it was “appropriate to strike out of the list the part of the application” (§33) because of the Government’s unilateral declaration that provided for a sum that “is not unreasonable in comparison with similar cases” (§30).

Concerning the conditions of detention in the remand prison, the Court first observed that the different period of detention during which the applicant endured inappropriate detention conditions could not be regarded as a continuing situation due to the fact that these conditions varied significantly from cell to cell (§36).  As regards one of the detention periods, the Court noted that the complaint under examination was lodged “more than six months after the end of the applicant’s detention in cell no. 512 […]. Therefore, it was lodged out of time and must be declared inadmissible in accordance with Article 35 § 1 of the Convention” (§37). “As to the conditions of the applicant’s detention in that facility during the remaining period, the Court considers that they did not reach the threshold of severity set by Article 3 of the Convention (see, mutatis mutandis, Khodorkovskiy v. Russia, no.5829/04, 31 May 2011, §§111-116).

Regarding the quality of the medical treatment, the Court observed that the treatment commenced seven months after the applicant had complained of severe toothache and four months after the detention authorities had been alerted to the necessity of ensuring the applicant’s examination by a dentist. Furthermore, the treatment was interrupted on several occasions. As a result, the applicant “remained for several months in a situation where he was almost unable to chew the food served to him in detention” (§47). Accordingly, there had been a violation of Article 3.

 

15 December 2016

Žirovnický v. the Czech Republic (nos. 60439/12 and 73999/12)

The applicant who had been serving his sentence since 2001 complained about his detention conditions in several Czech prison, particularly on account of exposure to passive smoking and overcrowding.

The Court declared the application inadmissible. It found that the applicant had not exhausted the domestic remedies available to him.

As regards preventive remedies: the Court took the view that the complaint to a public prosecutor together with the possibility of applying to the Constitutional Court constituted under Czech law effective remedies to be exhausted for prisoners alleging that they were being held in unsatisfactory conditions of detention. The applicant had never complained about the material conditions of his detention to the Constitutional Court.

As regards compensatory remedies: the Court observed that other examples of decisions by Czech domestic courts confirmed that the remedies used by the applicant could, if appropriate, result in compensation for damage suffered due to inappropriate detention conditions. Therefore, in spite of the length of the proceedings (due to the complexity of the case and the applicant’s willing to attend all the hearings, §90) the Court did not find these remedies ineffective. Furthermore, the applicant had used a remedy entitling him to compensation for the length of the proceedings.

In view of the foregoing, the Court found that the applicant had not exhausted domestic remedies, given that the preventive remedies had not been duly used and that the compensatory remedies were still pending.

 

Radzhab Magomedov v. Russia (no. 20933/08)

The applicant complained about his condition and transport conditions to and from court.

Regarding the former, the Court referred to the methods summed up in the recent Grand Chamber judgment Muršić v. Croatia (no. 7334/13, 20 October 2016): having noted no shortage of personal space (§§47-50), it had to determine whether “other aspects of physical conditions of the applicant’s detention […] satisfied the standards set out in Article 3” (§50). The Court noted that the sanitary and hygiene conditions, though not irreproachable, were appropriate (brick partition separating the toilet, cold water available, weekly access to showers, bed linen changed on a weekly basis) and that the applicant had been allowed a one-hour period of outdoor exercise daily. Although the Government did not refute the applicant’s allegation that other inmates suffering contagious diseases or having parasites were placed in his cell, that the cells were infested with bedbugs, and that the temperatures in the cell were inadequate (§53), the Court considered that it did not consider that these detention conditions “although far from ideal, reached the threshold of severity required to characterise” a violation of Article 3.

Regarding the applicant’s transport, the Court noted that it had found a violation of Article 3 in a number of similar cases against Russia (Korkin v. Russia, no. 48416/09, 12 November 2015, §§70-75) and that the Government have not put forward “any fact or argument capable of persuading it to reach a different conclusion here” (§60). Moreover, the Court could establish that the personal space available to the applicant in the prison van was no more than 0.252 sq.m.; that the applicant was transported in such conditions over 58 times; that he did not receive appropriate nutrition on the days of the hearings; and that the missed the outdoor exercise period. In view of the above, the Court concluded there had been a violation of Article 3.

 

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