Newsletter no.18 - Round-up of the ECtHR case-law (January - February 2017)

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Summaries

[GC] Hutchinson v. The United Kingdom (no. 57592/08) – life sentence. The case concerned the complaint by a man serving a whole life sentence that his sentence amounted to inhuman and degrading treatment as he had no hope of release. The Court concluded that whole life sentences in the UK could now be regarded as compatible with Article 3 (no violation of Article 3)

 Gengoux v. Belgium (no. 76512/11) – right to life / health / medical release. The case concerned the continuing detention of the applicant’s seriously ill father. Relying on Article 2 the applicant alleged that the authorities had not provided his father with the medical care his condition required, thereby exposing him to a real risk to his life (no violation). He further complained under Article 3 that his father’s continuing detention constituted a treatment contrary to Article 3 (no violation).

 Jankovskis v. Lithuania (no. 21575/08) – access to the outside world / internet. The applicant complained that he had been refused access to a website run by the Ministry of Education and Science, thus preventing him from receiving education-related information in breach of Article 10 of the Convention (violation).

 [GC] Khamtokhu and Aksenchik v. Russia (nos. 60367/08 and 961/11) – life sentence.
The applicants, who had been sentenced to life imprisonment, complained that they were subjected to discriminatory treatment vis-à-vis certain other categories of convicted offenders who were exempt from life imprisonment by operation of law (no violation).

 Ilnseher v. Germany (nos. 10211/12 and 27505/14) – preventive detention. Relying mainly on Article 5§1 and Article 7§1 the applicant complained that his retrospective preventive detention violated his right to liberty (no violation)

 Karakhanyan v. Russia (no. 24421/11) – right to life / health / effective investigation. Relying on Article 2, the applicant alleged that the authorities had been responsible for her husband’s death because of their failure to provide him with adequate medical in detention, and that the related investigation had been ineffective (violation of Article 2 – substantial and procedural limbs)

 

17 January 2017

[GC] Hutchinson v. The United Kingdom (no. 57592/08)

Relying on Article 3 of the European Convention on Human Rights, the applicant alleged that his whole life sentence amounted to inhuman and degrading treatment as he had no hope of release.

In Vinter and Others v. the United Kingdom the European Court found that the law concerning the prospect of release of whole life prisoners in England and Wales was unclear. Although section 30 of the Crime (Sentences) Act 1997 gave the Secretary of State the power to release any prisoner, including one serving a whole life order, chapter 12 of the Indeterminate Sentence Manual (“Lifer Manual”)* provided that release would only be ordered if a prisoner was terminally ill or physically incapacitated. These were highly restrictive conditions and, in the Court’s view, did not afford the “prospect of release” required under the Court’s case-law for a life sentence to be be regarded as reducible for the purposes of Article 3 of the Convention.

Subsequently, the Court of Appeal of England and Wales considered the position under English law in the light of the Vinter and Others judgment. In McLoughlin** it ruled that the Lifer Manual could not restrict the duty of the Secretary of State to consider all circumstances relevant to release on “compassionate grounds” and that that term, which had to be read in a manner compatible with Article 3, was not restricted to what was set out in the Lifer Manual, but had a wide meaning that could be elucidated on a case by case basis. Further, the Secretary of State’s decision had to be reasoned and was subject to judicial review. In the Court of Appeal’s view, therefore, the law of England and Wales did afford life prisoners the possibility of release in exceptional circumstances.

In its Chamber judgment of 3 February 2015, the European Court of Human Rights held, by six votes to one, that there had been no violation of Article 3 of the Convention. It found that the UK Court of Appeal had explicitly addressed the doubts concerning the Secretary of State for Justice’s power to release a whole life prisoner as noted above. Having regard to this clarification, the Chamber concluded that whole life orders were open to review under national law and therefore compatible with Article 3 of the Convention.

In its judgment of 17 January 2017 the Grand Chamber again confirmed (by a majority of  fourteen votes to three) that the UK courts had dispelled the lack of clarity in the domestic law on the review of life sentences and therefore concluded that whole life sentences in the United Kingdom could now be regarded as compatible with Article 3 of the European Convention.

(i) Nature of the review – The Court saw no reason to depart from its previous case-law that the executive (as opposed to judicial) nature of a review was not in itself contrary to the requirements of Article 3. In this connection, it noted that the Secretary of State was bound to exercise the power of release in a manner compatible with Convention rights, to have regard to the relevant case-law of the Court and to provide reasons for each decision. Furthermore, the Secretary of State’s decisions were subject to a review by the domestic courts and the Government had stated that such review would not be confined to formal or procedural grounds, but would also involve an examination of the merits.

(ii) Scope of the review – The Court of Appeal had crucially specified in McLoughlin that the “exceptional circumstances” referred to in section 30 could not legally be limited to end-of-life situations as announced in the Lifer Manual, but had to include all exceptional circumstances relevant to release on compassionate grounds. Although the Court of Appeal had refrained from specifying further the meaning of the words “exceptional circumstances” in this context, or to elaborate criteria, it had recalled earlier domestic case-law to the effect that exceptional progress by the prisoner whilst in prison was to be taken into account. It was thus evident that exceptional progress towards rehabilitation came within the meaning of the statutory language. Likewise, the narrow emphasis put on the term “compassionate grounds” in the Lifer Manual had been corrected by the judgment of the Court of Appeal, which affirmed that it was not limited to humanitarian grounds but had a wide meaning, so as to be compatible with Article 3.

(iii) Criteria and conditions for review – The Court reaffirmed that the relevant question was whether those serving life sentences in the domestic system could know what they must do to be considered for release, and under what conditions the review takes place. In that connection, the domestic system could be regarded as possessing a sufficient degree of specificity or precision as, firstly, the exercise of the section 30 power would be guided by all of the relevant case-law of the European Court both present and future and, secondly, the concrete meaning of the terms used in section 30 would continue to be further fleshed out in practice. In this latter context the Secretary of State’s duty to give the reasons for each decision, subject to judicial review acted as a guarantee of the consistent and transparent exercise of the power of release.

(iv) Time-frame – The concern that had been expressed in Vinter regarding indeterminacy – a prisoner should not be obliged to wait and serve an indeterminate number of years before being permitted to mount an Article 3 challenge – and the repercussions of this for a whole life prisoner could not yet be said to have arisen for the applicant. The process of review under section 30 could be initiated by the prisoner at any time and the applicant had not suggested that he had been prevented or deterred from applying to the Secretary of State at any time to be considered for release.

Gengoux v. Belgium (no. 76512/11)

The case concerned the continuing detention of the applicant’s seriously ill father. Relying on Article 2 the applicant alleged that the authorities had not provided his father with the medical care his condition required, thereby exposing him to a real risk to his life. He further complained under Article 3 that his father’s continuing detention constituted a treatment contrary to Article 3.

Complaint under Article 2

The Court declared that there had been no violation of Article 2 since no causal link between the applicant’s father incarceration and death could be established. The Court acknowledged that a doctor chose by the applicant’s father stated that his incarceration might worsen his prospects in terms of life expectancy (§38). However, the Court noted on the one hand that the poor medical prognosis about the applicant’s father health was established prior to his incarceration, and on the other hand that the former did not prevent him to undergo the chemotherapy cycles he had been prescribed.

Complaint under Article 3

The Court noted that the applicant father’s detention condition were satisfying on the whole (§50) and that the authorities had done everything that could reasonably be expected of them to preserve his health. The Court considered decisive that the applicant’s father had not died from an infection or an immune deficiency but as a result of metastases of his cancer (§56).

As regards the necessity to maintain the applicant’s father in prison, the Court noted that the domestic courts held no non-custodial measures could be considered given risk of a repeat offence. The Court further noted that even though the medical advice abovementioned stated that incarceration could be harmful to the applicant’s father’s health, none of the medical reports had referred to any medical contraindication that would have completely precluded his continuing detention (§58). The Court added that as soon as the applicant’s father’s health appeared “catastrophic” (§59) he was transferred to a hospital – where he eventually died a few days later.

As a result, the concluded that the situation was not one in which the proper administration of the criminal justice system had required measures to be taken other than those that had been adopted, and that the continuing detention of the applicant’s father, notwithstanding his state of health and the progression of his condition, had not amounted to inhuman or degrading treatment.

Jankovskis v. Lithuania (no. 21575/08)

The applicant complained that he had been refused access to a website run by the Ministry of Education and Science, thus preventing him from receiving education-related information in breach of Article 10 of the Convention.

The Court noted that the question at issue was not the authorities’ refusal to release the requested information: the applicant’s complaint concerned a particular means of accessing information published on a website that was freely available in the public domain.

The Court first acknowledge that the interference with the applicant’s right to receive information was prescribed by law (§§52-57). However, the Court noted that the website to which the applicant wished to have access contained information that was only available on the internet and that was directly relevant to the applicant’s interest in obtaining education, and hence for his rehabilitation and subsequent reintegration into society (§59).

The Court insisted on the fact that “certain information is exclusively available on the internet” (§62, see also Kalda v. Estionia, §52) and that the internet plays an important role in people’s everyday lives and declared that the Lithuanian authorities should have considered the “possibility of granting the applicant limited or controlled internet access to his particular website administered by a State institution, which could have hardly posed a security risk” (§62).

Accordingly, the Court declared that there had been a violation of Article 10.

 

24 January 2017

[GC] Khamtokhu and Aksenchik v. Russia (nos. 60367/08 and 961/11)

The applicants, who had been sentenced to life imprisonment, complained that they were subjected to discriminatory treatment vis-à-vis certain other categories of convicted offenders who were exempt from life imprisonment by operation of law – women, juvenile and men aged 65 or over.

 (i) Difference in treatment on grounds of age – The Court considered there was no reason to question the difference in treatment between the applicants and juvenile offenders. The exemption of juvenile offenders from life imprisonment was consonant with the approach common to the legal systems of all the Contracting States. It was also consistent with international standards* and its purpose was evidently to facilitate the rehabilitation of juvenile delinquents. The Court considered that when young offenders were held accountable for their deeds, however serious, this had to be done with due regard for their presumed immaturity, both mental and emotional, as well as the greater malleability of their personality and their capacity for rehabilitation and reformation.

As to the difference in treatment with offenders aged 65 or over, the Court saw no grounds for considering that the relevant domestic provision excluding offenders aged 65 or over from life imprisonment had no objective and reasonable justification. The purpose of that provision in principle coincided with the interests underlying the eligibility for early release after the first twenty-five years for adult male offenders aged under 65, such as the applicants, noted in Vinter as being a common approach in national jurisdictions where life imprisonment can be imposed. Reducibility of a life sentence carried even greater weight for elderly offenders in order not to become a mere illusory possibility.

 (ii) Difference in treatment on grounds of sex – The Court took note of various European and international instruments addressing the needs of women for protection against gender-based violence, abuse and sexual harassment in the prison environment, as well as the needs for protection of pregnancy and motherhood. The Government had provided statistical data showing a considerable difference between the total number of male and female prison inmates and had also pointed to the relatively small number of persons sentenced to life imprisonment. It was not for the Court to reassess the evaluation made by the domestic authorities of the data in their possession or of the penological rationale which such data purported to demonstrate. In the particular circumstances of the case, there was a sufficient basis for the Court to conclude that there existed a public interest underlying the exemption of female offenders from life imprisonment by way of a general rule.

The Court concluded that while it would clearly be possible for the respondent State, in pursuit of its aim of promoting the principles of justice and humanity, to extend the exemption from life imprisonment to all categories of offenders, it was not required to do so under the Convention as currently interpreted by the Court. Moreover, in view of the practical operation of life imprisonment in the Russian Federation, both as to the manner of its imposition and to a possibility of subsequent review, the interests of the society as a whole as far as they were compatible with the Convention and having regard to the wide margin of appreciation enjoyed by the respondent Government, the Court was satisfied that there was a reasonable relationship of proportionality between the means employed and the legitimate aim pursued. The impugned exemptions did not constitute a prohibited difference in treatment. In reaching that conclusion, the Court took full account of the need to interpret the Convention in a harmonious manner and in conformity with its general spirit.

Accordingly the Court declared that there had been no violation of Article 14 on ground of age (sixteen votes to one) and no violation on ground of sex (ten votes to seven).

In his dissenting opinion, Judge Pinto de Albuquerque stated that the Court made an erroneous analysis of the facts of the case: “the Court was not being asked to assess the legitimacy of the protection of women, juveniles and old people here, but to review the compatibility with the Convention of treatment inflicted on men aged between 18 and 65.” (DO, §39)

 

2 February 2017

Ilnseher v. Germany (nos. 10211/12 and 27505/14)

Relying mainly on Article 5§1 and Article 7§1 the applicant complained that his retrospective preventive detention violated his right to liberty.

The applicant had been sentenced to ten year’s imprisonment after a domestic court he had committed a crime with full criminal responsibility. In 2009, after the applicant had served his full prison sentence the same domestic court ordered his retrospective preventive detention on the basis of reports by a criminological expert that revealed that there was a high risk that if released he could commit serious crimes similar to the one he had been found guilty of.

Complaint under Article 5§1 e)

The Court noted that “the competent domestic courts were justified in considering that the applicant’s mental disorder was of a kind or degree warranting compulsory confinement in view of the high risk […] that [he] would again commit another serious offence” is released (§67) since their findings were based on objective medical expertise. The Court also noted that the applicant was placed in a newly established preventive detention center where the conditions were suitable for the purposes of Article 5§1 e). As a result, there had been no violation of the abovementioned article.

Complaint under Article 7§1

The Court declared that since the applicant’s preventive detention had been ordered because of and with a view to addressing his mental condition, and served in a specific center where he was offered individualized care and comprehensive therapy, it could not be considered a penalty (§83).

 

14 February 2017

Karakhanyan v. Russia (no. 24421/11)

The applicant’s husband died in prison from HIV and tuberculosis. A few months before his death, his HIV treatment had been interrupted. The authorities submitted that it had been interrupted because the applicant’s husband had refused it, allegation contested by the applicant.

A criminal inquiry was carried out into the appilicant’s husband’s death but the investigating authorities refused to open a criminal case. The domestic courts subsequently overruled that decision and ordered a further investigation but no investigation has followed.

Relying in particular on Article 2 (right to life), Ms Karakhanyan alleged that the authorities had been responsible for her husband’s death because of their failure to provide him with adequate medical care in detention and that the related investigation had been ineffective.

Referring to Karsakova v. Russia, (no. 1157/10, § 54, 27 November 2014, §§ 46-49); Geppa v. Russia (no. 8532/06, §§ 68‑72, 3 February 2011); and Slimani v. France, (no. 57671/00, §§ 27‑32, ECHR 2004‑IX (extracts)), the Court concluded that the applicant’s husband was deprived of life-saving treatment without sufficient grounds (violation of Article 2, substantial limb).

Regarding the procedural limb of Article 2, the Court reiterated that the system required by Article 2 of the Convention must provide for an independent and impartial official investigation that satisfies certain minimum standards as to effectiveness (see Trubnikov v. Russia, no. 49790/99, § 88, 5 July 2005). In this case, even if the authorities did take certain investigative measures (for example, they obtained an autopsy report and questioned two doctors), they failed to duly assess the quality of the medical treatment. Therefore, the domestic courts concluded that the investigators had committed serious errors in the course of the investigation and ordered a further investigation. Since no investigation followed those court decisions, the authorities failed to carry out a thorough and effective investigation into the allegations that the applicant’s husband’s death resulted from a lack of adequate medical treatment. There has therefore been a violation of Article 2 of the Convention under its procedural limb.

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