Newsletter no.19 - Round-up of the ECtHR case-law (March - April 2017)

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Summaries

Labaca Larrea v. France (nos. 56710/13, 56727/13 and 57412/13) visits / geographical distance. The applicants complained under Article 8 that there were transferred to a prison located too far from the residences of their families (complaint inadmissible).

Moroz v. Ukraine (no. 5187/07)visits / correspondence / freedom of religion. The applicant alleged that he had not been allowed to see or correspond with his family violation or Article 8) and had not been allowed to practice his religion (violation of Article 9)

Polyakova and Others v. Russia (nos. 35090/09 35845/11, 45694/13 and 59747/14)visits / geographical distance. Lack of due regard to impact on family life when allocating prisoners to remote penal facilities (violation of Article 8).

Bujak v. Poland (no. 686/12)health / access to care / pre-trial detention. The applicant complained about inadequate care in prison (violation of Article 3). The applicant also complained that given his state of health his pre-trial detention had been excessive (no violation of Article 5).

Michał Korgul v. Poland (no. 36140/11)security measures / privacy / enjoyment of possession. The applicant complained about the special high-security measures to which he had been subjected during his classification as a dangerous detainee (violation of Article 3). The applicant also complained about the obligation for prisoners to place half of their money in a special account to which they had had no access prior to their release (Article 1 Protocol 1:complaint manifestly ill-founded).

Kargashin and Others v. Russia (nos. 66757/14 and others) ; Mozharov and Others v. Russia (nos. 16401/12 and others)material conditions of detention / effective remedy. The applicant complained about the inadequate conditions of their detention (violation of Article 3).

 Rezmiveş and Others v. Romania (no. 61467/12, 39516/13, 48213/13 and 68191/13)material conditions of detention / pilot judgment.The applicants complained, among other things, of overcrowding in their cells, inadequate sanitary facilities, lack of hygiene, poor-quality food, dilapidated equipment and the presence of rats and insects in the cells (violation of Article 3; pilot judgment)

 

2 March 2017

Labaca Larrea v. France (nos. 56710/13, 56727/13 and 57412/13)

The applicants are Spanish nationals, ETA members, detained in Lyon, France. They complained under Article 8 that the prison was situated more than 800 kilometers away from the residences of their families. The Court noted that before being arrested in Northern and Central France, the applicants had been living in hinding, far away from their families. What is more, the Court declared that the applicant had not been subjected to any restrictive detention regime restricting the number of family visits they could receive. On the contrary, the Court observed that the applicants had had very frequent visits from and telephone conversations with their families. Therefore, the Court concluded that the disadvantages complained of by the applicants were insufficient to amount to an interference with their right to respect for family life under Article 8 of the Convention and rejected the complaint as manifestly ill-founded.

Moroz v. Ukraine (no. 5187/07)

The applicant complained mainly that he had not been allowed to see his family during one full year and that during his pre-trial detention he had also been prohibited from sending correspondence to them. He also complained that he had not been allowed to practice his religion: he had not been allowed to visit the prison chapel and his religious literature and other items of a religious nature had been seized.

Complaint under Article 8 : The Court first noted that it was not disputed by the Government that there had been an interference with the applicant’s right to respect for his family life. The Court went on to note that this interference was not “in accordance with the law” as required by Article 8 of the Convention. Regarding the refusal of family visits the Court recalled it had already found a violation of Article 8 since the legal provisions referred to by the authorities “did not require them to give any reasons for their discretionary decisions or even to take any formal decision that could be appealed against” (§84 – see Shamilov v. Ukraine, no. 20808/02, 4 March 2010, §§84-91). The Court draw similar conclusions regarding the restriction on correspondence with relatives: “due to the lack of […] important procedural safeguards detainees’ requests for a correspondence permit could remain unanswered or refused for no valid reason” (§88). The Court added that “lack of the abovementioned guarantees was all the more disconcerting given that the domestic law, as a general rule, prohibited correspondence and obliged pre‑trial detainees to seek a permit as an exception thereto, rather than respecting, in principle, a detainee’s right to correspondence and ensuring that any interference therewith was provided by and was in accordance with law” (idem). Accordingly, there had been a violation of Article 8.

Complaint under Article 9 : The Court noted that domestic law states that individuals detained on remand should enjoy the right to perform religious rituals individually and to use religious literature and objects. Therefore the interference with the applicant’s freedom to manifest his religion was not in accordance with the law. There had been a violation of Article 9.

 

7 March 2017

Polyakova and Others v. Russia (nos. 35090/09 35845/11, 45694/13 and 59747/14)

The applicants, prisoners and their families had been affected by decisions of the Russian Federal Penal Authority (“the FSIN”) on prisoners’ allocation to post-conviction penal facilities. In the Convention proceedings, they alleged, in particular, violations of Article 8 on account of the lack of an effective opportunity for them to maintain family and social ties during imprisonment in remote penal facilities.

(a) Initial allocation to a remote penal facility – The relevant domestic law established a general rule on geographical distribution of prisoners in Russia, according to which prisoners should be allocated to penal facilities, located in either their home region or conviction region (the general distribution rule). The law provided for an automatic exception to the general distribution rule, in respect of a specific category of prisoners (those convicted of crimes such as kidnapping, aggravated human-trafficking and terror attacks) as it empowered the FSIN to freely allocate an individual belonging to such a category to a penal facility located anywhere in Russia irrespective of his or her place of residence or conviction. Nothing in the domestic law enabled that person or his family to foresee the manner of its application. The scope of such discretion conferred was not defined with sufficient clarity to give the individual adequate protection against arbitrary interference. There were no safeguard mechanisms that could counterbalance the FSIN’s extensive discretion or any mechanisms to weigh the competing individual and public interests and assess the proportionality of the relevant restriction to the rights of the persons concerned.

(b) Transfer to another facility – The applicants had attempted to obtain a prisoner transfer to another facility located closer to their respective families’ homes. The relevant rules provided that a prisoner should serve their sentence in its entirety in the same penal facility. That rule was applicable regardless of whether the initial allocation of a prisoner had been made pursuant to the general distribution rule or as an exception to it. The FSIN’s response to the applicants indicated that their personal situations and their interest in maintaining family ties were not considered by the executive authority as grounds for warranting their transfer. The FSIN agencies’ interpretation of the provision had been inconsistent and that was illustrative of the unpredictability of the manner in which the law could be applied by the executive.

(c) Judicial review of the FSIN’s decisions – In the light of the continuous detention rule, the FSIN’s decisions on allocation of prisoners led to long-term consequences. It followed that, unless another decision was taken at a later point, the impact on a convicted person’s family life of the FSIN’s decision to allocate a convicted person to a remote penal facility, as well as the impact on his or her family, could be very long-lasting, if not lifelong. The impugned interference with the applicants’ right to respect for family life would, by its very nature, call for particularly searching scrutiny by an independent judicial authority. The applicants had complained about the FSIN’s decisions to the domestic courts. However, their arguments concerning the adverse impact of imprisonment in a remote penal facility on their family and social ties were dismissed as altogether irrelevant. The domestic courts failed to carry out a balancing exercise in order to genuinely review the proportionality of the impugned interference in the light of the criteria established by the Court’s case-law under Article 8.

(d) Conclusion – The Russian domestic legal system did not afford adequate legal protection against possible abuses in the field of geographical distribution of prisoners and the applicants were deprived of the minimum degree of protection to which they were entitled under the rule of law in a democratic society. Accordingly, the relevant provisions did not satisfy the quality of law requirement and it was not necessary to examine whether the other requirements of paragraph 2 of Article 8 had been complied with.

 

21 March 2017

Bujak v. Poland (no. 686/12)

Complaint under Article 3 : The applicant complained that the remand center in which he was detained was not adapted to the needs of handicapped people and that he did not receive adequate medical care. The Court first noted that the applicant had difficulties with mobility and he had to rely on the assistance of his fellow inmates to be able to access the exercise yard. As regard the availability of medical care, the Court observed that the applicant consulted on regular basis doctors of various specialization during the first period of his detention.  However the Court noted that the applicant had been released only seven weeks after the issuance of the first opinion indicating that his further detention might be harmful to his health. Therefore, the Court concluded that there had been a violation of Article 3.

Complaint under Article 5 § 3 : The applicant complained that his pre-trial detention had been excessively lengthy. The Court takes note of the fact that once the authorities received information from the experts that the applicant’s detention might pose a danger to the applicant’s health or even life, the detention was lifted and the applicant was released. The Court further notes that there is no indication of a lack of “special diligence” in the conduct of the proceedings. In addition, the complaint under Article 5 § 3 is based essentially on the deterioration of the applicant’s health. However, the issue of him not having been released immediately after the medical opinion that he faced a threat to his health or life has already been addressed by the finding of a violation of Article 3.

Michał Korgul v. Poland (no. 36140/11)

Complaint under Article 3 : The applicant complained about the special high-security measures to which he had been subjected during his classification as a dangerous detainee (segregation from the prison community, restrictions on contact with the family, routine “full strip-search”, video surveillance of the cell). The Court noted that there was no dispute over the fact that for almost two years the applicant was subjected to high-security measures. On two occasions, the authorities extended the high-security regime imposed on the applicant because he had been aggressive to prison guards and threatened to assault a prison officer. However the Court declared itself not convinced that the indiscriminate application of the full range of measures available to the authorities under this regime (shackling and full body search included) had been necessary in order to maintain prison security. The Court held that given the nature and extent of the other restrictions, the family visits alone could not have sufficiently mitigated the cumulative, adverse effects of the imposition of the “dangerous detainee” regime on the applicant, and any effort was made to counteract the effects of isolation by providing the necessary mental or physical stimulation. In addition, the Court was not convinced that shackling the applicant was necessary on each and every occasion, and it has even more misgivings with regard to the daily full body search regime. Lastly, the authorities, in extending that regime, were not in fact obliged to consider any changes to the applicant’s personal situation and, in particular, the combined effects of the continuous application of the impugned measures. The Court accordingly concluded that there had been a violation of Article 3. See also the case the cases of Piechowicz v. Poland (no. 20071/07, §§ 158-65, 17 April 2012) and Horych v. Poland (no. 13621/08, §§ 85-92, 17 April 2012).

Complaint under Article 1 of the Protocol n°1 : The applicant complained of a violation of his right to peaceful enjoyment of possessions in that, when receiving a sum of money from his family, half of that amount had been placed in a special account to which he had had no access prior to his release. The Court reiterated that the obligation for prisoners to use half of their money to pay back their debt to the State was not disproportionate to the aim pursued (see Laduna v. Slovakia, no. 31827/02, §§ 82-86) and that the national authorities could not be reproached for ensuring that a limited sum of money was deposited in a savings fund to be handed over to the applicant on his release from prison (see Loog v. Estonia (dec.), no. 56419/15, 31 May 2016). In the present case, the interference at issue was limited to when the applicant could use his money, but did not deprive him of it. Also, the applicant could have placed his savings in an interest-earning account, and the amounts at stake were limited. The Court declared the complaint manifestly ill-founded.

Kargashin and Others v. Russia (nos. 66757/14 and others) ; Mozharov and Others v. Russia (nos. 16401/12 and others)

The applicant complained about the inadequate conditions of their detention. The Court noted it had already found a violation in respect of similar issues in the leading case (Sergey Babushkin v. Russia, no. 5993/08, 28 November 2013). Having examined all the material submitted to it, the Court had not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Accordingly, there had been a violation of Article 3. See Muršić v. Croatia [GC], no. 7334/13, §§ 91-141, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 139-165, 10 January 2012).

 

25 April 2017

Rezmiveş and Others v. Romania (no. 61467/12, 39516/13, 48213/13 and 68191/13)

The applicants complained of his detention conditions. The Court observed that the applicants’ personal space had been inferior to 3 sq. m. during the major part of their detention. What is more, this severe lack of living space had been exacerbated by other factors – such as the lack of natural light, the very short duration of daily walks, inadequate sanitary facilities, insufficient access to hot water, poor-quality food. There had been therefore a violation of Article 3.

Due to the numerous similar cases still pending, the Court decided to apply the pilot-judgment procedure, finding that the applicant’s situation was part of a general problem originating in a structural dysfunction (see Iacov Stanciu v. Romania, no. 35972/05, 24 July 2012). The Court held that the State should introduce measure to reduce overcrowding and improve the material conditions of detention; and effective preventive and compensatory remedies (see among others Varga and others v. Hungary, 14097/12 et al., 10 mars 2015).

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