Newsletter no.20 - Round-up of the ECtHR case-law (May - June 2017)

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Summaries

Golubar v. Croatia (no. 21951/15)– health care / material conditions of detention / non-exhaustion of effective remedies. The applicant complained mainly about medical care in detention (no violation of Article 3). He also complained about his detention conditions (application rejected).

Mustafayev v. Azerbaijan (no. 47095/09)  – right to life / effective investigation. Relying on Article 2, the applicant alleged that his son had either been deliberately killed by prison guards or had died as a result of the authorities’ failure to provide appropriate medical care. He also complained that the ensuing investigation into the death of his son had been ineffective (violation of Article 2).

Eriomenco v. the Republic of Moldova and Russia (no. 42224/11) – material conditions of detention / health care / visits / right to individual petition. The case concerned the applicant’s complaints about his conditions of detention, lack of medical treatment necessary for his conditions, his family’s inability to visit him in prison (Violation of Article 3, 8, 13 and 34 by Russia; no violation by the Republic of Moldova).

[GC] Simeonovi v. Bulgaria (no. 21980/04) –material conditions of detention / detention regime. The case concerned among other things the applicant’s detention conditions and prison regime imposed on him (violation of Article 3).

Sylla and Nollomont v. Belgium (no. 37768/13 and 36467/14) – material conditions of detention. Relying on Article 3 the applicants complained about their conditions of detention (violation of Article 3).

Pakhtusov v. Russia (no. 11800/10) – visits. The case concerned the ban on administrative detainees having family visits (violation of Article 8).

Sarıgül v. Turkey (no. 28691/05) – freedom of expression / correspondence / contact with lawyers. The case concerned the seizure by the prison authorities of a draft novel that the applicant had written in prison (violation of Article 10), and the seizure of a letter he wanted to send his lawyer (application rejected).

Matiošaitis and Others v. Lithuania (nos. 22662/13, 51059/13, 58823/13,59692/13, 59700/13, 60115/13, 69425/13 and 72824/13) –  life sentence. The applicants, who were condemned to life sentence, alleged that they were imprisoned with no prospect of release (violation of Article 3).

Apcov v. the Republic of Moldova and Russia (no. 13463/07) – material conditions of detention / health care. The case concerned the applicant´s complaints about his conditions of detention and access to health care (violation of Article 3 by Russia; no violation by the Republic of Moldova).

Vardanean v. the Republic of Moldova and Russia (no. 22200/10) – visits. One of the applicants complained inter alia that she was denied the right to received visits from her relatives during the three first in pre-trial detention (violation of Article 8 by Russia; no violation by the Republic of Moldova).

Vladimir Nikolayevich Fedorov v. Russia (no. 48974/09) – visits. The applicant alleged mainly that he had been denied the right to see his family throughout his pre-trial detention (violation of Article 8).

Dejnek v. Poland (no. 9635/13) – security measures / strip searches. The applicant complained of strip searches and personal checks he had been subjected to whilst serving a prison sentence (no violation of Article 3, violation of Article 8).

Dimcho Dimov v. Bulgaria no.2 (no. 77248/12) – material conditions of detention / violence. The applicant complaint in particular that the prison had not provided him with sufficient protection from his fellow prisoner, even though they had known that he had been at risk (no violation of Article 3).

 

2 May 2017

Golubar v. Croatia (no. 21951/15)

The applicant complained mainly about medical care in detention. Since his conviction in February 2014, the applicant he had repeatedly requested that his prison sentence be suspended on health grounds as he suffers from a serious neurological condition. The national courts, relying on a number of separate independent expert opinions they had commissioned, ultimately dismissed his request in March 2015. They notably found that he did not have any acute illness, that his medical condition had not worsened during detention, that the Zagreb prison hospital – where he had immediately been placed at the start of his sentence – had the facilities to treat him and that he had indeed been regularly monitored and provided with medical assistance there. Therefore, the Court concluded that “the national authorities have properly assessed all the relevant concerning the applicant’s state of health and that there are no ground for it to conclude that the applicant’s stat of health is not compatible with serving his prison sentence. There had been no violation of Article 3.

The applicant also complained about the conditions of his detention. However, the Court rejected this complaint for non-exhaustion of domestic remedies. The Court recalled that it had held in a previous judgment that the remedies available in Croatia to complain about detentions conditions are effective (see i. a. Dolenec v. Croatia, no. 25282/06, 26 November 2009, §113). The Court noted that the first time the applicant raised the complaints about the conditions of his detention noted above was in his constitutional complaint: he should have first complained about the conditions of his detention to a sentence-execution judge, and should then have used further appropriate remedies, such as an appeal against the first-instance decision and a constitutional complaint in the context of such proceedings.

 

4 May 2017

Mustafayev v. Azerbaijan (no. 47095/09)

Relying on Article 2, the applicant alleged that his son had either been deliberately killed by prison guards or had died as a result of the authorities’ failure to provide appropriate medical care. He also complained that the ensuing investigation into the death of his son had been ineffective.

The applicant’s son, had sent numerous complaints to various domestic authorities, about his conditions of detention. He also alleged that his life was in danger because he faced ill-treatment by prison guards due to of his complaints. The applicant’s son died in hospital the afternoon of 3 December 2006. Earlier in the morning a fire broke out in his cell.

The applicant alleged that his son had either been deliberately killed by prison guards or had died as a result of the authorities’ failure to provide appropriate medical care, it having taken almost eight hours to transfer him to hospital despite his having serious burns.. He also complained that the ensuing investigation into the death of his son had been ineffective.

Substantive limb

The Court observed that that the Government did not provide any explanation as to why the prison authorities failed to secure immediate transfer of the applicant’s son to a hospital and it took until 11.45 a.m. for them to do so, despite the fact that he had suffered serious burns before being taken out of his cell at 7 a.m. The Court declared that the prison authorities could not have been ignorant of the seriousness of the applicant’s son’s injuries and that there was no doubt that he required the requisite treatment immediately. In those circumstances, while in no way speculating as to M.M.’s chances of survival if he had been taken to hospital immediately, the Court considers that the prison authorities should have been aware of the risk that a delayed transfer presented to his life. In those circumstances, the Court concluded that the behaviour of the domestic authorities towards the critically ill prisoner constituted a violation of the State’s obligation to protect the lives of persons in custody and therefore that there had been a violation of Article 2 under its substantive aspect.

Procedural limb

The applicant maintained that the criminal investigation had been ineffective. The Court observed that a criminal inquiry was launched by the prosecuting authorities on day after the applicant’s son death. Following a series of domestic proceedings, the domestic Prosecutor’s Office refused to institute criminal proceedings in connection with the death of the applicant’s son and that decision was upheld by the domestic courts. The Court noted that on four occasions the domestic prosecutors and courts overruled the relevant investigator’s decisions for failure to carry out a comprehensive criminal inquiry. It was repeatedly noted that the inquiries had been incomplete and that the refusals to institute criminal proceedings had been ill‑founded. The Court concurred with the national authorities’ findings as regards the quality and scope of the inquiries, and considered that the repeated remittals of the case disclose a serious deficiency in the authorities’ compliance with the obligation to establish the circumstances of the applicant’s son’s death.

The Court noted numerous particular shortcoming in the criminal inquiry carried out by the domestic authorities: in particular, the applicant had not been duly informed about the steps taken by the investigators; the prosecuting authorities failed to secure all the evidence concerning the death of the applicant’s son (in particular, the scene of the incident had not been preserved); the investigating authorities failed to address the responsibility of the prison authorities after it failed to transfer the applicant’s son immediately; the prosecuting authorities failed to inform the applicant of the progress of the investigation and to provide him in a timely manner with the relevant decisions taken within the framework of the criminal proceedings.

The Court therefore concluded that the domestic authorities failed to carry out an adequate and effective investigation into the circumstances surrounding the death of the applicant’s son, in breach of Article 2 under its procedural limb.

 

9 May 2017

Eriomenco v. the Republic of Moldova and Russia (no. 42224/11)

The case concerned the applicant’s complaints about his conditions of detention, lack of medical treatment necessary for his conditions, his family’s inability to visit him in prison.

He had been detained in the self-proclaimed Moldavian Republic of Transdniestria (MRT). The Court recalled its conclusion reached in several previous cases that complaints in respect of the Transdnestrian region fell within both States’ jurisdiction (see i.a.Ilaşcu v. The Republic of Moldova and Russia, no. 48787/99 and [GC] Mozer v. The Republic of Moldova and Russia, no. 11138/10).

Complaint under Article 3

The Court noted that the applicant was not provided with adequate medical care while the authorities of the MRT were aware of his state of health (§54). The Court went on to note that the applicant was detained in an overcrowded cell were he lack access to daylight and the enjoyment of basic hygiene (§56) – a fact that was not disputed by the aforementioned authorities.

The Court had to assess the fulfillment by both the Republic of Moldova and the Federation of Russia of their positive obligations in the matter. The Court observed that the Republic of Moldova made concrete efforts to protect the applicant, by trying to have him released by the de facto authorities of the MRT. Therefore, there had been no violation of Article 3 by the Republic of Moldova (§§59-62). The Court then stated that the Federation of Russia has effective control over the unrecognized entity (§64). Therefore, there had been a violation of Article 3 by the Federation of Russia.

Complaint under Article 8

The applicant complained that his family had not been authorized to visit him in detention. The Court noted that this fact had not been disputed by the authorities (§83), and that the interference in question had no legal basis (§85). Therefore, for the abovementioned reasons, there had been no violation of Article 8 by the Republic of Moldova and violation of Article 8 by the Federation of Russia.

Complaint under Article 13

As regards the responsibility of the Moldovan government, the Court recalled its previous conclusion reached in its previous cases: that the remedies the Republic of Moldova must offer the applicant consist in enabling him to inform the Moldovan authorities of the details of his situation and to be kept informed of the various legal and diplomatic actions taken (see Mozer, §214). The Court observed that Moldova had fulfilled its positive obligations. Therefore the Court concluded that there had been no violation of this Article by Moldova. Conversely, taking into account the fact that the Russian Federation continues to exercise effective control over Transdnestria, and in the absence of any submission by the Russian Government, the Court concluded that there had been a violation of Article 13 by the Russian Federation.

Complaint under Article 34

The Court observed was under the complete control of the authorities of the MRT, with reduced possibilities of communication with the outside world. The Court found plausible the allegation that the applicant’s meetings with his lawyer were monitored (see Mozer, §§44 and 195) and that he was prevented from signing a paper enabling his lawyer to represent him. For the reasons mentioned above, the Court concluded that there had been a violation of Article 34 by the Federation of Russia and not violation of Article 34 by the Republic of Moldova.

 

 12 May 2017

[GC] Simeonovi v. Bulgaria (no. 21980/04)

The Court noted that the Chamber found that there had been a violation of Article 3 of the Convention (see our newsletter #7), and saw no reason to depart from these conclusions. It added that the report of the CPT’s last visit to Bulgaria and its public statement of 2015 mention that the poor conditions of detention noted in Sofia Prison persisted.

In conclusion, the Court maintained that “the applicant’s conditions of detention taken in conjunction with the restrictive regime under which he is serving his life sentence and the length of the prison term (since 1999), [had] subjected him to an ordeal exceeding the suffering inherent in the execution of a prison sentence and amount to inhuman and degrading treatment” (§90), in breach of Article 3.

The Court went on to note that the case is identical to the Harakchiev and Tolumov judgment (nos. 15018/11 and 61199/12) and therefore considered it “appropriate to reiterate the recommendations which it set out in paragraph 280 of that judgment concerning: (a) removing the automatic application of the special prison regime to life prisoners, and (b) putting in place provisions permitting the imposition of that regime on the basis of an individual risk assessment” (§151).

 

16 May 2017

Sylla and Nollomont v. Belgium (no. 37768/13 and 36467/14)

Relying on Article 3 the applicants complained about their conditions of detention. As regards Mr. Sylla’s complaint, the Court observed that he had a personal space of less than 3 sq. m. during a period of three months. Moreover he had limited access to outdoor activities (one hour every day), and his hygiene conditions were poor (limited access to sanitary facilities, bed sheets changed every three weeks). Therefore, the Court concluded that there had been a violation of Article 3. As regards Mr. Nollomont, the Court noted that his personal space was not inferior to 4 sq. m. However, it appeared that he had been exposed to passive smoking, had limited access to outdoor activities, suffered from a lack of privacy while using the cell’s toilet. Therefore, there had been a violation of Article 3.

Pakhtusov v. Russia (no. 11800/10)

The case concerned the ban on administrative detainees having family visits. The applicant, found guilty of driving a vehicle after the withdrawal of his driving licence, was sentenced to fifteen days of administrative detention. His request for family visit was dismissed by the head of the detention unit which stated that family visits were not “provided for [by law]” (§8). The Court noted that the Russian law in force at the time of the events of the present case imposed no express restriction on family visits for administrative detainees (§30). The Court accordingly concluded that the interference with the applicant’s right was not in accordance with the law within the meaning of Article 8 § 2 of the Convention. Consequently, there has been a violation of Article 8 (§33).

 

23 May 2017

Sarıgül v. Turkey (no. 28691/05)

The case concerned the seizure by the prison authorities of a draft novel that the applicant had written in prison, and the seizure of a letter he wanted to send his lawyer.

As regards the seizure of the letter, the Court decided to reject this part of the complaint for non-exhaustion of domestic remedies (§§51-53).

As regards the seizure of the novel, the Court state that it constituted an interference with the applicant’s right to freedom of expression that was not in accordance with the law.

Firstly, the disciplinary board had not expressly relied on any statutory basis in ordering the seizure of the manuscript, explaining only that the text in question contained inappropriate words and expressions according to the administration’s pre-established verification table, of which no details were given in the application file. The Court reiterated that any rules concerning the supervision of prisoners’ correspondence which did not circumscribe the scope or define what was meant by “inappropriate” could not meet the requirement of foreseeability (Tan v. Turkey, no. 9460/03, § 23, 3 july 2007).

Secondly, the correspondence-reading board had based its decision to forward the manuscript to the disciplinary board on a circular concerning the prisoners’ contacts with the outside world. That circular, considered by the Government to be the legal basis for the interference, referred to Articles 144 and 147 of the prison administration rules – as in force at the time – and sought to clarify the implementation of the measures imposed by those rules. The Court thus found that the legal basis for the interference was constituted by Articles 144 and 147. The Court referred to its previous finding (idem, §§ 22-24) that the prison administration rules did not indicate with sufficient clarity the scope and terms of the authorities’ discretionary powers in such matters, and that their practical application did not appear to remedy that shortcoming (cf. Press release).

Matiošaitis and Others v. Lithuania (nos. 22662/13, 51059/13, 58823/13,59692/13, 59700/13, 60115/13, 69425/13 and 72824/13)

The applicants, who were condemned to life sentence, alleged that they were imprisoned with no genuine prospects of release

The question for the Court was whether the penalties imposed on the applicants should be classified as irreducible, or whether there was a prospect of release.

(a) Parole, commutation for terminal illness, amnesty and reclassification of sentence – None of these measures afforded a genuine prospect of release. Under Lithuanian law only prisoners serving fixed-term sentences, not life prisoners, were eligible for release. For its part, and as the Court had consistently held, commutation of life imprisonment because of terminal illness could not be considered a “prospect of release”. Likewise, amnesty under Lithuanian law could not be regarded as a measure giving life prisoners a prospect of mitigation of their sentence or release. All previous amnesties declared by the Seimas had not applied to prisoners convicted of the most serious crimes and three of the amnesties had explicitly excluded life prisoners from their scope. Moreover, as an act of general rather than individual application amnesties did not appear to take into account the rehabilitation aspect of each individual prisoner*. Lastly, although Article 3 of the new Criminal Code enabled life sentences to be reclassified and commuted to a fixed term, this was a one-off possibility and all the applicants who had been eligible had already applied under that provision without success.

(b) Presidential pardon – Life prisoners became eligible to request a pardon within a period that was substantially less than the maximum of 25 years the Court had indicated as being acceptable in Vinter and Others and Murray, the procedure was transparent and accessible and involved a set of criteria that allowed the President, on the basis of advice from the Pardon Commission, to assess whether a life prisoner’s continued imprisonment was justified on legitimate penological grounds.

However, the presidential pardon could not be regarded as making life sentences reducible de facto. Firstly, neither the Pardon Commission nor the President was bound to give reasons for refusing a request for a pardon. Secondly, the President’s pardon decrees were not subject to judicial review and could not be challenged by the prisoners directly. Thirdly, the work of the Pardon Commission was not transparent and its recommendations were not legally binding on the President. in sum, the presidential power of pardon in Lithuania was a modern-day equivalent of the royal prerogative of mercy, based on the principle of humanity rather than a mechanism, with adequate procedural safeguards, for review of the prisoners’ situation so that the adjustment of their life sentences could be obtained. In addition, prison conditions for life prisoners were not conducive to rehabilitation: although a number of social rehabilitation programmes had been set up in Lukiškės Prison, where life prisoners had to serve the first ten years of their sentence, the European Committee for the Prevention of Torture (CPT) had reported that prisoners were held for 22½ hours a day in their cells and were kept in small group isolation with little possibility to associate with prisoners from other cells.

In order to guarantee proper consideration of the changes and the progress towards rehabilitation made by a life prisoner the review of a whole life sentence should entail either the executive giving reasons or judicial review, so that even the appearance of arbitrariness is avoided. Presidential pardon in Lithuania de facto did not allow life prisoners to know what they had do to be considered for release and under what conditions and there was no judicial review available. Accordingly, the applicants’ life sentences could not be regarded as reducible for the purposes of Article 3 of the Convention. There had been a violation of Article.

 (See also Kafkaris v. Cyprus [GC], 21906/04, 12 February 2008, Information Note 105; Vinter and Others v. the United Kingdom [GC], 66069/09 et al., 9 July 2013, Information Note 165; Harakchiev and Tolumov v. Bulgaria, 15018/11 and 61199/12, 8 July 2014, Information Note 176; Murray v. the Netherlands [GC], 10511/10, 25 April 2016, Information Note 195; Hutchinson v. the United Kingdom [GC], 57592/08, 17 January 2017, Information Note 203; and, more generally, the Factsheet on Life imprisonment)

 

30 May 2017

Apcov v. the Republic of Moldova and Russia (no. 13463/07)

The case concerned the applicant´s complaints about his conditions of detention and access to health care.

He had been detained in the self-proclaimed Moldavian Republic of Transdniestria (MRT). Moldavian Republic of Transdniestria (MRT). The Court recalled its conclusion reached in several previous cases that complaints in respect of the Transdnestrian region fell within both States’ jurisdiction (see i.a.Ilaşcu v. The Republic of Moldova and Russia, no. 48787/99 and [GC] Mozer v. The Republic of Moldova and Russia, no. 11138/10).

The Court observed that the applicant needed medical treatment which had not been provided to him – the Court underlined in particular that due to a dental infection “he had to have his teeth removed by his co-detainees” (§41). Therefore, “in view of the lack of any evidence to the contrary” the Court found that the medical assistance received by the applicant was not adequate, in breach of Article 3.

The Court went on to note that the description provided by the applicant of his detention conditions (the cell was overcrowded and shared space with detainees suffering from contagious diseases, there were no daily walks, there were shortages of electricity, the food was inedible and the detainees had to rely on the food supplied to them by their relatives) was “largely confirmed by the reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatments or Punishment and the United Nations Special Rapporteur”. Therefore, there had been a violation of Article 3.

The Court had to assess the fulfillment by both the Republic of Moldova and the Federation of Russia of their positive obligations in the matter. Regarding the former, the Court observed that the applicant “never informed the Moldovan authorities of his plight” and therefore concluded that “in such circumstances, the non-involvement of the Moldovan authorities in the particular case […] cannot be held against them”. Regarding the latter, the Court acknowledged that “there is no evidence that persons acting on behalf of the Russian Federation directly participated n the measures taken against the applicant”, by recalled that it had established that Russia exercised effective control over the MRT during the period in question. Therefore, there had been a violation of Article 3 of the Convention by the Federation of Russia.

Vardanean v. the Republic of Moldova and Russia (no. 22200/10)

One of the applicants had been detained in the self-proclaimed. Moldavian Republic of Transdniestria (MRT). The Court recalled its conclusion reached in several previous cases that complaints in respect of the Transdnestrian region fell within both States’ jurisdiction (see i.a.Ilaşcu v. The Republic of Moldova and Russia, no. 48787/99 and [GC] Mozer v. The Republic of Moldova and Russia, no. 11138/10).

One of the applicants complained inter alia that he was denied the right to received visits from his relatives during the three first in pre-trial detention. The Court observed that it has not been shown that the aforementioned restriction of this applicant’s visiting right had a legal basis. Accordingly, there has been a violation of Article 8. The Court noted that the Moldova authorities made effort to secure the applicants’ rights (§§41-43). Therefore, the Court concluded that the Republic of Moldova fulfilled its obligations. Conversely, noting that the Russia Federation exercises effective control over the MRT, the Court declared that there had been a violation of Article 8 by the Russia State.

Vladimir Nikolayevich Fedorov v. Russia (no. 48974/09)

The applicant complained mainly that he had been denied the right to see his family throughout his pre-trial detention.

The Court took note of the Governement’s acknowledgment of interference. In those circumstances, and having regard to its case-law (see Tereshchenko, cited above, §§ 114-37; Moiseyev v. Russia, no. 62936/00, §§ 243-56, 9 October 2008; and Vlasov v. Russia, no. 78146/01, §§ 120-27, 12 June 2008), the Court concluded that there has been a violation of Article 8 of the Convention on account of the restriction of the applicant’s right to family visits during his pre-trial detention.

 

1st June 2017

Dejnek v. Poland (no. 9635/13)

The applicant complained of strip searches and personal checks that he had been subjected. He maintained that prison guards repeatedly conducted extremely intimate searches of him and his cell. In particular, he claimed that he had been ordered to strip naked despite severe pain in his back and subjected to a search which included an inspection of his penis and anus. The applicant complained that the searches were humiliating and debasing, in violation of his rights under Article 3.

The Court observed that the strip search had been carried out in accordant with the relevant provisions and had respected the applicant’s personal dignity – he was not beaten during the search, no offense language was used against him. Moreover, the Court noted the applicant had been seen by doctors on several occasions but that the doctors “found no reason to stop strip searches […] on health grounds” (§63).

Therefore, the Court considered that it has not been shown that the authorities’ treatment of the applicant during the strip searches attained the minimum level of severity necessary to bring Article 3 of the Convention into play (§ 65).

Nevertheless, the Court reiterated that where a measure falls short of Article 3 treatment, it may fall foul of Article 8 of the Convention. It considered that highly invasive and potentially debasing measures like body searches or strip searches require a plausible justification. It did not appear that such a justification was given to the applicant by the prison authorities in the instant case. The Court also noted that the Ombudsman recommended on 23 December 2014 that a person who had been notified that he was to undergo a body search should have the right to contest that decision in court. In the absence of such an effective remedy, it is difficult to enforce the requirement of a sufficient justification for body searches or strip searches at the domestic level (§ 75). The Court concluded that the authorities failed to provide sufficient and relevant reasons justifying the strip searches of the applicant (§ 76). There has accordingly been a violation of Article 8 of the Convention (§ 77).

 

29 June 2017

Dimcho Dimov v. Bulgaria no.2 (no. 77248/12)

The applicant alleged that the prison authorities had not done enough to protect him against a violent attack perpetrated by another inmate, even though they knew he was at risk. He also claimed that they had not provided him with adequate medical care for the injury he had suffered as a result of that attack.

As regards the attack perpetrated on the applicant: the application concerned a brief incident that took place after the two detainees had been separated following an previous incident. The applicant was taken back to his old group to fetch his belongings and the two prisoners got into an argument, and the other one punched the applicant on the jaw. The Court underlined that the mere fact that the guard did not react quickly enough to prevent the other prisoner from hitting the applicant cannot lead to the conclusion that the authorities failed in their obligation to take reasonable measures to protect him. The Court observed in this regard that “there is evidence both that the applicant provoked the other prisoner, and that the whole situation unfolded very quickly, with the other inmate apparently acting on the spur of the moment” (§65 – cf. contraTautkus v. Lithuania, no. 29474/09, § 58, 27 November 2012): “the applicant was supposed to return to his old wing for just a short while, and it was not obvious that the other prisoner, who had been admonished after the earlier alleged incident, would turn so violent so quickly.” (§66). What is more, the Court declared that it could not be said “that anxiety on the part of the applicant caused by a risk of further attacks by the other prisoner reached a level of severity that brought it within the scope of Article 3 of the Convention” (§67 – cf. contra Alexandru Marius Radu v. Romania, no. 34022/05, §§ 48-49, 21 July 2009). Last, the Court noted that “the prison authorities took measures to keep him apart from the other inmate after the incident, and indeed preventive measures had already been taken prior to that date with a view to his protection” (§67). Accordingly there had been no violation of Article 3.

As regards the alleged failure to provide the applicant with timely and adequate medical care for the jaw fracture that he suffered following the incident with his co-detainee, the Court decided to reject this part of the complaint for non-exhaustion of domestic remedies. The Court acknowledged that that very few of the recent similar cases examined by Bulgarian administrative courts have resulted in awards of compensation, but insisted on the fact it could not “in itself mean that the applicant’s claim lacked a reasonable prospect of succeeding” (§75). The Court went on to note that he voluntarily withdrew the application he first brought before the Bulgarian administrative courts (§75). Therefore, the Court saw no particular circumstances capable of absolving the applicant from the obligation to exhaust domestic remedies.

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