Newsletter no.21 - Round-up of the ECtHR case-law (July - August 2017)

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Summaries

Rooman v. Belgium (no. 18052/11) – mental health / access to care / preventive detention / lawful detention. The case concerned proceedings brought by the applicant on account of the lack of psychiatric care in the facility in which he had been detained (violation of Article 3). The applicant also alleged that his detention had been unlawful due to this lack of psychiatric care (no violation of Article 5§1e).

Sklyar v. Russia (no. 45498/11) – material conditions of detention. Relying on Article 3 the applicant complained of the conditions of his detention (violation of Article 3).

Lorenz v. Austria (no. 11537/11) – mental health / access to care / preventive detention / lawful detention. Relying on Article 5§1 the applicant complained that the periodic review of his detention had been unlawful because the courts had failed to justify sufficiently the continuation of his detention (violation of Article 5§1e). Relying on Article 5§4 the applicant complained that the review proceedings regarding the lawfulness of his detention had not been conduction speedily (violation of Article 5§4).

Eskerkhanov and Others v. Russia (nos. 18496/16, 61249/16 and 61253/16) – material conditions of detention / transport. Relying in particular on Article 3, the applicants complained that the conditions of their detention and transport had been inadequate (violation of Article 3).

18 JULY 2017

Rooman v. Belgium (no. 18052/11)

The applicant had been detained since 2004 in a special penal facility due to an important mental disorder. His applications for release on a trial basis were all rejected by the Mental Health Board, whose members found that the requirements of an improvement in his mental state and guarantees for his social rehabilitation were not met.

Relying on Article 3, the applicant complained of the lack of psychiatric care in the facility in which he had been detained. The Court noted that there was no German-speaking medical staff in the abovementioned facility and that all the evidence before it tended to show that the main reason for the failure to provide therapeutic care for the applicant’s health problems was that communication was impossible between the medical staff and the patient. Taking into account the fact that German was one of the three official languages in Belgium, the Court found that the national authorities had not provided adequate care for the applicant’s condition. Therefore, there had been a violation of Article 3.

Relying on Article 5§1 e), the applicant further complained that his detention had been unlawful due to the lack of medical care. However, the Court observed that the applicant had been detained in a social protection facility that was in principle appropriate to his mental health condition. The Court went on to note that the failure to provide appropriate care, for reasons unconnected with the actual nature of the institution in which the applicant had been held, had not broken the link between the reason of the applicant’s detention and his mental illness. Therefore, there had been no violation of Article 5§1 e) (see [GC] Stanev v. Bulgaria, no. 36760/06, §147). In its Partly Dissenting Opinion, Judge Karakaṣ pointed that due to the lack of German-speaking medical staff and of medical staff specialized in sexual offenders, the facility in which the applicant had been detained could not be deemed appropriate to his mental health condition.

Sklyar v. Russia (no. 45498/11)

Relying on Article 3 the applicant complained of the conditions of his detention. The Court considered that the personal space available (little more than 2 sq.m. of floor space) to the applicant was insufficient, given the number of detainees occupying the same unit, and noted the inevitable lack of privacy endured by the applicant for a prolonged period in such cramped conditions, the inadequate number of sanitary installations (as confirmed even by the Government’s account) and their poor condition, which was plausibly described by the applicant. The Court had already found a violation in respect of issues similar to those in the present case, in the leading case of Butko v. Russia, no. 32036/10. It therefore found that there had been a violation of Article 3 of the Convention.

 

20 JULY 2017

Lorenz v. Austria (no. 11537/11)

Complaint under Article 5§1 e)

The applicant had been detained in institutions for mentally ill offenders since 1984. The prison sentence he had been convicted to came to an end in 2003. Thereafter, he had remained in preventive detention, subject to yearly review. The applicant complained that the domestic courts had failed to adduce relevant and sufficient reasons in their decisions for the continuation of his detention, in breach of Article 5§1 e) of the Convention.

The Court first noted that the authorities had not transferred the applicant to “the only institution where [he could have been] adequately prepared for his release” (§62), and therefore ignored the obvious need for him to receive an appropriate therapy for an eventual release. The Court accordingly found that the casual connection between the applicant’s initial sentence and his continued detention had been broken, in breach of Article 5§1 e) (see Bergmann v. Germany, no. 23279/14, §99)

The Court then observed that the domestic courts had not had a “sufficient factual basis at hand in the course of the 2011/2012 and 2013 review proceedings to decide on the applicant’s request for release” (§71) since they relied on an expert opinion dated 2010 due to the refusal of the applicant to be examined. The Court noted that the domestic courts did not seek to obtain a new expert’s opinion. The Court recalled that a new medical expert’s assessment should have at least be sought (Varbanov v. Bulgaria, no. 31365/96, §47), especially in the case at hand, since previous expert opinions gave “indications that [the applicant] had become less dangerous” (§70). The Court therefore concluded that the applicant’s detention during the review periods had not been lawful.

Complaint under Article 5§4

The applicant further complained that the review proceedings regarding the lawfulness of his detention had not been conduction speedily. The Court noted that the duration of the 2011/2012 review proceedings was longer than the the 2010/2011 and 2013 review proceedings and required an examination. It observed first that after the applicant had lodged his application for release in September 2011, « the Regional Court took more than four and a half months before holding an oral hearing that was required under domestic law. The Regional Court then appointed an expert to draw up an opinion. However, the applicant refused to be examined by the expert. The Regional Court therefore held another hearing, even if it was clear that it would not have to wait for a psychiatric expert opinion, and finally dismissed the applicant’s application, referring largely to its decisions in previous review proceedings. There is therefore no indication from the documents at hand as to why the review period took almost eleven months » (§88). Therefore, the Court concluded that the 2011/2012 review proceedings were not conducted with the necessary expediency, in breach of Article 5§4.

 

25 JULY 2017

Eskerkhanov and Others v. Russia (nos. 18496/16, 61249/16 and 61253/16)

The Court first observed that M. Eskerkhanov had around 3 sq. m. of personal space. This small surface was “coupled with other aspects of inappropriate physical conditions of detention related to, in particular, access to outdoor exercise, natural light and air, the adequacy of the cell’s temperature, the possibility to use the toilet in private, access to bedding and compliance with basic sanitary and hygienic requirements” (§35). The Court therefore found a violation of Article 3 of the Convention.

The Court then recalled that it had examined the issue of inhuman and degrading conditions of transport in many cases against Russia (i.a. [GC] Idalov v. Russia no. 5826/03) and noted that the Government did not provide any information to permit the Court to distinguish the present case from its previous case-law. There had been accordingly a violation of Article 3.

The Court found also a violation of Article 3 due to the conditions of the applicant detention in the convoy cell at the District court, “without ventilation, food, drink or free access to a toilet” (§41).

 

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