Newsletter no.22 - Round-up of the ECtHR case-law (September - October 2017)

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Summaries

Tekin and Arslan v. Belgium (no. 37795/13).Right to life / Use of force. The applicants complained about the death of their son in prison (violation of Article 2)

 D.J. v. Germany (no 45953/10).Preventive detention / Psychiatric expert opinion. The applicant alleged that the order for the continued execution of his preventive detention had breached Article 5 § 1 of the Convention as the detention order had been based on an old and insufficient psychiatric expert opinion and as he had been denied necessary therapy with an external psychologist (No violation of Article 5 § 1)

 Kuparadze v. Georgia (no. 30743/09).Juvenile offenders / Material conditions of detention. The applicant claimed that she had been placed in an adult prison rather than in a juvenile detention facility. She further complained about the conditions of her detention when she had been subsequently placed in the prison’s section for juvenile offenders (No violation of Article 3)

 Alexandru Enache v. Romania (no. 16986/12).Material conditions of detention / Discrimination on grounds of sex / Stay of execution. The applicant complained about his conditions of detention (violation of Article 3) and about discrimination on grounds of sex stemming from the fact that under Romanian legislation, only convicted mothers of children under the age of one can obtain a stay of execution of their prison sentences until their child’s first birthday (no violation of Article 14 ; no violation of Article 8)

 Kormev v. Bulgaria (no. 39014/12).Material conditions of detention. The applicant complained about his detention conditions (violation of Article 3)

 Ostrovenecs v. Latvia (no. 36043/13).Ill-treatment / Effective investigation. The applicant complained that he had been ill-treated by detainee escort officers and that the inquiry and criminal investigation in this regard had not been effective (violation of Article 3)

 Abele v. Latvia (no. 60429/12).Disability / Overcrowding / Material conditions of detention. The case concerned the complaint by a deaf and mute prisoner who alleged that he had been held in overcrowded cells and that the authorities had failed to cater for his disability, which had led to his being isolated (violation of Article 3)

 Braga v. the Republic of Moldova and Russia (no 76957/01) & Draci v. the Republic of Moldova and Russia (no. 5349/02).Material conditions of detention. Both cases concerned allegations of unlawful arrests and inhuman conditions of detention in the self proclaimed Moldovan Republic of Transdniestria (MRT) (violation of Article 3)

 Lebois v. Bulgaria (no. 67482/14).Contact with the outside world. The case concerned in particular the applicant’s complaint about the restriction on communication with family and friends during his detention (violation of Article 8)

 

 5 September 2017

 Tekin and Arslan v. Belgium (no. 37795/13)

The applicants’ son died in prison after three prison officers attempted to restrain him. The Court first observed that the domestic legislation was not precise enough regarding the use of force in breach of the CPT recommendations in that matter.

The Court then noted that the training of public officers was inadequate with regard to the use of force at the time of the incident. The Court acknowledged the fact that since the death of the applicants’ son, officers are provided with six-days of training with regard to the use of force with a special focus on mentally-ill prisoners.

The Court finally observed that the use of force had not been strictly necessary. The Court noted that the mental illness of the applicants’ son was known to the abovementioned officers who did not seem to have given much consideration to it. The Court added that due to his mental illness the applicants’ son should have been transferred to a specific wing of the facility with an appropriately trained staff better placed to deal with his needs.

In view of the above the Court concluded that there had been a violation of Article 2 of the Convention.

7 September 2017

D. J. v. Germany (no 45953/10)

The applicant was convicted of dangerous assault and sentenced to six years and six months’ imprisonment in October 1998 by the Berlin Regional Court. At the same time the court ordered his preventive detention. It considered that D.J., who had previously been convicted of similar offences, had a propensity to commit serious violent offences and was dangerous to the public. After having served his full term of imprisonment in February 2005, D.J. remained in detention without a formal decision of the courts because the proceedings were delayed. In June 2007 he was released after the Berlin Court of Appeal had decided that his continued preventive detention without a decision by the competent court was unlawful.

In July 2007 the Berlin Regional Court ordered the execution of his preventive detention, in accordance with the relevant provisions of the German Criminal Code, referring to the view of a psychotherapist and concluding that D.J. was still dangerous to the public. He remained at liberty while his appeal against the decision was pending. During that time, he found a flat and a job, and voluntarily started psychotherapy. In May 2008, the Berlin Court of Appeal upheld the Regional Court’s decision, concluding that there was still a very high risk that D.J. would reoffend and commit serious offences. Following that decision, he voluntarily returned to prison. His constitutional complaint against the courts’ decision for his continued preventive detention was unsuccessful, and an application before the European Court of Human Rights in this context was declared inadmissible.

 In its first periodic review proceedings, the Berlin Regional Court decided, in October 2009, that D.J. was to remain in preventive detention, finding that it could be reasonably expected that he would commit further offences if released. It also heard D.J. in September 2009, and it relied on two expert opinions dating from 2005 and 2006 respectively, while dismissing D.J.’s request for a new psychiatric expert opinion. At the same time, the court found that D.J. was to be allowed to continue his therapy with the external psychologist, who had treated him while at liberty, which he had not been authorised to pursue since his renewed preventive detention. The decision for his continued preventive detention was upheld by the Berlin Court of Appeal in March 2010. In June 2010 the Federal Constitutional Court declined to consider D.J.’s constitutional complaint against the decisions of the Regional Court and the Court of Appeal. D.J. was eventually released on parole in November 2013. D.J. alleges in particular that the October 2009 order for the continued execution of his preventive detention, subsequently upheld by the German courts, was in breach of Article 5 § 1 (a) (right to liberty and security), complaining that his detention was based on an old and insufficient psychiatric expert opinion and that, previous to that order, he had not been authorised to continue therapy with the external therapist.

The Court noted that the domestic courts, which were not obliged under domestic law to obtain a new expert report in the circumstances of the applicant’s case, provided thorough reasons for considering that they had at their disposal sufficient elements, including indispensable and sufficiently recent expert advice, warranting the conclusion that the applicant still presented a danger to the public and justifying his extended preventive detention. They indicated that the year he had been at liberty was too short to prove that he was no longer dangerous. Given these circumstances, the Court considers that the applicant’s contention before the domestic courts and this Court that the expert medical advice relied on was insufficient and outdated must be rejected. Therefore there had been no violation of  Article 5 § 1.

 

21 September 2017

Kuparadze v. Georgia (no. 30743/09)

In November 2006 Ms Kuparadze, then aged 14 years old, was remanded in custody on charges of attempted aggravated murder of one of her classmates. She was sentenced to ten years’ imprisonment, half of which was suspended on probation.

Ms Kuparadze spent the first few months of her detention in a cell together with adult female inmates, before being moved to the newly created juvenile section of the prison. Her request that her sentence be deferred pending the construction of a separate detention facility for juvenile female offenders was rejected in September 2009, as was her complaint about the conditions in which she was serving her sentence. She was released on probation in November 2011.

Relying on Article 3, she complained that she had been placed in an adult prison rather than in a juvenile detention facility; nor had her sentence been deferred pending the construction of such a facility. She further complained about the conditions of her detention when she had been subsequently placed in the prison’s section for juvenile offenders.

The Court observed that the Convention does not prohibit the States from subjecting convicted juveniles to imprisonmen and that both domestic and international legal texts in force at the material time allowed for a certain degree of latitude relating to the manner in which the separation of juvenile and adult offenders is to be effectuated, including the placement of juvenile offenders in separate parts of institutions normally designed for adult inmates. In this connection, contrary to the applicant’s complaint, her placement in the section for juvenile offenders does not, in and of itself, raise an issue under Article 3 of the Convention.

Therefore the Court decided to assess whether the conditions of detention at the juvenile female offenders’ section, taken as a whole, complied with the State’s obligation under Article 3 of the Convention. The Court observed in that matter that the applicant made contradictory statements on severl spects relating to the condtions of her detention – especially overcrowding, the lack of outdoor exercices and the humidity of her cell. Therefore the Court could not establish the existence of the alleged conditions beyond reasonable doubt. Accordingly there had been no violation of Article 3 of the Convention.

 

3 October 2017

Alexandru Enache v. Romania (no. 16986/12)

The applicant complained about his conditions of detention and about discrimination on grounds of sex arising from the fact that under Romanian legislation, only convicted mothers of children under the age of one can postpone their prison sentences until their child’s first birthday.

Complaint under Article 3

The Court held that the applicant’s conditions of detention had subjected him to an ordeal of an intensity exceeding the unavoidable suffering inherent in detention. In particular the Court observed that in all the detention facilities in which he was held the applicant had a personal space of less than 3 sq. m. Moreover the Court recalled it had held in similar cases that the hygiene conditions were far from satisfactory in the above mentioned facilities (see i. a. Geanopol v. Romania, no. 1777/06, 5 March 2013 and Aurelian Burlacu v. Romania, no. 51318/12, 10 June 2014). Therefore there had been a violation of Article 3 of the Convention.

Complaint under Article 14 read in conjunction with Article 8

The Court found in particular that the impugned exclusion did not amount to a difference in treatment and that there was a reasonable relation of proportionality between the means used and the legitimate aim pursued (the best interests of the child and the special bonds between a mother and her child during the first year of the latter’s life). It noted, in particular, that granting female prisoners the benefit of a postponement of sentence was not automatic, and that the Romanian criminal law in force at the relevant time provided all prisoners, regardless of sex, with other channels for requesting a stay of execution of sentence. It also observed that the aim of the legal provisions in question had been to cater for particular personal situations, especially concerning the unique bond between mother and child during pregnancy and the first year of the baby’s life. The Court took the view that that aim could be considered legitimate within the meaning of Article 14 of the Convention, and that the Romanian Government’s submissions were not manifestly ill-founded or unreasonable. The Court therefore considered that in the particular sphere to which the present case related, those considerations might form an adequate basis to justify the difference in treatment afforded to Mr Enache. Motherhood presented specific characteristics which should be taken into account, among other things, by means of protective measures (see Press release). Therefore there had been no violation of Article 14 of the Convention read in conjunction with Article 8.

 

5 October 2017

Kormev v. Bulgaria (no. 39014/12)

The applicant complained about his detention conditions. The Court observed that in the several penitentiary facilities in which he had been detained the applicant had a personal space ranging from 3 sq.m to 4 sq. m. The Court went on to note that the applicant gave a detailed description of his detention conditions, especially regarding the lack of hygiene, the lack of an appropriate heating system, and the total absence of outdoor exercise during the first six months of his detention (§60). Moreover the Court noted that the applicant’s submission corroborates the 2012 report of the Bulgarian Ombudsman and the 2015 report of the CPT regarding Bulgarian prisons. Therefore there had been a violation of Article 3.

Ostrovenecs v. Latvia (no. 36043/13)

The applicant complained that he had been ill-treated by detainee escort officers and that the inquiry and criminal investigation in this regard had not been effective.

Procedural limb : alleged failure to carry out an effective investigation

The Court observed that the applicant raised the alleged assault shortly after the events in dispute, and that a medical certificate from Riga Central prison stated that he had injuries to his body. According to the Court these allegations and the medical evidence put the authorities under an obligation to conduct an effective investigation – which they did not, undermining therefore « their ability to establish what had happened to the applicant » (§76). In particular the authorities failed to secure the video recordings made by the security cameras and did not promptly order an expert medical report in respect of the applicant’s injuries until near a year after the alleged assault took place. Therefore the Court concluded that there had been a violation of Article 3 of the Convention under its procedural limb.

Substantive limb : alleged ill-treatment

The Court considered that the applicant had been able to produce sufficiently strong evidence in support of his claim of ill-treatment (he informed his relatives and the employees of the Ombudsman’s Office about the assaults he had been victim of, and several testimonies corroborate his allegations). The Court then noted that the investigating authorities did not give any explanation of how the injuries found to the applicant had been caused. Therefore the Court considered that the respondent Government had failed to discharge their burden of proof and to submit a plausible explanation refuting the applicant’s account of events. The Court went on to noted that the respondent Government had not shown that the recourse to physical force against the applicant, a minor entirely under the control of the escort officers, had been rendered strictly necessary by his own conduct. Therefore, there had been a violation of Article 3 of the Convention under its procedural limb.

Abele v. Latvia (no. 60429/12)

The applicant, who was mute and deaf since birth, complained of the conditions in which he was detained during part of his prison sentence. In particular, he alleged that he had been held for a total of approximately five years in cells in which he had reduced personal space of just under or just over 3 square metres and that, owing to his disability, he had been unable to communicate with fellow inmates or prison staff.

Law – Article 3: In addition to considering the material conditions and length of the applicant’s detention, the Court also had to take into account his vulnerable position due to his disability and the fact that the authorities were required to demonstrate special care in guaranteeing conditions corresponding to his disability.

Period in which applicant had less than 3 sq. m of personal space

The applicant was held in conditions in which he had less than 3 sq. m of personal space for over a year. Such a period could not be regarded as “short, occasional and minor” and therefore could not rebut the presumption of a violation of Article 3. The applicant had been subjected to hardship going beyond the unavoidable level of suffering inherent in detention and amounting to degrading treatment.

Period in which the applicant was allocated between 3 and 4 sq. m of personal space

The applicant was held in conditions in which he had  just over 3 sq.m. of personal space in two different cells for a period of almost two years. He complained that the reduced personal space coupled with his disability had left him feeling particularly vulnerable and socially isolated as he was unable to engage in any meaningful activities and was not properly understood by either the prison staff or fellow inmates.

The Court noted that while the applicant had been allowed to leave one of the cells (where he was held for eight months) during the day and use the common area, the same did not hold true of the other cell, where he had been held for twice as long and for about twenty-three hours a day he had been unable, in view of his disability, to communicate with his fellow inmates. Throughout his time in these two cells the applicant was not provided with a hearing aid or any means of communicating with prison staff.

In the Court’s view, the weighty factor of the reduced personal space available to the applicant for a period of almost two years, together with the inevitable feeling of isolation and helplessness in the absence of adequate attempts to overcome his communication problems flowing from his disability, must have caused the applicant to experience anguish and feelings of inferiority attaining the threshold of inhuman and degrading treatment.

 (See also Jasinskis v. Latvia, 45744/08, 21 December 2010, Information Note 136; and Z.H. v. Hungary, 28973/11, 8 November 2012, Information Note 157;and, more generally, Ananyev and Others v. Russia, 42525/07 and 60800/08, 10 January 2012, Information Note 148; and Muršić v. Croatia [GC], 7334/13, 20 October 2016, Information Note 200)

  

17 October 2017

Braga v. the Republic of Moldova and Russia (no 76957/01)

Draci v. the Republic of Moldova and Russia (no. 5349/02)

The applicants, Andrian Braga, a Moldovan national, and Alexandru Draci, a Ukrainian national, were detained between 1999 and 2002 in “Moldovan Republic of Transdniestria “MRT”” prisons (for further details about the “MRT”, see Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 28-185, ECHR 2004‑VII, and Catan and Others v. the Republic of Moldova and Russia [GC], nos. 43370/04 and 2 others, §§ 8-42, ECHR 2012 (extracts)). Relying on Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights, both applicants complained about the inhuman conditions of their detention, alleging in particular that they had been detained in cells which they had to share with other detainees who had tuberculosis and which had been infested with parasitic insects. Mr Draci further alleged in particular that he had contracted a skin disease – streptodermia – for which he had received no medical care and that, for the first two years of his detention, he had been held in solitary confinement in a concrete box with no windows, ventilation or toilet.

The Court recalls that it has already reviewed the material conditions in the “MRT” prisons in Mozerv. the Republic of Moldova and Russia ([GC], no. 11138/10, § 181, ECHR 2016, with further references to visits to the region by the European Committee for the Prevention of Torture and the United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment) and found a violation of Article 3 of the Convention on account of inhuman conditions of detention (ibid., § 182). In the instant case, the Court finds it established that the conditions of the applicant’s detention amounted to inhuman and degrading treatment within the meaning of Article 3, in particular on account of the presence of parasitic insects, and the food at the prison being extremely inadequate in terms of quality and quantity, which increased the risk of becoming ill with tuberculosis, as well as (in Draci’s case) his undisputed solitary confinement for a lengthy period in a cell without access to daylight or to basic facilities. Therefore there has been a violation of Article 3 in both cases.

 

19 October 2017

Lebois v. Bulgaria (no. 67482/14)

The case concerned in particular the applicant’s complaint about the restriction on communication with family and friends during his detention.

The applicant, a French national, was arrested in Bulgaria. He spent three months in detention in Bulgaria in 2014. He complained, inter alia, that for twelve days after his arrest he was unable to contact his family or anyone else to inform them of his deprivation of liberty, and that during his time in pre-trial detention he was not provided with sufficient opportunities to receive visits or to speak on the telephone to his family and friends.

The restrictions on the visits which the applicant could receive while in pre-trial detention could be seen as an interference with his “private life”. Further, since under Bulgarian law the applicant had the right to make telephone calls while in pre-trial detention and since inmates in the detention facility had access to a card phone, the limitations on his opportunity to use that card phone had likewise to be seen as an interference with his “private life” and “correspondence”. The internal orders setting out the practical details of how inmates in the pre-trial detention facility in which the applicant was kept could exercise their statutory rights to receive visits and use the telephone were not published or made accessible to the detainees in a standardised form. The Government had not established that the applicant was made adequately aware of them, especially given that he did not speak Bulgarian. The restrictions on his visits and use of the card phone appeared to have flowed precisely from the internal arrangements in the pre-trial detention facility, which were governed by those orders. The interference with the applicant’s rights under Article 8 was therefore not based on adequately accessible rules and not “in accordance with the law”. There has therefore been a breach of Article 8 of the Convention.

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