Newsletter no.24 - Round-up of the ECtHR case-law (January - February 2018)

---

Summaries

Kadusic v. Switzerland (no. 43977/13)Mental Health / Unlawful detention. The case concerned an institutional therapeutic measure ordered in the case of a convicted prisoner suffering from a mental disorder, a few months before his expected release, as a result of which he remained in prison (violation of Article 5; no violation of Article 7).

Stănculeanu v. Romania (no. 26990/15)Overcrowding / Material conditions of detention. The applicant made a complaint under Article 3 about the conditions of her pre-trial detention, essentially on account of overcrowding, poor hygiene and inadequate food (violation of Article 3).

Stepanov and Others v. Russia (no. 27015/12 and 6 others) & Strokov and Others v. Russia (no. 55058/13 and 7 others) & Mokin and Others v. Russia (no. 49876/16 and 12 others)Material conditions of detention / Effective remedy. Relying on Article 3 the applicants complained principally about the alleged poor conditions of their detention (violation of Article 3). Some of them also submitted complaints under Article 13 of the Convention on account of the lack of an effective domestic remedy to complain about inadequate conditions of detention (violation of Article 13).

Koureas and Others v. Greece (30030/15)Material conditions of detention / Effective remedy. Relying on Article 3, the applicants mainly complained about their overall conditions of detention (no violation of Article 3). The applicants also complained about the lack of an effective remedy in that regard (violation of Article 13).

Etute v. Luxembourg (no. 18233/16)Conditional release. The applicant alleged that he had been unable to appeal against a decision revoking his release on licence (violation of Article 5§4).

Polikhovich v. Russia (nos. 62630/13 and 5562/15) & Stepan Zimin v. Russia (nos. 63686/13 and 60894/14)Material conditions of detention / transfer to and from court. The applicants complained under Article 3 about the allegedly poor conditions of their detention in the remand prison (no violation of Article 3), in the convoy room at the Moscow City Court and during transfers to and from the prison (violation of Article 3).

Akimenkov and Others v. Russia (no. 2613/13 and 50041/14) Material conditions of detention / medical assistance / transfer to and from court. The applicant complained mainly about his detention conditions in the remand prisons (no violation of Article 3), about an alleged failure to provide adequate medical assistance (no violation of Article 3), and about his conditions of transfer to and from court (violation of Article 3).

Andrey Smirnov v. Russia (no. 43149/10)Pre-trial detention / family visits. The case concerned mainly the applicant’s limits on parental visits during the detention period (violation of Article 8).

Agit Demir v. Turkey (no. 36475/10)Pre-trial detention / Detention of children. The case concerned the placement in pre-trial detention of the applicant, who was a minor at the time, for participating in a demonstration and throwing stones at the security forces (violation of Article 5 §1 c).

 

9 JANUARY 2018

Kadusic v. Switzerland (no. 43977/13)

In May 2005 the applicant was sentenced to eight years’ imprisonment. Reports written by the prison governor and psychiatric assessments carried out in 2008 and 2010 stressed the prisoner’s dangerousness and the high risk of his re-offending. In a judgment of 22 August 2012, the domestic court suspended the portion of the sentence still to be served and ordered an institutional therapeutic measure due to the applicant’s mental disorder.

Complaint under Article 5§1

Relying on Article 5 § 1, the applicant alleged that his detention following the ordering of an institutional therapeutic measure in his case amounted to a breach of his right to liberty and security.

The Court found that the therapeutic measure – which constituted a deprivation of liberty – had been ordered a few months before the applicant’s expected release, on the basis of psychiatric reports that had not been sufficiently recent, and observed that the applicant had still not been transferred to an institution appropriate to his mental disorder. It followed that his detention following the application of the therapeutic measure had been incompatible with the purpose of the original conviction.

Complaint under Article 7

The Court found that the institutional therapeutic measure ordered by the domestic court had been no more severe than the one laid down by the law in force at the time the offences had been committed. Therefore there had been no violation of Article 7.

11 JANUARY 2018

Stănculeanu v. Romania (no. 26990/15)

The applicant claimed that for two months, she had been placed in a cell measuring 9 square meters, which she had shared with three other detainees. She also complained about the poor conditions of hygiene, lack of ventilation and natural light. According to the applicant, the toilet was not separated from the living area by any partition, thus offering no privacy.

Relying on the findings by the CPT in respect of the Bucharest police station detention facility and in view of its case-law on the subject (see in particular Muršić v. Croatia [GC], no. 7334/13, §§ 136-141, ECHR 2016), the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of the applicant’s complaint under Article 3 of the Convention. It finds therefore that the applicant’s material conditions of detention in the Bucharest police station detention facility were inadequate and that there has been a violation of Article 3.

Stepanov and Others v. Russia (no. 27015/12 and 6 others)

Strokov and Others v. Russia (no. 55058/13 and 7 others)

Mokin and Others v. Russia (no. 49876/16 and 12 others)

The Court noted that the applicants were kept in detention in poor conditions. Referring to the principles established in its case‑law regarding inadequate conditions of detention (see, for instance, Muršić v. Croatia [GC], no. 7334/13, §§ 96‑101, ECHR 2016), it reiterated in particular that a serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are “degrading” from the point of view of Article 3. In the leading case of Ananyev and Others v. Russia (nos. 42525/07 and 60800/08, §§ 149‑159, 10 January 2012), the Court already found a violation in respect of issues similar to those in the present cases. Therefore it found that the complaints constituted a breach of Article 3 of the Convention.

In the case Stepanov and Others v. Russia, it also found that the complaints under Article 13 also constituted violations of the Convention in the light of its findings in Ananyev and Others (§§ 100-119), related to the lack of an effective domestic remedy to complain about inadequate conditions of detention.

 

18 JANUARY 2018

Koureas and Others v. Greece (30030/15)

Complaint under Article 3

With regard to the overall conditions of detention the Court found, in particular, that the applicants had not described their individual situations and that it was unable to ascertain which of them had been affected by overcrowding in the cells. The Court also noted that applicants had a personal space of 3 to 4 sq. m.  The Court went on to note that the lack of personal space in the present case had not been coupled with inadequate physical conditions of detention (food, hygiene and so forth – see Muršić v. Croatia [GC], no. 7334/13, §§ 96‑101, ECHR 2016). Therefore, there had been no violation of Article 3.

Complaint under Article 13

The Court recalled that it had found in a previous judgment that there was no effective preventive remedy available to an applicant who claimed to be personally affected by the overall conditions of detention in prison, and so there was no reason to depart from this conclusion (see Papakonstantinou v. Greece, no. 50765/11, §51, 13 November 2014).

 

30 JANUARY 2018

Etute v. Luxembourg (no. 18233/16)

In November 2010 the applicant was sentenced to thirty months’ imprisonment. On 22 February 2013 he was granted release on licence with effect from 4 March 2013. On 29 October 2015 the investigating judge ordered the applicant’s detention in connection with a further offence. On 4 November 2015 the Attorney-General’s representative revoked the applicant’s release on licence on the grounds that he no longer complied with the conditions that had been imposed on him.

Relying on Article 5 §4, the applicant complained that he had been unable to appeal against the decision revoking his release on licence.

According to the domestic law, the Attorney-General’s representative is competent to revoke a release on licence. But according to the Court’s case-law, it cannot be considered a “tribunal” satisfying the requirements of Article 5 § 4 (see Ivan Todorov v. Bulgaria, no. 71545/11, §59, 19 January 2017). What is more, there is no effective remedy to appeal against a decision revoking a release on licence (§35). Accordingly, the Court declared that there had been a violation of Article 5 §4 of the Convention.

 

Polikhovich v. Russia (nos. 62630/13 and 5562/15)

Stepan Zimin v. Russia (nos. 63686/13 and 60894/14)

Both cases related to detention and prosecution after a protest on 6 May 2012 in Moscow against allegedly rigged presidential elections. Relying on Article 3, both applicants complained about the conditions of their detention and transfer to and from the prison.

Regarding the conditions of detention, the Court noted that the applicants did not describe the conditions of their detention in the remand prison nor contest the Government’s argument that they had had four square metres of personal space in the cells during their detention and did not provide specific details about other aspects of the physical conditions at the prison. The Court thus considered that the applicants were not subjected to severe overcrowding which could in itself have led to suffering incompatible with Article 3 of the Convention and declared this complaint manifestly ill‑founded.

Regarding the complaint about the conditions during the prison transfer, the Court found that  they amounted to inhuman and degrading treatment that were contrary to Article 3 of the Convention on account of a lack of sufficient rest and sleep on the days of court hearings; overcrowding and generally poor conditions in the convoy cells at the Moscow City Court; lengthy transfers between the remand prisons and the court; and poor conditions during the transfers (see Yaroslav Belousov v. Russia nos. 2653/13 and 60980/14, §§ 7-33, 4 October 2016).

 

6 FEBRUARY 2018

Akimenkov and Others v. Russia (no. 2613/13 and 50041/14)

Complaint about the applicant’s detention conditions

The Court observed that “the applicant’s conditions of detention in all the remand prisons fell short of the Minimum Standard Rules for the Treatment of Prisoners, the European Prison Rules and the recommendations of the Committee for the Prevention of Torture in some aspects” (§79). However, the Court declared that “taking into account the cumulative effect of these conditions” (idem) and the fact that the applicant was detained for a relatively short period (one month and a half) in the remand prison in which the conditions were harsher, the threshold of severity required to characterize the treatment as inhuman had not been reached.

Complaints about the alleged failure to provide adequate medical assistance

The applicant declared that “no action had been taken by the authorities, in spite of his rapidly deteriorating eyesight” (§84). The Court observed that the applicant had been given a comprehensive medical examination and that the medical reports did not “indicate any threat to the applicant’s eyesight”. Therefore the Court found no reason “to believe that the Russian authorities failed to provide the applicant with adequate medical assistance” (§84).

Complaint about the conditions of transfer

The Court recalled that it examined the conditions of transfer to and from court in a previous case and found that those conditions amounted to inhuman and degrading treatment (Yaroslav Belousov v. Russia nos. 2653/13 and 60980/14, §§ 7-33, 4 October 2016). The Court saw no reason to depart from those findings. Therefore, there had been a violation of Article 3.

  

13 FEBRUARY 2018

Andrey Smirnov v. Russia (no. 43149/10)

The applicant alleged that the frequency and manner of visits from his parents had been excessively restricted.

The Court observed that the authorities refused an application for a visit to the applicant submitted by the applicant’s parents; that in the remaining period of the applicant’s detention the family visits had been limited to two meetings per month and that the applicant had always been separated from his parents by a glass partition.

As regards the authorities’ refusal of the applicant’s parents’ leave to visit him, the Court observed that it was not prescribed by law.

As regards the limitation on the frequency of family visits the Court observed that the authorities acted “in an automatic fashion, without weighing up the various elements” (§50) in breach of Article 8.

As regards the separation with a glass partition, the Court found that “in the absence of any demonstrated need for a physical barrier between the applicant and his parents, that measure cannot be justified as being necessary in a democratic society” (§56).

 

 27 FEBRUARY 2018

Agit Demir v. Turkey (no. 36475/10)

The case concerned the placement in pre-trial detention of the applicant, who was a minor at the time, for participating in a demonstration and throwing stones at the security forces.

The Court first observed that domestic law stated that “placing a minor in pre-trial detention should be a measure of last resort and could be ordered only if a judicial supervision measure had proved ineffective” (press release). The Court went on to note that the “reasons given by the magistrate in the pre-trial detention order did not suggest that detention had been used […] only as a measure of last resort” in view of the applicant’s age (idem). Accordingly there had been a violation of Article 5§1 of the Convention.

---