Newsletter no.6 (6 October 2015) - Round-up of the ECtHR case-law (September 2015)

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Summary

Berland v. France (no.42875/10) – security measures / lawful punishment.The applicant complained that he was imposed security measures for a crime committed prior to the entry into force of the law creating these measures. The Court considered these measures were not of punitive nature – and therefore were not a sentence (no violation of Article 7§1).

Shishanov v. The Republic of Moldova (no.11353/06) – overcrowding / disability / correspondence. The applicant was held in a cell with less than 3 sq. m. of living space (violation of Article 3). Moreover his correspondence with the Court had been intercepted by the administration (violation of Article 8).

Milka v. Poland (no.14322/12) – strip-search / effective remedy. The strip-searches ordered lacked proper security-based justification (violation of Article 8).

Kaytan v. Turkey (no.27422/05)– life sentence. There was no possibility of review of the life sentence that was imposed on the applicant (violation of Article 3).

Lavrentiadis v. Greece (no.29896/13) – healthcare / disability / effective remedy. The applicant’s detention conditions were suitable to its state of health (violation of Article 3). Moreover, the applicant had no effective remedy available to challenge the decision to keep him in detention (violation of Article 13).

Bordenciu v. Romania (no.36059/12) – overcrowding. The applicant was held in a cell with less than 3 sq. m. of living space (violation of Article 3).

Ilkin v. Russia (no.12436/11)  – transport / overcrowding. The applicant was transported to and from the court house in an overcrowded vehicle (violation of Article 3).

 

3 September 2015

Berland v. France (no.42875/10) – security measures / lawful punishment

The applicant complained that he was imposed security measures (“mesures de sûreté”) in connection with a murder committed in 2007, i.e.prior to the entry into force of the law creating these measures (February 2008). The domestic court ordered a compulsory hospitalization and a 20-year ban on making contact with the civil parties and on possessing weapon. He complained that there had been a violation of Article 7§1 of the Convention (no punishment without law).

However the Court observed that the security measures at stake were not a penalty because of its aim was mainly preventive. The security measures had been ordered following a finding that the applicant lacked criminal responsibility on the ground that he suffered from psychiatric disorders. Therefore, these security measures were not ordered following a conviction of an offence (§42). Compulsory hospitalization is meant to avoid imprisonment for persons of unsound mind; and the individual hospitalized can make an application at any time for the compulsory order to be lifted (§44). Similarly, according to French law, the 20-year ban should have a preventive function and can be modified or cancelled at the person’s request after review by a judge (§45). Lastly, even though the applicant risked a two-year prison sentence and a fine should he failed to comply with these measures, that could only arise if he was found to be criminally responsible, and after a new set of proceedings. Accordingly the Court considered that there had been no violation of Article 7§1 of the Convention (§47).

The Court used reasonable care to distinguish this case from the case M v. Germany (17 December 2009, no.19359/04). In the latter the Court agreed that there had been a violation of Article 7§1 because the security measure was imposed on a person sentenced to imprisonment, on completion of his sentence, in a penitentiary facility. However, judge Zupančič in his dissenting opinion criticized the Court’s formalistic approach. He considered that the compulsory hospitalization that was ordered was a sanction and not a treatment: i.a because the applicant is interned in a specific service for criminals of unsound mind, and the duration of confinement is not defined – and could therefore be everlasting (dissenting opinion, §33).

 

15 September 2015

Shishanov v. The Republic of Moldova (no.11353/06) – overcrowding / disability / correspondence

Relying on Article 3, the applicant complains of his conditions of detention in three prisons in the Republic of Moldova. Under Article 8, he complains of the censoring of his correspondence by the authorities in some of those prisons.

 Complaint under Article 3: Whereas the government argued that the applicant failed to exhaust all domestic remedies available, the Court considered that the remedies mentioned could not be considered as effective because they are purely compensatory and have no preventive effects (§§70-79).

Concerning the applicant’s conditions of detention, the Court considered that the allegations concerning overcrowding and lack of hygiene as plausible since the applicant’s complaints were similar to the CPT’s and the CHR’s (Center for Human Rights of Moldova) findings on the matter (§88 and §94), and since the government is unable to provide any information that would convince the Court to reach a different conclusion (§87 and §91). Therefore, the Court admitted that the applicant was held in a cell with far less than 3 sq. m. of living space (between 1.63 sq.m. and 1.87 sq.m.).

Moreover the Court noted that the applicant is invalid and that he did not benefit from conditions of detention specifically adapted to his infirmity (§96 – see i. a. Zarzycki v. Poland, no 15351/03, § 102, 12 March 2013), particularly regarding access to health and hygiene facilities (idem – see Semikhvostov v. Russia, no 2689/12, § 81, 6 February 2014).

Accordingly, the Court concluded that there had been a violation of Article 3 of the Convention.

 Complaint under Article 8: The applicant argued that his correspondence with the Court had been intercepted by the administration – a letter to the attention of the Court had been send to the ECtHR. The Court considered that the fact that the administration finally sent that letter to the Court is not enough to deprive the applicant of his status as victim since the administration did not acknowledge nor afford redress for the breach of the Convention (§§103-108 – see Labita v. Italy [GC], no 26772/95, § 142).

The government did not deny that the applicant’s correspondence had been intercepted (§110 and §113). Since such an interference is not provided for in law (§113) the Court concluded that there had been a violation of Article 8 (§115).

Milka v. Poland (no.14322/12) – strip-search / effective remedy

The case concerns the applicant’s disciplinary punishmentsforrefusing to be strip-searched in prison. The applicant lodged a complaint under Article 3 of the Convention. However, the Court noted that “the strip searches originally complained of by the applicant were […] never performed completely. Each time the applicant was ordered to undress he refused to do so and was therefore subjected to a disciplinary punishment” (§40).  Therefore considered the complaint under Article 3 manifestly ill-founded since “there was no element of debasement or humiliation which might give raise to a violation of Article 3 of the Convention” (§40). The Court decided to examine whether the complaint give raise to an issue under Article 8 (on this substitution see Wainwright v. the United Kingdom, no. 12350/04, § 43).

 The Court considered that the interference under Article 8 resulting from the requirement to undergo a strip search was neither “justified by a pressing social need” nor “proportionate in the circumstances of the case” (§50) – and that there had been a violation of the above-mentioned provision.

 The Court noted that the government did not demonstrate that prison authorities had any reason for thinking that the applicant “might behave in a dangerous manner or bring any dangerous objects onto the prison premises”. In this regard, “whilst he did behave in a vulgar and offensive manner, (…) it appears that his behaviour never overstepped the limits of verbal abuse” (§48).

 The Court therefore concluded that the measure in question lacked proper security-based justification (violation of Article 8).

The Court additionally noted that prisoners subjected to personal checks or strip searches have no effective remedy available to challenge such a decision (§30 and §48: “in the absence of such an effective remedy, it is difficult to enforce at the domestic level the requirement of a sufficient justification for personal checks or strip searches”). What is more, the applicant appealed to domestic courts against the punishment imposed following his refusal to undergo strip searches: the Court noted that these courts had never examined “the question whether there had existed genuine and valid reasons for which the applicant was requested to undergo” these measures (§49).

Kaytan v. Turkey (no.27422/05)– life sentence

The applicant alleged under Article 3 of the Convention that the life sentence imposed on him amounted to inhuman punishment as there was no possibility of review or commutation. The “aggravated life sentence” handed down to the applicant will be maintained for the whole of his life: “the conditional release options or prescription are not applicable to criminals convicted under” the relevant Article of the Turkish Criminal Code” – except in cases of serious or terminal illness (§19).

The Court recalled that such a possibility of release “was not considered as corresponding to the notion of ‘prospect of release’ on legitimate penological grounds” (§65 – see Vinter and Others v. the United Kingdom [GC], nos. 66069/09, 130/10 and 3896/10, §129). It reiterated that “where domestic law does not provide any mechanism or possibility for review of a whole life sentence, the incompatibility with Article 3 on this ground already arises at the moment of the imposition of the whole life sentence and not at a later stage of incarceration” (§66).

This case is closely similar to the Öcalan n°2 judgement (Öcalan v. Turkey no. 2 nos. 24069/03, 197/04, 6201/06 and 10464/07, §§ 62-71, 18 March 2014) which condemned Turkey for the same reasons.

Accordingly the Court, considering that “there is no element or argument in the case-file, or any example of national court decisions, which would allow it to depart from its conclusion in the […] Öcalan (no.2) judgment” (§67), held that there had been a breach of Article 3 of the Convention.

22 September 2015

Lavrentiadis v. Greece (no.29896/13) – healthcare / disability / effective remedy

The case concerned the detention of Mr Lavrentiadis who suffers from a chronic auto-immune disease, and the fact that he had been unable to have the inadequacy of the medical treatment received while in detention established by the courts.

Relying on article 3, he alleged that his placement in detention was incompatible with his state of health and caused deterioration in it. He also submitted that, since he needed to be constantly helped by a fellow-prisoner in order to move about and could not take care of his everyday needs independently, his detention amounted to degrading treatment. Relying on article 13, he submitted that no effective remedy was available to him to complain of the shortcomings in the medical treatment provided to him in the prison’s psychiatric hospital (§ 57).

The Court admitted that, in order to ensure the applicant a more suitable environment for his health than ordinary cells of the prison, the authorities decided to place him in the psychiatric hospital of the prison, where prison conditions should have been better (§73). But lack of specialised health staff (§75) and of appropriate conditions for his medical treatment (§76) and because of the difficulties to reach the toilets and the bathroom (§77), the applicant had to endure detention conditions that must have caused him suffering both mental and physical and have diminished his human dignity (§78). These conditions amounted therefore to degrading treatment (violation of Article 3, §79; also see Martzaklis and Others v. Greece, no.20378/13).

Regarding Article 13, the Court noted that in considering the applicant's requests for release, the indictment chamber was limited to assessing the compatibility of the applicant's detention with his state of health, without examining whether the material conditions of detention meet the specific needs arising from the disease (§83). The State has thus failed to fulfil its obligations under Article 13 of the Convention (violation of Article 13, §84).

Bordenciu v. Romania (no.36059/12) – overcrowding

Relying on Article 3, the applicant submitted that his conditions of detention in Târgu Jiu Prison amounted to torture. The Court noted that during most of the sixteen years he spent in that prison “the applicant’s personal space ha[d] been significantly less than that required by [its] case-law” (§28). The government admitted that he was held in cells were he his personal space was of less than 3m².

In addition, the Court found that the applicant’s submissions corresponded to the CPT’s “general findings in respect of Romanian prisons” (§30).

Accordingly, the Court concluded that “the physical conditions of the applicant’s detention ha[d] caused him suffering that exceeded the unavoidable level of suffering inherent in detention and that attained the threshold of degrading treatment prescribed by Article 3” (§31).

Ilkin v. Russia (no.12436/11)  – transport / overcrowding

The case concerned the applicant’s complaint about the conditions of his transport to and from the court house. The applicant alleged in particular that the vans used for the transport were overcrowded and that he did not have the possibility to eat or use the toilet during the journeys, which lasted for up to almost four hours.

The Court considered that given the observations of the CPT on conditions of transport of prisoners (see §49) and the duration of the journey the applicant had endured (§50), there had been a violation of Article 3 (§52).

The vehicles were manifestly overcrowded: the compartment “used for the transport of inmates in the […] vans measured in total 7.24 and 8.4 sq. m. respectively […and] on numerous occasions the number of inmates transported together with the applicant exceeded twenty-four” (§48). Moreover, “on two occasions the applicant was placed in a single compartment measuring 0.35 or 0.4 sq. m. and once he had to share a single compartment with another inmate” (§48).

 

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