1 – Judgments of major importance
In 2018 the Court delivered several judgements of major importance regarding prisons.
Firstly, in the area of preventive detention, the Court delivered two important judgements. In the case of Kadusic v. Switzerland (no.43977/13), the applicant’s prison sentence had been replaced by a psychiatric detention shortly before the expiry of his sentence on the basis of outdated psychiatric reports. The Court ruled it found a violation of Article 5§1 (e) in view of the outdated nature of the reports. However, the Court did not find a violation of Article 4 of Protocol No.7 (right not to be punished or tried twice) as it considered that the psychiatric detention order did not constitute a second penalty imposed on the applicant.
The Court took a similar stance in the Grand Chamber Judgment [GC] Ilnseher v. Germany (no. 10211/12). In this case, the applicant had been placed in preventive detention based on medical reports, concluding that he might reoffend if released, in application of a law that was adopted after he had served his ten-year initial sentence. The Court found no violation of Article 5§1 (e), mainly on the grounds that following the preventive detention order the applicant had been detained in a dedicated centre where he had been offered adequate treatment. The Court also found that there had been no violation of Article 7 §1, even though the applicant had been placed in prevention detention on an application of a law that was not in force at the time of his initial condemnation, and without a maximum duration. The Court recalled in this judgment the qualifying criteria for the identification of a penalty and qualified some of them as static and others as dynamic. The dynamic criteria (aim, nature and gravity of the measures) could evolve over time and thus change the legal qualification chosen. In fact, even if the static requirements clearly militated for a qualification as “penalty”, the Court relied on the nature and purpose of the measure to not recognize the qualification. Having regard to the improvement of the applicant’s conditions of detention and thus to the manner of its execution, the Court considered that “the focus of the measure [lied] on the medical and therapeutic treatment of the person concerned” (§227). The improvement of material conditions and the care provided could then “erase the factors indicative of a penalty” (§228). However, as Pinto de Albuquerque pointed out, if prevention is not absent from criminal law, the nature and purpose of a measure could not be “predicated on the detention conditions, but on the legal act that provided for that detention” (§98 of his dissenting opinion). In addition, the use of dynamic criteria could create uncertainty and breach the principle of legal certainty required in criminal matters.
Secondly, the Court identified a structural problem in two cases regarding the Russian Federation and Hungary respectively but decided not to make use of the pilot judgment procedure.
In the case of Igranov and Others v. Russia (nos. 42399/13 and others), the applicants had not been allowed to attend the court hearings for civil claims they had made in relation to their detention conditions as there was no domestic legal provision for bringing detainees to court, which is in breach of Article 6§1. The Court recalled that the problem had been highlighted in “in more than a hundred cases in which Russian courts had refused to secure the attendance of imprisoned applicants wishing to take part in hearings on their civil claims” (§47). However, it decided to abstain from applying the pilot-judgment procedure as only two years had elapsed since it had “provided a comprehensive outline of… the counterbalancing measures that they need to put in place, in order to secure the incarcerated litigants’ right to a fair trial” (§48) in the leading judgment of Yevdokimov and Others v. Russia (nos. 27236/05 and others).
The case of Lakatos v. Hungary (no. 21786/15) regarded the overuse of pre-trial detention and the lack of motivation of the decisions extending detention on remand in Hungary, in breach of Article 5§3. The Court recalled in this regard that the issue had been raised by the Committee of Ministers in 2011 and that around sixty similar applications were pending. However, the Court deemed the pilot judgment procedure not necessary in the present case, in view of the recent “efforts made by the Hungarian authorities aimed at bringing Hungarian legislation into compliance with the Convention requirements” (§88).
2 – Important repetitive judgements
In several judgments the Court recalled its long-standing position on important issues.
The Court delivered numerous judgments against the Russian Federation and Greece on account of detention conditions (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, Pilalis and Others v. Greece no. 5574/16), including in a prison hospital (Zabelos and Others v. Greece no. 1167/15), and of the lack of effective remedy in this respect, in violation of both Articles 3 and 13.
As regards to the Russian Federation, the Court also found that the conditions of transfer to and from a court amounted to a degrading treatment in breach of Article 3 (Polikhovich v. Russia nos. 62630/13 and 5562/15, Stepan Zimin v. Russia nos. 63686/13 and 60894/14, Akimenkov and Others v. Russia no. 2613/13 and 50041/14, Lutskevich v. Russia nos. 6312/13 and 60902/14, Mariya Alekhina and Others v. Russia no. 38004/12).
Lastly, the Court recalled that the use of glass cabins and metal cages during court hearings (Lutskevich v. Russia nos. 6312/13 and 60902/14, Shulmin and Others v. Russia nos. 15918/13 and others) or glass docks (Mariya Alekhina and Others v. Russia no. 38004/12) is contrary to Article 3 of the Convention.
Turkey was targeted in two important judgements within the remit of Article 3. Firstly, in regards to the protection of prisoners’ health, the Court ruled in the case of Ebedin Abi v. Turkey no. 10839/09 that the failure to provide a detainee with adequate meals as prescribed by a doctor constituted a violation of this provision.
Secondly, in its decision in the case of Agit Demir v. Turkey (no. 36475/10) the Court recalled that the placement in pre-trial detention of a minor should be a measure of last resort, and is to be enforced only where a judicial supervision measure had proved ineffective.
As regards to the protection of private and family life, the Court found repeated violation of Article 8 in cases involving the Russian Federation on account of excessive restriction of family visits (Andrey Smirnov v. Russia no. 43149/10, Resin v. Russia no.9348/14), and of the transfer of a prisoner to a facility located thousands of kilometres from his family (Voynov v. Russia no. 39747/10).
In the area of conditional release of sentenced prisoners, the Court found a violation of Article 5§4 in the case of Etute v. Luxembourg (no. 18233/16). The applicant was recalled to prison in application of a decision taken by the Attorney General because he had breached the original agreement on the conditions of his release. The Court first observed that the Attorney General did not fulfil the criteria of a “court” in the meaning of Article 5§4. The Court further noted that the applicant had been unable to obtain a review of the order revoking his release as the domestic law foresaw no possibility of appeal against a decision taken by the Attorney General.
In two interesting cases, the Court ruled on freedom of expression and the right to information enshrined in Article 10. In Günana and Others v. Turkey (nos. 70934/10 and others), the Court found that the Turkish authorities unlawfully seized a handwritten manuscript as there was no legal basis to seize documents that are not correspondence documents.
In Rodionov v. Russia (no. 9106/09) the Court ruled that the decision to seize the newspapers and magazines sent to the applicant by his family on account that they had not been purchased through the prison management was not “necessary in a democratic society” (§206).
3 – New areas of judicial intervention
The Court was called upon to rule on issues relatively untouched by its jurisprudence.
In Dobrowolski and Others v. Poland (nos. 45651/11 and others), the applicant complained under Article 14 and Article 1 of Protocol no. 1 (right to property) that they had been discriminated against as convicted prisoners by their employers. The salary they received was equal to half of the statutory minimum wage guaranteed to other employees. The Court however declared the case inadmissible as it could not be established that the applicants have had a “possession” within the meaning of the provision mentioned above. In fact, Constitutional Court of Poland established in 2010 the right for prisoners to be paid without discrimination because of their sentence. But, due to the fact that “the Constitutional Court […] provided that the unconstitutional provision of the domestic law would lose its binding force only twelve months after the official publication of the judgment” (§28), the applicants could not claim to have had a “legitimate expectation” which could give rise to an issue under Article 1 of Protocol No. 1 to the Convention for the prior period of March 2011. Because Article 14 of the Convention is not autonomous, and the facts of the cases do not fall within the ambit of Article 1 of Protocol No. 1, the Court considered that Article 14 cannot apply in the instant case.
The Court found a violation of Article 14 where the domestic courts refused to impose a non-custodial sentence on account that the applicant did not have a permanent address near the place where he had been tried and sentenced (Aleksandr Aleksandrov v. Russia, no. 14431/06).
The Court found a violation of Article 5§3 in the case of Gafà v. Malta (no. 54335/14), in which the applicant was kept in pre-trial detention as a result of his impossibility to pay the bail bond required by the domestic courts.