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August – December 2020. Round-up of the ECtHR case-law

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  Newsletter no. 2020/3 – Round-up of the ECtHR case-law (August – December 2020)




August – December 2020

Shuriyya Zeynalov v. Azerbaijan (no. 69460/12) – Death in custody of the applicant’s son after ill-treatment: violation of Article 3 (substantive) and Article 2 (substantive); failure to effectively investigate the case of ill-treatment despite the video recording of the injuries on the body of the applicant’s son before the funeral ceremonies and permanent obstacles to the realisation of procedural rights of the family members during the investigation process: violation of Article 3 and Article 3 (procedural).

Stoyan Krastev v. Bulgaria (application no. 1009/12) – Inability for a sentenced prisoner to obtain compensation for unlawful confinement in a disciplinary isolation cell: inapplicability of Art 5 § 5 as there has been no separate “deprivation of liberty” falling under Article 5 § 1. Application declared inadmissible (ill-founded).

I.S. v. Switzerland (application no. 60202/15) – Extension of the applicant’s preventive detention following his acquittal at first instance: violation of Article 5 § 1.

Bădulescu v. Portugal (no. 33729/18) – Poor conditions of detention for six and a half years, namely, prison overcrowding, aggravated by the lack of heating: violation of Article 3 (substantive); allegations of deficient dental treatment not substantiated by any evidence: inadmissible (manifestly ill-founded); the impossibility of phone calls to family members lasting more than five minutes: inadmissible (manifestly ill-founded).

Roth v. Germany (nos. 6780/18 and 30776/18) – The applicant was subjected to repeated, random strip searches prior to and after receiving visitors in prison: violation of Article 3 (substantive). The domestic courts refused to grant him compensation for the non-pecuniary damage he had suffered as a result of these searches: violation of Article 13 taken in conjunction with Article 3 of the Convention.

Mariş v. Romania (no. 58208/14) – Refusal to rectify the prison file automatically mentioning a religion other than that of the prisoner: application declared inadmissible (ill-founded).

Neagu v. Romania (no. 21969/15) and Saran v. Romania (no. 65993/16) – Prisoner required proving religious conversion during detention, through a document issued by faith representatives, to receive meals compatible with his new religion: violation.

Barbotin v. France (no. 25338/16) – Low amount of compensatory remedy for poor conditions of detention, additional costs borne by the applicant to pay for expertise of the cell where the applicant had been detained making him debtor to a State: violation of Article 13.

Bardali v. Switzerland (application no. 31623/17) – Lack of personal space for the applicant in the prison, which was less than 4 m2: no violation of Artilce 3.




10 September 2020

Shuriyya Zeynalov v. Azerbaijan (no. 69460/12)

Art 2 • Right to life of the applican’t son • Death in custody • Violation • Ineffective investigation of death

Art 3 • Ill-treatment of the applicant’s son • Ineffective investigation

Facts–The case concerned the applicant’s son’s death in detention, allegedly due to torture by agents of the Ministry of National Security (MNS) of the Nakhchivan Autonomous Republic (NAR). In August 2011 the applicant’s son, Turaj Zeynalov, born in 1980, was invited to the MNS of the NAR where he was questioned as a witness. After the questioning, he was placed under arrest by the Ministry of National Security and charged with high treason after being accused of collaboration with Iran’s intelligence services. After that, he was detained at the Pre-trial Detention Facility of the NAR, but on 28 August he was taken to the Ministry of National Security for questioning. However, he suddenly felt ill and was further provided with first aid, but his state of health continued to deteriorate and the ambulance took him to hospital. He died on his way to the hospital. His family was immediately informed of his death. Following the death, photographs and a video showing signs of ill-treatment on his body was given to the media by members of the family and the incident was widely covered. The family asked the authorities for documents relating to the investigation into the death, however, no such documents were provided. The authorities consistently stated that he had died of a pulmonary embolism and had not been mistreated. National courts refused the applications from the family to declare unlawful the authorities’ failure to provide documents on the investigation and to order them to hand over such information. In November 2012 the applicant appealed to the Supreme Court of the NAR over the decision of the administrative court in this case. No reply to this appeal was given. Additionally, the family members of the victim were accused two times of defaming the Ministry of National Security  by the chief investigator.

Law–The applicant complained under Articles 2 and 3 of the Convention that his son had been subjected to torture by agents of the MNS, that he died as a result and that the domestic authorities had failed to conduct an effective investigation in that regard.

Article 3 (substantive)

The Court has examined the allegations of the applicant as regards the ill-treatment of his son while he had been in custody between 24 and 28 August 2011. First, the applicant’s son did not have any bruises on his body when he was arrested, as the Government has not made any claims in this regard. The Court further assessed the fact that the applicant has presented a video-recording of his son’s body filmed before the funeral ceremonies showing serious injuries. As the authenticity of this video was never disputed by the Government, and taking into account the short time between the death and the video-recording of the body before the funeral, the Court has pointed to the degree of reliability of the forensic report. Another aspect referred to by the court was the fact that the applicant or other family members were refused information about the circumstances and causes of the death of their close relative and prevented from disputing the findings of the forensic expert. Such a refusal, the Court proceeded, could constitute a flagrant disregard by the authorities of their procedural obligations under Articles 2 and 3, which require accessibility and public scrutiny of an investigation as an element of its effectiveness. For purposes of the substantive limb of Article 3, the Court found particularly striking that instead of providing full information to the family regarding the circumstances of the death of their relative, the authorities repeatedly accused them of defamation, which could be understood as entailing a threat to open proceedings against them, in response to their attempts to exercise their procedural rights.

Having taken into account all the facts mentioned above, the Court has concluded that the Government have failed to discharge their burden of proof and concludes that the applicant’s son was subjected to ill-treatment in custody between 24 and 28 August 2011. Having taken into account that bruises were observed on the shoulders, elbows, knees and buttocks, and the context of the arrest and subsequent attempts to prevent an effective investigation, the Court has concluded that the ill-treatment complained of was sufficiently serious to attain a minimum level of severity falling within the scope of Article 3 and to be considered as inhuman and degrading treatment. Therefore, there has been violation of Article 3 (substantive limb) of the Convention.

Article 2 (substantive)

As regards the substantive aspect of Article 2, the impossibility to establish a clear causal link between the death of the applicant’s son and his ill-treatment in detention did not preclude the Court from finding that the respondent State’s responsibility should be engaged for the death. In the present case, the Government’s explanation concerning the cause of death of the applicant’s son is based on the forensic report no. 10 which could be accepted by the Court as reliable proof as it did not reflect the fact that the applicant’s son had injuries.

The Court has further paid attention to the behaviour of national authorities, namely, the denial of access to the relevant evidence, accusing of the family of a detainee of defamation for their legitimate request for an effective investigation, and the failure to take any action following the dissemination of the video-recording. As a result, the Court has found that the Government have not convincingly accounted for the circumstances of the death of the applicant’s son and that the respondent State’s responsibility for his death is engaged, therefore, there has been a violation of the substantive limb of Article 2 of the Convention.

Article 2 and Article 3 (procedural)

As regards the effectiveness of the investigation of alleged ill-treatment and death of the applicant’s son, the Court has first noted that a criminal inquiry was launched by the domestic authorities immediately after the death of the applicant’s son, however, criminal proceedings were refused to be instituted by the Prosecutor’s Office. The investigating authorities failed to take all reasonable steps available to them to secure evidence concerning the death of the applicant’s son. The disregard of video-recording of the body of the applicant’s son with bruises on various parts of his body has led to the absence of further investigation of the circumstances of the death. Moreover, the prosecuting authorities failed to inform the applicant of the progress and outcome of the investigation by failing to provide him with the copies of forensic report no. 10 and the investigator’s decision refusing to institute criminal proceedings until the Government submitted their observations to the Court. This situation deprived the applicant of the opportunity to safeguard his legitimate interests, and prevented any scrutiny of the investigation by the public. Additionally, the accusation of defamation made against the applicant and his lawyer by the chief investigator signified an attempt to prevent an effective investigation. The Court has concluded that the domestic authorities failed to carry out an effective investigation into the circumstances surrounding the death of the applicant’s son. Accordingly, it held that there have been violations of Articles 2 and 3 under their procedural limbs.

Conclusion: violation of Article 3 (substantive), violation of Article 2 (substantive), violation of Article 2 and 3 (procedural).

Article 41: EUR 35,000 in respect of non-pecuniary damage.


6 October 2020

Stoyan Krastev v. Bulgaria (application no. 1009/12)

Art 5 § 5 • Compensation • Inability for a sentenced prisoner to obtain compensation for unlawful confinement in an a disciplinary isolation cell • Applicability of Art 5 § 5 as regards the punishment cell depending on the existence of a separate “deprivation of liberty” within the prison under Article 5 § 1 • Case distinguishable from Court’s earlier cases concerning a significant change in the manner of implementation of detention • No modification of the legal grounds for the applicant’s deprivation of liberty • Isolation aimed at ensuring the safety of all detainees • Applicant’s claimed disturbance and distress not accepted • No major difference between both regime and conditions of detention in the prison • No further “deprivation of liberty” • Article 5 inapplicable

Facts – The case concerned a complaint, made under Article 5 § 5, about the applicant’s inability to obtain compensation for his unlawful detention in an isolation cell for fourteen dayswhile he was serving his prison term. In August 2009, while serving a three-year prison sentence under the “general prison regime”, Mr Krastev was involved in a brawl with another prisoner, amid a general rise in tensions in the prison.

To avoid further unrest and ensure the general security of detainees, the prison authorities ordered his transfer to another prison and placement in an isolation cell for 14 days. He challenged this disciplinary decision in court, which found in his favour because of breaches of the relevant legal provisions. However, his subsequent claims to obtain compensation were dismissed by the administrative courts, ultimately in a final decision of June 2011. They essentially found that there was no evidence to prove the applicant’s claims of profound disturbance and distress.

Law – Article 5 § 1

Applicability of Article 5 § 1:

For this case to fall under Article 5 § 5, it first had to fall under Article 5 § 1. The applicant submitted that his isolation in the punishment cell had represented a further deprivation of liberty in addition to the sentence of imprisonment which he had been serving at the time. The Government pointed out that the disciplinary punishment imposed on the applicant had not represented a new type of detention on a separate legal ground and consequently did not fall under Article 5 § 1. The Court has examined several aspects of the disciplinary isolation applied to the applicant, namely, the type of detention, its duration, the effects of such detention and the manner in which the applicant’s isolation was implemented.

As regards the type of detention at stake, the Court observes that it was a disciplinary measure imposed on the applicant within the confines of the prison to which he was transferred to continue serving his lawfully imposed three-year sentence. The order was made following the rise in tensions and a physical altercation in the prison, in which the applicant had been involved, and one of the order’s aims was to ensure the safety of all detainees.

As regards the duration of that detention, namely fourteen days, the Court reiterated that this element is not decisive on its own.

Concerning the effects which that detention had on the applicant, the Court observes that the profound disturbance and distress which he claimed he had suffered as a result were not accepted as established by the administrative courts which heard his related claims. The applicant had at the time been serving his prison sentence under the “general prison regime” and had been continually confined for a number of months to prison after being forbidden to work outside or otherwise to leave the prison.

As regards the manner in which the applicant’s isolation was implemented, the Court had observed that the conditions in the disciplinary cell in which he was kept in isolation for fourteen days were clearly harsher when compared with those applicable under the “general prison regime”. In fact, they were comparable to the conditions of detention applied under the “special prison regime” to life and whole-life prisoners in Bulgaria, which have been the subject of examination by the Court under Article 3 of the Convention. He was kept in the high-security prison wing with increased restrictions on his movement and other restrictions. Despite this, having taken all the relevant circumstances into account, the Court was not convinced that those differences disclosed anything more than a variation in the regime and conditions in which the applicant was kept while in prison.

Therefore, situations of confinement under conditions of isolation similar to those in the present case have been systematically examined by the Court under Article 3, and not under Article 5 of the Convention. The Court found that the applicant’s isolation did not amount to further deprivation of liberty within the meaning of Article 5 § 1 of the Convention. Therefore, Article 5 § 1 was not applicable to the present case, and there was no need to examine the application under Article 5 § 5.

Conclusion: inadmissible (manifestly ill-founded).


I.S. v. Switzerland (application no. 60202/15)

Art 5 § 1 • Lawful arrest or detention • Detention for security reasons after acquittal, in the event of its reversal on appeal, without sufficient justification • Detention not covered by the exceptions provided for in Art 5 § 1 b) and c) • No indication of an error in the administration of justice • Possibility of ordering new detention if there is a concrete risk of committing further offences • No “sufficiently concrete and determined” obligation for the purposes of Art 5 § 1 b)

Facts – After his partner had lodged a criminal complaint alleging multiple counts of rape and other offences, the applicant was placed in pre-trial detention from August to December 2014, and subsequently in preventive detention after the indictment had been filed by the public prosecutor.

In April 2015 the District Court acquitted him on all charges. However, on an application by the public prosecutor, who was intending to appeal, the Cantonal Court ordered the extension of the applicant’s preventive detention – as was permissible under domestic law where an acquittal had not become final – finding that there were serious suspicions and a danger of absconding. The Federal Supreme Court dismissed an appeal by the applicant against that order, on the grounds: (i) that the appeal had suspensive effect on the acquittal; (ii) that the circumstances of the case (one party’s word against the other’s) meant that it could not be considered highly likely that the acquittal would be upheld; (iii) that on the contrary, there was substantial evidence in the case file that could lead to the judgment being overturned; and (iv) that various factors substantiated a risk that the applicant might flee to his country of origin.

The applicant was released in late 2015 and was subsequently acquitted on appeal.

Law – Article 5 § 1:

For the following reasons, the Court concluded that the applicant’s preventive detention following his acquittal at first instance could not fall under any of the exceptions listed in paragraph 1 of Article 5.

(i) Applicability of Article 5 § 1 (c) – Admittedly, the wording of Article 5 § 1 (c) of the Convention did not contain any limitation on pre-trial detention at the first level of jurisdiction. However, the Court had had occasion to clarify that issue, including at Grand Chamber level: detention under Article 5 § 1 (c) of the Convention ended with the acquittal of the person concerned, even by a court of first instance.

That approach also applied in the present case. After examining the facts at issue by means of an adversarial procedure and then carrying out a detailed assessment of the evidence during the trial, the District Court had unanimously formed the view, on the basis of the proceedings as a whole, that the applicant could not be convicted of the criminal offences with which he had been charged in the indictment.

In the Court’s view, in such circumstances it was of little consequence that the judgment had only been delivered orally and was not yet final: following an acquittal, an order for detention under Article 5 § 1 (c) of the Convention lapsed.

The same applied, moreover, in the reverse situation (where a person was convicted at first instance and detained during the appeal proceedings): the period of detention at issue was no longer covered by Article 5 § 1 (c) but by Article 5 § 1 (a), as the person concerned was considered to be detained “after conviction by a competent court” once the judgment had been delivered at first instance, even where it was not yet enforceable and remained amenable to appeal (see, for example, Ruslan Yakovenko v. Ukraine, 5425/11, 4 June 2015, Information Note 186).

Regarding the possibility of acquittal “in error”, the Court noted that no such allegation had been levelled at the District Court, either expressly or in substance, at any stage of the domestic proceedings. On the contrary, there was no indication of any error in the administration of justice, especially as the acquittal, for which ample reasons had been given in a 44-page written judgment, had been unanimous.

Furthermore, to guarantee an individual’s appearance during the appeal proceedings, domestic law should provide for measures that were less invasive than deprivation of liberty. In the present case, for example, the confiscation of the applicant’s identity papers and other official documents would have constituted a sufficient alternative measure.

As to the need to counter the risk that further offences might be committed while the appeal proceedings were ongoing, it was self-evident that if there were specific reasons to fear such an eventuality, there would be nothing to prevent the criminal justice authorities from ordering further detention on the basis of the first limb of Article 5 § 1 (c) of the Convention.

The same was true as regards the second limb of Article 5 § 1 (c) – preventing the person from committing an offence – particularly where there was an imminent risk of the commission of a concrete and specific serious offence entailing danger to life and limb or significant material damage. Nevertheless, detention ordered as a preventive measure should cease as soon as the risk had passed, which required monitoring as the duration of the detention was also a relevant factor.

(ii) Applicability of Article 5 § 1 (b) – In the light of the Court’s case-law, the second limb of Article 5 § 1 (b) – detention to compel a person to fulfil a specific and concrete obligation already incumbent on him or her but which he or she had until then failed to satisfy – could likewise not justify preventive detention for a period of approximately 230 days following acquittal.

The Government had been mistaken in relying on Harkmann v. Estonia (2192/03, 11 July 2006, Information Note 88), since the applicant in that case had repeatedly disobeyed orders of the County Court requiring him to appear at his criminal trial; that specific aspect meant that reference to that case was irrelevant.

The Court could not be satisfied by the mere general concern that the applicant might have committed further offences during the appeal proceedings.

The obligation not to commit a criminal offence could only be considered sufficiently “specific and concrete” if the place and time of the imminent commission of the offence and its potential victims had been sufficiently specified, if the person concerned was aware of the specific act which he or she was to refrain from committing, and if the person refused to refrain from committing that act (S., V. and A. v. Denmark [GC], 35553/12 et al., 22 October 2018, Information Note 222).

In other words, the duty not to commit a criminal offence in the imminent future could not be considered sufficiently concrete and specific to fall under Article 5 § 1 (b), at least as long as no specific measures had been ordered which had not been complied with.

Conclusion: violation (unanimously).

Article 41: EUR 25,000 in respect of non-pecuniary damage.

© Council of Europe/European Court of Human Rights


20 October 2020

Bădulescu v. Portugal (no. 33729/18)

Art 3 • Degrading treatment • Conditions of detention for six and a half years • Prison overcrowding, aggravated by the lack of heating

Facts – The applicant, is a Romanian national who is currently imprisoned in Tulcea (Romania). Mr Bădulescu complains about the conditions of his detention in a Portuguese prison, specifically Oporto prison, where he was held between October 2012 and March 2019. He was sentenced to prison for nine years and six months having been convicted of theft in Portugal. On 19 October 2012 he was arrested and imprisoned in Oporto prison, then released on 6 March 2019. Mr Bădulescu complains that during this period he was held in overcrowded cells with limited personal space; that the cells were insalubrious, too cold in winter and too hot in summer; and that the toilets were not partitioned. He also complains about belated and inadequate dental care and the fact that telephone calls to his family could not exceed five minutes a day.

Law – Article 3 (substantive):

On the conditions of detention, namely, overcrowding

The Court has noted that throughout his incarceration at Oporto Prison, from 19 October 2012 to 6 March 2019, the applicant had less than 3 sq. m. of personal space, namely 2.8 sq. m. in cells for two persons and 2.1 sq. m. in collective cells, where up to six persons were held. Having regard to its case-law concerning the minimum personal space normally available to detainees, according to which detention in conditions where the detainee has less than three square metres of personal space gives rise to a strong presumption of a violation of Article 3, which can only be rebutted if a range of mitigating factors are present, among which is the brevity of the periods concerned.

The Court, having regard to the long duration (six and a half years) of the period at issue here, considers that the applicant has undergone an ordeal of an intensity which exceeds the inevitable level of suffering inherent in detention and which therefore amounts to degrading treatment, contrary to Article 3 of the Convention. Moreover, it considered that the lack of heating in the present case was an aggravating factor in view of the discomfort and even distress it may have caused the applicant throughout his detention at Oporto Prison.

Conclusion: violation of Article 3 (substantive) of the Convention.

On the provision of dental treatment

As regards the complaints of the applicant that he had received dental treatment only belatedly, which he also described as deficient, the applicant did not indicate the dates on which he allegedly requested to be seen by a dentist or received dental treatment, nor did he explain how the treatment he received would have been deficient. In the light of these findings, the Court considered that the applicant’s complaint concerning lack of access to dental care was not sufficiently substantiated and was dismissed as manifestly unfounded under Article 35 §§ 3 (a) and 4 of the Convention.

Conclusion: inadmissible (manifestly ill-founded).

Article 8

Although the applicant has complained of the impossibility to make telephone calls to his family for more than five minutes a day under Article 3, the Court considered that the complaint should be examined under Article 8 of the Convention, which guarantees the right to respect for family life.

It first pointed out that any detention, like any other measure involving deprivation of liberty, by its very nature entails restrictions on the applicant’s private and family life. However, there is a need to respect for family life of the prisoners and the prison administration should allow the prisoner to maintain contact with his close family and assist him if necessary.

Assuming that the limitation on the number of telephone calls to which the applicant was entitled could be regarded as a restriction amounting to an interference with the exercise of the right to respect for family life or correspondence, the Court considered that it may be justified in the light of the second paragraph of Article 8. The Court has pointed out that, having regard to the need to ensure that every prisoner has access to a telephone, the limitation of the time of daily telephone calls is not a disproportionate measure. Moreover, the Court highlighted that the applicant did not indicate that he had been prevented from communicating with his family by other means. Having taken all the abovementioned aspects, the Court has declared this part of the complaint as manifestly ill-founded.

Conclusion: inadmissible (manifestly ill-founded).

Article 41: EUR 14,000 in respect of non-pecuniary damage.


22 October 2020

Roth v. Germany (nos. 6780/18 and 30776/18)

Art 3 (substantive) • Art 13 (+ Art 3) • Degrading treatment • Lack of effective remedy • No legitimate purpose for repeated, random strip searches of prisoner receiving visitors and refusal to grant compensation for non-pecuniary damage • No connection with preservation of prison security or prevention of crime • Excessive humiliation • Liability proceedings lacking prospect of success despite unlawful conduct and potential fault of authorities

Facts – The applicant was subjected to repeated, random strip searches prior to and after receiving visitors in prison. The domestic courts refused to grant him compensation for the non-pecuniary damage he had suffered as a result of these searches.

Law – Article 3:

The strip searches of the applicant, which had included an inspection of the anus and thus also entailed embarrassing positions, had been intrusive. The repeated searches had been random searches, which had been ordered against one in five prisoners at the relevant time without any possibility to dispense with a search in a particular case. On all occasions on which the applicant had been searched, he had expected visits from, or had met public officials, including clerks of the district court registry. There had been no concrete security concerns relating to the applicant. However, the manner in which the system of random strip searches had been applied had not permitted to take into account the applicant’s conduct when determining whether or not a search should be carried out.

In these circumstances, the searches had not had an established connection with the preservation of prison security or the prevention of crime.

The manner in which the repeated searches had been carried out had not entailed any other elements unnecessarily debasing or humiliating the applicant. However, owing to the absence of a legitimate purpose for these repeated and generalised searches, the feeling of arbitrariness and the feelings of inferiority and anxiety often associated with them, as well as the feeling of a serious affront to dignity indisputably prompted by the obligation to undress in front of another person and submit to inspection of the anus, had resulted in a degree of humiliation exceeding the, unavoidable and hence tolerable, level that strip-searches of prisoners inevitably involve. The searches had thus gone beyond the inevitable element of suffering or humiliation connected with a given form of legitimate treatment. They had therefore diminished the applicant’s human dignity and had amounted to degrading treatment.

Conclusion: violation (unanimously).

Article 13 (in conjunction with Article 3):

In the domestic court’s view, sufficient compensation for the interference with the applicant’s personality rights had been granted by means other than monetary compensation. Despite the fact that the domestic courts had themselves classified the strip searches as a serious and unlawful interference with the applicant’s personality rights, they had considered it sufficient that the courts dealing with the execution of sentences and the Federal Constitutional Court had previously found the applicant’s (or comparable) strip searches to have been unlawful. They had further taken into consideration that the fault on the part of the prison staff who had ordered and carried out the searches had at most been minor and that there was, in the courts’ view, no risk of future random searches of the applicant.

The Court had previously found that in respect of arguable claims of a breach of Article 3 notably by ill-treatment or poor conditions of detention, there was a strong presumption that they had caused non-pecuniary damage to the aggrieved person. Making the award of compensation for measures in breach of Article 3 conditional on the claimant’s ability to prove fault on the part of the authorities and the unlawfulness of their actions may as such render existing remedies ineffective. The applicant’s official liability proceedings had been found to have no prospects of success despite the fact that the measures against him had been classified as unlawful and despite the fact that there had, at least potentially, been fault on the part of the authorities.

Moreover, it could not be concluded that the breach of Article 3 was of such a minor nature that compensation would have exceptionally been unnecessary. It could not be derived from the Court’s case-law that the fact that the national authorities had not been aware of having violated the Convention, or that the applicant would probably not be subjected again to such treatment in breach of his fundamental rights, constituted decisive grounds for not awarding compensation in respect of the non-pecuniary damage suffered as a result of a breach of a Convention right.

There had therefore been no effective remedy before a national authority to deal with the substance of the applicant’s complaint under Article 3.

Conclusion: violation (unanimously).

Article 41: EUR 12,000 in respect of non-pecuniary damage.

© Council of Europe/European Court of Human Rights


Mariş v. Romania (no. 58208/14)

Art 9 • Manifesting one’s religion or belief • Refusal to rectify the prison file automatically mentioning a religion other than that of the prisoner • Application inadmissible

Facts– The applicant, who was Jewish, realised that he had been wrongly listed as an Orthodox Christian in the registers of the prison in which he was incarcerated. He unsuccessfully requested that the reference to his religion be corrected.

Law – Article 9:

Unlike the cases previously examined by the Court under Article 9 in the context of deprivation of liberty, the applicant had specified that he wished to obtain only the rectification of his prison record.

The applicant’s complaint was of a rather abstract and theoretical nature. Thus, although he had been imprisoned in 2002, he had not submitted a request for his file to be rectified until 2013. Even accepting his allegations that he had been automatically registered as an Orthodox Christian and that he had not been consulted at any time as to his religious affiliation, the mention in his file had had no effect on the applicant’s opportunities to manifest or practise his religion during that period. Moreover, the applicant had not informed the Court that the prison authorities had refused to accede to any requests he might have made concerning the requirements imposed on him by his religion, such as meeting a religious representative, attending religious services or being served meals in accordance with the precepts of his religion. He also did not allege that the prison administration prohibited him from performing acts motivated by his religion or that he was subjected to pressure, intimidation or punishment because of his religious affiliation. Finally, the recording made in his file was not intended for public consultation or for use in daily life, but was accessible only to the prison administration. Moreover, the applicant did not renew his request to have his file rectified after his transfer to another prison.

Therefore, the refusal to amend the reference to religious affiliation in the file compiled by the prison did not reveal any appearance of a violation of the applicant’s right to respect for his religion.

Conclusion: inadmissible (manifestly ill-founded).

© Council of Europe/European Court of Human Rights


10 November

Neagu v. Romania (no. 21969/15) and Saran v. Romania (no. 65993/16)

Neagu v. Romania:

Art 9 • Positive obligations • Prisoner having to prove, by a document from the new cult, his religious conversion during detention to receive meals in accordance with his cult • Strict requirement exceeding the level of justification that may be required for an authentic belief • Default of national courts for detailed examination of the facts and the real possibility of obtaining evidence given the restrictions as a prisoner • Duty of neutrality of national authorities not to prevent an examination of the factual elements characterizing the manifestation of a religion • Lack of fair balance between the interests of the prison establishment, other prisoners and the detainee concerned • Prison system that can accommodate a specific meal request

Saran v. Romania:

Art 9 • Positive obligations • Prisoner having to prove, by a document from the new cult, his religious conversion during detention to receive meals in accordance with his cult • Authorities having to organize and coordinate themselves to ensure adequate circulation and sharing of information in the presence of contradictory data • Lack of fair balance between the interests of the penitentiary establishment, other prisoners and the detainee concerned • Prison system that can accommodate a specific meal request • Delay in examining the appeal on this matter

Facts – In the case of Neagu the applicant, when he was remanded in custody in 2009, stated that he was an Orthodox Christian. In 2012, while in prison, he informed the prison management that he had converted to Islam and requested pork-free meals. His request was refused. The applicant was subsequently transferred to a different prison where he reiterated his request several times. All his requests were refused on the grounds that he had not produced any document issued by faith representatives proving that he had converted. His appeals were all dismissed. The same situation occurred in 2016 when he requested meals compatible with the Adventist faith in a different prison.

In the case of Saran the applicant served his prison sentence in several different prisons. He stated that he had told the authorities that he was a Muslim when he was imprisoned in April 2016. According to the Government, he had declared himself to be an Orthodox Christian. The applicant did not receive meals compatible with his Muslim beliefs in one of the prisons where he was detained.

Law – Article 9:

The Court had recently specified, in the context of exemption from military service, that where an individual requested a special exemption on account of his or her religious beliefs or convictions, it was not excessive or in fundamental conflict with freedom of conscience to require some level of substantiation of genuine belief and, if that substantiation was not forthcoming, to reach a negative conclusion (see Dyagilev v. Russia, 49972/16, 10 March 2020, Information Note 238).

The relevant regulations had introduced a distinction between the initial declaration of religion, which the prisoner could make freely and without particular formalities when he or she was admitted to prison, and a change of religion in the course of detention, which the prisoner had to prove by means of a document issued by representatives of his or her new faith. In the Court’s view, such regulations, entailing a strict requirement to provide documentary proof of adhering to a specific faith, went beyond the level of substantiation of genuine belief that could be required. This was especially true in situations where, as in the present case, prisoners were initially free to declare their religion without furnishing any proof.

In the case of Neagu, both the judge reviewing the detention and the first-instance court had dismissed the applicant’s appeal without examining the factual background to his request, on the grounds that he had not furnished the written proof required by the regulations. Likewise, they had not ascertained whether the applicant had a genuine opportunity to obtain written proof or some other confirmation that he was a follower of the faith in question, particularly bearing in mind the restrictions to which he was subject as a prisoner.

Save in very exceptional cases, the right to freedom of religion was incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs were expressed. In view of the importance of ensuring that a religious conversion was serious and sincere, the national authorities’ duty of neutrality did not preclude examination of the factual aspects of the manifestation of a person’s religion. However, it did not appear from the decisions given in the present case that the national courts had sought to establish how the applicant manifested or intended to manifest his new religion.

According to the Government, the obligations arising out of the order in question were designed to prevent an abuse of rights and to protect religions. Nevertheless, the domestic courts which had examined the applicant’s request to receive meals compatible with the precepts of the Adventist faith, following his second change of religion, had not deemed the request to amount to an abuse on his part.

In the case of Saran, the first-instance court had dismissed the applicant’s appeal on the grounds that he had declared at the time of his admission to prison that he was an Orthodox Christian and had not subsequently proved that he was an adherent of Islam. However, those findings of fact did not tally with the ethical and spiritual assistance form that had been filled out when the applicant had been transferred to the prison in question, which stated that he was a Muslim. Moreover, the applicant had received meals compatible with the precepts of Islam in the first prison where he had been held, and the educational and psychosocial support records of two other prisons had also stated that he was a Muslim. There was no indication that the court had attempted to check the factual data recorded by the prison management regarding the applicant’s religious affiliation. Furthermore, the Government had not explained the discrepancies as to the applicant’s religious affiliation between the various documents issued by the national authorities. However, the authorities had a duty to make the necessary arrangements and to coordinate with each other so as to ensure that information was circulated and shared properly.

Bearing in mind the relevant provisions, the national authorities had upset the fair balance that had to be struck between the interests of the prison, those of the other prisoners and the individual interests of the prisoner concerned. In that regard the Court was not persuaded, in the case of Neagu, that the applicant’s requests to be provided with meals compatible with his religion would have caused problems in managing the prison or had a negative impact on the diet offered to other prisoners. In Saran the Court also noted that the applicant had received meals compatible with his religion in three prisons, which suggested that the Romanian prison system was capable of accommodating such requests.

As to the length of the proceedings concerning the meals served in the prison in question, the first‑instance judgment in the case of Saran had been delivered in March 2017, whereas the applicant had been transferred to a different prison in December 2016. The Government had not offered any explanation for the delay in those proceedings.

In the light of the foregoing and notwithstanding the margin of appreciation left to the respondent State in the matter, the national authorities had not complied to a reasonable degree with their positive obligations under Article 9.

Conclusion: violation (by five votes to two in Neagu; unanimously in Saran).

Article 41: EUR 5,000 to each applicant for non-pecuniary damage; claim for pecuniary damage dismissed in the case of Saran.

© Council of Europe/European Court of Human Rights

19 November 2020 

Barbotin v. France (no. 25338/16)

Art 13 + 3 • Ineffective compensatory remedy, given the low amount allocated for unworthy conditions of detention and the charge of the detainee for expert fees, making him debtor to the State • Effective recourse in principle with regard to the scope of judicial control exercised by the domestic courts and the right to compensation for conditions that are undeserving of detention • Extremely modest amount of compensation representing only a small percentage of that which may be granted by the Court, and lower than that granted by the Council of State since December 2018 • Charging the applicant for expert fees placing an excessive burden on him when his action is founded

Facts –The applicant has received compensation from the domestic courts for the non-pecuniary damage suffered as a result of the unworthy conditions of his detention for four months in a remand center. However, the applicant complains of the ineffectiveness of the compensation remedy he initiated, given the inadequacy of the compensation obtained resulting from the low amount awarded (500 euros) and the charging of the expert’s costs (773 euros) hired to see the state of the cells he occupied.

Law – Article 13 combined with Article 3:

a) Admissibility: Having regard to the recognition by the domestic judge of the unworthy nature of the conditions of detention undergone by the applicant in his cell, the latter raised an arguable complaint under Article 13, which is therefore found admissible.

b) Merits: As a preliminary point, the Court reiterates that the action for damages brought by the applicant before the administrative courts is an available and adequate remedy for compensation, with reasonable prospects of success, for applicants who have suffered conditions of unworthy detention. Thus, in principle, it requires the applicants, once released or transferred to another cell, that they make use of this compensatory remedy in order to satisfy the rule of exhaustion of domestic remedies provided for in Article 35 § 1 of the Convention.

In the present case and in the first place, the administrative court and then the Council of State ruled, according to the standards of the Court in terms of conditions of detention, cumulatively taking into account the state of overcrowding of the remand center and problems arising from the poor general condition of the applicant’s cell, and they engaged the responsibility of the State when there was an objective breach of the obligations of the prison administration which derive from compliance with Article 3. In second, the judgment of the administrative court, the operative part of which awards the applicant a compensation for non-pecuniary damage resulting from the violation of Article 3, confirmed by the Council of State, was implemented and the applicant was effectively compensated. Thus, the general scheme of the compensation remedy opened before the administrative judge responds, by offering the prospect of adequate compensation for the damage suffered both with regard to the assessment of compensation and the actual payment of the sums awarded, to the requirements of Article 13.

Having regard to all of the foregoing, and taking into account the scope of the judicial control exercised by the administrative courts respectively over the facts of the case, the merits of the “arguable complaint” under the Convention as well as the right to compensation for unworthy conditions of detention, the applicant benefited from an appropriate remedy enabling him to obtain an enforceable decision awarding him compensation for the damage suffered. The compensation remedy opened before the administrative judge is therefore, in principle, effective.

As to the effectiveness of this remedy in the present case, it must be assessed taking into account the net amount of the sums awarded by the domestic courts. It is therefore necessary to subtract from the sum of EUR 500 awarded to the applicant for non-pecuniary damage that of EUR 773 charged to him for costs. The applicant therefore found himself, even though the State was liable for compensation for the non-pecuniary damage of which he had been found to be a victim, debtor of the State in the amount of EUR 273.

As regards, on the one hand, the compensation awarded to the applicant, given the nature of his cassation review, the Council of State did not question its amount which, despite its weakness, did not depart sufficiently from the compensation standards then in force before the administrative court. The Court noted the extreme low level of this sum, which is lower than that which would be granted today under the progressive scale enshrined in the decision of the Council of State of 3 December 2018, and which only represents a very small percentage of that which it could have granted in similar circumstances. As regards, on the other hand, the charging of the applicant for the costs of expertise, the rules on procedural costs must not place an excessive burden on the detainee whose action is founded while that was the case here. In this regard, after its decision in the present case, the Council of State ruled that it follows from the law that, when the losing party benefits from full legal aid, which was the case for the applicant, and except in the event that the judge decides to make use of the option, in the presence of special circumstances, to charge the costs of another party, the costs of the expertise are borne by the State.

In the particular circumstances of the case, the result of the action brought by the applicant which placed him in a situation, taking into account both the low amount of the compensation awarded and the burden of expert’s fees, owing the State a sum of EUR 273 after the existence of non-pecuniary damage suffered as a result of unworthy conditions of detention deprived the remedy he exercised of its effectiveness. However, the Court does not lose sight of the fact that the development of the case-law of the administrative judge on the compensatory remedy is part of a set of reforms that the respondent State must put in place to deal with the problem of prison overcrowding and to resolve many individual cases arising from this problem, thus giving effect to the principle of subsidiarity which is the basis of the Convention system.

Conclusion: violation (unanimously).

Article 41: EUR 2,000 in respect of non-pecuniary damage.

© Council of Europe/European Court of Human Rights

24 November 2020

Bardali v. Switzerland (application no. 31623/17)

Art 3 (material) • Degrading treatment • Adequate conditions of detention of an inmate in prison despite overcrowding • Personal space greater than 3 m2 but less than the standard of 4 m2 set out by the CPT • Good state of hygiene and ventilation, water and food supplies, heat and light • Daily walks in the open air and other activities outside the cell • Appropriate medical care • Detainee not in distress or hardship of an intensity exceeding the inevitable level of suffering inherent in detention

Facts – The applicant was sentenced to 36 months’ imprisonment.He went on hunger and thirst strike in protest against his conviction, and  tried to commit suicide. He was taken to Geneva Hospital for emergency treatment and then transferred to the prison psychiatric unit near Champ-Dollon Prison, where he was subsequently returned.

He complained before domestic courts, among other things, about the overcrowding in the Champ-Dollon Prison. He stated that since he was sharing a cell measuring about 10 m2 with two other detainees, he was unable to move around in the cell, given that the 3.39 m² of individual space available to him also contained furniture. The court acknowledged those conditions of detention, but ruled that they were not incompatible with human dignity. Although it noted that the applicant had indeed been detained for 98 consecutive days (which slightly exceeded a three-months deadline set in the domestic law) in an individual cell occupied by three detainees, leaving him with 3.39 m² of personal space, the Court considered that in the present case those conditions had been acceptable.

Law – Article 3

The Court observed that the applicant had had personal space of over 3 m² but under the standard 4 m² established by the CPT in its recommendations. The Court noted, however, that outside the periods in issue, namely, 98 days, that is to say for most of the duration of his detention in Champ-Dollon Prison, the applicant had benefited from more than 4 m² of personal space.

The Court accordingly had to consider the other material aspects of the applicant’s conditions of detention in order to determine whether that lack of space had been compounded by other shortcomings. First of all, the Court observed that the sanitary facilities in the cell had been housed in a separate cubicle and that the applicant had had free and private access to those facilities. The cell had also had a large window and ample daylight. There had been a sufficient supply of fresh air via the ventilation system and mechanical air extraction, as well as a fan in order to reduce heat in summer. The applicant therefore had unhampered access to air and daylight, as well as drinking water. Therefore, Court accepted that the applicant’s material conditions of detention, and in particular the conditions in terms of sanitation and ventilation, water and food supplies, heating and light, had all been suitable.

The Court has also noted that the applicant had not presented any detailed and coherent list of his grievances. He had not mentioned the dates or exact circumstances of the restrictions of which he was complaining, and there was nothing in the case file to suggest that there had been any deterioration in his physical state or any risk to his health. It aslo transpired from the documents on file that the applicant had benefited from one hour’s daily exercise in the open air, and, for a certain period, from one hour’s sport per week in a gym. The applicant had also worked in the kitchen workshop for a certain period, which had kept him busy for several hours every day. He was also allowed out of his cell for visits and for Friday prayers every two weeks.

As regards the other aspects mentioned by the applicant in his observations – that is, the absence of social or leisure activities, the high temperature and patches of mould in the cell, as well as poor ventilation, the fact that he had been unable to have a shower every day and the restrictions on visits and phone calls – the Court noted that those complaints had not been validly submitted to the domestic courts and therefore could not be taken into consideration by the Court.

As regards the hunger strike which the applicant had performed, there was nothing to suggest that the applicant had not been given appropriate medical care, or psychiatric treatment on his discharge from hospital.

Therefore, the Court concluded that the conditions of detention in the prison had not subjected the applicant to distress or to an ordeal of an intensity exceeding the unavoidable level of suffering inherent in detention.

Conclusion: no violation (unanimously)