This compilation gathers the most important judgments and decisions on prison issues handed down by the European Court of Human Rights and the Court of Justice of the European Union. By reporting on the main trends in European prison case law, it aims to support legal practitioners in the prison field in their research and litigation, as well as to identify blind spots in European case law to build strategic litigation avenues.
EUROPEAN COURT OF HUMAN RIGHTS
MIRANDA MAGRO v. PORTUGAL ■ Application no. 30138/21
Preventive detention of a mentally ill person, exempted from criminal responsibility, at a prison hospital’s psychiatric unit, in inadequate conditions and without appropriate assistance and care: violation of Article 3.
Preventive detention of a mentally ill person, exempted from criminal responsibility, at a prison hospital’s psychiatric unit, in inadequate conditions and without appropriate assistance and care: violation of Article 5 § 1 (e).
Article 46: Respondent State to take general measures to address structural problems in the context of enforcing preventive detention measures in prison facilities
D v. LATVIA ■ Application no. 76680/17
Segregation, restricted access to basic prison resources and denial of human contact of a prisoner by fellow inmates due to subordinate position in informal prisoner hierarchy; lack of comprehensive State action: violation of Article 3.
Article 46: Respondent State required to take general measures addressing the systemic issue of informal prison hierarchies.
KAYUMOVY AND OTHERS v. RUSSIA ■ Application no. 56727/18 and 8 others
Restrictions on family visits in pre‑trial detention facilities: violation of Article 8
LIBRI v. ITALY ■ Application no. 45097/20
Prisoner’s continued detention in spite of several serious health problems (osteoporosis with multiple vertebral collapses and fibromyalgia resulting in limited mobility in the lower limbs): no violation of Article 3.
Inadequate medical treatment: violation of Article 3.
AL-HAWSAWI v. LITHUANIA ■ Application no. 6383/17
Inhuman treatment during the applicant’s extraordinary rendition to CIA: violation of Article 3
Detention during an operation involving extraordinary rendition to CIA: violation of Article 5 § 1
Extraordinary rendition to CIA despite real and foreseeable risk of flagrantly unfair trial before the US military commission: violation of Article 6 § 1
Extraordinary rendition to CIA of suspected terrorist facing capital charges: violation of Article 1 of Protocol no. 6
MILJAK v. CROATIA ■ Application no. 15681/18
Ill-treatment of a prisoner by prison officers and lack of an effective investigation into the incident: violation of Article 3 (procedural and substantive limbs).
FERNANDES v. PORTUGAL ■ Applications nos. 33023/17 and 56476/17
Unjustified continuous detention in high-security regime; detrimental effect of the associated restrictions on the applicant’s resocialisation; restricted contacts with the outside world and prolonged isolation; humiliating intrusive strip-search practices: violation of Article 3
URSEI v. ROMANIA ■ Application no. 9233/21
Prisoner unable to vote in the legislative elections because he was serving a sentence in a prison situated outside the electoral constituency of his place of residence: Violaton of Article 3 of Protocol No. 1
RADCHENKO AND ABRAMOV v. UKRAINE ■ Application nos. 5312/20 and 22627/20
Inadequate medical treatment provided to applicants with serious medical conditions (among others: cardiomyopathy, chronic hepatitis, chronic pancreatitis, hypertensive crisis, diabetes): violation of Article 3
Lack of effective remedy in this respect: violation of Article 13
EUROPEAN COURT OF HUMAN RIGHTS
MIRANDA MAGRO v. PORTUGAL ■ Application no. 30138/21 ■ Fourth Section ■ 9 January 2024
Art 3 (substantive) ■ Inhuman treatment ■ Degrading treatment
Art 5 § 1 (e) ■ Persons of unsound mind ■ Preventive detention of a mentally ill person, exempted from criminal responsibility, at a prison hospital’s psychiatric unit, in inadequate conditions and without appropriate assistance and care, pending placement in an appropriate mental health facility ■ Unlawful detention in violation of Art 5 § 1 (e) requirements
Art 46 ■ Execution of judgment ■ Respondent State required to take general measures to address structural nature of issues arising in context of the enforcement of preventive detention measures in prison facilities ■ Necessary steps to be taken as a matter of urgency to secure appropriate living conditions and the provision of suitable and individualised forms of therapy to mentally ill persons to support their possible return and integration into the communit
Facts ■ The applicant was sentenced to preventive detention after he was declared not criminally responsible, owing to his mental disorder (paranoid schizophrenia), for criminal offences he was convicted of. He was detained in the psychiatric unit of the Caxias Prison Hospital from 14 April 2021 until his transfer on 18 October 2021 to a mental health facility. The applicant complained of his detention in that prison hospital, the conditions and lack of adequate medical care.
Law ■ Article 3
The Court drew on report findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), the National Preventive Mechanism (NPM) and other relevant United Nations human rights monitoring bodies, which had identified mental health-related issues as one of the main challenges facing the prison system in Portugal. Those reports shed light on several general problems associated with detention conditions and healthcare provision in prisons for detainees with mental illnesses, who in principle should be placed in suitable facilities for psychiatric treatment but were not because of a lack of spaces, as in the applicant’s case. With particular reference to the situation in the Caxias Prison Hospital’s psychiatric unit, the NPM had pointed out the inadequacy of the accommodation, the lack of staff and of clinical adequacy. Similarly, according to the CPT, overcrowding continued to be a serious problem that negatively affected the living conditions, staff-inmate relations and the maintenance of good order in that prison hospital and patients in that situation lacked an adequate therapeutic environment. Those findings and conclusions called into question the suitability of that facility for the detention of seriously mentally ill patients and, in the applicant’s particular case, as to the appropriateness of the medical treatment he had received there.
Furthermore, the Court noted the concerns expressed by the Portuguese General Directorate for Reintegration and Prison Services in its 2021 annual report that although the Caxias Prison Hospital’s psychiatric unit had been intended for the temporary detention of regular inmates with mental health problems, owing to the shortage of spaces in the regular mental health institutions it had been housing on a permanent basis mentally ill persons subject to preventive detention who had been in need of psychiatric treatment. That situation was noted by the NPM as creating great difficulties for the prison system, making it difficult to respond appropriately to the psychiatric and therapeutic needs of people with psychiatric disorders who were imposed a preventive detention. In that connection, the Government had not provided any evidence that the applicant had received individualised, continuous and specialised care and follow-up treatment, and that appropriate therapy and medication had been prescribed and provided to him. They had failed to demonstrate that he had received the therapeutic treatment required by his condition, as it had not been shown that the administration of drugs with long-lasting effects had been complemented by the implementation of a comprehensive treatment strategy. The Court therefore accepted the applicant’s account of the conditions of his detention. The very nature of the applicant’s psychological condition had rendered him more vulnerable than the average detainee and his detention in the conditions described above might have exacerbated to a certain extent his feelings of distress, anguish and fear. The authorities’ failure to provide the applicant with appropriate assistance and care had unnecessarily exposed him to a risk to his health and must have resulted in stress and anxiety.
Conclusion ■ Violation of Article 3
Law ■ Article 5 § 1
The applicant’s detention had been a measure decided in accordance with a procedure prescribed by law based on his mental disorder and the danger he had posed to himself and others and was therefore covered by Article 5 § 1 (e). The Caxias Prison Hospital was primarily aimed at serving the ordinary prison community suffering from mental illness and was not part of the health system. The mere fact that the applicant had not been placed in an appropriate facility did not, per se, render his detention unlawful. However, keeping detainees with mental illnesses in the psychiatric ward of ordinary prisons pending their placement in a proper mental health establishment, without the provision of sufficient and appropriate care was not compatible with the protection ensured by the Convention for such individuals. In view of its findings under Article 3 the Court was not convinced that the applicant had been offered appropriate treatment or that the therapeutic environment he had been placed in had been suitable for his condition. In that connection, it reiterated that the level of care provided must go beyond basic care. Mere access to health professionals, consultations and the provision of medication could not suffice for treatment to be considered appropriate and thus satisfactory under Article 5. Furthermore, the Court noted the absence of evidence of a therapeutic plan for the applicant and, having regard to his state of health and special vulnerability, the impact his detention had had on him, namely in aggravating his state of confusion and fear owing to the restrictive and anti‑therapeutic environment that detention in a prison facility entailed. Accordingly, the applicant’s deprivation of liberty in that facility had not been lawful.
Conclusion ■ Violation of Article 5 § 1
Article 46 ■ The infringements found in the present case were not attributable solely to the applicant’s personal circumstances but were the result of a structural problem which fully justified the imposition of general measures under Article 46. Although the positive steps recently taken in national legislation to favour the placement of persons with mental disorders in mental health facilities in the wider health system were a good starting-point, the enactment of legislation would not in itself solve the problems; effective measures were needed to implement and enforce the provisions thus introduced. To that end, the Court encouraged the Government to take an approach in keeping with the spirit of the protection system set up by the Convention. Necessary steps had to be taken as a matter of urgency in order to secure appropriate living conditions and the provision of suitable and individualised forms of therapy to mentally ill persons who needed special care owing to their state of health in order to support their possible return and integration into the community. The respondent State subject to supervision by the Committee of Ministers, remained free to choose the means by which it would discharge its legal obligation under Article 46.
Article 41 ■ EUR 34,000 in respect of non-pecuniary damage.
(See also Sławomir Musiał v. Poland, 28300/06, 20 January 2009, Legal Summary; Rooman v. Belgium [GC], 18052/11, 31 January 2019, Legal Summary)
© Council of Europe/European Court of Human Rights
D v. LATVIA ■ Application no. 76680/17 ■ Fifth Section ■ 11 January 2024
Art 3 (substantive) ■ Inhuman and degrading treatment ■ Positive obligations ■ Segregation, restricted access to basic prison resources and denial of human contact of a prisoner by fellow inmates due to subordinate position in informal prisoner hierarchy ■ Lack of effective mechanisms to improve applicant’s individual situation or deal with issue in a comprehensive manner
Art 46 ■ Execution of judgment ■ Respondent State to take general measures addressing the systemic issue of informal prison hierarchies ■ Domestic courts required to take due account of Convention standards as applied in the present judgment
Facts ■ Between 2008 and 2017 the applicant served a sentence of imprisonment in different prisons. He complained that he was subjected to inhuman and degrading treatment due to his subordinate position at the lowest level of an informal prisoner hierarchy. His complaints were dismissed by the Prison Administration and the domestic courts.
Law ■ Article 3
(a) Establishment of the facts
In the recent case of S.P. and Others v. Russia, the Court had noted the inherent complexities involved in scrutinising informal prisoner hierarchies. Those complexities arose from entrenched patterns of behaviour that included abuse and ritualistic and symbolically degrading treatment meted out to prisoners in the lowest category, namely “outcast” prisoners, by their fellow inmates. In that case, owing to the respondent State’s failure to engage with the proceedings, the Court had relied extensively on third-party materials – ranging from prison monitoring reports to academic research into prison conditions and inmates’ behaviour – to corroborate the applicants’ accounts of events.
In contrast, in the present case the main facts were not in dispute between the parties. The Court established them as follows.
First, an informal prisoner hierarchy, also known as a caste system, had existed in the Latvian prisons during the time the applicant had been detained. Its existence had been documented in at least two prisons where he had been held, in the Ombudsman’s annual reports, the report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) on its visit to Latvian prisons in 2016, research by independent journalists, and domestic judgments.
Second, the applicant had belonged to the lowest caste of prisoners within that hierarchy, the “kreisie”, which faced a range of restrictions regarding their use of communal facilities, access to services, and interaction with the other prisoners.
Third, the applicant had not been subjected to any actual violence or threat of violence, by prison staff or other prisoners.
(b) Whether the applicant was subjected to a treatment prohibited by Article 3
When addressing the issue of an informal hierarchy among prisoners in S.P. and Others, the Court had made significant findings regarding the threshold of severity triggering the application of Article 3. While not all applicants in that case categorised as “outcast” prisoners had experienced physical violence, they had nonetheless lived under a constant threat of such violence. The resulting mental anguish and fear of ill-treatment had been considered to undermine their human dignity and instil a sense of inferiority in them, thereby constituting a form of degrading treatment in violation of Article 3. The restrictions that they had endured had served as additional evidence of degrading treatment.
In the present case, the applicant’s account bore relevant similarity to the above case, specifically as regards the physical and symbolic separation faced by prisoners in the “kreisie” category. Prisoners in that lowest group faced many arbitrary restrictions on using shared resources: they had separate benches, toilets, and dining areas and were not allowed to queue with other prisoners for the shop or medical care; they were banned from joining in sports or using common showers, their beds were less comfortable and located towards the periphery of shared spaces, they were tasked with performing menial jobs, such as cleaning and doing laundry for the other inmates. Such physical and symbolic separation had the effect of sending a potent message of inferiority, thereby undermining the human dignity of prisoners in the applicant’s situation. It thus constituted degrading treatment within the meaning of Article 3.
That conclusion was not undermined by the fact that the applicant had chosen to comply with the demands and limitations set by the informal hierarchy, rather than opposing or challenging them. The applicant’s emphasis on his own resilience, rather than on the tangible effects of the hierarchical norms imposed, provided the Court with insight into the coping mechanisms that prisoners in his situation might employ. While such mechanisms could potentially mask the full extent of emotional distress, it was imperative to recognise that the lack of overt confrontation and violent incidents did not lessen the reality of the underlying suffering. Life in such a hostile environment often resulted in a continuous accumulation of stress, particularly for individuals subjected to inequity, and not solely from immediate or chronic threats. The mere anticipation of such threats could also cause enduring mental harm and anxiety of an intensity exceeding the level of stress caused by detention under normal conditions.
The Court thus found that the applicant’s physical and social segregation, coupled with restricted access to basic prison resources and denial of human contact, had led him to endure mental anxiety that must have exceeded the unavoidable level of suffering inherent in detention, even though he had not been subjected to physical violence. That situation which he had endured for years on account of his position in the lowest caste of prisoners in an informal hierarchy had amounted to a treatment prohibited under Article 3.
(c) State’s obligation to protect the applicant from ill-treatment
The applicant had not experienced any ill-treatment from prison staff. Nevertheless, the absence of any direct State involvement in acts of ill‑treatment that met the condition of severity such as to engage Article 3 did not absolve the State from its obligations under this provision. In particular, the national authorities had an obligation to take measures to ensure that individuals within their jurisdiction were not subjected to torture or to inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals.
The issue of informal prisoner hierarchies was well-documented within Latvian penal institutions and that problem had been prevalent in the prisons where the applicant had been held. Therefore, the prison staff and the broader authorities should reasonably have been aware both of its existence and the applicant’s position within it. Even in the absence of explicit incidents of violence or confrontation, the inherent risk of ill‑treatment faced by the applicant during his term of imprisonment could not be overlooked. Consequently, it fell to the Government to explain what measures had been taken to mitigate the applicant’s vulnerability and to address the broader issue of prisoner hierarchies.
Bearing in mind the systemic nature of the issue, individual interventions would not have addressed the core issue at the heart of the applicant’s grievances. Even if specific incidents of violence or ill-treatment were to be investigated and those responsible held to account, such measures would not alter the underlying power dynamics of the informal prisoner hierarchy or the applicant’s subordinate position in it. Limiting interventions to addressing specific incidents did not constitute the comprehensive approach that prison management authorities should adopt when grappling such a systemic issue.
The Latvian Ombudsman had consistently criticised the lack of such an overarching approach, underlining the shortcomings of the traditional, incident-focused strategy and had asserted that the domestic authorities had been acting unlawfully in their failure to dismantle the established informal hierarchies within prisons. Similarly, the Supreme Court of Latvia had opined that State authorities bore a general obligation to address the issue of informal hierarchies, which was one contributing factor to inter-prisoner violence.
Accordingly, the State authorities had failed to protect the applicant from the treatment prohibited under Article 3 associated with his belonging to the group of “kreisie” prisoners and to have in place effective mechanisms to improve his individual situation or to deal with the issue in a comprehensive manner.
Conclusion ■ Violation of Article 3
Article 46 ■ It was for the domestic authorities to draw the necessary conclusions from the judgment and to take appropriate general measure to address the issue of informal prison hierarchies in a manner that went beyond the circumstances of the present case in order to prevent future similar violations. More specifically, the domestic courts were required to take due account of the Convention standards as applied in this judgment.
Article 41 ■ No claim.
(See also Premininy v. Russia, 44973/04, 10 February 2011, Legal Summary; D.F. v. Latvia, 11160/07, 29 October 2013, Legal Summary; Gjini v. Serbia, 1128/16, 15 January 2019, Legal Summary; S.P. and Others v. Russia, 36463/11 et al., 2 May 2023, Legal Summary)
© Council of Europe/European Court of Human Rights
KAYUMOVY AND OTHERS v. RUSSIA ■ Application no. 56727/18 and 8 others ■ Fifth Section Committee ■ 11 January 2024
Art 8 ■ Restrictions on family visits
Facts ■ The case concerned restrictions on family visits in remand prisons in respect of nine unrelated applicants. Depending on the applicants, the restrictions took the form of refusal of long-term or short term family visits, physical separation and supervision during short-term family visits, limitation on the frequency of short-term family visits, refusal of phone calls to family.
Law ■ Article 8
Having examined all the material submitted to it, the Court saw no reason to depart from the conclusion reached in its leading cases on similar matters. It therefore ruled that the refusals of family visits were not “in accordance with law” and that the physical separation by means of a glass partition was not “necessary in a democratic society” (§ 9).
Conclusion ■ Violation of Article 8
Article 41 ■ The sums awarded varied between EUR 1,500 and 9,750, depending on the number and gravity of the violations found, as well as the duration of detention.
LIBRI v. ITALY ■ Application no. 45097/20 ■ First Section Committee ■ 11 January 2024
Art 3 ■ Inadequacy of medical care provided in detention ■ Incompatibility of the applicant’s state of health with detention
Facts ■ The applicant suffered from several health problems, including severe osteoporosis with multiple vertebral collapses and fibromyalgia. He was recognised as 100% disabled and had limited mobility in the lower limbs.
His state of health was assessed by the court-appointed experts on several occasions. The examination reports confirmed that the applicant could remain in prison, where he could obtain adequate treatment, if necessary, by means of temporary access to external facilities.
The applicants’ numerous requests for the replacement of his detention with house arrest were turned down by the courts based on the consideration that he received the necessary care in prison and there was no risk of an aggravation of his state of health.
The applicant claimed that his continued detention in prison, in the absence of adequate treatment for his disabilities, constituted a breach of Article 3 of the Convention. In particular, he complained of the delays in providing physiotherapy, orthopaedic devices and certain examinations, as well as of his placement in an unsuitable cell.
Law ■ Article 3 ■ Continued detention
Regarding the alleged incompatibility of the applicant’s state of health with detention, the Court observed that the applicant’s health was stable, and experts confirmed he could stay in prison with access to external treatment if needed. Domestic courts reviewed his fitness for imprisonment based on consistent medical reports, rendering reasoned decisions. The Court concluded his conditions were not so severe as to require his liberation.
Conclusion ■ No violation of Article 3
Law ■ Article 3 ■ Inadequate medical care
Regarding the quality of care provided, relying on the findings of doctors, the court-appointed experts, and the domestic courts, the Court noted various delays and deficiencies in the applicant’s treatment. Despite consistent reports indicating the need for regular physiotherapy, the applicant only received sporadic sessions, and there was no evidence of access to intensive rehabilitation treatment. Moreover, although the applicant was willing to cover the cost, he never received the recommended back corset. Consequently, the Court concluded that the applicant did not receive adequate care in prison, constituting a violation of Article 3 of the Convention (see Rooman v. Belgium [GC], no. 18052/11, 2019, § 147).
Conclusion ■ Violation of Article 3
Article 41 ■ No claim.
AL-HAWSAWI v. LITHUANIA ■ Application no. 6383/17 ■ Second Section ■ 16 January 2024
Art 1 ■ Jurisdiction of respondent State for alleged Convention violations of a terrorist suspect’s right during the United States (US) Central Intelligence Agency (CIA) extraordinary rendition operations ■ Responsibility engaged
Art 3 (substantive and procedural) ■ Inhuman treatment during the applicant’s extraordinary rendition to CIA ■ Respondent State’s complicity in the CIA High-Value Detainee Programme enabling the US authorities to subject the applicant to inhuman treatment on its territory and to transfer him from that territory despite a real risk of further treatment contrary to Art 3 ■ Ineffective investigation into applicant’s allegations of serious Convention violations
Art 5 ■ Unlawful and undisclosed detention of the applicant in a CIA secret detention facility on the respondent State’s territory ■ Respondent State enabled the applicant’s transfer by the US authorities from its territory, despite a real risk of being subjected to further undisclosed detention
Art 8 ■ Interference with the applicant’s private and family life not “in accordance with the law” and without justification given the imposition of fundamentally unlawful, undisclosed detention
Art 6 § 1 (criminal) ■ Art 2 (+ Article 1 P6) ■ Art 3 (+ Art 1 P6) ■ Extraordinary rendition to CIA despite real and foreseeable risk of flagrantly unfair trial before the US military commission in Guantánamo and of the death penalty being imposed
Art 13 (+ Arts 3, 5 and 8) ■ Lack of effective remedies
Art 46 ■ Execution of judgment ■ Detailed individual measures indicated by the Court
Facts ■ The applicant was captured during the “war on terror” following the 11 September 2001 attacks and detained by the United States (US) Central Intelligence Agency (CIA) as a “High-Value Detainee” (HVD), that is, terrorist suspects likely to be able to provide information about current terrorist threats against the US. He was held in secret detention facilities in various countries, including Lithuania, during the CIA’s extraordinary rendition operations and was subjected to “enhanced interrogation techniques”. The applicant was transferred to US military custody in September 2006 and since then has been detained in the Internment Facility at the US Guantánamo Bay Naval Base.
In 2008 the applicant was arraigned on capital charges before the military commission in Guantánamo. The trial is still pending.
The circumstances of the applicant’s extraordinary rendition have been the subject of various reports and investigations, including reports prepared by Dick Marty, as rapporteur for the investigation conducted by Parliamentary Assembly of the Council of Europe (PACE), and the 2014 US Senate report on CIA torture.
The applicant complained that the respondent State had allowed and/or enabled the CIA: to subject him to torture, ill-treatment and undisclosed and incommunicado detention on its territory, without adequately investigating his allegations in this respect; to transfer him to other CIA detention sites abroad exposing him to further torture, ill-treatment and undisclosed detention; and to transfer him to the US where he faced a flagrantly unfair trial and the death penalty.
Law ■ Establishment of the facts and Jurisdiction
The Court had found it established beyond reasonable doubt in Abu Zubaydah v. Lithuania that Lithuania had hosted on its territory a CIA Detention Site. That finding had not been contested in the present case by the Government. Furthermore, having regard to the materials before it, including expert and witness evidence and the international inquiries and reports, it found it established beyond reasonable doubt that the applicant had been secretly detained there for about either five months or a year and had been kept under the regime of “standard conditions of confinement” laid down in the CIA Guidelines on Confinement Conditions for CIA Detainees; that the authorities of the respondent State had known of the nature and purposes of the CIA’s activities on its territory and had cooperated in the preparation and execution of the CIA rendition, while being aware that, by enabling the CIA to detain terrorist suspects on its territory, it was exposing the said suspects to a serious risk of treatment contrary to the Convention. The Government had not adduced any material or indeed a single piece of evidence that would be capable of casting doubt on, not to mention altering, the Court’s conclusions in the case of Abu Zubaydah as to the Lithuanian authorities’ knowledge of and complicity in the CIA Programme.
The matters thus complained of in the present case fell within the “jurisdiction” of Lithuania within the meaning of Article 1 and were capable of engaging its responsibility under the Convention.
Law ■ Article 3
(a) Procedural aspect
The investigation by the Lithuania authorities in the applicant’s case had been pending since 13 February 2014 and had thus so far lasted nearly ten years. On 6 February 2015 it had been joined with the investigation in the case of Mr Abu Zubaydah in respect of which the Court had found a violation of the procedural aspect of Article 3 in its respective judgment. Accordingly, its findings in that case relating to the period from 6 February 2015 to 10 April 2018, the date of adoption of that judgment, were relevant for the assessment of the authorities’ conduct in the present case.
As regards the above period the Court in Abu Zubaydah had concluded that it did not appear that any meaningful progress in investigating Lithuania’s complicity in the CIA HVD Programme and identifying the persons responsible had so far been achieved. That conclusion, bearing in mind that on 10 April 2018 the investigation in the applicant’s case had already been pending for over four years, also applied to the present case.
As regards the subsequent period, the Government had not given any satisfactory reasons why over that time the prosecution authorities had not made any tangible progress in the investigation regarding the knowledge, complicity in the CIA’s activities, conduct and actions or omissions of Lithuanian officials, matters which had already been the object of the Seimas inquiry of 2010 referred to in Abu Zubaydah.
Furthermore, the applicant’s numerous and repeated requests to be granted victim status or at least to be provided with information about the investigation, had been unsuccessful and had resulted in him being in a kind of perpetual limbo: victim status had been denied to him because of the applicable “strict evidential standard”, which in the prosecution’s view he had not yet met, and he could not obtain information about the investigation because he was not a party to the proceedings. In that regard, securing proper accountability of those responsible was conducive to maintaining confidence in the adherence of the Lithuanian State’s institutions to the rule of law. The applicant and the public had a right to know the truth regarding the circumstances surrounding the extraordinary rendition operations in Lithuania and his secret detention and to know what had happened at the material time.
The importance and gravity of the issues required particularly intense public scrutiny of the investigation and the Lithuanian public had a legitimate interest in being informed of the criminal proceedings and their results. Although the Government had maintained that access of the public to information had been ensured by the Prosecutor General Office’s public relations unit, it had not explained how that had been done.
Having regard to the above deficiencies of the impugned proceedings, Lithuania had failed to comply with the requirements of an “effective and thorough” investigation into the applicant’s allegations of serious violations of the Convention.
(b) Substantive aspect
The Court established beyond reasonable doubt that during his detention in Lithuania the applicant had been kept – as any other CIA detainee – under a regime including, as a matter of fixed, predictable routine, blindfolding or hooding of the detainees, which was designed to disorient them and keep from learning their location or the layout of the detention facility; removal of hair upon arrival at the site; incommunicado, solitary confinement; continuous noise of high and varying intensity played at all times; continuous light such that each cell was illuminated to about the same brightness as an office; and use of leg shackles in all aspects of detainee management and movement.
While the applicant had not been subjected to interrogations with the use of the harshest methods, he had been subjected to an extremely harsh detention regime including a virtually complete sensory isolation from the outside world and suffered from permanent emotional and psychological distress and anxiety also caused by the past experience of torture and cruel treatment in the CIA’s hands and fear of his future fate. Consequently, having regard to the regime of detention to which the applicant must have been subjected in Lithuania and its cumulative effects on him, the treatment complained of was to be characterised as having involved intense physical and mental suffering falling within the notion of “inhuman treatment”.
Accordingly, the Lithuanian authorities, on account of their “acquiescence and connivance” in the HVD Programme had to be regarded as responsible for the violation of the applicant’s rights under Article 3 committed on their territory.
Furthermore, by enabling the CIA to transfer the applicant out of Lithuania to another detention facility, the authorities had exposed him to a foreseeable serious risk of further ill-treatment and conditions of detention in breach of Article 3.
Conclusion ■ Violation of Article 3
Law ■ Article 5
The secret detention of terrorist suspects was a fundamental feature of the CIA rendition programme. The rendition operations largely depended on the cooperation, assistance and active involvement of the countries which put at the USA’s disposal their airspace, airports for the landing of aircraft transporting CIA prisoners, and facilities in which the prisoners could be securely detained and interrogated. Such cooperation and various forms of assistance by those authorities, such as the customising of the premises for the CIA’s needs or the provision of security and logistics, constituted the necessary condition for the effective operation of the CIA secret detention facilities.
In addition, the Court’s finding under the substantive aspect of Article 3 that by enabling the CIA to transfer the applicant to its secret detention facilities had exposed him to a foreseeable serious risk of further ill-treatment and conditions of detention in breach of Article 3 also applied to the complaint under Article 5.
Lithuania’s responsibility was thus engaged in respect of both the applicant’s secret detention on its territory and his transfer from Lithuania.
Conclusion ■ Violation of Article 5
Law ■ Other violations
The Court also found, unanimously, violations of:
- Article 8 as the interference with the applicant’s right to respect for his private and family life had not been in accordance with the law and lacked any justification, given the imposition of fundamentally unlawful, undisclosed detention;
- Article 6 § 1 on account of the applicant’s transfer from the respondent State’s territory, despite a real and foreseeable risk that he could face a flagrant denial of justice in the US proceedings before a military commission;
- Articles 2 and 3 of the Convention in conjunction with Article 1 of Protocol No. 6 on account of the transfer of the applicant from the respondent State’s territory in spite of a substantial and foreseeable risk that he would be subjected to the death penalty following his trial before the military commission. Given that he had been arraigned on capital charges in June 2008 and that since then he had been on trial facing the prospect of the death penalty, that risk had not diminished.
- Article 13 in conjunction with Articles 3, 5 and 8 in that the criminal investigation had fallen short of the standards of an effective investigation as required by Article 3 and thus the lack of effective remedies in respect of the applicant’s complaints about a violation of his rights.
Article 46 ■ In order to comply with its obligations under Articles 2 and 3 of the Convention taken together with Article 1 of Protocol No. 6 to the Convention, Lithuania was required to endeavour to remove, as soon as possible, the risk that the applicant would be subjected to the death penalty by seeking assurances from the US authorities that it would not be imposed. Even though the proceedings against him before the military commission were still pending and the outcome of the trial remained uncertain, that risk continued. Furthermore, the Lithuanian authorities were required to attempt to make further representations to the US authorities with a view to removing or, at the very least seeking to limit, as far as possible, the effects of the above Convention violations suffered by the applicant.
Lastly, the respondent State was required to take all necessary steps to reactivate and advance the still pending criminal investigation without delay and to bring it to a close as soon as possible once, in so far as that proved feasible, the circumstances and conditions under which the applicant had been brought into, treated in and thereafter removed from its territory had been elucidated further, so as to enable the identification, accountability and, where appropriate, punishment of those responsible.
Article 41 ■ EUR 100,000 in respect of non-pecuniary damage.
(See also El-Masri v. the former Yugoslav Republic of Macedonia [GC], 39630/09, 13 December 2012, Legal Summary; Al Nashiri v. Poland, 28761/11, 24 July 2014, Legal Summary; Husayn (Abu Zubaydah) v. Poland, 7511/13, 24 July 2014, Legal Summary; Nasr and Ghali v. Italy, 44883/09, 23 February 2016, Legal Summary; Al Nashiri v. Romania, 33234/12, 31 May 2018, Legal Summary; Abu Zubaydah v. Lithuania, 46454/11, 31 May 2018, Legal Summary)
© Council of Europe/European Court of Human Rights
MILJAK v. CROATIA ■ Application no. 15681/18 ■ Second Section Committee ■ 16 January 2024
Art 3 ■ Ill-treatment by prison officers ■ Lack of an effective investigation into the incident
Facts ■ The applicant submitted that on 6 October 2016, the prison officers had kicked and punched him while he was lying immobilised on the floor of his prison cell, as a result of which he sustained serious injuries, underwent surgery and remained hospitalised for eight days.
On the same day, the prison nurse noticed bruises on the applicant’s left temple and behind his ear, after which he was taken to the hospital.
On 21 October 2016, an inspection ordered by the competent Ministry issued a report on the incident. However, the results were inconclusive since it was impossible to determine the exact circumstances under which the applicant had suffered the injuries.
On 19 May 2017, the applicant filed a criminal complaint regarding the alleged ill-treatment by the prison employees. During the investigation, a forensic expert opinion by a certified court expert was obtained, which allowed for the possibility of several different ways the applicant’s injuries could have occurred.
Based on the results of the above forensic examination, on 31 January 2018, the local Municipal State Attorney’s Office dismissed the applicant’s criminal complaint, having stated that there was no reasonable suspicion that the suspected prison officers had intentionally inflicted those injuries on the applicant. The applicant did not take over the prosecution.
Law ■ Article 3
(a) Admissibility
The Court rejected the Government’s argument that the applicant did not exhaust domestic remedies by not filing a constitutional complaint, since a constitutional complaint became an effective domestic remedy for complaints concerning ineffective investigations under Articles 2 and 3 of the Convention in 2019 (see Kušić and Others v. Croatia (dec.), no. 71667/17, 2019, § 99), whereas in the present case, the applicant’s criminal complaint was dismissed in January 2018. Moreover, the Court was not persuaded that at the time of the lodging of his application with the Court, a constitutional complaint constituted an effective remedy as regards the applicant’s complaint under the substantive limb of Article 3 of the Convention (compare, mutatis mutandis, Daraibou, no. 84523/17, 2023, § 68). Referring to the case of Đurđević v. Croatia (no. 52442/09, 2011, § 64), the Court rejected the Government’s suggestion that the applicant should have taken over the prosecution.
(b) Merits
Procedural aspect | The Court observed that a criminal investigation into the applicant’s injuries sustained in custody was only initiated six months after the incident, upon the applicant’s complaint. The investigation failed to thoroughly examine all relevant facts, including crucial discrepancies in the accounts provided by the applicant and the Government regarding how the injuries were sustained. Having relied on an inconclusive report and expert opinion, the State Attorney’s Office concluded without interviewing key individuals or adequately addressing inconsistencies, leading to the dismissal of the applicant’s complaint. This lack of careful scrutiny indicated that the investigation was not thorough, resulting in a violation of Article 3 of the Convention under its procedural limb.
Substantive aspect | The applicant claimed that prison officers kicked and punched him while he was immobile on the floor of his cell, resulting in serious injuries, surgery, and hospitalisation. The Court found the applicant’s account credible, leading to a presumption that he sustained the injuries during his incarceration, shifting the burden of proof to the Government.
However, the Government failed to provide convincing evidence contradicting the applicant’s account (Bouyid v. Belgium ([GC], no. 23380/09, 2015, § 83) or conduct a thorough investigation into the incident. Therefore, the Court concluded that the Government did not satisfactorily establish that the applicant’s injuries were caused otherwise than by ill-treatment to which he had been subjected in his prison cell. Accordingly, the Court found a violation of Article 3 of the Convention under its substantive limb.
Conclusion ■ Violation of Article 3 (procedural and substantive limbs)
Article 41 ■ EUR 12,000 in respect of non-pecuniary damage; EUR 3,000 in respect of costs and expenses.
FERNANDES v. PORTUGAL ■ Applications nos. 33023/17 and 56476/17■ Fourth Section Committee ■ 16 January 2024
Art 3 (Substantive) ■ Security regimes ■ High-security prisons ■ Prisoners’ contacts restrictions ■ Strip searches ■ Isolation ■ Solitary confinement ■ Lack of access to activities ■ Dissociating effects and detachment from society ■ Reintegration ■ Educational activities and programmes.
Facts ■ The applicant, convicted of double murder and sentenced to twenty-five years’ imprisonment, was placed in the high security regime in the Monsanto High Security Prison. The decision to move him to the high security regime, in view of the seriousness of the offences committed and the threat he posed to prison security, was routinely extended by the penitentiary service and his detention in high security detention eventually lasted for 10 years. The applicant was then transferred to his home country (Brazil) to serve the remainder of his sentence.
The applicant’s attempts to contest the prolongation of his custody in the high security regime before the specialised court (Court for the Execution of Sentences of Lisbon) remained in vain.
The applicant suffered from reduced mobility related to a knee injury he had received early in his detention, which has ultimately led to his obesity and almost permanent confinement to a solitary cell. He was not involved in the in-prison activities, was not able to attend distance learning courses; his contact both inside the prison and externally, with his family, were limited. In addition he was subjected to strip-searches each time he returned to his cell. The searches involved an anal examination after each meeting with outside visitors.
Law ■ Article 3
General principles: Piechowicz v. Poland (no. 20071/07, 2012) & Bamouhammad v. Belgium (no. 47687/13, 2015).
The Court accepted the validity of reasons behind the first decision allocating the applicant to the high security regime prison, namely, him being charged with violent offences and posing a threat to prison security.
However, the repeated extension of the applicant’s allocation to the high security regime, based on the same grounds, was, in the Court’s view, neither properly justified, nor necessary. The authorities had failed to take into account the effects of the restrictive security measures on the applicant’s deteriorating state of health, and the prospects of his rehabilitation and resocialisation. The Court further considered that the practice of daily strip searches over a protracted period of time caused the applicant feelings of inferiority, anxiety and accumulated distress which went beyond the unavoidable suffering and humiliation inherent in the imposition of detention.
The Court noted, finally, that the applicant had not been given access to a clear, progressive programme of purposeful activities “to counteract the dissociating effects and detachment from society which long-term imprisonment can have” (§ 17).
The Court relied, in particular, on the findings of the European Committee for the Prevention of Torture (CPT) which had repeatedly reported the very same issues in the Monsanto high-security prison.
Conclusion ■ Violation of Article 3
Article 41 ■ No claim.
URSEI v. ROMANIA ■ Application no. 9233/21 ■ Fourth Section Committee ■ 18 January 2024
Art 3 of Protocol No. 1 ■ Inability to vote in elections
Facts ■ The applicant complained about his inability to vote in the legislative elections despite having the right to vote and not being restricted by any court order. He claimed that he could not vote because he was serving his prison sentence in Arad Prison, which was situated outside the electoral constituency of his place of residence in Timişoara, Timiş county.
Law ■ Article 3 of Protocol No. 1
Having regard to its case-law on the subject (Mironescu v. Romania, no. 17504/18, 2021, §§ 52-53), the Court considered that in the instant case, the inability of the applicant to vote in elections because on the date of the elections he was serving a sentence in a prison situated outside the electoral constituency of his place of residence, is incompatible with Article 3 of Protocol No. 1.
Conclusion ■ Violation of Article 3 of Protocol No.1
Article 41 ■ Finding of a violation constituted sufficient just satisfaction for any non‑pecuniary damage sustained by the applicant.
RADCHENKO AND ABRAMOV v. UKRAINE ■ Applications nos. 5312/20 and 22627/20 ■ Fifth Section Committee ■ 18 January 2024
Art 3 ■ Inadequacy of medical care provided in detention
Art 13 ■ Lack of effective remedy in respect of inadequate medical treatment in detention
Facts ■ The applicants suffered from serious medical conditions. Notably, the first applicant had cardiomyopathy, chronic hepatitis, chronic pancreatitis, peptic ulcer, concession, progressive encephalopathy, osteochondrosis of the spine, arterial hypotension, and dysmetabolism. The second applicant suffered from a heart condition, hypertensive crisis, diabetes, and internal resorptive hydrocephalus.
The applicants complained under Article 3 of the Convention that they were not afforded adequate medical treatment in detention and under Article 13 because of the lack of effective remedy in domestic law regarding inadequate medical treatment in detention.
Facts ■ The Court found that the present case raised issues similar to those addressed in its previous judgments delivered against Ukraine (Nevmerzhitsky v. Ukraine, no. 54825/00, §§ 103-05, ECHR 2005 II, Melnik v. Ukraine, no. 72286/01, §§ 104-06, 28 March 2006, and Logvinenko v. Ukraine, no. 13448/07, §§ 68-78, 14 October 2010). Bearing in mind its case-law on the subject, the Court considered that in the instant case, the applicants did not receive comprehensive and adequate medical care whilst in detention. Notably, the Court found the following shortcomings in the applicants’ medical treatment: lack of/delay in medical examination, lack of/delayed drug therapy, lack of/delayed diet, lack of/delay in consultation by a specialist.
Equally, relying on its previous case-law (Sergey Antonov v. Ukraine, no. 40512/13, §§ 94-97, 22 October 2015), the Court found that the domestic law did not provide the applicants with an effective remedy in respect of inadequate medical treatment in detention.
Conclusion ■ Violation of Articles 3 and 13 (both applicants)
Article 41 ■ EUR 7,500 in respect of non-pecuniary damage and EUR 250 in respect of costs and expenses for the first applicant; EUR 9,750 in respect of non-pecuniary damage and EUR 250 in respect of costs and expenses for the second applicant.
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Funded by the European Union and the Robert Carr Fund. Views and opinions expressed are however those of the authors only and do not necessarily reflect those of the European Union or the Robert Carr Fund. The European Union and the Robert Carr Fund cannot be held responsible for them
