JULY-AUGUST 2023

EUROPEAN COURT OF HUMAN RIGHTS

B.M. AND OTHERS v. FRANCE ■ Applications nos. 84187/17 and 5 others

Overcrowding, inadequate conditions of detention and lack of preventive remedy: violation of Articles 3 and 13; systematic strip searches after visits: inadmissible

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KOSKO v. UKRAINE ■ Application no. 41832/16

Lack of or delay in consultation by a specialist, lack of or delay in drug therapy for a prisoner with serious medical condition: violation of article 3.

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OSMAN AND ALTAY v. TÜRKİYE ■ Application nos. 23782/20 and 40731/20

Issues of periodical sent to prisoners by post without going through administration as required by law withheld by prison authorities: violation of Article 10.

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Court of justice OF THE EUROPEAN UNION

GN (AG Opinion) ■ Case C-261/22

The execution of a European arrest warrant (EAW) issued against a mother of young children may be refused when it is in the best interests of the child. Such a refusal is only possible if the executing authority does not receive from the issuing authority sufficient information that would allow it to be absolutely certain that the enforcement of the EAW would not be against the best interests of the child.

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EUROPEAN COURT OF HUMAN RIGHTS

B.M. AND OTHERS v. FRANCE ■ Applications nos. 84187/17 and 5 others  ■ Fifth Section ■ 6 July 2023

Art 3 +13 ■ degrading treatment ■ detention in an overcrowded cell ■ lack of effective preventive remedy
Art 3 ■ systematic strip searches after visits ■ inadmissible ■ non-exhaustion of domestic remedies

Facts ■ The six applicants had been detained for various periods of time between 2016 and 2019. They all complained that they had been detained in inadequate detention conditions and that they had no effective preventive remedy to put an end to the ensuing violation of their rights. Five out of six applicants also complained about systematic strip searches imposed following visits.

Law ■ Article 3■ Strip searches

The Government objected that the applicants had not challenged the strip searches imposed before the competent domestic courts. The applicants argued there is no effective remedy available to put an end to systematic strip searches and pointed to the fact that in spite of several judgments requiring the prison administration to put an end to this practice rendered since 2013, several reports (including from the CPT and the NPM) suggest that they have persisted. The Court observed that the interim relief judge has the power to put an end to strip searches if they breach a prisoner’s dignity and has done so in its previous case law. Consequently, the Court considered this remedy to be effective and rejected this part of the applications for non-exhaustion of the available domestic remedies.

Conclusion ■ Inadmissible.

Law ■ Articles 3 & 13 ■ Inadequate detention conditions & lack of effective preventive remedy

The Court noted that the applicants had been imprisoned in the same facility (Fresnes prison) and during the same period as the applicants of the quasi-pilot judgment J.M.B. and Others v. France (no. 9671/15 , 30 January 2020), in which it had found a violation of Articles 3 and 13 as a result of inadequate detention conditions and of the absence of effective remedy in this respect. Consequently, finding no reasons to depart from its previous analysis, the Court concluded that there had been a violation of Articles 3 and 13.

Conclusion ■ Violation of Articles 3 & 13.

Article 41 ■ EUR 21 250, EUR 13 250 and EUR 11 750 in respect of non-pecuniary damage for three out of six applicants (three applicants having accepted a friendly settlement); EUR 2400 in respect of costs and expenses for one applicant.

KOSKO v. UKRAINE  ■ Application no. 41832/16 ■ Fifth Section Committee ■ 6 July 2023

Inadequacy of medical care provided in detention ■ Lack of or delay in consultation by a specialist ■ lack of or delay in medical examination ■ Lacking or delayed drug therapy, including pain relief.

Facts ■ The applicant suffered from a serious medical condition, namely, impairment of spinal cord, causing a 1st level of disability. He complained of several shortcomings in his medical treatment during a period of one year and one month, namely a lack of or delay in consultation by a specialist, a lack of or delay in medical examination, and a lack of or delayed drug therapy, including pain relief.

Law ■ Article 3

Referring to its well established case law concerning prison healthcare in Ukraine, and having examined the material submitted to it, the Court concluded that the applicant did not receive comprehensive and adequate medical care whilst in detention, in breach of Article 3 (see also Nevmerzhitsky v. Ukraine, no. 54825/00, 2005; Melnik v. Ukraine, no. 72286/01, 2006, Logvinenko v. Ukraine, no. 13448/07, 2010).

Conclusion ■ Violation of Article 3

Article 41 ■ EUR 7 500 in respect of pecuniary and non-pecuniary damage; EUR 250 in respect of costs and expenses..

OSMAN AND ALTAY v. TÜRKİYE  ■ Application nos. 23782/20 and 40731/20 ■ Second Section ■ 18 July

Art 10 ■ Issues of periodical sent to prisoners by post without going through administration as required by law withheld by prison authorities ■ periodicals withheld not as a result of their contents but of the way they were received by prisoners ■ lack of proper balance between the applicants’ right to freedom of expression and the other interests at stake ■ failure to prevent any abuse on the part of the administration.

Facts ■ The applicants, who were prisoners in two different prisons at the relevant time, were refused delivery by the prison authorities of four issues of a periodical that had been sent to them by post without having been lawfully ordered or purchased through the prison administration. The Constitutional Court declared the applicants’ individual applications inadmissible as manifestly ill-founded.

Law ■ Article 10

The national authorities’ refusal to deliver the issues of the periodical in question to the applicants constituted an interference with their right to receive information and ideas. Such interference was provided for by law and pursued the legitimate aims of protecting national security and of preventing disorder or crime.

As to the necessity of the interference, the Constitutional Court had developed two separate lines of authority concerning publications received in prisons, the principles applicable to which varied depending on the manner in which they were obtained.

A first line of authority had been established in its Halil Bayik judgment (30 November 2017), which had laid down the criteria that the prison authorities were to take into account when inspecting publications that had been sent to prisoners in compliance with the statutory procedure, namely publications purchased by prisoners through the prison administration, works issued by official bodies or by certain organisations, writings allocated to the prison library, books received as gifts on specific dates and schoolbooks.

Those criteria had subsequently been confirmed by the Constitutional Court in its Recep Bekik judgment (27 March 2019). It followed from these two judgments that the prison authorities were required to conduct a detailed analysis of the content of publications sent to prisoners and to determine whether that content justified or glorified recourse to acts of violence or might incite violence, pose a threat to security, discipline or order in the prison, or facilitate communication between members of criminal organisations, regard being had, in particular, to the relevant prisoners’ specific personal situations and to the prevailing level of tension, if any, within the country and within the prison in question at the relevant time. The prison authorities were further to consider potentially removing passages from the publications regarded as problematic in order to deliver the remainder to the prisoner concerned.

In its Mehmet Çiftçi v. Turkey judgment (no. 53208/19, 2021), the Court had endorsed those principles as articulated by the Constitutional Court to prevent potential abuse on the part of the prison authorities, in line with one of the aims posited in its own case-law.

The Constitutional Court had laid down a second line of authority in its İbrahim Kaptan (2) judgment (12 September 2018) with regard to publications that were sent to prisoners in breach of the statutory procedures, namely those delivered by post or by visitors, without going through the administration. The Constitutional Court had observed that prisoners could access publications by various other means provided for by law and that such publications had to be subjected to rigorous and detailed examination – in accordance with the principles laid down in the two judgments cited above – before any measure to withhold them could be taken. It had then found that the burden such an examination represented, regard being had to the large number of prisoners, might prevent the prison administration from carrying out its other tasks. It had therefore taken the view that the refusal to deliver publications that had been sent in breach of the statutory procedures aimed to protect the security of the establishment and prevent crime, met a pressing social need, and was not disproportionate to the aim thereby pursued.

Since prisoners continued to enjoy the right to receive information and ideas in prison, any restriction of that right had to meet a “pressing social need”. Furthermore, the Contracting States had a certain margin of appreciation in assessing whether such a need existed, but it went hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court.

In the present case, the Constitutional Court had referred to its İbrahim Kaptan (2) judgment, in which it had essentially relied on the workload involved in inspecting the publications in question, and on the need to prevent members of terrorist organisations from communicating with one another, to find that the refusal to deliver such publications to prisoners, which constituted a restriction of their right to receive information and ideas, had met a pressing social need. The reference to that judgment appeared to suggest that the publications sent to the applicants had been justifiably withheld, not on the basis of an assessment of their dangerous content, but merely because they had been received by the postal services in breach of the statutory procedures.

However, the arguments contained in the decisions had been rather succinct in that regard. Moreover, in intercepting the publications at issue, the education committees of both prisons had expressly referred to the provision that authorised the inspection of a publication’s content and, according to their decisions, the publications in question had been withheld because they had been deemed to pose a threat, considering their content, to prison security. The publications sent to the applicants were thus subject to content-based inspection, which was to have been carried out in compliance with the criteria set forth in the Constitutional Court’s first line of reasoning prior to any measure to have them withheld.

Accordingly, the prison authorities were required to issue decisions containing satisfactory and sufficiently detailed reasons, with the inadmissible passages of the impugned publication expressly identified and subjected to an analysis demonstrating a concrete connection between the censored content and the aforementioned criteria. It therefore did not suffice to merely list the page references for the parts of the impugned publication that were deemed problematic and, in any event, an inspection method taking the relevant criteria into account had to be used.

In the present case, the prison authorities’ education committees had justified their decisions having regard to a potential threat to prison security resulting from the spread of hunger strikes undertaken by certain prisoners in other prisons, the promotion of illegal organisations and their activities and the incitement of violent acts. The Court agreed that those considerations could, in general and in the final analysis, be regarded as constituting acceptable reasons to justify a refusal to deliver the impugned publications to the applicants. However, neither the education committees’ decisions nor those subsequently delivered by the domestic courts enabled it to establish that, in the present case, those bodies had appropriately weighed in the balance – in compliance with the criteria established by the Constitutional Court’s first line of reasoning and with those laid down by the Court – the applicants’ right to freedom of expression and the other interests at stake, such as maintaining order and discipline in prisons. For although the education committees had given references to the pages of the periodical containing the impugned passages, they had in no way, not even summarily, specified the content they regarded as problematic. Nor had they made any reference to the applicants’ personal situations with a view to assessing the potential effect of those passages on the individuals concerned. Moreover, the decisions subsequently delivered by the enforcement judges and the assize courts, which had rejected the applicants’ appeals on the grounds that the initial decisions had complied with the requisite procedure and the law, had failed to give sufficient reasons to make up for those omissions. As to the Constitutional Court, it had declined to examine the prison authorities’ refusals in the light of those principles and had decided to apply the findings of its second line of reasoning to the applicants’ individual applications, thereby approving the principle of systematically withholding publications that were sent to prisoners in breach of the statutory procedures. Such an approach was incompatible with Article 10 of the Convention. The authorities had thus confined themselves to stating the findings they had reached concerning the impugned publications and had failed to provide any satisfactory reasons for their decisions, which had been devoid both of any argument establishing a link to the impugned content or justifying those findings with reference to the criteria set out in either the Court’s or the Constitutional Court’s case-law, and of any considerations as to the potential delivery of the periodicals to the applicants upon removal of the passages that were deemed problematic.

The national authorities, in the decisions rendered, did not appear to have satisfied the requirement that the different interests at stake in the present case be weighed up, or to have fulfilled their duty to prevent any abuse on the part of the administration. In the light of the foregoing, the Government had failed to demonstrate that the reasons adduced by the national authorities to justify the impugned measures had been relevant and sufficient or that those measures had been necessary in a democratic society.

Conclusion ■ Violation of Article 10 (by five votes to two).

Article 41 ■ Claim in respect of pecuniary damage rejected; EUR 1,000 awarded in respect of non-pecuniary damage.

© Council of Europe/European Court of Human Rights

court of justice of the European union

GN (AG Opinion) ■ Case C-261/22 ■ 13 July 2023

Reference for a preliminary ruling ■ European arrest warrant ■ Respect for private and family life ■ Rights of the child ■ Mothers who live with minor children ■ Reasons for non-execution or postponement of surrender

Facts ■ A Belgian judicial authority issued in 2020 a European arrest warrant (EAW) against GN for the execution of a sentence of five years’ imprisonment for the offences of trafficking in human beings and facilitating unlawful immigration. GN was arrested in Italy in September 2021. At the time of her arrest, GN was living with her minor child who was under three years of age. For this reason, her custody was replaced with house arrest.
Receiving no reply to its request for information sent to the Belgian State about i.a. the procedures for the execution of a sentence in Belgium for mothers living with minor children, the Court of Appeal of Bologna refused to execute the EAW. According to the court, “there was no certainty that Belgian law recognised custody arrangements comparable to those in Italy, which protect a mother’s right not to be deprived of her relationship with her children and to ensure that children receive the necessary maternal and family assistance” (para. 7).
Both GN and the Prosecutor General at the Court of Appeal of Bologna appealed this judgment before the Supreme Court of Cassation, who decided to refer the case to the CJEU. The question at hand is whether a court is “entitled to refuse the execution of an EAW if by such a surrender it risks breaching the fundamental rights of a mother whose surrender is requested as well as the fundamental rights of the minor children living with her” (para. 10).

Law ■ Articles 1(3) and 15(2) of Framework Decision 2002/584/JHA, Article 24 CFR

Advocate General (AG) Ćapeta noted that the case is novel as it is the first time that the question of non-execution of an EAW is “based on the possible breach of fundamental rights not (only) of the requested person, but (also) of a third person: the minor child of the mother whose surrender is sought” (para. 13).

(a) GN’s right to family life

AG Ćapeta ruled that the two-steps test established in the judgment Aranyosi and Căldăraru (joined cases C‑404/15 and C‑659/15, 2016), which enables the refusal to execute a EAW when there is a risk of fundamental rights violations, does not apply in the case at hand.
This test requires the executing authority to establish that there are systemic or generalised deficiencies in the prison system of the issuing Member State, and to determine whether the right of the requested person might be breached as a result. Since the EAW mechanism rests on the presumption that Member States respect fundamental rights, and since the executing State has no reason to suspect “that Belgium systematically breaches the right to family life of mothers serving prison sentences” (para. 27), there is no need to put the test in motion.

(b) The best interests of the child

According to AG Ćapeta, the question of whether the execution of an EAW would infringe on the best interests of the child “does not arise as a question of mutual trust” and must be addressed “even when the issuing Member State offers a high level of protection of children whose mothers are in prison” (para. 41).
The issue requires a specific approach, based on the concrete situation of the child at issue, (rather than the conditions in the issuing Member State), which requires the executing authority to use the communication channel with the issuing judicial authority foreseen in Article 15(2) of the EAW Framework Decision.
If the executing authority “does not receive sufficient information that would allow it to be absolutely certain that the execution of the EAW would not go against the best interests of the child, it should refuse surrender” (para. 71).

AG Ćapeta noted that Article 23(4) of the EAW Framework Decision allowing for the postponement of the execution of an EAW is not suited for the situation at hand, at this provision refers specifically to the requested person, not to a third person (e.g. her children). Trying to reconcile the respect for the best interests of the child with the prevention of impunity, AG Ćapeta suggests that the possibility for the executing authority to refuse an EAW and to execute the custodial sentence on its territory could be made compulsory when “it is in the best interests of the child not to leave the executing Member State” (para. 95).

Conclusion ■ The execution of a European arrest warrant (EAW) issued against a mother of young children may be refused when it is in the best interests of the child. Such a refusal is only possible if the executing authority does not receive from the issuing authority sufficient information that would allow it to be absolutely certain that the enforcement of the EAW would not be against the best interests of the child.

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