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4 MAY 2022
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OVERVIEW OF CASES PUBLISHED IN JANUARY-FEBRUARY 2022
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Lack of appropriate medical care for detainees having serious medical conditions: violation of Article 3.
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Lack of appropriate medical care for a detainee with HIV/AIDS: violation of Article 3.
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Routine monitoring of correspondence of a prisoner with prosecution authorities: violation of Article 3. No available remedy with regard to such a violation: violation of Article 13.
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Detention in an overcrowded cell: violation of Article 3. Detention in a dilapidated and not properly lit disciplinary cell: violation of Article 3.
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Sanction imposed on prisoners who read poems and sang hymns to commemorate the detainees who lost their lives during a special prison operation: violation of Article 10.
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Unlawful detention on remand ordered by Supreme Court subsequent to a first-instance conviction: violation of Article 5 § 1. No compensation available for the violation of the right to liberty: violation of Article 5 § 5.
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Detention for two years in an ordinary prison of a person suffering from bipolar disorder, in poor conditions and without any overall therapeutic strategy to treat his condition: violation of Article 3. Continued detention in an ordinary prison of a person suffering from bipolar disorder, despite the domestic court order to transfer him to an appropriate institution, for lack of available places: violation of Article 5(1)(e). 35-day delay in enforcing an interim measure ordered by the Court requesting the placement of a bipolar patient in a specialist centre: violation of Article 34.
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Life sentence with no prospect of release: violation of Article 3.
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Inadequate medical care, no assistance and opportunity for outdoor exercise for a detainee with health issues, and no effective remedy with respect to it: violation of Articles 3 and 13. Failure to provide relevant and sufficient reasons when ordering and extending detention: violation of Article 5 § 3. Authorities’ refusal to allow private meetings between the applicant and his representatives before the Court: violation of Article 34. Alleged non-compliance with an interim measure ordering the immediate provision of adequate medical assistance: no violation of Article 34.
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Lack of surgery for a prisoner who had a serious medical condition impairing his everyday functioning, namely cataract of both eyes: violation of Article 3.
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Risk of ill-treatment in case of extradition in the absence of a substantive examination of the risk the applicant allegedly faces in Tajikistan: violation of Article 3.
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JANUARY 2022
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Committee Judgment ■ 3 January 2022
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Art 3 ■ Lack of adequate medical care in detention ■ Lack of and delay in medical examination
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Сonsultation by a specialist ■ Drug therapy ■ Repetitive case
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Facts ■ The present case concerns complaints of non-provision of appropriate medical care to the applicants in detention. The applicants, who suffered from varied serious medical conditions, complained of a lack of/delay in medical examination and testing, lack of/delay in consultation by a specialist, lack of/delay in providing a drug therapy, lack of/delay in offering a consultation by a specialist.
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Law ■ Article 3 ■ The applicants suffered from serious medical conditions, namely heart condition, physical injury and permanent acute back pain. They alleged they were denied adequate medical care for a time period ranging from over two months to over six years.
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The Court recalled that state authories have an obligation to provide adequate care in a prompt and accurate manner, as well as, where necessary, appropriate supervision with a view to “treating the detainee’s health problem or preventing their aggravation” (para.8). While the principle of equivalence of care to the one offered in the community should be preserved, this “does not mean that each detainee must be guaranteed the same level of medical treatment that is available in the best health establishments outside prison facilities” (para. 8).
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On the basis of the materials submitted, the Court concluded that the “shortcomings” identified in the applicants’ medical treatment amount to a violation of Article 3 of the Convention (see also Nevmerzhitsky v. Ukraine, no. 54825/00, Melnik v. Ukraine, no. 72286/01, and Logvinenko v. Ukraine, no. 13448/07).
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Conclusion ■ violation of Article 3.
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Article 41 ■ EUR 7,500 to the first applicant, EUR 5,000 to the second applicant, EUR 9,750 to the third applicant in respect of pecuniary and non-pecuniary damage; EUR 250 to the third applicant in respect of costs and expenses.
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Art 3 ■ Lack of adequate medical care in detention ■ Interruption of ARV therapy for a prisoner with HIV/AIDS ■ Repetitive case
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Art 13 ■ No effective remedy with regard to complaints about the quality of medical treatment in detention ■ Repetitive case
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Facts ■ The applicant, who has HIV, complained about the interruption of his antiretroviral therapy, as well as about a lack of/delay in medical examination, and lack of/delay in medical testing. He also argued that there was no effective remedy in that regard.
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Law ■ Article 3 ■ Referring to its well-established case-law, the Court stressed that “medical treatment within prison facilities must be appropriate and comparable to the quality of treatment which the State authorities have committed themselves to providing for the entirety of the population. Nevertheless, this does not mean that each detainee must be guaranteed the same level of medical treatment that is available in the best health establishments outside prison facilities” (para. 7).
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Having examined the materials submitted, the Court concluded that the medical treatment provded to the applicant was neither comprehensive nor adequate, in breach of article 3 of the Convention (see also Koryak v. Russia, no. 24677/10, and Reshetnyak v. Russia, no. 56027/10).
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Conclusion ■ violation of Article 3.
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Law ■ Article 13 ■ The applicant also complained of lack of available legal remedies with regard to non-provision of adequate medical care in detention. The Court has highlighted that it has already found in other cases (namely, Koryak and Reshetnyak) that there is a lack of effective domestic remedies available for prisoners wishing to complain about the quality of their medical treatment in detention. It saw no reason to depart from this established case-law in the present case.
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Conclusion ■ violation of Article 13.
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Article 41 ■ EUR 15,000 in respect of pecuniary and non-pecuniary damage and costs and expenses.
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Art 8 ■ Monitoring of the applicant’s correspondence with prosecution authorities, the Ombudsman and the ECtHR ■ Violation of the confidentiality of correspondence guaranteed by the national legislation
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Art 13 ■ Lack of effective domestic remedy • No exemption from court fees for proceedings before the higher administrative court despite the fact that all lower courts granted such exemption
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Facts ■ The applicant complained that his correspondence had been monitored by the prison administration and that no effective domestic remedy was available in this regard.
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The applicant complained to the domestic prosecution authorities that the prison administration has been unlawfully monitoring his correspondence with the ECtHR. He also initiated administrative proceedings against the administration claiming that the latter has been monitoring his correspondence addressed to the prosecution authorities and the Ombudsman.
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Though the regional prosecutor wrote a report confirming the applicant’s claims, the administrative courts dismissed the case. In addition, the Higher Admnistrative court refused to exempt the applicant from the court fees – though the applicant had been exempted of such fees in his proceedings before lower courts.
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Law ■ Article 8 and 13 ■ The applicant complained of routine monitoring of his correspondence with prosecution authorities, which was in breach of Article 8 of the Convention. The Court observed that two staff members of the prison where the applicant was detained “were disciplined following the prosecutorial investigation, which had criticised the practice of enclosing cover notes to the applicant’s letters addressed to prosecution authorities, with those letters’ summaries and number of pages” (para. 7). The administrative courts having dismissed the case did not comment on the disciplinary measure and did not refer to any newly-discovered circumstances. The applicant was prevented from appealing to the Higher Administrative Court as a result of him not being exempted from court fees
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The Court declared it had no reason to question the findings of the regional prosecutor, according to which the correspondence of the applicant has been routinely monitored. As a result, it concluded that “the prison administration had breached the legal ban on monitoring of prisoners’ correspondence with prosecution authorities and that the domestic courts had failed to provide an adequate response to the applicant’s complaint in that regard.” (para. 9). As a result, the Court found a violation of Articles 8 and 13 of the Convention.
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Conclusion ■ violation of Article 8 and Article 13.
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Article 41 ■ the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant; EUR 1,000 in respect of costs and expenses.
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Art 3 ■ Inadequate detention conditions ■ Lack of personal space ■
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Detention in a dilapidated and not properly lit cell ■ No monetary compensation awarded at the national level ■
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Preservation of the victim status
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Facts ■ The applicant complained he suffered inadequate detention conditions during two specific periods of time. He alleged in particular he did not have sufficient personal space (2.97 sq. m. for a period of forty-seven days), and that he had been placed in a dilapidated cell not properly lit (twenty-nine days). Though in both sets of proceedings the domestic courts found a violation of the revelant domestic regulation, the applicant was not awarded monetary compensation.
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Law ■ Article 3 ■ The Court noted from the outset that an acknowledgment of a violation by the domestic courts cannot be considered an adequate redress and that detainees who have been held in inhuman or degrading conditions must be able to claim compensation. Since the applicant was refused any monetary compensation, the Court considered he can be considered a “victim” within the meaning of Article 34.
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The Court opposed the arguments put forward by the Governement, that the detention periods were to be considered “short” and therefore that the applicant’s detention “had not attained the threshold of severity under Article 3” (para. 10).
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Turning to the two periods of detention deemed inadequate by the applicant, the Court underlined that the lack of personal space raises “strong presumption of a violation of Article 3 of the Convention which has not been rebutted” by the Government (para. 11), and that the conditions of detention during the second period (lack of lighting, dilapidated cell) were aggravated by the fact “that the applicant remained locked up… for most of the day” (para. 11). Accordingly, the Court found a violation of Article 3 of the Convention.
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Conclusion ■ violation of Article 3.
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Article 41 ■ EUR 2,800 in respect of non-pecuniary damage.
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Art 10 ■ Sanctions imposed by the prison administration on prisoners who read poems and sang songs to commemorate the memory of detainees who were wounded or killed during a special operation of state authorities in prison ■ No balance struck by national authorities as to the proportionality of the sanction to the legitimate aim pursued
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Facts ■ The applicants complained about the sanctions imposed on them because they read poems and sang songs to commemorate the detainees who were wounded or killed during the Operation “Return to Life” carried out by the Turkish prison authorities in December 2000. The authorities having considered they had breached the national law preventing prisoners from “singing hymns or chanting slogans without reason”, the applicants were deprived of any means of communication for one month.
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The court of first instance considered the applicants exercised their freedom of expression and lifted the decision of the prison administration. The appelate court overturned the ruling of the court of first instance, considering that that of the prison administration was in accordance with the procedure and the law. The Constitutional Court declared the applicants’ appeal manifestly unfounded.
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Law ■ Article 10 ■ The Court proceeded to analyse the measure in light of the three-step test. It first acknowledged that the sanction imposed on the applicants constituted an interference to their right to freedom of expression. The Court noted that this interference had a legal basis, namely provisions of the law on the execution of sentences and preventive measures. It also agreed that such an interference could pursue the legitimate aim of preventing disorder.
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However, the Court noted that when imposing the sanction, the prison administration merely mentioned the sanction was provided for by law and did not assess the necessity of the sanction. The appelate court followed a similar reasoning. The Constitutional Court stated that there had been no interference with the rights and freedoms provided for in the Constitution, or that such interference would not have been in breach of the Constitution. As a result, the Court concluded that the national courts did not carry out an adequate balance between the right to freedom of expression of detainees and the legitimate aim pursued.
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Conclusion ■ violation of Article 10.
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Article 41 ■ the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant.
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Art 5 § 1 ■ Unlawful detention on remand ordered by Supreme Court subsequent to first-instance conviction ■ Elements of arbitrariness
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Art 5 § 5 ■ Compensation ■ No enforceable right to compensation for the violation of Article 5 § 1
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Facts ■ The case concerned the applicant’s detention pending trial on charges of bribery, and the proceedings regarding his application for release. The applicant alleged that his detention was arbitrary and unlawful, that his application for released was not promptly examined, and that he did not receive compensation for that violation of his liberty.
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The applicant was detained on remand on the ground that there was a risk he could interefere with the course of justice, and that he could engage in further criminal activities. After the applicant was convicted at first instance, he was kept in detention although the judgment had not yet become final due to the risk he could abscond.
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The applicant lodged complaints with the national courts of all instances and initiated two proceedings before the Constitutional Court.
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Law ■ Article 5 § 1 ■ The applicant complained that his detention ordered by the Supreme Court subsequent to his conviction at first instance had been unlawful and arbitrary. In its decision, the Supreme Court underlined there was a risk the applicant could abscond. The Court observed that the Constitutional Court, reviewing the Supreme Court’s decision, had found this claim dubious and had identified numerous violations of the applicant’s right to liberty. In addition, the Constitutional court had noted that “the Supreme Court’s handling of the applicant’s application for release was marked by a self-serving pattern of delaying its decision” (para. 51). As a result, the Court considered that the combination of these two elements were “suggestive of a degree of arbitrariness” (para. 51) and declared that the applicant’s detention was in breach of Article 5 § 1 of the Convention.
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Conclusion ■ violation of Article 5 § 1.
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Law ■ Article 5 § 4 ■ The applicant further complained that his application for release had not been decided on speedily by the domestic courts. The Court has concluded that in view of its finding of a violation of Article 5 § 1 of the Convention, there is no need to examine separately this part of the complaint.
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Law ■ Article 5 § 5 ■ The applicant complained as well that he had not been compensated by the Constitutional Court for the violation of his right to liberty. The Constitutional considered that the acknowledgement of a violation of his rights constituted in itself adequate compensation. The Court found this conclusion “contrary to the spirit of Article 5 of the Convention” (para. 84) and tended to “negate any enforceable right to compensation” under the national applicable law – the State Liability Act (para. 85).
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In addition, the Court, having analysed the available mechanism under the State Liability Act, has concluded that the mechanism was far from being effective and could not be considered as an enforceable right to claim compensation for violation of the rights under Article 5 § 1. Therefore, the Court concluded there had been a violation of Article 5 § 5.
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Conclusion ■ violation of Article 5 § 5.
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Article 41 ■ EUR 8,000 in respect of non-pecuniary damage; EUR 2,000 in respect of costs and expenses.
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Art 3 (material) ■ Inhuman and degrading treatment ■ Detention, for two years, in ordinary prison of a bipolar person in poor conditions and without a comprehensive therapeutic strategy for the management of his pathology
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Art 5 § 1 a) ■ Conviction ■ Applicant being able, at the time of the execution of the sentence, to understand the purpose of social reintegration of the sentence and to benefit from it
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Art 5 § 1 e) ■ Maintenance in ordinary detention of the person of unsound mind despite his placement in a suitable establishment ordered by the national courts ■ Three conditions of the Winterwerp case law met ■ Insufficiency of available places not being a valid justification
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Art 5 § 5 ■ Absence of means to obtain compensation with a sufficient degree of certainty
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Art 6 § 1 (criminal) ■ Non-execution of the judgment ordering the applicant’s release and of the order ordering his placement in a suitable institution
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Art 34 ■ Excessively long delay of 35 days in the execution of the interim measure of the Court requesting the placement of the applicant in an adapted establishment
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Facts ■ The applicant, who suffers from bipolar disorder aggravated by drug addiction, was held in detention in an ordinary prison, in spite of domestic court decisions ordering his transfer to a Residential Centre for the enforcement of preventive measures (REMS), issued on the basis of expert psychiatric assessments that his mental health was incompatible with detention in prison. Even a judgment by the court of appeal, ordering his release on account of the delay in placing him in an appropriate establishment, was not enforced.
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Since 1 April 2015 sentences ordering placement in a care institution and detention in a forensic psychiatric hospital have been executed in the REMS. On account of the systemic problem of a lack of REMS places, many persons in the same situation as the applicant are waiting in prison for a REMS place to become available.
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Law ■ Article 3 (substantive limb) ■ The applicant’s mental condition had been incompatible with detention in prison, and despite the clear and unequivocal instructions from the domestic courts, the applicant had remained in an ordinary prison for almost two years. The conclusions reached by the specialists and the domestic judicial authorities were not open to dispute. The applicant’s continued detention in an ordinary prison had been incompatible with Article 3.
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In addition, the applicant had not benefited from any overall medical provision for his illness, aimed at remedying his health problems or preventing their aggravation, against a background of poor conditions of detention.
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Conclusion: violation (unanimously).
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Law ■ Article 5 § 1 (e) ■ The applicant’s immediate placement in a REMS had been ordered for a period of one year, on the grounds that this measure was the only appropriate means of dealing with the danger which he posed to society. The placement order had never been enforced.
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The three conditions of the Winterwerp case-law were met in this case:
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– at the date on which the placement in a REMS was ordered, the fact that the applicant was of unsound mind had been established before a competent authority on the basis of objective medical expertise;
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– the sentence-enforcement judge had rightly held that the applicant’s mental disorder was of a kind warranting confinement, given that, although he was under a supervision order, he had seriously breached the conditions imposed by it, and a placement in REMS was thus the only solution capable of meeting the need to ensure the protection of society;
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– the danger to society posed by the applicant had not ceased to exist.
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The measure ordering detention in a REMS had been intended not only to protect society, but also to provide the applicant with the treatment necessary to alleviate, in so far as possible, his condition and thus bring about a reduction in or control over his dangerousness. It had therefore been essential for appropriate treatment to be offered to the applicant, in order to reduce the level of danger that he represented to society. However, even after the court of appeal’s judgment ordering his release, the applicant had not been transferred to a REMS. In contrast, he had continued to be detained in an ordinary prison, in poor conditions, and had not received individualised therapeutic care.
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From February 2019, the prison administration department had sent numerous requests for admission to various REMS, in an attempt to find a place for the applicant, but, given the lack of availability, these requests had been unsuccessful. Confronted with these refusals, the national authorities had not created new REMS places or found an alternative solution. It had been incumbent on them to guarantee an available REMS place for the applicant, or to find an adequate solution. The unavailability of places had not been a valid justification for the applicant’s continued detention in a prison environment.
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Conclusion ■ violation (unanimously).
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Law ■ Article 34 ■ The interim measure indicated by the Court consisted of ensuring the applicant’s transfer to a REMS or other institution capable of providing appropriate therapeutic treatment for his mental illness.
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The domestic authorities had transferred the applicant to a therapeutic community thirty-five days after the Court had requested the measure.
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A lack of places in the REMS was not a valid justification for the delay. In the absence of available REMS place, it had been incumbent on the Government to find another appropriate solution for the applicant. Although a certain delay in executing the interim measure had been acceptable in the present case, given the exceptional lockdown circumstances in Italy in March 2020, thirty-five days was nevertheless excessive.
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Conclusion ■ violation (unanimously) ■ The Court also concluded, unanimously, that there had been:
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– a violation of Article 5 § 5 on account of the absence of a means of obtaining, with a sufficient degree of certainty, compensation for the breaches of Article 5 § 1;
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– a violation of Article 6 § 1 on account of the failure to execute the judgment ordering the applicant’s release and the decision ordering his placement in a REMS;
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– no violation of Article 5 § 1 (a), in that the applicant, at the time of the trial, had been capable of taking part in an intelligent manner and had thus been capable, at the time of the execution of the sentence, of understanding the purpose of social rehabilitation that it pursued and of benefiting from it.
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Article 41 ■ EUR 36,400 in respect of non-pecuniary damage.
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(See also Assanidze v. Georgia [GC], 71503/01, 8 April 2004, Legal summary; Torreggiani and Others v. Italy, 43517/09, 8 January 2013, Legal summary; W.D. v. Belgium, 73548/13, 6 September 2016, Legal summary; and Rooman v. Belgium [GC], 18052/11, 31 January 2019, Legal summary)
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FEBRUARY 2022
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Art 3 ■ Life imprisonment with no prospect of release ■ Need for assessment of penological grounds for continued detention
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Facts ■ The applicants complained of the life sentence imposed on them with no prospect of release.
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Law ■ Article 3 ■ The Court recalled that for a life sentence to be compatible with the Convention, it “must be reducible de jure and de facto” (para. 7) i.e. “there must be both a prospect of release for the prisoner and a possibility of review”. The review procedure should rely on the assessment of the penological grounds justifying the continued incarceration of the prisoner (punishment, deterrence, public protection and rehabilitation). The latter factor should particularly be taken into account, as “it is here that the emphasis of European penal policy now lies” (para. 7).
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The Court recalled it had already found that the Ukrainian penal system does not provide for any real opportunity for life prisoners to request and obtain release (see Petukhov v. Ukraine (no. 2) app. no. 41216/13, 12 March 2019). In the present case, the Court reached a similar conclusion. Noting that the applicants did not have any real prospect of release, it ruled there had been a violation of Article 3 of the Convention.
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Conclusion ■ violation of Article 3.
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Article 41 ■ the finding of a violation constitutes in itself sufficient just satisfaction.
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Art 13 (+ Art 3) ■ Art 3 (substantive) ■ Degrading treatment ■ Inadequate medical care, assistance and opportunity for outdoor exercise for detainee with health issues ■ No effective domestic remedy
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Art 5 § 3 ■ Reasonableness of pre-trial detention ■ Failure to provide relevant and sufficient reasons when ordering and extending detention
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Art 34 ■ Hinderance of the exercise of the right of petition ■ Authorities’ refusal to allow private meetings between applicant and his Court representatives ■ Alleged non-compliance with interim measure for immediate provision of adequate medical assistance not substantiated
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Facts ■ The applicant is a former Deputy Minister of Defence of Armenia and a well-known political figure. He was arrested in December 2015 on suspicion of alleged support for and involvement in the activities of an armed group apprehended by the National Security Service. The applicant complained that the authorities failed to provide him with adequate medical treatment and care while in detention, that his pre-trial detention was not based on “relevant” and “sufficient” grounds, and that he was denied private meetings with his representatives before the Court. He also complained of the Government’s failure to comply with the interim measure indicated by the Court. He also submitted complaints regarding the lack of effective remedies in relation to his complaints concerning inadequate medical care in detention.
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Law ■ Article 3 and 13 ■ The applicant complained of non-provision of adequate medical care and daily assistance in detention, namely, treatment for multifocal brain damage, vascular encephalopathy, gross impairment of coordination, lumbar degenerative disc disease, lumbago (low back pain), radiculopathy, heart problems, pulmonary artery thromboembolism, enlarged prostate, kidney cysts and post-thrombotic syndrome affecting the lower limbs, and other health problems. He also complained of being denied proper daily assistance and lack of hygiene, namely, bathing for a considerable period of time. The daily assistance was effectuated by non-trained fellow inmates of the applicant.
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The applicant also complained of lack of effective remedy for his complaints under Article 3, which was in breach of Article 13. The applicant claimed that he submitted numerous complaints to the authorities, including to the administration of the detention facility, however, they had been fruitless and he had therefore not had an effective remedy by means of which to complain about the quality of his treatment.
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Admissibility ■ The Government challenged the admissibility of the complaint of the applicant by stating that he has not complied with the six-month time-limit. The applicant argued that his numerous complaints were submitted to no avail. The Court concluded that the period of detention of the applicant should be regarded as a “continuing situation”, as he had been detained in the same type of detention facility in substantially similar conditions. The short periods during which he was taken to the hospital do not interrupt the continuum of detention. The Court has rejected the Government’s allegations regarding inadmissibility of the complaint.
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Merits ■ Exhaustion of domestic remedies and alleged violation of Article 13 of the Convention ■
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The Court first examined the part of the complaint where the applicant submitted that he did not have any effective remedy available to him to challenge the non-provision of adequate medical care in detention. In his application, the applicant claimed that he had submitted numerous requests to the administration of Yerevan-Kentron detention facility asking for the requisite medical examinations. However, those requests were either refused or granted with considerable delays. He had also sent letters to the Minister of Justice and the Penitentiary Service. As the administration of the detention facility did not ensure adequate medical care for the applicant, this put him in a life threatening situation when the need for an urgent medical intervention arose.
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The Court examined the domestic remedies mentioned by the Government at the disposal of prisoners wishing to complain about the quality of medical care provided and conditions of detention (complaint to the administration of the detention facility, to the prosecutor, to the judicial authority). The Government also mentioned the possibility to apply for compensation of non-pecuniary damage.
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As regards the complaints to the administration of the detention facility, the Court noted that the penitentiary authorities would be required in essence to examine the applications as regards their inability to provide adequate medical care, therefore, to be the judge in their own case. This does not satisfy the requirement of impartiality in accordance with Article 13 of the Convention.
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As to the complaints to the prosecutor, the Court noted that, although the prisoners, in principle, have the right to complain to the prosecutor, there is no legal requirement incumbent on this authority to hear the complaint or ensure that the prisoner effectively participates in the proceedings against the prison administration. The only obligation of the prosecutor would be to provide information on the way in which they have dealt with the complaint. However, no obligation to decide on the merits of the complaint is provided for in national law. The Court concluded that this mechanism cannot be regarded as effective remedy either.
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The Court further examined whether the application to a judicial authority could be regarded as effective remedy against ill-treatment. It highlighted the fact that the Government did not specify which jurisdiction had the competence to examine complaints on the lack of adequate medical care, assistance and the type of redress envisaged for such type of claims. The Government also failed to submit any examples of effective realisation of this type of remedy in similar cases at the domestic level. All these factors led to the conclusion of the Court that such a remedy could not be regarded as complying with the standards of Article 13 of the Convention.
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As regards the possibility to apply for compensation of non-pecuniary damage, the Court concluded that the procedure for lodging complaints of such type is not clear and cannot be considered an effective remedy.
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Therefore, none of the remedies referred to by the Government satisfies the requirements of Article 13 on the effectiveness and accessibility for the prisoner in order to challenge inadequate medical care and lack of daily assistance. Thus, the Government’s objection of non-exhaustion of domestic remedies was dismissed.
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Conclusion ■ violation of Article 13.
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Law ■ Article 3 ■ Then the Court proceeded to the examination of the allegations of ill-treatment submitted by the applicant. It was clear from the medical records of the applicant that he had serious health issues, namely arterial problems, prior to his admission to prison. His health has deteriorated in the course of serving his prison term. He also submitted very detailed complaints on the deficiencies in the organisation of medical treatment provided to him. There have been considerable delays in the provision of urgent medical care and examination, which were confirmed by the Ombudsperson and the Public Observers Group. Although the applicant received visits from different doctors, this mere fact cannot lead to a conclusion that the medical assistance was adequate. Therefore, the Court acknowledged a lack of systemic and comprehensive treatment of the applicant’s special health needs and the authorities’ failure to ensure the timely organisation of the applicant’s medical examinations and to provide him with the prescribed medication.
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As regards the quality of care ensured, the Court noted that the daily assistance provided to the applicant by his fellow inmates cannot be considered as adequate. As regards the hygiene needs of the applicant, which were not satisfied (from 12 August 2016 until 23 February 2017), the parties had different versions in this respect, but the Court noted that no evidence was submitted by the Government to substantiate its claim. In addition, outdoor exercise was also not available to the applicant, which was not contested by the Government. Therefore, the Court has concluded that there has been violation of Article 3 with regard to quality of care provided to Mr Shirkhanyan.
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Conclusion ■ violation of Article 3.
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Law ■ Article 5 § 3 ■ The applicant complained of a lack of relevant and sufficient reasons for justifying his prolonged detention. The Court has already pointed to the recurring problem in Armenia of the use of stereotyped formulae when imposing and extending detention. The decisions of the domestic courts did not contain individualised assessment of the circumstances surrounding the detention of the applicant, or details as to the basis of the asserted risks of absconding and obstructing justice. The Court concluded in such circumstances that there has been violation of Article 5 § 3 with regard to the legality of the applicant’s detention.
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Law ■ Article 34 ■ The applicant also submitted that he was denied private meetings with his representatives before the Court, which had violated his right to individual application. The Court has highlighted that it is of utmost importance for the effective realisation of the right to individual petition that the applicant be able to communicate freely with the Court without being subjected to any form of pressure from the authorities. In the present case, taking into account a particular vulnerability of the applicant, being held in custody with very limited contact with his family and outside world, and the actions of the prison administration that consisted of refusing for more than a year the permission to have confidential meetings with the representatives before the Court, the Court concluded that the Government’s actions amounted to hindering the applicant’s right to individual petition.
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Conclusion ■ violation of Article 34.
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The applicant also complained that the Government failed to comply with the interim measures indicated by the Court under Rule 39 (issued on 9 November 2017). The Court ordered the State to immediately provide the applicant with the requisite medical assistance including, if necessary, his placement in a specialist medical facility and to set up a medical panel on a parity basis to examine the applicant with a view to diagnosing his specific problems and determining the necessity of any long-term or immediate treatment. The Government alleged it had no knowledge of the interim measure due to technical issues impacting its correspondence with the Court. The Court found this claim “unacceptable” (para. 210). However, the Court noted that the applicant “failed to provide [it] with any information” regarding the quality of the medical care provided following the adoption of the interim measure (para. 211). The Court had therefore “no sufficient basis… to conclude that the State failed to discharge its obligation under Article 34 of the Convention”.
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Conclusion ■ no violation of Article 34.
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Article 41 ■ EUR 12 000 in respect of non-pecuniary damage.
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Art 3 ■ Inadequacy of medical care provided in detention ■ Lack of surgery for the medical conditions affecting the everyday functioning of the prisoner
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Facts ■ The applicant complained of non-provision of adequate medical care while in detention. He suffered from a serious medical condition, namely, cataracts of both eyes with complications. This impaired his everyday functioning, which might have led to considerable anxiety for the applicant as to whether the medical care provided to him was adequate.
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Law ■ Article 3 ■ The Court noted that the national authorities must ensure that diagnosis and care received by the prisoner are prompt and accurate, with a view to treating the detainee’s health problems and preventing their aggravation. The Court recalled it had already found a violation of Article 3 in similar cases and saw no reasons to depart from these earlier conclusions (see Nevmerzhitsky v. Ukraine, App. no. 54825/00, §§ 103-05, ECHR 2005 II, Melnik v. Ukraine, App. no. 72286/01, §§ 104-06, 28 March 2006 and Logvinenko v. Ukraine, App. no. 13448/07, §§ 68-78, 14 October 2010).
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Conclusion ■ violation of Article 3.
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Article 41 ■ EUR 7 500 in respect of pecuniary and non-pecuniary damage.
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Art 3 ■ Extradition to a third country not a member of the Council of Europe where human rights violations were documented ■ Risk of ill-treatment in a third country ■ Access to a procedure in the context of which the claims of risk would be examined in line with the Convention requirements
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Facts ■ The applicant alleged that the authorities failed to examine his claims that he would face the risk ill-treatment if extradicted to Tajikistan. The applicant was remanded in custody in Ukraine. The Tajik authorities requested the applicant’s extradition on charges of involvement in the activities of terrorist groups active in Syria. They assured the Ukrainian authorities that, if extradited to Tajikistan, the applicant would not be subjected to ill-treatment.
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The applicant made two unsuccessful attempts to apply for asylum in Ukraine. He applied to the Kyiv Circuit Administrative Court, challenging the failure of the Migration Service to examine his application. The proceedings in this case are pending.
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The applicant applied against the decision of the General Prosecutor’s Office to extradite him to Tajikistan. The applicant argued that his asylum application was never duly examined, and that no proper assessment of the risk of ill-treatment to the applicant in case of extradition to Tajikistan was conducted. The applicant’s appellate claim was rejected. The domestic court stated that the decision to extradite the applicant had been lawful and that according to the data provided by the Migration Service the applicant never submitted any asylum application. The attempts by the applicant to challenge the refusal to accept his asylum application did not constitute a barrier for extradition under the national law. The applicant’s extradition was postponed until the delivery of a final decision in the criminal case against him was considered by the Ukrainian court, and the serving of any possible sentence in Ukraine.
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Law ■ Article 3 ■ The Court highlighted that it received no indication of the developments in the case of the applicant at national level. Considering that “the proceedings against the applicant could be discontinued at any point” (para. 15) the Court considered the risk that the extradition could be enforced imminent. The Court had therefore no reason to strike the application out of the Court’s list of cases.
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The Court observed that the applicant had an “arguable claim” (para. 19) that he could be subjected to ill-treatment if extradited to Tajikistan, taking into account the human rights situation in Tajikistan and the applicant’s submissions to the domestic authorities.
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The Court engaged in an assessment of whether the applicant had effective access to a mechanism of examination of his claims that he would be subjected to ill-treatment if extradited. The Court noted that the the asylum procedure and appeals against the extradition decision are the two “potential forum” provided for by law (para. 21). The Court noted that in practice, “the asylum application process [is…] the primary forum for the examination of any risk of ill-treatment” (para. 22) as courts examining appeals against extradition decision “rely on the conclusions reached in the asylum procedure” (para. 22).
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The Court noted that in the applicant’s situation, this remedy proved ineffective as there are “no officials authorised to accept asylum applicantions in criminal justice detention facilities” such as the one where the applicant was detained (para. 25). The Migration Service should have arranged a visit to the applicant and accepted his asylum application – but there are no clear legislative provisions providing for such an opportunity. This situation resulted in the impossibility for the applicant to reach the Migration Service. The arguments of the Government on account of the postal services’ failure to deliver the applicant’s second application to the Migration Service did not convince the Court.
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Therefore, the Court concluded that the applicant was deprived of access to a procedure whereby the risk of ill-treatment in Tajikistan would have been assessed. The Court accordingly found that there had been a violation of Articles 3 and 13.
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Conclusion ■ violation of Article 3; violation of Article 13.
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Article 41 ■ the finding of a violation constitutes in itself sufficient just satisfaction.
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© Council of Europe/European Court of Human Rights
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This newsletter is 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, the European Commission or the Robert Carr Fund. Neither the European Union, the European Commission nor the Robert Carr Fund can be held responsible for them.
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