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March – April 2019. Round-up of the ECtHR case-law

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  Newsletter no. 2019/2- Round-up of the ECtHR case-law (March – April 2019)



Petukhov v. Ukraine (no.2) (no. 41216/13) – life sentence / medical care / systemic problem / quasi-pilot judgement. The applicant had been sentenced to life imprisonment. He complained, inter alia, that he had not been provided with adequate medical assistance in detention (violation of Article 3) and that his life sentence was de jure and de facto irreducible (violation of Article 3). The Court found that the irreducibility of life sentences in Ukraine constituted a systemic problem calling for the implementation of measures of a general character (application of Article 46).

Bigović v. Montenegro (no. 48343/16) – material conditions of detention / medical care / justification of pre-trial detention. The applicant complained about his conditions of detention (violation of Article 3), and about the lack of medical care (no violation of Article 3). He complained also about the unlawfulness of his detention (violation of Article 5§3).

Valyuzhenich v. Russia (no. 10597/13) – trial conditions. The applicant complained that his confinement in a metal cage during the criminal proceedings against him had violated Article 3 (violation of Article 3).

Kunert v. Poland (no. 8981/14) – right of access to a tribunal / material conditions of detention. The applicant complained that he had been deprived of his right of access to a tribunal (no violation of Article 6§1). He also complained about his detention conditions (rejected for non exhaustion of domestic remedies).

Tomov and Others v. Russia (nos. 18255/10 and others) – conditions of transfer / systemic problem / right of access to a tribunal / pilot judgment. The applicants complained about their conditions of transfer between remand prisons and correctional facilities (violation of Article 3 and Article 13). In this respect, the Court identified a structural problem calling for the adoption of general measures (application of Article 46). In addition, one applicant complained that he had not been given the opportunity to present a court claim for compensation for inadequate detention conditions (violation of Article 6§1). The Court also found a violation of Article 38 as the Government failed to submit to the Court evidence it had requested from them.

Altay v. Turkey (no. 2) (no. 11236/09) – respect for private life / communication with a lawyer. The case concerned a decision by the prison authorities and the courts to have an official present when the applicant consulted his lawyer (violation of Article 8, violation of Article 6§1).

Guimon v. France (no. 48798/14) – respect for private and family life. The applicant complained that her request for escorted leave in order to travel to a funeral home had been rejected (no violation of Article 8).

T.B v. Swtizerland (no. 1760/15) – right to liberty / detention of persons of unsound mind. The applicant complained that his placement in a specialized closed center for the purpose of assistance constituted deprivation of liberty without a legal basis (violation of Article 5§1).


12 march 2019

Petukhov v. Ukraine (no.2) (no. 41216/13)

The applicant had been sentenced to life imprisonment. He complained, inter alia, that he had not been provided with adequate medical assistance in detention and that his life sentence was de jure and de facto irreducible.

Complaint under Article 3

(a)  Medical care in detention – The applicant had suffered an irreversible deterioration in his health. During the period under consideration he had suffered a recurrence of his pulmonary tuberculosis and further medical treatment had been found to be devoid of any prospect of success. 

It had not been disputed that the applicant had been regularly examined by various doctors and subjected to various screening and laboratory tests. It could not therefore be said that the respondent State had left him unattended. However, the question remained as to whether the State’s response to the applicant’s disease had proved to be an effective one. The domestic authorities had acknowledged, on several occasions, that there had been a shortage of anti-tuberculosis medication in the prison. The authorities’ inability to assure a regular, uninterrupted supply of essential anti-tuberculosis drugs to patients was a key factor in the failure of tuberculosis treatment. 

The Court had previously noted evidence of poor medical assistance and protection against tuberculosis in Ukrainian detention facilities. Ukraine was among the countries reporting the highest rate of failure in tuberculosis treatment. Drug-resistant tuberculosis had continued to spread and the reasons for that included continued shortages of first-line drugs and lack of access to second-line full treatment schemes, especially in prison settings. Further, there was an absence of any legal framework for ensuring palliative care in prisons and no particular medical arrangements had been made for the applicant in that regard. 

Conclusion: violation (unanimously).

(b)  Irreducible life sentence – Life prisoners in Ukraine could expect to regain their liberty in two cases: firstly, if they had a serious illness preventing their further imprisonment, or, secondly, if they were granted presidential clemency. 

The commutation of life imprisonment because of terminal illness, which meant that a prisoner was allowed to die at home or in a hospice rather than behind prison walls, could not be considered as a “prospect of release”, as the notion was understood by the Court. Accordingly, the regulation and practice of presidential clemency, being the only possibility for mitigating life sentences in Ukraine, called for stricter scrutiny. 

The Clemency Procedure Regulations provided guidance as to the criteria and conditions for review of a life sentence and could be construed as referring to legitimate penological grounds for the continuing incarceration of prisoners. It was noteworthy, however, that those considerations were applicable in the context of a broader restriction. Namely, that “persons convicted for serious or particularly serious crimes, or having two or more criminal records in respect of the commission of premeditated crimes … may be granted clemency in exceptional cases and subject to extraordinary circumstances”. All life prisoners clearly fell within that category. It was not known what was meant by “exceptional cases” or “extraordinary circumstances”. Prisoners who had received a whole-life sentence did not therefore know from the outset what they might have to do in order to be considered for release and under what conditions. 

There was a lack of sufficient clarity and certainty in the applicable criteria and conditions for a life-sentence review under the presidential clemency procedure. The procedure did not require reasons to be given in decisions regarding requests for clemency and no activity reports had been published detailing the examination of requests for clemency. The absence of an obligation to give reasons was further aggravated by the lack of any judicial review of those decisions. In such circumstances, the exercise by life prisoners of their right to a review of their life sentence by way of presidential clemency could not be regarded as being surrounded by sufficient procedural guarantees. 

European penal policy placed emphasis on the rehabilitative aim of imprisonment. Though States were not responsible for achieving the rehabilitation of life prisoners, they nevertheless had a duty to make it possible for such prisoners to rehabilitate themselves. The obligation to offer a possibility of rehabilitation was to be seen as an obligation of means, not one of result. However, it entailed a positive obligation to secure prison regimes for life prisoners which were compatible with the aim of rehabilitation and enabled such prisoners to make progress towards their rehabilitation. Life prisoners in Ukraine were segregated from other prisoners and spent up to twenty-three hours per day in their cells, which were usually double or triple occupancy, with little in terms of organised activities and association. The existing regime for life prisoners in Ukraine was incompatible with the aim of rehabilitation.

Conclusion: violation (unanimously).

Application of Article 46

The applicant’s case, in so far as it concerned the irreducibility of a life sentence, disclosed a systemic problem calling for the implementation of measures of a general character. There were already over sixty similar applications pending before the Court and many more could follow. 

Contracting States enjoyed a wide margin of appreciation in deciding on the appropriate length of prison sentences for particular crimes. The mere fact that a life sentence might eventually be served in full did not make it contrary to Article 3. Accordingly, review of whole-life sentences did not necessarily need to lead to the release of the prisoner in question. For the proper execution of the judgment, the respondent State would need to put in place a reform of the system of review of whole-life sentences. The mechanism of such a review had to guarantee the examination in each case of whether continued detention was justified on legitimate penological grounds and had to enable whole-life prisoners to foresee, with some degree of precision, what they had to do to be considered for release and under what conditions, in accordance with the standards developed in the Court’s case-law.

© Council of Europe/European Court of Human Rights


19 March 2019

Bigović v. Montenegro (no. 48343/16)

The applicant complained about his conditions of detention, and the lack of medical care. He complained also about the unlawfulness of his detention.

Complaint under Article 3

Detention conditions – The Court examined in particular the detention condition of the applicant between February 2006 and August 2009. In this regard, it noted that the CPT reports regarding this period of time point out the alarming level of overcrowding, the humidity of the cells and the lack of outdoor exercise (§§144-147). In light of the above, the Court concluded that there had been a violation of Article 3.

Medical care – The applicant first complained that he was not provided by the prison authorities with the special diet he had been prescribed. The Court observed that “it is clear from the case file that the remand prison could not provide for it” (§169), but noted altogether that the prison administration “took measures in order to overcome the encountered situation, albeit with the assistance of the applicant’s family” (§169) who was allowed to provide him with appropriate food once a week.

Secondly, the applicant complained that he had not been examined by a psychiatrist since August 2016 even though the medical specialist had recommended at this time that he should undergo another examination within “one or two months” (§170). However, the Court found no “evidence to suggest that the lack of prompt treatment subjected the applicant to further suffering” (§170).

Last, the applicant complained that prison officers attended his medical examinations. In this regard, the Court recalled that medical confidentiality “should not be encroached upon, unless it is strictly necessary in the specific circumstances of a case” (§172). However, even though it acknowledged that the authorities “did not provide a thorough risk profile” (§173), it recognised “the security risk presented by the fact that by the relevant time, a heavy sentence had been imposed on the applicant for a number of criminal offences, including aggravated murder” (§173). As a result it found that “the presence of prison guards during the medical examinations did not, alone, attain a sufficient level of severity to entail a violation of Article 3 of the Convention” (§173)

Complaint under article 5§3

 The applicant complained that his pre-trial detention had not been duly justified. The Court observed that the domestic courts kept using “standardised formulae” (§210) and “failed to consider his personal circumstances, such as his character and morals, home, occupation, assets, family ties and various links to the country in which he was being prosecuted” (§211). Therefore, the Court concluded that there had been a violation of Article 5§3 of the Convention.


26 March 2019

Valyuzhenich v. Russia (no. 10597/13)

The applicant complained that his confinement in a metal cage during the criminal proceedings against him had violated Article 3.

The Court noted that the applicant had been held in a metal cage during his trial, which consisted of sixteen hearings (§10). In this regard, the Court recalled its previous case-law “where it came to the conclusion that holding a person in a metal cage in the courtroom constituted in itself […] an affront to human dignity,” and amounted to degrading treatment in violation of Article 3 of the Convention.

The Court saw no reason to depart from these findings and concluded that there had been a violation of Article 3.


4 April 2019

Kunert v. Poland (no.  8981/14)

The applicant complained about his conditions of detention and that he had been deprived of his right of access to a court in this respect.

Complaint under Article 6§1

While imprisoned, the applicant brought a civil claim against the Polish State Treasury for compensation on account of his detention. His claim was rejected on account “he had failed to demonstrate that the actions of the defendant had been unlawful” (§12). The applicant lodged an appeal against this decision. His appeal was rejected on account that he failed to submit his appeals in two copies.

For both proceedings, the applicant was refused legal aid on account that he “was able to formulate his claims in a clear and understandable manner” (§10).

The Court first noted that the requirement that an appeal should be sent in two copies was legitimate as it served the legitimate aim of “the proper administration of justice” (§37). Secondly, as regards the proportionality of this requirement, the Court noted that since the applicant had been provided with general information regarding the appeal procedure “it was not unreasonable to expect the applicant also to lodge his appeal in two copies” (§37 – see contra Parol v. Poland no. 65379/13, §§ 39-49, 18 October 2018). Therefore, the Court found no violation of Article 6§1.

Complaint under Article 3

The Court recalled that it had found in the case of Łatak v. Poland (no. 52070/08, 12 October 2010) that the remedy available for prisoners wishing to complaint of their detention conditions could be deemed effective. In this respect, the Court pointed out that “the applicant failed to use the available effective domestic remedy in accordance with procedural requirements because of his own procedural mistake and his lack of required diligence in the defence of his interests.” (§43). Accordingly, the Court rejected the complaint for non-exhaustion of domestic remedies.


9 April 2019

Tomov and Others v. Russia (application nos. 18255/10 and others)

The applicant prisoners complained about the inhuman and degrading conditions in which they had been transported by road and rail and about the lack of effective means of redress for their complaints.

Complaint under Article 3

(1) The Government requested that three applications be struck out of the list of cases on the basis of unilateral declarations. Although the Court had already adjudicated similar issues in many previous cases and had clarified the nature of the Russian authorities’ obligations under the Convention, it continued to receive significant numbers of meritorious applications of that kind. Acceptance of the Government’s request would leave the current situation unchanged, without any guarantee that a genuine solution would be found in the near future. Nor would it advance the fulfilment of the Court’s task under Article 19, namely to “ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto”. The request to strike the applications out of the list had therefore to be rejected.

(2)  Merits 

(a)  Summary of the approach to be taken – Whether there had been a violation of Article 3 could not be reduced to a purely numerical calculation of the space available to a detainee during the transfer. Only a comprehensive approach to the particular circumstances of the case could provide an accurate picture of the reality for the person being transported. Nevertheless a strong presumption of a violation arose when detainees were transported in conveyances offering less than 0.5 square metres of space per person. The low height of the ceiling, especially of single-prisoner cubicles, which forced prisoners to stoop, could exacerbate physical suffering and fatigue. Inadequate protection from outside temperatures, when prisoner cells were not sufficiently heated or ventilated, would constitute an aggravating factor. The strong presumption of a violation of Article 3 was capable of being rebutted only in the case of a short or occasional transfer. By contrast, the adverse effects of overcrowding had to be taken to increase with longer duration and greater frequency of transfers, making the applicant’s case of a violation stronger.

As regards longer journeys, such as those involving overnight travel by rail, the Court’s approach would be similar to that applicable to detention in stationary facilities for a period of a comparable duration. Even though a restricted floor space could be tolerated because of multi-tier bunk beds, it would be incompatible with Article 3 if prisoners forfeited a night’s sleep on account of an insufficient number of sleeping places or otherwise inadequate sleeping arrangements. Factors such as a failure to arrange an individual sleeping place for each detainee or to secure an adequate supply of drinking water and food or access to the toilet seriously aggravated the situation of prisoners during transfers and were indicative of a violation of Article 3.

(b)  Application in the present cases

(i)  The four male applicants – Each journey had involved at least one overnight train ride during which only six sleeping places had been available in the large compartments and three in the small ones. Prisoners outnumbered the available sleeping places sometimes by a factor of two, and the sixty-centimetre bunks were too narrow to accommodate more than one person under normal conditions. The “bridge” half-bunk was too short for the average person and being positioned, at chest level, it impeded movement in an already overcrowded compartment and prevented passengers from standing upright. The applicants had been deprived of a night’s rest on one or more consecutive nights because of insufficient sleeping places. That in itself was indicative of inhuman and degrading treatment that violated Article 3, but there had been several additional factors which had to have aggravated their plight.

Firstly, three of the applicants had spent at least fifteen hours locked inside an unheated compartment at sub-zero outside temperatures. Secondly, two toilet visits and three pots of water per day for the entire duration of a sixty-two-hour journey could not be considered an adequate arrangement. Thirdly, all four applicants had been transported to and from the train station in multi-prisoner cells of a standard prison van. On each occasion the travel time had been between one and two and a half hours and each prisoner had had less than 0.5 square metres of floor space at his disposal. Such conditions immediately preceded or followed a train journey in conditions which the Court had found to constitute inhuman and degrading treatment. 

(ii)  The two female applicants – The applicable regulations required that certain categories of vulnerable detainees, including women, be transferred separately from other prisoners. Multi-prisoner cells were routinely allocated to male prisoners, while female prisoners were relegated to cramped metal cubicles for the duration of transfers. As a consequence, the female applicants had been placed in single-prisoner cubicles measuring 0.325 square metres. 

One of the female applicants had had to travel in one such cubicle no fewer than seven times over a three-week period. The fact that she had routinely spent up to two hours in such a confined space was sufficient on its own to justify the finding of a violation of Article 3. In addition, the applicant, who suffered from diabetes and was overweight, and as such required a generous allocation of seating space and good access to ventilation, had had to share the cubicle with another woman. 

The second female applicant had undergone at least ten transfers over a two-month period, spending a total of one hour and ten minutes in a single‑prisoner cell on each journey on the way to and from court hearings. The cell had been assembled from metal sheets that formed a fully enclosed cubicle with air holes in the door. There was no heating inside the cell and the cold was transferred from the outside. 

(iii)  Conclusion – All the applicants had been transported in conditions that had appeared to be compatible with the requirements of the domestic regulations. It had not been claimed that any officials had sought to cause them hardship or suffering. However, even in the absence of an intention to humiliate or debase the applicants, the actual conditions of transfer had had the effect of subjecting them to distress of an intensity exceeding the unavoidable level of suffering inherent in detention. Those conditions undermined their human dignity, and that treatment had to be characterised as “inhuman and degrading”.

Conclusion: violation (unanimously).

Complaint under Article 13 in conjunction with Article 3

The complaints of inhuman or degrading conditions of detention and those concerning conditions of transport were relevantly similar as regards the types of remedies that were in theory available for such grievances in the Russian legal system. The Court’s findings regarding the effectiveness of the domestic remedies in conditions-of-detention cases were accordingly applicable in the applicants’ case with certain qualifications relating to the short duration of transfers. 

As regards complaints which detainees could address to commanders of the escorting unit, hierarchical superiors did not have a sufficiently independent standpoint to consider complaints that called into question the way in which they discharged their duty to maintain the appropriate conditions of detention or transport. A complaint could also be sent to the federal or regional ombudsperson’s office or a public monitoring commission. However, those bodies were not vested with the authority to issue legally binding decisions. 

Railways fell under the jurisdiction of transport prosecutors who were tasked with supervising the application of laws and ensuring respect for human rights and freedoms. However, infringement reports or orders issued by a prosecutor were primarily matters between the supervising authority and the supervised body and were not geared towards providing preventive or compensatory redress to the aggrieved individual. There was no legal requirement compelling the prosecutor to hear the complainant or to ensure his or her effective participation in the ensuing proceedings.

However diligently the proceedings before courts were conducted, they would normally conclude too late to be able to put an end to a situation involving an ongoing violation. Unlike the conditions in a remand prison or penal facility which the prisoner endured for months or years, transfers took a much shorter time, in the range of days or weeks. Nevertheless, the fact that the courts could take cognisance of the merits of the complaint even after the end of a transfer, establish the facts and make redress tailored to the nature of the violation made the judicial remedy prima facie accessible and capable, at least in theory, of affording appropriate compensatory redress. However, aspects of proceedings before the Russian courts were particularly problematic. 

The provisions of the Civil Code on tort liability imposed special rules on compensation for damage caused by State authorities and officials. They required the claimant to show that the damage had been caused through an unlawful action or omission on the part of the specific State authority or official. That requirement established an unattainable burden of proof. The Russian courts’ approach was unduly formalistic based as it was on the requirement of formal unlawfulness of the authorities’ actions. The accessibility of the regulatory framework establishing normative conditions of transport had been classified “for service use only” and as such was not accessible to prisoners claiming a breach of their rights. 

The framework of judicial proceedings in its present state did not allow claimants an adequate opportunity to prove their allegations of inhuman or degrading conditions of transport, to prevent repetition of similar violations or to recover damages in that connection. Judicial proceedings in connection with inhuman or degrading conditions of transport did not satisfy the criteria of an effective remedy that offered a reasonable prospect of success.

Conclusion: violation (unanimously).

Application of Article 46

(1)  Whether there existed a structural problem calling for the adoption of general measures – The Court had found a violation of Article 3 on account of prisoners’ transport conditions in over fifty cases. In many of those cases it had also found a violation of Article 13 due to the absence of an effective remedy. More than 680 prima facie meritorious applications were now pending before the Court in which the main or secondary complaint related to alleged inadequate conditions of transportation. The above numbers, taken on their own, were indicative of the existence of a recurrent structural problem.

The violations of Article 3 found in the previous judgments had originated in geographically diverse regions of the Russian Federation. However, the set of facts underlying those violations had been substantially similar: an acute lack of personal space during transportation, inadequate sleeping arrangements, dysfunctional heating and restricted access to sanitary facilities. The violations found stemmed chiefly from an unwavering application of the domestic normative framework. 

Notwithstanding a trend towards an improvement in the conditions of transport and an overall reduction of the prisoner population in Russia, the urgency of the problem had not abated. It was of grave concern that no domestic remedies had been made available more than six years after the judgment in Ananyev and Others v. Russia in which the Court had required that such remedies be introduced in respect of a relevantly similar issue of inhuman and degrading conditions of detention. Taking into account the recurrent and persistent nature of the problem, the large number of people affected, and the urgent need to grant them speedy and appropriate redress at the domestic level, the Court considered that repeating its findings in similar individual cases would not be the best way to achieve the Convention’s purpose. It was compelled to address the underlying structural problems in greater depth, to examine the source of those problems and to provide further assistance to the respondent State in finding appropriate solutions and to the Committee of Ministers in supervising the execution of the judgments.

(2)  Origin of the problem and general measures required to address it – The recurrent violations of Article 3 resulting from inadequate conditions of transport were an issue of considerable magnitude and complexity. It was a multifaceted problem owing its existence to a large number of negative factors, such as the geographical remoteness of many penal facilities which had been built far from major cities under the former regime, the long distances involved, the ageing rolling stock, exceedingly restrictive regulations and standards, and a lack of transparency during prisoner transportation. That situation required comprehensive general measures at national level, which had to take into consideration a large number of individuals who were currently affected by it.

(a)  Avenues for improving conditions of transport

(i)  Reducing allocation to remote facilities – The emphasis needed to be on placing prisoners as close to their home as possible so as to save them from the hardships of a long railway journey, to reduce the number of prisoners travelling by rail to faraway destinations, and also to avoid the burden of long and expensive journeys for visiting family members. 

(ii)  Review of the normative framework and adaptation of vehicles – Efforts had been made by the Russian authorities with a view to improving the conditions of prisoner transportation. Nevertheless, the seating arrangements for prison vans and railway carriages used for short-distance train journeys had to be reviewed with a view to guaranteeing sufficient space per person and a more even distribution of prisoners in compartments. Unless mandated by compelling security considerations, the use of single-prisoner cubicles had to be avoided. Elements that impeded prisoners from standing up, such as bridge bunks in large compartments of prisoner railway carriages, would need to be uninstalled. On longer rail journeys, special care had to be taken to ensure decent sleeping arrangements for prisoners. Each of them should have his or her own sleeping place, and adequate access to sanitary facilities, drinking water and food.

Protection of vulnerable individuals had to be based on their individual characteristics rather than on a formal group classification. The conditions of transport had to be individualised and tailored to the needs of prisoners who could not be transported in ordinary conditions on account of a mental condition or physical characteristics, such as obesity.

(b)  Making available effective remedies – The Russian Federation’s obligations under the Convention compelled it to set up the effective domestic remedies required by Article 13 without further delay. 

To be efficient, the system for detainees’ complaints to the domestic authorities had to ensure prompt and diligent handling of complaints, secure prisoners’ effective participation in the examination of grievances, and provide a wide range of legal tools for the purpose of eradicating the identified breach of Convention requirements. Lastly, prisoners had to be able to avail themselves of remedies without having to fear that they would incur punishment or negative consequences for doing so. Lodging a complaint with a supervising authority was usually a more reactive and speedy way of dealing with grievances than litigation. The authority in question had to have the mandate to monitor the violations of prisoners’ rights, be independent, and have the power to investigate the complaints with the participation of the complainant and the right to render binding and enforceable decisions. The Court’s findings in Ananyev and Others, emphasising the important role of supervising prosecutors and the manner in which the procedure before them needed to be modified were also applicable to complaints about conditions of transport. Public monitoring commissions might also be given a more prominent role in upholding the rights of prisoners in transit. To be truly effective, however, they would need an extended mandate and the power to render binding decisions. 

A prisoner might also complain to a court of general jurisdiction about an infringement of his or her rights or liberties under the Code of Administrative Procedure. However, it was not certain that these new type of proceedings had equipped the Russian courts with appropriate legal tools allowing them to consider the problem transcending an individual complaint and effectively deal with situations of concurrent violations of prisoners’ rights resulting from the application of an exceedingly restrictive regulatory framework.

In all cases where a violation of Article 3 had already occurred, the wrong caused to the individual was susceptible of being redressed by means of a compensatory remedy. Monetary compensation had to be accessible to any current or former inmate who had suffered inhuman or degrading treatment and had made an application to that effect. A finding that the conditions had fallen short of the requirements of Article 3 would give rise to a strong presumption that they had caused non-pecuniary damage to the aggrieved person, and the level of compensation awarded for non-pecuniary damage could not be unreasonable in comparison with the awards made by the Court in similar cases. In the particular context of the applicants’ case, the domestic courts should be able to appreciate that, even in a situation where every individual aspect of the conditions of transport had complied with the domestic regulations, their cumulative effect could have been such as to constitute inhuman or degrading treatment.

(c)  Time-limit for making effective domestic remedies available – The Court had called on the Russian authorities to make available domestic remedies in respect of a relevantly similar complaint more than six years ago. Having regard to the amount of time that had since elapsed and the apparent lack of progress in that matter, the Court considered that the required remedies had to be made available not later than eighteen months after the judgment became final.

(3)  Processing of similar pending cases – It was appropriate for the Court to adjourn adjudication of applications in which a complaint of inadequate conditions of transport was the main complaint, pending the implementation of the present judgment by the Russian Federation, for a period of eighteen months from the date on which the judgment becomes final.

Violation of Articles 38 and 6§1

The Court also found, unanimously, a violation of Article 38 on account of the respondent State’s failure to comply with its obligations and submit requested material, and a violation of Article 6§1 due to one applicant being denied an effective opportunity to present his position, in breach of the principle of a fair trial. 

© Council of Europe/European Court of Human Rights


Altay v. Turkey (no. 2) (no. 11236/09)

The applicant, a prisoner serving a life sentence, had received a package from his lawyer containing items, such as a book and a newspaper, which the domestic courts held did not relate to the rights of the defence and should not be handed over to him. A subsequent request to the public prosecutor was lodged by the prison administration requesting that section 5 of Law no. 5351, which provided for an official to be present during consultations between a prisoner and his or her lawyer, be applied to the applicant. The domestic court, in an examination carried out on the basis of the case file, without holding a hearing and without seeking submissions from the applicant or his lawyer, granted the application.

Complaint under Article 8

Article 8 encompassed the right of each individual to approach others in order to establish and develop relationships with them and with the outside world, that is, the right to a “private social life”, and might include professional activities or activities taking place in a public context. There was, therefore, a zone of interaction of a person with others, even in a public context, which might fall within the scope of “private life”. A person’s communication with a lawyer in the context of legal assistance fell within the scope of private life, since the purpose of such interaction was to allow an individual to make informed decisions about his or her life. More often than not the information communicated to the lawyer involved intimate and personal matters or sensitive issues. It therefore followed that whether it be in the context of assistance for civil or criminal litigation or in the context of seeking general legal advice, individuals who consulted a lawyer could reasonably expect that their communication would be private and confidential.

As regards the content of the communication, and the privilege accorded to the lawyer-client relationship in the context of persons deprived of their liberty, there was no reason to distinguish between the different categories of correspondence with lawyers which, whatever their purpose, concerned matters of a private and confidential character. The borderline between correspondence concerning contemplated litigation and that of a general nature was especially difficult to draw and correspondence with a lawyer might concern matters which had little or nothing to do with litigation. That principle applied a fortiori to oral, face-to-face communication with a lawyer. It therefore followed that, in principle, oral communication and correspondence between a lawyer and his or her client was privileged under Article 8.

In spite of its importance, the right to confidential communication with a lawyer was not absolute but might be subject to restrictions. The margin of appreciation of the respondent State in the assessment of the permissible limits of interference with the privacy of consultation and communication with a lawyer was narrow in that only exceptional circumstances, such as to prevent the commission of serious crime or major breaches of prison safety and security, might justify the necessity of limitation of these rights. The Convention did not prohibit the imposition on lawyers of certain obligations likely to concern their relationships with their clients. That was the case in particular where credible evidence had been found of the participation of a lawyer in an offence, or in connection with efforts to combat certain practices. On that account, however, it was vital to provide a strict framework for such measures, since lawyers occupied a vital position in the administration of justice and could, by virtue of their role as intermediary between litigants and the courts, be described as officers of the law.

In the applicant’s case the domestic courts had referred to section 59 of Law no. 5275 as the legal basis for their interference with the confidentiality of the applicant’s meetings with his lawyer. They had ruled in that connection that the lawyer’s behaviour had been incompatible with the profession of a lawyer in so far as she had sent books and periodicals to the applicant which had not been defence-related. 

However section 59 of Law no. 5275 was an exceptional measure which contained an exhaustive list of circumstances in which the confidentiality of lawyer-client communication might be restricted. According to that provision, only when it was apparent from documents or other material that the privilege enjoyed by a prisoner and his or her lawyer was being used as a means for communication with a terrorist organisation, or for the commission of a crime, or otherwise jeopardised the security of the institution, might the presence of a prison official during lawyer-client meetings be ordered. 

The interception of correspondence solely because it did not relate to the rights of defence was not provided in that section as grounds for restricting the confidentiality of consultation with a lawyer. To conclude otherwise would run counter to the plain meaning of the text of the provision and would mean that any correspondence from a lawyer which was not defence-related could result in such a serious measure being imposed, without any limitation in duration. 

In the applicant’s case, although the letter and spirit of the domestic provision in force at the time of the events were sufficiently precise – save for the lack of temporal limits to the restriction –, its interpretation and application by the domestic courts to the circumstances of the applicant’s case was manifestly unreasonable and thus not foreseeable within the meaning of Article 8 § 2. It followed that such an extensive interpretation of the domestic provision in the present case did not comply with the Convention requirements of lawfulness.

Conclusion: violation (unanimously).

Complaint under Article 6

(a)  Applicability – It was evident that Article 6 did not apply under its criminal head to those proceedings, as the applicant did not have any criminal charge to answer. The question was whether the civil limb of Article 6 § 1 was applicable.

The relevant domestic legislation conferred on prisoners the right to have confidential communication with their lawyers in line with the European Prison Rules. It followed that a “dispute over a right”, for the purposes of Article 6 § 1, could be said to have existed. With regard to whether the right in question was civil, the Court had developed an extensive approach, according to which the “civil” limb had covered cases which might not initially appear to concern a civil right but which might have direct and significant repercussions on a private pecuniary or non-pecuniary right belonging to an individual. Through that approach, the civil limb of Article 6 had been applied to a variety of disputes which might have been classified in domestic law as public-law disputes.

With regard to procedures instituted in the prison context, some restrictions on prisoners’ rights fell within the sphere of “civil rights”. The substance of the right in question, which concerned the applicant’s ability to converse in private with his lawyer, was of a predominately personal and individual character, a factor that brought the present dispute closer to the civil sphere. Since a restriction on either party’s ability to confer in full confidentiality with each other would frustrate much of the usefulness of the exercise of this right, the Court concluded that private-law aspects of the dispute predominated over the public-law ones. Article 6 § 1 was therefore applicable under its civil limb.

(b)  Merits – In proceedings concerning the prison context, there might be practical and policy reasons for establishing simplified procedures to deal with various issues that could come before the relevant authorities. The Court did not rule out that a simplified procedure might be conducted via written proceedings, provided that they complied with the principles of a fair trial as guaranteed under Article 6 § 1. However, even under such a procedure, parties had to at least have the opportunity of requesting a public hearing, even though the court might refuse the application and hold the hearing in private.

In the applicant’s case no oral hearing had been held at any stage of the domestic proceedings. Under domestic legislation the proceedings had been carried out on the basis of the case file and neither the applicant nor his chosen representative had been able to attend their sittings. It was therefore of little importance that the applicant had not explicitly requested a hearing, as the relevant procedural rules did not require one except in the case of disciplinary sanctions. The relevant rules concerning the procedure before assize courts in those types of disputes indicated that the question of holding a hearing was a matter to be decided by the assize courts of their own motion. In other words, it was not up to the applicant to request a hearing and he could not reasonably be considered to have waived his right to one.

The decision to restrict the applicant’s right to confidential meetings with his lawyer had been taken by the domestic court in a non-adversarial manner without obtaining the applicant’s defence submissions. The applicant’s objections to that decision before the assize court had also been determined on the basis of the case file alone without holding a hearing, even though the applicant’s objections had concerned factual and legal issues. The assize court had had full jurisdiction to assess the facts and the law of the case and render a final decision by annulling the decision of the first-instance court had it allowed the applicant’s objection. The holding of a hearing would therefore have allowed the assize court to form its own impression of the sufficient factual basis for the consideration of the case and the legal issues raised by the applicant.

In the circumstances of the case – namely the combined effect of the non-adversarial nature of the proceedings before the enforcement court, the seriousness of the measure imposed and the lack of a hearing either before the enforcement court or at the objection stage before the assize court – it meant that the applicant’s case had not been heard in accordance with the requirements of Article 6 § 1.

Conclusion: violation (unanimously).

© Council of Europe/European Court of Human Rights


11 April 2019

Guimon v. France  (no. 48798/14)

Facts – The applicant, a member of the terrorist organisation ETA, had been in detention for eleven years for serious terrorist offences when she requested escorted leave in order to travel to a funeral home to pay her respects to her late father. Her request was refused for logistical reasons, as were all her appeals.

Law – The refusal to allow the applicant to leave prison under escort in order to travel to the funeral home and pay her respects to her late father constituted interference with her right to respect for her family life. The interference was in accordance with the law and had been intended to prevent the risks of escape and disturbance of public order, and to ensure public safety and prevent disorder and crime.

The judicial authorities had examined the applicant’s request with care and found that her father’s death constituted an exceptional ground which could justify granting escorted leave. They had nevertheless rejected the request.

The applicant’s criminal profile – she was serving several prison sentences for acts of terrorism and continued to assert her membership of ETA – allied to the context in which the leave would have to be organised and factual considerations such as the geographical distance of almost 650 km were all reasons to consider that the escort arrangements needed to be particularly robust.

The applicant had submitted her request for prison leave promptly, leaving the authorities six days in which to organise an escort. However, the time available, once final permission to leave under escort had been granted, had been insufficient to arrange an escort comprising officers specially trained in the transfer and supervision of a prisoner convicted of terrorist offences and to organise the prior inspection of premises.

In the circumstances of the case there had been no practicable means of acceding to the applicant’s request other than by granting escorted leave.

Furthermore, although the applicant had not seen her father since 2009, she had had regular visits from family members and friends.

Accordingly, the judicial authorities had carried out a balancing exercise between the interests at stake, namely the applicant’s right to respect for her family life on the one hand and public safety and the prevention of disorder and crime on the other. The respondent State had not overstepped the margin of appreciation allowed to it in this sphere.

The refusal to grant the applicant’s request for escorted leave to travel to the funeral home and pay her respects to her late father had therefore not been disproportionate to the legitimate aims pursued. 

Conclusion: no violation (unanimously).

© Council of Europe/European Court of Human Rights


30 April 2019

T.B v. Swtizerland (no. 1760/15)

Facts – In 2011, the applicant was sentenced to four years’ imprisonment for premeditated murder, aggravated rape and aggravated sexual constraint. The Juvenile Court supplemented his sentence with a protection measure, in the form of placement in a specialized closed center with treatment for mental disorders. In June 2012 the district office ordered T.B.’s placement with medical treatment in accordance with the first paragraph of Article 397a of the Civil Code in security wing II of Lenzburg prison. In September 2012 the Federal Court dismissed at last instance the applicant’s appeal against that decision and in November 2013 the Federal Court confirmed that new Article 426 of the Civil Code constituted a sufficient legal basis for his placement “for assistance purposes”. T.B. again applied for his release. In a judgment of 8 July 2014, the Federal Court pointed out that it had ruled in its leading decision that the conditions of former Article 397a of the Civil Code were met in the present case and took the view that T.B. represented a high risk for others. Moreover, the Federal Court decided that it could not depart from its judgment of 22 November 2013 in which it had ruled that new Article 426 of the Civil Code provided a sufficient legal basis for placement “for assistance purposes”.

Law – The Court observed that T.B. had been placed “for assistance purposes”, namely psychiatric treatment, in the security wing of the prison for the sole reason that he represented a danger for others. It noted that, according to the case-law of the Federal Court, the conditions of placement “for assistance purposes” were governed by the Civil Code. Under Article 426 of that Code – as under former Article 397a – such placement was pronounced when the person suffered from mental disorders that required personal assistance or treatment that could only be provided in a specialised institution. The Court observed that the concerns about personal assistance and security considerations were somehow intertwined in the second paragraph of Article 426 of the Civil Code, which required the authority to take into account the burden that the person concerned represented for his or her relatives or for third parties, while ensuring the protection of others. In this connection, the Court noted that the Federal Council had clarified the scope of the relevant provision in that the protection of third parties could now constitute an additional element in the assessment of the situation but that it was “not decisive on its own”. The mere need to protect society from the person concerned could not justify placement “for assistance purposes”. The Court also noted that the Federal Court had expressly emphasised in its leading decision that deprivation of liberty “for assistance purposes” solely on the grounds of endangering others was not prescribed by law and did not constitute a valid reason for such placement. It followed that the second paragraph of Article 426 of the Civil Code could not justify the applicant’s detention by way of legal basis. These elements sufficed for the Court to find that the applicant had been held in the prison without a legal basis and purely by way of preventive detention. In conclusion, the Court took the view that the applicant’s placement “for assistance purposes” during the period from April 2014 to April 2015 in the prison’s security wing had not been implemented lawfully. It followed that there was no need to address the question whether the institution where he had been held was suitable. (Press release)

Conclusion: violation of Article 5 § 1, e) (unanimously).

© Council of Europe/European Court of Human Rights