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7 JULY 2022

This newsletter gathers the most important judgments and decisions on prison issues handed down by the European Court of Human Rights and the Court of Justice of the European Union. By reporting on the main trends in European prison caselaw, it aims to support legal practitioners in the prison field in research and litigation, as well as to identify blind spots in the European caselaw to build strategic litigation avenues.


KALDA v. ESTONIA■ Application no. 35245/19
Refusal to allow the detainee to have short-term meetings with his wife without a glass partition: violation of Article 8.

NORMANTOWICZ v. POLAND■ Application no. 65196/16
Prisoner with multiple health problems, adequacy of the medical care and of the decision to keep him in detention, excessive duration of the proceedings regarding the applicant’s application for a licence for leave on health grounds: no violation of Article 3.

MOCANU v. ROMANIA■ Application no. 76888/13
Inadequate detention conditions: violation of Article 3; worsening of the applicant’s state of health while in detention: part of the application ill-founded.

COSOVAN v. MOLDOVA■ Application no. 13472/18
Inadequate medical treatment of applicant with a serious illness in its terminal stage: violation of Article 3; artificial division of criminal investigation into separate ones to obtain unfair procedural advantages or circumvent mandatory legal provisions: violation of Article 5.

VOOL AND TOOMIK v. ESTONIA■ Applications nos. 7613/18 and 12222/18
Ban on long-term family visits for remand prisoners: violation of Article 14 taken in conjunction with Article 8.

LANIAUSKAS v. LITHUANIA■ Application no. 48309/19
Inadequacy of the medical care provided to a prisoner with visual impairment and inadequacy of his state of health with his continued detention: no violation of Article 3.

NUH UZUN AND OTHERS v. TURKEY■ Applications nos. 49341/18 and 13 others
Uploading of correspondence of prisoners onto the national server regulated by unpublished internal regulations to which prisoners did not have access: violation of Article 8.

MASLÁK v. SLOVAKIA (NO. 2)■ Applications nos. 38321/17 and 8 others
Placement of a prisoner in high security unit without adequate protection against abuse: violation of Article 8, no violation of Article 3.
KALDA v. ESTONIA■ Application no. 35245/19■ Third Section Committee■ 1 March 2022
Art. 8 ■ Private and family life  ■ Refusal to grant short-term visit without a glass partition  ■ Failure to strike a fair balance between the security grounds  ■ Unsubstantiated assessment by the national courts
Facts The applicant argued that the prison administration’s dismissal of his request to have short-term meetings with his wife without a glass partition separating them was in breach of Article 8 of the Convention. The applicant noted that he had been allowed to have long-term visits with his wife without such physical barrier. The prison administration based its decision first on the Internal Prison Rules, then on ‘prison security requirements’ and stressed that the applicant had been sentenced to life imprisonment and was deemed ‘highly dangerous’ following an internal prison risk assessment report. The national courts dismissed the applicant’s appeals, saying that he ‘had not substantiated how the use of a glass partition had violated his rights’ and that ‘the restriction at issue had in any event been justified’ in view of his dangerousness.

LawArticle 8The Court declared that even though the “physical separation of a detainee from his visitors by a glass partition, may be […] justified by security considerations” (para.5), the authorities failed in the instant case to “substantiate in a context-specific manner why the security risks relied on justified the restriction at issue” (para.7) In particular, while the internal risk assessment report on which the domestic courts based their decision to reject the applicant’s appeal mentioned “in general terms, the applicant’s criminal record, the severity of his sentence, the risk of his escaping and a ‘loss of trust’” (para.6), the role played by these specific risks on the decision of the prison administration to dismiss the applicant’s request was never explained. As a result, the Court ruled that the authorities did not strike a fair balance between the security reasons and the applicant’s right to family life and that there had been a violation of Article 8 of the Convention

Conclusionviolation of Article 8.

Article 41EUR 5,000 in respect of non-pecuniary damage.
NORMANTOWICZ v. POLAND■ Application no. 65196/16■ First section■ 17 March 2022
Art. 3 (substantive) ■ Positive obligations ■ Degrading treatmentAdequate medical assistance and care provided to prisoner, with sufficient accommodation of his special needs ■ Delays in applicant undergoing surgery not due to lack of diligence or deliberate omission of prison authorities ■ Advisability of continued detention, in view of applicant’s health, constantly monitored
Facts The applicant complained i.a. under Article 3 of the inadequate medical care provided to him while indetention. He claimed in particular that the degradation of his orthopaedic condition “worsened to the point that he had become confined to a wheelchair” (para.76) The applicant also complained of the excessive length of the proceedings in respect of his application for a licence for leave on health grounds.

LawArticle 3 – AdmissibilityThe Government argued that the applicant’s civil action against the prison doctor was still pending, rendering his application before the Court premature. The Court reiterated that, as a result of the compensatory nature of the civil action and the lengthy examination of civil actions by domestic courts, “no civil action against a prison or a prison doctor can offer a detainee reasonable and timely prospects of securing more adequate medical care or his or her release from detention” (para.71, see also i.a. Kaprykowski v. Poland, no. 23052/05, 3 February 2009, §§ 54-57; Kulikowski v. Poland (no. 2), no. 16831/07, § 52, 9 October 2012). According to the Court, the application for a licence for leave completed by the applicant “constituted an adequate (and indeed the only) remedy to be exhausted by the applicant in respect of the case at hand” (para.72). As a result, the application was deemed admissible.

LawArticle 3 – MeritsTaking note of the applicant’s multiple health problems (i.a. he suffered from a herniated disc, spondylolisthesis and chronic back pain syndrome, see para. 82), the Court examined whether the medical assistance provided to him had been adequate. In this respect the Court noted that “during his detention the applicant was mainly committed to prison hospital wings, where his special needs were met” (para. 85) and that he received the diet and medicines prescribed to him. He was also exempted from physical work.
The Court acknowledged that the applicant did not undergo the backbone surgery recommended by the doctors, but stressed that “that outcome was not caused by a lack of diligence or a deliberate omission on the part of the prison authorities” (para.86) as the latter sought actively to have the applicant admitted to specialised hospitals. The Court also noted that the need to diagnose and treat other ailments (i.a. epilepsy, urinary tract infection) caused additional delays. Furthermore, the Court, “in the absence of any rebuttal or explanation from the applicant” (para.93), accepted the Government’s submission “that the applicant had later impeded the authorities from affording him adequate medical care” (idem) by i.a refusing to take medicines prescribed or to prepare for medical examinations.

As regards the advisability of maintaining the applicant in detention in spite of his health condition, the Court observed that the authorities “constantly monitored the course of the applicant’s illnesses and reviewed the advisability of his continued detention” (para.97) and that the domestic courts duly examined this question on the basis of several medical reports (including by independent medical experts) indicating that “the applicant’s life or health was not threatened and that his release from detention was not called for” (para.99). The Court did not question the authorities’ decision not to grant the applicant a licence for leave on health grounds (“their reasons were… relevant and sufficient”, para. 100) but focused on the length of the proceedings – almost fourteen months.
While noting that such delay is “in principle not compatible with the requirements of Article 3” it noted that it was caused by a series of transfers of the applicant causing a change of court jurisdiction. The Court accepted that these transfers were necessary to “ensure adequate specialised treatment” of the applicants ailments (para.106), and observed that between the transfers, “the courts acted with diligence and undue delays” (para.107).
In view of the above, the Court concluded that there had been no violation of Article 3.

The delay in the court proceedings was mainly attributable to the fact that the applicant was transferred between different penitentiary establishments located in different administrative regions. These transfers were necessary for the proper provision of specialised medical care to the applicant as he developed several new ailments in the course of his detention. This was all the more accepted by the Court in light of the fact that the state of health of the applicant had been constantly monitored throughout this process. The national courts, in turn, acted with due diligence and without undue delays, which was illustrated by the proactive efforts made by the court in the proceedings in 2015 to obtain a copy of a social inquiry report requested by the applicant’s lawyer. The court of appeal required around six weeks to review the case submitted by the applicant, which cannot be considered unreasonable. The Court has concluded that the length of proceedings regarding release of the applicant on the medical grounds was not unreasonably delayed from the part of the authorities.

Conclusionno violation of Article 3.
MOCANU v. ROMANIA■ Application no. 76888/13■ Fourth Section Committee■ 17 March 2022
Art. 3 (substantive) ■ Inadequate conditions of detention ■ Contraction of multiple diseases while in detention
Facts Though “clinically healthy” when admitted to prison, the applicant, while in detention, contracted various infectious diseases (i.a. chronic hepatitis B, tuberculous, pleurisy, skin rash, obesity, and antisocial personality disorder, …). He received treatment prescribed by doctors and had a special diet in connection with treatment for hepatitis, tuberculosis and allergies. The applicant alleged his detention conditions were inadequate, i.a. that he was held in overcrowded cells with 1.23 – 2.52 sq. m. of personal space per inmate, with limited access to potable water, toilet and a shower, that the cell was infested with insects and did not receive enough natural light, and that the quality of the food received was insufficient. He also argued that his state of health worsened as a result of these detention conditions.

LawArticle 3The Court observed that in the leading case of Rezmiveș and Others v. Romania, (nos. 61467/12 and 3 others, 25 April 2017), it had already found a violation of Article 3 in respect of issues similar to those raised by the applicant. In the present case, having examined the materials submitted to it, the Court did not find “any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints” (para.11). Therefore, the Court concluded that there has been a violation of Article 3 as regards conditions of detention.
As to the complaints of the applicant that he had contracted several diseases during his prison term, the Court was not convinced by his arguments and evidence presented in this regard. It also doubted that the applicant contracted several of his diseases whilst in prison, taking into account the chronic nature of some of them. The Court then turned to the medical records available to discover that the health of the applicant had been regularly and thoroughly monitored and he had been provided with the appropriate treatment for his conditions. Therefore, the Court concluded that the authorities do not bear the responsibility for the aggravation of the health of the applicant; therefore, this part of application was rejected as manifestly ill-founded.

Conclusionviolation of Article 3.

Article 41EUR 3,000 in respect of non-pecuniary damage, as well as costs and expenses.
COSOVAN v. MOLDOVA■ Application no. 13472/18■ Second Section■ 22 March 2022
Art. 3 (substantive) ■ Positive obligations ■ Degrading treatment ■ Inadequate medical treatment of applicant with a serious illness in its terminal stage ■ Detention extended despite terminal condition ■ No justification for distinction between the detention of a person following conviction and one detained pending trial when suffering caused by detention was incompatible with that person’s medical condition.
Art 5 § 3 ■ Reasonableness of pre-trial detention Domestic courts’ failure to provide sufficient reasons justifying applicant’s extended detention pending trial Artificial division of criminal investigation into separate ones to obtain unfair procedural advantages or circumvent mandatory legal provisions incompatible with Art. 5
Facts The case concerned the applicant’s detention (first on remand, then following his conviction) from 2017 until 2019, when he was released on health grounds. The applicant died in a public hospital in March 2021 a year and a half after his release. He argued in particular that he had not been provided with adequate medical treatment while in detention (the applicant mainly suffered from hepatic cirrhosis), that his state of health was incompatible with detention, and that his placement in pre-trial detention was not sufficiently substantiated. The Moldovan NGO Promo-LEX played a central role in this case and represented the applicant before the Court.

LawArticle 2The applicant argued that by failing to provide him with adequate medical care, the authorities endangered his life. The Court stressed that what was under examination was not the applicant’s death after his release, but the whether the treatment he received in detention seriously endangered his life. While admitting that there had been shortcomings in the provision of medical assistance to the applicant throughout the period of his detention, the Court noted that “that none of the medical documents available to it establishes that those shortcomings, however regrettable they may have been, were such as to jeopardise the effectiveness of the treatment and/or the implementation of the protocol for its administration to such a degree as to put the applicant’s life at risk” (para.60). Moreover, the Court observed that “the applicant was affected not by the sequelae of any disease contracted during his time in prison, but by the development of his illness which had predated his imprisonment” (para.61). In this respect, while the Court acknowledged that “receiving a liver transplant might have extended” the applicant’s life expectancy (para.61) it also noted that he would have needed to be included on a national waiting list of people awaiting for such surgical intervention. Such inclusion on this waiting list was impaired by the applicant refusal to undergo additional tests prescribed by the liver transplant team (para. 61).
As a result, the Court did not consider it established that the authorities put the applicant’s life at risk during his detention and declared this part of the complaint manifestly ill-founded.

ConclusionThis part of the complaint is ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

LawArticle 3The Court then proceeded to examine the applicant’s claim that the medical treatment received while in detention was inappropriate. According to the Court, the quality of the medical treatment offered to the applicant was negatively impacted by two factors. Firstly, a lack of diligence from the authorities to follow appropriate medical procedures. The Court noted that the highest medical authority within the applicant’s detention facility recommended (in June 2018) that he be transferred to a unit subordinated to the Ministry of Health. Such recommendation from an authority “aware of the types of treatment available in prison” leads the Court to conclude that “at least at that date and in the opinion of that prison medical authority, the applicant was not being given medical treatment required by his condition” (para.85). Yet this recommendation was implemented only a year after (in June 2019). The Court observed in particular that while being prescribed supervision by a hepatologist, the applicant had been seen by such a specialist only five times throughout the entire year 2018 (para.84). In this respect, the Court recalled a principle established in its previous case law, namely that “where a certain treatment is generally available outside the prison and except for extraordinary circumstances, medical treatment required by a prisoner’s condition should not be denied or only partially carried out simply because no such treatment (or specialist doctor) is available in prison or with reference to the scarcity of resources” (para.83, see i.a. Wenner v. Germany, no. 62303/13, § 66, 1 September 2016).
Secondly, a structural deficiency of the Moldovan prison health system is that itis placed under the authority of the Department of Penitentiary Institutions. This institutional arrangement caused a not only a lack of trust of the applicant towards the prison doctors, but also that the costs incurred by the transportation, guarding and treatment of detainees in public hospitals, might have created “incentives to limit detainees’ treatment outside the prison” and potential “conflict of interest for the prison doctors” (para.84). In this respect, the Court recalled that the CPT identified as a problem “the absence of independence of prison doctors from the prison administration” urged “the Moldovan government to transfer responsibility for doctors working with detainees from the Department of Penitentiary Institutions to the Ministry of Health” (para.86). EPLN, in its third party intervention, made similar comments, also underlining “that there was a broad consensus at the international level […] in favour of the independence of medical personnel from the prison administration and the integration of prison sanitary policies into general public health policies” (para.71).
Turning to the compatibility of the applicant’s detention with his state of health, the Court noted that “it is not subject to debate that the applicant’s illness and complications were amongst those which the Moldovan law considered serious enough to allow a court to relieve a convicted person from serving his or her sentence” (para.87). However, and in spite of a domestic court acknowledging that the applicant’s continued detention could present a danger to his life, he was kept in detention for another 17 months (para.88). The Court also noted that the domestic law did not allow remand detainees to benefit from exemption from execution of sentence on health grounds – a difference that “may well be discriminatory” (para. 89, see also Gülay Çetin v. Turkey, no. 44084/10, 5 March 2013, §§ 126-133).

Conclusionviolation of Article 3.

LawArticle 5 § 3The Court then proceeded to examine the allegations of the applicant that his remand detention was ordered and extended on insufficient grounds. While acknowledging that the reasons put forward by the authorities (“the seriousness of the crime, the risk of absconding or reoffending, as well as interfering with the investigation by destroying evidence or influencing witnesses and victims”, para.97), the Court observed that the domestic courts failed to properly substantiate their decisions.
Furthermore, the Court observed a pattern used by the Moldovan authorities identified in previous cases (see Straisteanu and Others v. the Republic of Moldova, no. 4834/06, § 88, 7 April 2009, and I. E. v. the Republic of Moldova, no. 45422/13, §§ 62-68, 26 May 2020) to prolong his remand detention – namely “the artificial division of a criminal investigation into several separate criminal investigations in order to obtain unfair procedural advantages or circumvent mandatory legal provision” (para.99).
Moreover, the domestic courts, while examining the risk that the applicant would abscond or interfere with the investigation, did not take into account his aggravating state of health.

Conclusionviolation of Article 5 § 3

Article 41EUR 10,000 in respect of non-pecuniary damage; EUR 5,000 in respect of costs and expenses.
VOOL AND TOOMIK v. ESTONIA■ Applications nos. 7613/18 and 12222/18■ Third Section■ 29 March 2022
Art. 14 and Art. 8 ■ Discrimination ■ Family life ■ Domestic court’s failure to reasonably justify prohibition of applicants receiving long-term visits while in detention on remand, even after all other additional restrictions on contact and communication had been lifted, and despite such visits being generally authorised for convicted prisoners
Facts The applicants are two remand detainees. They were charged respectively with extortion and being a member of a criminal organisation, and with the unlawful handling of large quantities of narcotic drugs. Their remand detention was found necessary respectively in order to prevent the commitment of further offences including offences against the administration of justice in respect of the first applicant, and to prevent the commitment of further drug-related offences and absconding in respect of the second applicant.
They complained of the allegedly discriminatory statutory ban on remand prisoners from having long-term family visits provided for in the Estonian Imprisonment Act, while this ban does not apply to convicted prisoners. This prohibition of long-term visits continued after the additional restrictions on contact and communication that were imposed on the applicants (prohibition of short-term visits, correspondence and telephone calls, isolation from other prisoners) at the early stages of the proceedings were lifted.
The applicants challenged the prohibition of long-term visits before the domestic courts, including the Estonian Supreme Court. The latter considered the difference of treatment between remand and convicted prisoners justified insofar as the latter “could no longer undermine the ongoing criminal proceedings in their respect” (para.28). At a later date, ruling on a separate case, the Supreme Court declared the provision of the Estonian Imprisonment Act prohibiting remand prisoners from receiving long-term visits unconstitutional, noting i.a. “that the application of the domestic law in practice often tied the assessment of the possibility of restrictions on long-term visits to the assessment of (continued) justification for pre-trial detention” (para.105).

LawArticle 14 in conjunction with Article 8The Court declared it was “prepared to accept that, given their nature, long-term visits might entail to some extent an elevated risk – as compared to short-term meetings and other means of communication – of family members being induced to assist the accused in undermining the criminal proceedings” (para.103). However, in its view, the Supreme Court, when reviewing the applicants’ cases, did not sufficiently substantiate its decision to maintain the ban on long-term visits for around two years after all the additional restrictions on contact and communication were lifted for both applicants. The Court also made reference to the fact that in separate proceedings, the Supreme Court found the relevant legal provision establishing this ban unconstitutional. As a result, the Court found that the prohibition on receiving long-term visits was not reasonably justified.

Conclusionviolation of Article 14 taken in conjunction with Article 8.

Article 41EUR 5,000 to the first applicant and EUR 3,000 to the second applicant in respect of non-pecuniary damage. EUR 4,125 to the first applicant and EUR 6,004.20 to the second applicant in respect of costs and expenses.
LANIAUSKAS v. LITHUANIA■ Application no. 48309/19■ Second Section■ 29 March 2022
Art. 3 (substantive) ■ Inhuman and degrading treatment ■ No evidence that convicted prisoner’s visual impairment was such as to render his continued detention incompatible with Art. 3
Facts The applicant sustained injuries to his eyes during an explosion a long time before his prison detention. His vision continued to deteriorate over the years, and at the time of his application he was nearly blind. He complained under Article 3 of the incompatibility of his health status (namely, visual impairment) with his detention.

LawArticle 3The Court first noted that even though there was no dispute that the applicant suffered from a serious visual impairment, reports submitted by the medical expert indicate that his condition did not change between 2017 and 2021. As a result the Court could not conclude that the applicant’s eyesight deteriorated during his detention.
As regards the applicant’s claims that he was not provided with adequate health care, the Court noted that “he did not challenge the facts as presented by the Government, nor did he indicate any treatment which either had not been provided to him or had been provided belatedly” (para.51). Furthermore, he did not complain of inadequate medical care to the relevant domestic authorities. Therefore, the Court has come to the conclusion that there was no grounds to find that the medical care provided to the applicant was inadequate.
Turning to the examination of the conditions in which the applicant was detained, the Court observed, on the basis of a CPT report, that the Prison Hospital where the applicant had been detained was not adapted to the needs of visually impaired persons (para.52). However, the Court noted that the applicant could walk around without any assistance, was able to read and sign documents, and also took part in various social and educational activities (such as physical exercise, gardening, and computer literacy classes). He also never complained to the prison authorities regarding difficulties in his daily life and did not ask for any additional assistance for the whole duration of his detention. The abovementioned findings led the Court to conclude that the applicant’s visual impairment was not such as to make his continued detention incompatible with Article 3.

Conclusionno violation of Article 3.
NUH UZUN AND OTHERS v. TURKEY■ Applications nos. 49341/18 and 13 others■ Second Section■ 29 March 2022
Art. 8 ■ Uploading of prisoners’ correspondence to a judicial IT server not provided for by law Unpublished internal documents
Facts The applications mainly concern the uploading of the applicants’ correspondence to the national judicial IT server (UYAP system). At the material time, the fourteen applicants were all detained in various prisons in Turkey following the attempted coup of 15 July 2016, for alleged membership of a terrorist organisation. Their complaints before the domestic courts were rejected on the grounds that with the exception of the correspondence of prisoners with their council, all other type of correspondence should be scanned and uploaded, “especially those of prisoners charged with membership of a terrorist organisation or of an organised crime organisation” (para.6). They claim the uploading of their correspondence was in breach of Article 8 of the Convention.

LawArticle 8The Court proceeded to examine whether there has been interference with the right to respect for correspondence of the applicants. It recalled that it has already acknowledged that even opening a letter is sufficient to constitute an interference with a detainee’s right to respect for their correspondence. The Government did not contest that the private letters sent to the applicants and the outgoing correspondence were regularly scanned and then uploaded onto the UYAP system. The Court recalled that the very fact that the authorities had access to the applicants’ private correspondence constitutes an interference. The question of their subsequent use by the authorities is irrelevant. The Court therefore concluded that there had been an interference in the right to respect for private life of the prisoners.
Then the Court proceeded to the examination of whether such interference was provided for by law. The Court observed that the practice of scanning and uploading the private correspondence of prisoners was established by instructions issued by the Ministry of Justice and addressed to the Prosecutors Offices and Prison Management Offices – and was not publicly made available. Therefore, the Court went on to note, the document could be regarded as an unpublished internal document and could therefore not be considered a “law” within the meaning of the Court’s case-law, that could guarantee legal certainty and prevent arbitrary interference by the public authorities with the rights protected by the Convention (see i.a. Frérot v. France, no. 70204/01, § 59, 12 June 2007). Accordingly, the Court concluded that there had been interference with the right to private correspondence of the applicants.

Conclusionviolation of Article 8.

Article 41The finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage; EUR 500 to each of six applicants in respect of costs and expenses.
MASLÁK v. SLOVAKIA (NO. 2)■ Applications nos. 38321/17 and 8 others■ First section■ 31 March 2022
Art 8 ■ Private and family life ■ Placement of detainee in high security unit while serving part of his prison sentence not in accordance with the law, in the light of inadequate legal protection against abuse ■ Prison authorities’ discretion and failure to take into account relevant aspects of applicant’s situation ■ Applicant largely excluded from decision-making process and provided only limited safeguards
Facts The present case concerns nine applications submitted by the applicant (out of the forty he submitted to the Court against the Czech and Slovak Republics). In the case at hand, the applicant complained under i.a. Article 8 of his placement and the extension of his placement in high security units (HSU), the daily regime imposed on him and especially the limitation on his rights to receive visits, and of the lack of an effective remedy in that respect. He also complained under Article 3 of the conditions of his detention in these units.

LawArticle 8Observing that there is “no doubt that the applicant being required to serve part of his sentence under the high security regime constituted an interference with his right to respect for his private and family life”, the Court turned to the question whether this interference was in accordance with the law.
In this respect, the Court noted that even though the placement of prisoners in high security units is provided for by law, an important margin of discretion is granted to the prison administration when taking such decisions (para.144-148). The Court had therefore to examine whether the scope and the exercise of this discretion are defined with sufficient clarity in order to protect individuals against arbitrary interference. In order to do so, the Court reviewed “the reasons referred to by the domestic authorities in imposing the high security regime on the applicant, in the light of his arguments, his ability to participate in the proceedings, and the parameters of any review procedures available to him” (para.149).
As regards the reasons for imposing and prolonging the high security regime, the Court observed that the authorities routinely referred to the applicant’s “previous conviction, his prosecution for offences allegedly previously committed, and his personality traits” (para.152). In this respect the Court recalled that the latest CPT report on Slovakia “emphasised that the imposition of a HSU regime should always be based on an individual risk and needs assessment and not be the automatic result of the sentence imposed” (para.154, report quoted in para.102). The Court also stressed that whereas “as the execution of a prison sentence progresses, the existence and relevance of the preventive security‑related grounds for imposing an HSU regime must be assessed in the light of the prison authorities’ actual experience with the inmate in question” (para.155) no such assessment was carried out.
As regards the participation of the applicant in the proceedings, the Court noted that it is not provided for in the applicable law – a fact that has been criticised by the CPT in its latest report on Slovakia. Furthermore, the decisions to place an individual under the high security regime are not communicated: as noted by the Court, “the applicant had to lodge several requests under the law on free public access to information” (para.160) to obtain a copy of some of them.
As regards the review procedures, the Court acknowledged that the applicant’s placement in the high security regime was subject to routine and periodic review by the prison governor and the public prosecutor, and that he was able to challenge this decision before the latter and before the Constitutional Court. However, the prosecutor’s office focused its review on issues of compliance with the law in the strict sense of the word, while giving no answer to the applicant’s specific arguments and is not entitled to provide any compensatory redress. The Constitutional Court, as the highest domestic instance authorised to review the legality of the decisions of the public prosecutor, focused on how the prosecutor had reviewed the actions of the prison administration, not on the actions of the prison administration as such. Furthermore, the Constitutional Court has no power to afford any redress for unlawful decisions on the applicant’s placement in a high security regime.
The Court also examined the general conditions of detention and the right to receive visits of the applicant during his placement in the high security regime. In particular it noted that for individuals placed in this regime, “the law provides for a reversal in the format of visits to be received by a person detained in an HSU, compared to that enjoyed by the general prison population – namely making closed visits the rule and open visits the exception” (para.172). When deciding on whether a prisoner under the HSU regime shall be exceptionally granted an open visit, the prison governor enjoys wide discretion. Furthermore, the decisions in relation to the right to receive visits are not automatically communicated to the prisoners concerned.

Conclusionviolation of Article 8.

LawArticle 3The applicant complained that the conditions of his detention in an HSU regime amounted to inhuman and degrading treatment contrary to Article 3 of the Convention. The Court noted in this regard that “rather than being focused on his HSU detention regime as such, the core of the applicant’s complaints appears to be concerned with specific aspects, such as the ability to make use of the gym and the manner of execution of his visiting rights” (para.187). As regards the latter, the Court observed that the applicant’s complaint does not concern a lack of family visits but the fact that he was not allowed direct contact visits “in a few specific instances” and therefore “presents no issue under Article 3 of the Convention” (para.188).
The Court acknowledged that the applicant’s detention in the HSU regime “entailed a relatively high degree of isolation” (para.189). However, the Court pointed out that “of any free time at the applicant’s disposal, a significant portion must have been dedicated to the extensive amount of litigation he was involved in” (para.190) and that there is no indication that his regime had any repercussions on his mental or physical health. The Court concluded that the applicant was not exposed to treatment reaching the minimum level of severity required for the application of the guarantees of Article 3.

Conclusionno violation of Article 3.

Article 41EUR 12,500 in respect of non-pecuniary damage; EUR 2,888 in respect of costs and expenses.
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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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