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November 2021. Round-up of the ECtHR case-law

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  Newsletter no. 2022/1 – Round-up of the ECtHR case-law (November 2021)





Bujor v. Romania (no. 43393/18)– no adequate treatment for mental health problems of the applicant in prison, which has led to the aggravation of his state of health incompatible with detention: violation of Article 3.

Kovrov and Others v. Russia (nos. 42296/09, 71805/11, 75089/13 et al.) – unjustified length of the applicants’ pre-trial detention and house arrest (periods ranged  from one year and one month to four years and 10 months): violation of Article 5 § 3; lack of an enforceable right to compensation for detention in breach of Article 5 § 3: violation of Article 5 § 5.

Mehmet Çiftçi v. Turkey (Application no. 53208/19) – the prison administration’s refusal to hand over the daily newspaper to the prisoner without scrutinised analysis of the contents of the publication: violation of Article 10.

Mironescu v. Romania (Application no. 17504/18) – unjustified restriction on voting rights of applicant serving prison sentence outside the electoral constituency of his place of residence: violation of Article 3 of Protocol 1.



 2 November

Bujor v. Romania (no. 43393/18) – Committee Judgment

Art 3 • No adequate treatment for mentally ill prisoner • Refusal of the prisoner to udergo medical treatment • No sufficient effort from the part of prison authorities to ensure that the patient is aware of their mental health status and the consrquences of the refusal to undergo treatment

Facts –

The applicant, a detainee suffering from mental disorders, criticizes the national authorities for not having ensured the effective implementation of the psychiatric medical treatment and monitoring prescribed to him by the doctors, which has made his state of health incompatible with detention. He relied on Article 3 of the Convention and complained of the impossibility for the prison authorities to treat his mental disorders (polymorphic personality disorder with psychotic decompensations, depressive syndrome) properly. However, the applicant himself refused to undergo treatment during several periods, which has contributed to the aggravation of his state of mental health. The Government used this fact as the main argument proving that lack of adequate psychiatric treatment was due to the refusal of the applicant to cooperate and undergo medical treatment.

Law –

Article 3:

The Court has examined the refusal of the applicant to undergo the prescribed psychiatric drug treatment. The applicant claimed that such a refusal was a manifestation of the symptoms of his mental disorder, whereas the Government indicated that no medical document proved this assertion. Undoubtedly, the person can undergo medical treatment only with their consent. However, any refusal of treatment must be accompanied by certain guarantees. In particular, it should be ensured that the person concerned is fully aware of their situation and that they have sufficient information on the consequences that their refusal could have on their state of health. In the context of mental illness, such a task can be complex, so it is the responsibility of the dcotor to ensure that the patient is fully aware of their medical situation.

The ECtHR highlighted that research into the nature of the applicant’s refusal to undergo treatment could have provided a better answer to the question whether the state of health of the applicant is compatible with the conditions of his detention. The refusal to cooperate might have been a manifestation of the symptoms of the mental illness of the applicant, however, the prison administration has not ensured that the applicant is fully and regularly informed of his state of mental health and the consequences of such a refusal to be subjected to drug treatment. The Court then observed that the applicant’s state of mental health fluctuated depending on the treatment settings: it deteriorated when the applicant was in prison and at least partially refused treatment and, on the contrary, it improved when a more constant treatment was administered to him during the periods of internment in a penitentiary hospital. This should have alerted the authorities, which had to wonder about the establishment of a more adequate medical strategy capable of responding in a coherent and effective manner to the mental illness of the person concerned.

What is more, despite the applicant’s state of health, the national authorities considered it appropriate to place him under the so-called closed high security regime and to keep him there for several years. This should have inevitably aggravated his mental state of health.

Therefore, as a conclusion, the Court has pointed out that the continued detention of the applicant in a closed high security regime for a significant period, without appropriate medical supervision constituted a particularly painful experience which subjected the person concerned to distress and a hardship of an intensity that exceeds the inevitable level of suffering inherent in detention.

Conclusion: violation of Article 3.

Article 41: EUR 5 000 for non-pecuniary damage.


16 November

Kovrov and Others v. Russia (nos. 42296/09, 71805/11, 75089/13 et al.)

Art 5 § 3 • Unjustified length of the applicants’ pre-trial detention and house arrest

Art 5 § 5 • Lack of an enforceable right to compensation for detention in breach of Article 5 § 3

Art 46 • Respondent State required to continue to adopt measures to address the structural problem

Facts –

The applicants were arrested on suspicion of various crimes and were placed under house arrest. Some of them were remanded in custody and then the preventive measure was changed to house arrest. The domestic courts extended the applicants’ pre-trial detention and house arrest by using formulaic reasoning and listing the grounds provided for by the Code of Criminal Procedure (such as the gravity of the offence, the possibility of the applicant absconding, putting pressure on witnesses, interfering with the investigation or reoffending), without linking them to the circumstances of the applicants’ cases or verifying whether these grounds remained valid at the advanced stages of the proceedings. The appellate courts reproduced the wording of the first-instance courts’ decisions and dismissed the applicants’ appeals against the detention and house arrest orders.

Law –

Article 5 § 3: The periods of pre-trial detention and house arrest to be taken into consideration had ranged from one year and one month to four years and 10 months. When examining the applicants’ complaints about their pre-trial detention and house arrest, the Court applied the same criteria for the evaluation of deprivation of liberty, irrespective of the place where the applicants had been detained. By failing to address specific facts underpinning the existence of such risks or properly consider alternative preventive measures, and by relying essentially on the gravity of the charges, the courts had extended the applicants’ detention and house arrest on grounds which could not be regarded as sufficient to justify the length.

Conclusion: violation (unanimously)

The Court also found, unanimously, a violation of Article 5 § 5 in the case of Mr Kovrov, given that the latter did not have an enforceable right to compensation for his detention, which had been in breach of Article 5 § 3.

Article 41: awards in respect of non-pecuniary damage ranging from EUR 1,000 to 2,700. Claim in respect of pecuniary damage submitted by one of the applicants dismissed.

Article 46: Russia’s highest courts – the Constitutional Court and the Supreme Court – had directed their attention to the issue of the unjustified pre-trial detention and house arrest, providing specific explanations on how to secure the rights of detained persons within the framework of the existing legislation and how to comply with the requirements of Article 5 § 3. In line with the above indications relating to alternative preventive measures, in the recent years the domestic courts had increasingly applied house arrest instead of pre-trial detention.

Therefore, the Court acknowledged that the respondent State had already taken important steps to remedy the problems related to unjustified deprivation of liberty. The Court welcomed the efforts made by the Russian authorities aimed at bringing Russian legislation and practice in compliance with the Convention requirements and the statistics demonstrating a reduction in the excessive use of detention as a preventive measure. At the same time, the Court considered that consistent and long‑term efforts had to continue in order to achieve compliance with Articles 5 §§ 3 and 5, in particular, as regards reasoning of detention and house arrest orders and in strengthening the judicial control over the extension of such deprivation of liberty, where the rate of judicial approval remained very high, as well as establishing framework relating to compensation for unjustified deprivation of liberty.

In the Zherebin judgment the Court had held that the existing situation relating to detention called for the adoption of general measures by the respondent State. The above findings were relevant in the present case as well. In particular, the Court reiterated the standards established in Resolution no. 2077 (2015) of the Parliamentary Assembly and the importance of ensuring that decisions on deprivation of liberty contained relevant and sufficient reasons with due consideration of the detainee’s particular situation and linked grounds for deprivation of liberty with concrete circumstances of the case; encouraging further application of more lenient preventive measures such as bail; establishing a clearer framework for compensations for unjustified preventive measures, including house arrest; and taking other measures to remedy the issues raised in the present case. It was for the Committee of Ministers then to assess the effectiveness of the measures proposed by the Russian Government and to follow up on their subsequent implementation in line with the Convention requirements.

(See also Zherebin v. Russia, no. 51445/09, 24 March 2016, Legal Summary)

© Council of Europe/European Court of Human Rights


Mehmet Çiftçi v. Turkey (Application no. 53208/19)

Art 10 • Freedom to receive information and ideas • Refusal of the prison administration to provide a prisoner with copies of a daily newspaper sent to him by post • Lack of adequate balancing of the interests at stake in accordance with established criteria by the Constitutional Court and by the European Court

Facts –

On 26 June 2018, the education committee of the penitentiary centre decided to intercept and not deliver to the applicant five editions of the daily newspaper “Atılım”, sent to the prisoner by the post, by virtue of national law and regulations. The ground for the decision was the fact that the newspaper contained writings on propaganda of a terrorist organisation, praising crimes and criminals, legitimizing the acts of an illegal organization, aggravating the anti-state sentiments of detainees sympathetic to illegal organisations, strengthening the intra-organisational solidarity of detainees, and other illegal contant. The appeals of the applicant against this decision were rejected by the execution judge and the Assize Court. The applicant complained of a violation of his right to freedom of expression and also maintained that the Constitutional Court, by rejecting his individual appeal bringing this complaint, disregarded its own case law established by its judgment in Recep Bekik and others.

Law –

Article 10: The ECtHR recalled in the first place that detainees in general continue to enjoy all the fundamental rights and freedoms guaranteed by the Convention, with the exception of the right to liberty during lawful detention. They therefore continue to enjoy the right to freedom of expression, which includes the right to receive information or ideas. The Court admitted that the refusal to provide the applicant with the copies of newspapers constituted interference with his right guaranteed by Article 10. Therefore, it is appropriate to analyse the interference in light of the 3-step test (interference provided for by law, necessary in a democratic society, and proportionate to the legitimate aim pursued).

The Court has acknowledged that the interference was provided for by law. It proceeded to analyse whether the refusal was necessary. For this purpose, it addressed the criteria identified by the Constitutional Court of Turkey in its case law, namely, whether the publications disseminated to prisoners contained incitement to violence, justifed and glorified the use of violent acts, endanged the security, discipline and order of the penitentiary center and allowed communication between members of criminal organisations, in particular with regard to the personal and particular situations of the detainees concerned and the level of tension prevailing in the country and in the penitentiary center in question at the relevant date. Prison authorities should also consider whether it is possible to remove parts of a publication that are considered intrusive and hand over the remainder of the publication to the prisoner.

The decision to refuse to hand over the newspaper must contain sufficiently detailed motivation, establishing a concrete link with the content considered problematic. It added that the mere indication of the page numbers of the parts considered disturbing of a publication was not sufficient in this regard and that the use of a method of examination taking into account the relevant criteria was necessary in all cases. The ECtHR, in its turn, noted that this national case law seems to aim to prevent any abuse by the prison administrations.

The Court proceeded by stating that neither the decision of the Education Committee nor those rendered by other authorities in this case enable it to establish that these authorities have carried out an adequate balancing in the present case, in accordance with to the aforementioned relevant criteria. Indeed, even if the decision of the education committee indicates the page numbers concerned of the disputed publications, it does not mention, even briefly, the content, considered problematic, in these publications.

The ECtHR has also recalled that the Constitutional Court itself pointed to the existence of a structural problem in this regard, as the national prison authorities do not have a uniform application of the national legal norms while analysing the contents of materials to be disseminated among prisoners. No assessment of complainant’s personal situation in assessing the effect of these publications on the individual has laso been carried out. The national authorities have not fulfilled their task of balancing the various interests at stake against their obligation to prevent any abuse on the part of the prison administration. Therefore, the Government have failed to demonstrate that the incriminated measure was relevant, sufficient and necessary in a democratic society.

Conclusion: violation of Article 10.

Article 41: EUR 1 000 for non-pecuniary damage.


30 November

Mironescu v. Romania (Application no. 17504/18)

Art 3 P1 • Vote • Unjustified restriction on voting rights of applicant serving his prison sentence outside the electoral constituency of his place of residence • Strong European consensus

Facts –

The applicant complained about his inability to vote in legislative elections while he was serving a sentence in a prison situated outside the electoral constituency of his place of residence.

Law – 

While the applicant’s right to vote had not been restricted by the court which had convicted and sentenced him, it had, in practice, been removed in so far as the domestic law only permitted voting in the electoral constituency where the voter’s place of residence was situated. As the applicant had been serving his sentence in a prison situated outside his electoral district on the date of the elections, he had been deprived of the ability to cast his vote. His right to vote enshrined in Article 3 of Protocol No. 1 had therefore been restricted.

The Court accepted that an electoral system which, such as that in place in Romania, imposed a territorial link between the voters and their elected representatives, pursued a legitimate aim compatible with the principle of the rule of law and the general objectives of the Convention. It therefore had to determine whether there had been arbitrariness or a lack of proportionality, and whether the restriction had interfered with the free expression of the will of the people.

While States were afforded a wide margin of appreciation in organising and running their electoral systems, the situation was not the same when an individual or group had been deprived of the right to vote. Such a situation had to pass a more stringent proportionality test. Moreover, in none of the member States surveyed for the purpose of the present application would a prisoner be prevented from voting in legislative elections for the sole reason that he or she had been serving a sentence in a detention facility situated outside the electoral constituency of their place of residence. It could thus be inferred that there was a strong European consensus that prisoners in the applicant’s situation be allowed to exercise their right to vote.

Twelve of the forty-two electoral constituencies on Romanian territory did not have a detention facility. Moreover, a detention facility might not be regarded as a prisoner’s place of residence for the purpose of elections. It followed that any prisoner, who, like the applicant, had his or her residence in one of the twelve electoral constituencies without a detention facility would automatically be banned from voting during their detention. Such a situation could not be construed as being compatible with the provisions of the Convention. States had to ensure that voters’ particular circumstances were taken into account when organising the electoral system. However, it was not clear if and how this had been done in the present case.

The Government had argued that the applicant should have applied to have his place of residence moved to the city where he had been serving his sentence. However, they had not provided any convincing explanation as to how realistic such action would have been. According to the applicable law, the applicant should have provided a rental agreement, a statement from a host willing to take him in, or a report by a police officer attesting that he actually lived in that city. The Court was not convinced that a prisoner in the applicant’s situation would be able to produce such documents for any address outside the prison. The burden imposed on the applicant thus appeared to have been disproportionately high.

In the same vein, the possibility for prisoners to request to be transferred to a detention facility situated in the electoral constituency of his or her residence remained purely speculative in so far as the law did not clearly provide for it. Moreover, the situation in which the applicant had found himself – subjected to multiple transfers to prisons belonging to different electoral constituencies – made such a request appear unpredictable. In any case, that option remained illusory for the applicant, whose residence was in an electoral constituency which did not have a detention facility.

While the Court accepted that the law could not take account of every individual case, it could not but observe with concern that, in the respondent State, the ability for a prisoner to exercise the right to vote (when not restricted by court) became a completely random act entirely outside the control of the person concerned and exclusively in the hands of the authorities.

Lastly, the fact that, in the respondent State, solutions had been found so that non-residents and military and police personnel stationed abroad could vote in a different electoral constituency from that of their domicile or residence, showed that the residence requirement had not been essential in the current electoral system.

It was not the role of the Court to indicate to the respondent Government what would be the best solution to allow prisoners in the applicant’s situation to vote. However, several different arrangements were possible and had already been put in place in the member States surveyed for the purpose of the present application. Consequently, the State’s task to secure the exercise of the right to vote to prisoners in the applicant’s situation did not appear insurmountable.

Conclusion: violation (unanimously).

Article 41: finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage.

© Council of Europe/European Court of Human Rights