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November – December 2017. Round-up of the ECtHR case-law

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  Newsletter no.23 – Round-up of the ECtHR case-law (November – December 2017)



Bambayev v. Russia (no. 19816/09) – Use of force / Effective investigation. The case concerned the applicant’s allegations regarding the use of excessive force against him by officers in a correctional colony, and the lack of an effective investigation (violation of Article 3).

Domján v. Hungary (dec., no. 5433/17) – Material conditions of detention / Effective remedy. The case concerned the complaint by a detainee about the conditions of his detention in a number of prisons in Hungary. The application was lodged while domestic proceedings were pending under new legislation introduced to deal with prison overcrowding following Varga and Others pilot judgment (inadmissible).

Kitiashvili v. Georgia (Application no. 37747/08) – Medical care. The case essentially concerned the applicant’s complaint about inadequate medical care in prison (No violation of Article 3)

Valentin Baştovoi v. the Republic of Moldova (no. 40614/14) – Material conditions of detention / Effective remedy. The case concerned the conditions of the applicant’s detention in Chișinău Prison no. 13 and the lack of an effective remedy in domestic law in respect of inhuman or degrading conditions of detention (violation of Article 13 in conjunction with Article 3).

Kavkazskiy v. Russia (no. 19327/13) – Medical care / Transfer. The case concerned the applicant’s complaint about various aspects of his detention, in particular about the lack of medical care during his pre-trial detention (no violation of Article 3) and the conditions of his transfer to and from court (violation of Article 3). 

Sokolov v. Russia (no. 63392/09) Trial conditions / Pre-trial detention / Family life / Geographical distance / Funerals. The complaint concerned the use of a metal cage during the trial (violation of Article 3), the applicant’s pre-trial detention (violation of Article 5§3), restrictions on attending the funerals of his parents and his placement in a remote penal facility (violation of Article 8).

Dorneanu v. Romania (no. 55089/13) – Medical care. The case concerned the living conditions and care provided to the applicant, who was suffering from terminal metastatic prostate cancer. He died after eight months in detention (violation of Article 3).

Peňaranda Soto v. Malta (no. 16680/14) & Yanez Pinon and Others v. Malta (nos. 71645/13, 7143/14, and 20342/15) – Conditions of detention / Medical care / Correspondence. Both cases concerned conditions of detention and access to medical care in the Corradino Correctional Facility in Malta (no violation of Article 3). M. Peňaranda also alleged that his correspondence with the Court had been monitored by the prison authorities (violation of Article 34).

 7 November 2017

Bambayev v. Russia (no. 19816/09)

Relying on Article 3, the applicant alleged that during the incident on 1 January 2009 he had been subjected to ill-treatment which in his view amounted to torture. He also complained of the lack of an effective investigation in that regard.

Procedural aspect

The Court found a violation of the procedural aspect of Article 3 because of the ineffective investigation. First, the Court noted that the investigative body relied in substance on the version of events supplied by the officers, who claimed that the use of truncheons had been justified by the applicant’s conduct, and therefore failed to assess the proportionality of the use of force. In this regard, the Court added that a preliminary investigation does not offer the same guarantees as a penal investigation as far as the reliability of the explanation gathered is concerned (Lyapin v. Russia, no. 46956/09, §134, 24 July 2014). Second, the Court observed that a penal investigation was launched more than five years after the 2009 events and that this investigation was launched against “unidentified persons”, whereas the officers involved were already identified. Third the authorities did not provide any information regarding this investigation or eventual disciplinary sanctions imposed on the officers. Therefore, the investigation had not been effective, in breach of Article 3 of the Convention.

Substantive aspect

The Court declared that the domestic courts acknowledged that the use of force against the applicant had been excessive and so found no reason to depart from these conclusions (§53). The Court went on to note that the ill-treatment the applicant had been subjected to amounted to torture because the use of force was not justified and was capable of causing him fear and humiliation (§ 55, see Vladimir Romanov v. Russia, no. 41461/02, 24 July 2008).


 14 November 2017

 Domján v. Hungary (dec., no. 5433/17)

Facts – In its pilot judgment regarding conditions of detention in Hungary (Varga and Others v. Hungary, no. 14097/12 et al., 10 March 2015), the Court found violations of Articles 3 and 13 of the Convention originating in a widespread problem resulting from a malfunctioning of the Hungarian penitentiary system and, under Article 46 of the Convention, required Hungary to put in practice preventive and compensatory remedies. On 25 October 2016 the Hungarian Parliament adopted Act No. CX of 2016 which enabled complaints concerning conditions of detention to be presented to the prison governor, who could take action to improve the conditions or counterbalance the injury suffered (for instance through relocation, increasing the time allowed for visits or the time spent in the open air, and improvement of the sanitary facilities).

In the instant case, the applicant complained under Articles 3 and 13 of the Convention that he had been kept in overcrowded cells in various prisons between December 2010 and July 2016 and did not have an effective domestic remedy.

Law – Article 35 § 1: The Court was satisfied that the 2016 Act provided a combination of remedies, both preventive and compensatory in nature, guaranteeing in principle genuine redress for Convention violations originating in prison overcrowding and other unsuitable conditions of detention in Hungary.

As to the preventive remedy, complaints by prison inmates or their representatives about conditions of detention allegedly in violation of fundamental rights were to be submitted to the governor of a penal institution. If the latter found the complaint to be well-founded he or she was to decide, within 15 days, about necessary actions such as relocation within the institution or transfer to another institution. A further judicial review of the prison governor’s decision was explicitly provided for by the 2016 Act. In the Court’s view nothing proved that the new complaint mechanism would not offer realistic perspectives of improving unsuitable conditions of detention. As to the compensatory remedy, the award offered – between EUR 4 and EUR 5.30 per day of unsuitable conditions of detention – was not unreasonable, having regard to economic realities.

In view of its finding that the 2016 Act met, in principle, the standards set out by the pilot judgment, the Court considered that the applicant and all others in his position had to use the remedies introduced by the Act. In the instant case, the applicant had made use of the remedies but the proceedings were still pending. His complaint was thus premature.

The Court went on to point out that it was ready to change its approach as to the potential effectiveness of the remedies should the practice of the domestic authorities show, in the long run, that detainees were being refused relocation and/or compensation on formalistic grounds, that the domestic proceedings were excessively long or that the domestic case-law was not in compliance with the requirements of the Convention. Any such future review would involve determining whether the national authorities had applied the 2016 Act in a manner that was in conformity with the pilot judgment and the Convention standards in general.

Conclusion: inadmissible (application premature).

© Council of Europe/European Court of Human Rights


23 November 2017

Kitiashvili v. Georgia (Application no. 37747/08)

Relying in particular on Article 3, the applicant notably complained about the authorities’ failure to diagnose him in good time with recurrent tuberculosis and the consequent late starting in his treatment. He also alleged that his treatment for his other health conditions had been inadequate.

As regards the tuberculosis, the Court however noted that within one month of the diagnosis, the applicant was enrolled in a treatment program. Moreover in the several facilities in which he was transferred he continued to have tuberculosis treatment under the supervision of relevant specialists. Therefore, the Court saw “no negligence on the part of the prison authorities in their diagnosis and treatment of the applicant’s tuberculosis” (§47).

As regards the applicant’s other health issues, the Court observed that the applicant was duly examined by specialists and underwent several medical examinations (§§46 and 48).

Accordingly the Court concluded that “despite certain shortcomings and delays, the overall medical treatment available to the applicant in prison was adequate. Accordingly, there has been no violation of Article 3 of the Convention” (§49).


28 November 2017

 Valentin Baştovoi v. the Republic of Moldova (no. 40614/14)

In 2013, the applicant was admitted to Chișinău Prison no. 13 after being sentenced to eight years’ imprisonment. He alleged that he was detained in a cold, overcrowded cell with no natural light or ventilation, where the prisoners had to take it in turns to sleep because there were not enough beds, and where the toilets were not separated from the rest of the cell. He also maintained that the food served was insufficient and unfit for consumption and that he was allowed only one shower a week and one hour’s daily exercise. Lastly, he complained that he was not given medical treatment for various diseases he contracted while in detention.

The Court highlighted the recurrent nature of the problems linked to the poor conditions of detention in Chișinău Prison no. 13. It observed that it had already indicated to the State authorities that they were to adopt appropriate measures to put an end to what appeared to be a systemic problem (Cristioglo v. the Republic of Moldova, no. 24163/11, 26 April 2016). Reports drawn up by the Moldovan Ombudsman and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) during the period when Mr Baştovoi was held in the prison indicated that poor conditions of detention were prevalent in the facility. The Court observed that the Government had not produced any evidence in support of their assertion that considerable improvements had been made to the prison in the past few years. The Court found that during his time in Chișinău Prison no. 13, Mr Baştovoi had been subjected to conditions of detention entailing hardship that went beyond the unavoidable level of suffering inherent in detention, and held that there had been a violation of Article 3 of the Convention.

The Court also pointed out that it had repeatedly examined whether there were effective remedies in the Republic of Moldova in respect of allegations of poor conditions of detention and had found on each occasion that the remedies referred to by the Government were ineffective for the individuals concerned, who continued to be detained in conditions incompatible with Article 3 of the Convention. The Court saw no reason to depart from those findings in the present case.

Accordingly, it held that there had been a violation of Article 13 in conjunction with Article 3 of the Convention.


Kavkazskiy v. Russia (no. 19327/13)

The applicant, a human rights activist and NGO lawyer, was placed in pre-trial detention. When being taken into custody he informed the prison authorities that he had a number of chronic illnesses. During the first eight months of his detention he was examined by a general practitioner about once a month. At a later stage, in April 2013, he was referred for comprehensive inpatient examination in a prison medical wing. He underwent a series of medical examinations before being discharged back to the remand prison one month later with recommendations which were not carried out before his release under house arrest.

Medical Care

Regarding the alleged lack of medical care, the Court noted that no reasons existed for the authorities’ failure to implement the recommendations. However, two and a half months after the conclusions of the complete medical examination the preventive measure was changed to house arrest, in particular because of the applicant’s health issues. Therefore, the Court did not consider that the omission of the authorities caused the applicant sufferings of a duration and severity passing the threshold of Article 3 of the Convention (§ 55).


The applicant also alleged that his transfers from the remand prisons to court and back had amounted to inhuman and degrading treatment. He complained about the frequency and the length of those transfers, of appalling conditions at the prison assembly sections and in the police vans, and of the intensity of the schedule, which did not leave him sufficient time to sleep. The applicant argued that the combination of the above factors had led to physical exhaustion and mental distress. The Court has examined the conditions of transfer to and from court, which were common to the applicant and his co-defendant, in the case of Yaroslav Belousov (nos. 2653/13 and 60980/14, §§ 105-10, 4 October 2016). It found that those conditions amounted to inhuman and degrading treatment contrary to Article 3 of the Convention. The Court held although the applicant had to endure this treatment for one month only, it was capable of causing him sufferings attaining the threshold of severity required to characterise it as inhuman or degrading within the meaning of Article 3 of the Convention, given his poor state of health and the intensity of the hardship involved. Accordingly, there has been a violation of Article 3 of the Convention in that respect.


Sokolov v. Russia (no. 63392/09)

Complaint under Article 3

The applicant complained that his detention in a metal cage throughout the trial had been incompatible with Article 3 of the Convention. The Court noted that the applicant had been held in a metal cage for the entire duration of the trial and reiterated that it constitutes in itself “an affront to human dignity in breach of Article 3” (§22, see [GC] Svinarenko and Slyadnev v. Russia, nos. 32541/08 and 43441/08, 17 July 2014).

Complaint under Article 5§3

The applicant complained that his pre-trial detention had been excessively long and had not been based on relevant and sufficient reasons. The Court recalled that it had already examined similar applications against Russia raising similar complaints and found a violation of Article 5§3 on the grounds “that the domestic courts extended an applicant’s detention relying essentially on the gravity of the charges and using stereotyped formulae without addressing his […] specific situation or considering alternative preventive measures” (§35 – see also i.a. Mamedova v. Russia, no. 7064/05, 1st June 2006 and Valeriy Samoylov v. Russia, no. 57541/09, 24 January 2012). The Court saw no reason to depart from its previous judgments. Accordingly, there had been a violation of Article 5§3 of the Convention.

Complaints under Article 8

The applicant complained that he was not allowed to attend the funerals of his parents. The Court recalled that “the authorities can refuse an individual the right to attend the funeral of his parents only if there are compelling reasons for such refusal and if no alternative solution can be found” (§47 – see Płoski v. Poland, no. 26761/95, §37, 12 November 2002). The Court observed that in the instant case “the Russian authorities did not give any consideration to the applicant’s individual situation, in particular the fact that he lost both his parents in quick succession […]. Both of his requests for leave were rejected on formal grounds by reference to the Russian law that made no provision either for a leave of absence for a remand prisoner or for attendance of a funeral held outside of the region where the convicted prisoner was detained” (§48). The Court concluded that the authorities failed “to carry out an individualized evaluation of [the applicant’s] particular situation and to demonstrate that the restriction on his right to attend a relative’s funeral was ‘necessary in a democratic society’” (§48) in breach of Article 8.

The applicant also complained under Article 8 that he had been sent to serve his sentence in a facility located more than 2,000 kilometres away from where his family had lived. The Court recalled that in a previous similar judgment it “found that the Russia law did not afford convicted prisoners the adequate legal protection against possible abuses in the matter of their geographical allocation” and therefore that “the interference with their right to respect for family life was not ‘in accordance with the law’” (§54 – see Polyakova and Others v. Russia, nos. 35090/09 and 3 others, 7 March 2017). The Court found no reason to reach a different conclusion in the instant case.

Dorneanu v. Romania (no. 55089/13)

The applicant was sentenced to three years and four months’ imprisonment. Although he had been diagnosed with prostate cancer in November 2012 and the seriousness of his condition had been confirmed by oncologists, he was admitted to Bacău Prison on 4 March 2013 to begin his sentence. He was repeatedly admitted to hospital and his condition deteriorated, with the result that he could no longer undergo chemotherapy and received palliative care instead. He died in Bacău Hospital on 24 December 2013.

Relying in particular on Article 3, Mr Dorneanu complained that his state of health was incompatible with detention.

General conditions of detention

The Court noted firstly that Mr Dorneanu had suffered from the effects of overcrowding in Vaslui and Iaşi Prisons. It observed that despite the short duration of his detention in an environment with less than 3 sq. m of personal space, the lack of space had been exacerbated by the fact that he had been held in ordinary cells that were unsuitable for his medical condition.

Repeated transfers

Although most of the transfers were performed for medical reasons, some of the facilities  to which he was sent were a distance of several hundred kilometers away. Even though there had been no intention on the authorities’ part to humiliate or debase the applicant the Court nevertheless pointed out that his repeated transfers to distant facilities had undoubtedly subjected him to hardship of an intensity exceeding the unavoidable level of suffering inherent in detention.

Inadequate medical care

The Court further observed that the applicant had to be transferred several times to undergo medical examinations. The authorities did not consider the possibility of performing these examinations in a single place. What is more the Court noted that the applicant needed assistance to perform the essential activities of daily life. He benefitted from the assistance of an inmate. However there is no evidence that this inmate was qualified for this task.

Continued incarceration

As the applicant’s disease progressed, it had become impossible for him to endure it in a prison environment, meaning that the national authorities had a responsibility to take special measures on the basis of humanitarian considerations. The decisions by the national authorities showed that the procedures applied had prioritized formalities over humanitarian considerations, thus preventing the dying Mr Dorneanu from spending his final days in dignity.

The Court concluded that the national authorities’ treatment of Mr Dorneanu had not been compatible with the provisions of Article 3 of the Convention, and that they had subjected him to inhuman treatment while he was terminally ill.


19 December 2017

Peňaranda Soto v. Malta (no. 16680/14)

Yanez Pinon and Others v. Malta (nos. 71645/13, 7143/14, and 20342/15)

Complaint under Article 3

Relying on Article 3, the applicants complained about the conditions of their cells, which they alleged were poorly lit and ventilated, too hot in the summer and not equipped with running or drinking water. They made a number of additional claims about inadequate medical care for various ailments.

Although the Court was concerned about a number of matters highlighted in the present cases, it was not convinced that the overall conditions of detention and the medical treatment received by the applicants caused them distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention or that, given the practical demands of imprisonment, their health and well‑being were not adequately protected. It therefore found by four votes to three that there has been no violation of Article 3 of the Convention. Judges Pinto de Albuquerque, Ranzoni and Bošnjak expressed a dissenting opinion.

Complaint under Article 34

Regarding the first applicant’s complaint under Article 34, the Court reiterated that it is of prime importance for the effective exercise of the right to individual petition under the Convention that the correspondence of prisoners with the Court should not be subject to any form of control, which might hinder them in bringing their cases to the Court. It noted that although Maltese law provides for complaints to internationally recognized human rights bodies to be made under confidential cover, from the case file it appeared that several of the applicant’s letters to the Court were viewed by the prison authorities, as shown by the prison stamps. The authorities of the respondent State have thus failed to comply with their obligations under Article 34 of the Convention.