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November – December 2018. Round-up of the ECtHR case-law

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  Newsletter no.29 – Round-up of the ECtHR case-law (November – December 2018)



[dec.] Agamemnon v. France (no. 13483/14)Contacts with the family / visits / transfer. The case concerned a request by the applicant to be transferred to a prison closer to his family (inadmissible).

A.T. v. Estonia (no. 23183/15)Medical care / security measures / family visits. The case concerned the applicant’s complaint about the security arrangement for medical examinations outside prison and for a hospital visit he made to his daughter (no violation of Article 3, no violation of Article 8, violation of Article 8).

A.T. v. Estonia (no.2) (no. 70465/14)Security measures. The applicant complained about the additional security measures that were imposed on him after he attacked another prisoner (no violation of Article 3).

Günana and Others v. Turkey (nos. 70934/10 and others)Freedom of expression. The applicants complained about the seizure by the prison authorities of handwritten documents, on the grounds that they might contain information relating to a terrorist organization (violation of Article 10).

Konstantinopoulos and Others v. Greece (no. 2) (no. 29543/15)Ill-treatment / search. The applicants complained that they had suffered ill-treatment and torture during a search (violation of Article 3).

[GC] Ilnseher v. Germany (no. 10211/12)Preventive detention. The case concerned the lawfulness of a convicted murderer’s preventive detention (no violation of Article 5§1, no violation of Article 7§1, no violation of Article 5§4, no violation of Article 6§1).

Rodionov v. Russia (no.9106/09)Material conditions of detention / freedom of expression / Communication with the Court. The applicant complained of his conditions of detention, and transportation from and to the tribunal. He also complained that he had been placed in a metal cage during the hearings. In relation to this part of his complaints, he further complained that he had no effective remedy at his disposal. In addition, the applicant complained that that the prison authorities recorded his telephone conversations and seized newspaper, magazines and a radio. Last, the applicant complained that the prison authorities opened a letter from the Court’s Registry (violation of Article 3, violation of Article 10, violation of Article 34).

Resin v. Russia (no.9348/14)life sentence / family visits. The applicant complained that his right to family visits had been excessively restricted (violation of Article 8).


8 November 2018

[dec.] Agamemnon v. France (no. 13483/14)

Sentenced to life imprisonment by the Assize Court of Reunion Island in October 1970, the applicant served his sentence in various prisons in mainland France from 1988 to 2014. From 2003 onwards he requested on several occasions to be relocated to Reunion Island. His requests were denied until 2013. He then lodged a compensation claim with the Administrative Court, arguing that the authorities had breached his right to be held in a prison which allowed him to maintain his family ties, to be rehabilitated and to have his dignity respected. The Administrative Court rejected his claim on the grounds, in particular, that he was single, with no dependants, and that he had not proved he had maintained a private and family life on Reunion Island. On 4 July 2017 the Administrative Court of Appeal upheld that judgment.

The Court found that the application had to be rejected for failure to exhaust domestic remedies. Following the judgment of the Administrative Court of Appeal on 4 July 2017, dismissing his compensation claim, the applicant submitted a request for legal aid to the relevant office of the Conseil d’Etat in order to appeal on points of law against that judgment. His request was denied and he did not pursue his appeal. The Court further observed that he had not appealed against the refusal to grant him legal aid to the President of the Judicial Division of the Conseil d’Etat, as he could have done, in accordance with the Court’s case-law. His application had therefore to be declared inadmissible.


13 November 2018

A.T. v. Estonia (no. 23183/15)

The case concerned the applicant’s complaint about the security arrangement for medical examinations outside prison and for a hospital visit he made to his daughter.

Complaint about security measures

The Court considered that the prison authorities had carried out a thorough risk analysis based on the applicant’s serious criminal profile and aggressive behaviour in detention, and therefore that the security measures were proportionate and “did not exceed what could be reasonably considered necessary” (§63). The Court further noted that given the overall good state of health of the applicant, the security measures applied could not have negatively impacted on his health (§64). Accordingly, the Court found that there had been no violation of Article 3 and no violation of Article 8.

Complaints about the conditions of his visits to the applicant’s daughter

The applicant made a visit to his seriously ill daughter. He submitted in particular that the visit had not been well organised and had to be shortened, and that he had been prevented by the prison officer to touch and hold his daughter. The Court concluded that there had been a violation of Article 8 as the domestic court had not carried out a thorough examination of the applicant’s submission – “”It was the role of the domestic courts, in view of the positive obligations arising from Article 8 of the Convention, not only to pay due regard to the private and family life considerations arising from the applicant’s complaint, but also to elucidate the relevant facts necessary to reach a decision and to give reasons when dismissing complaint.” (§80).


A.T. v. Estonia (no.2) (no. 70465/14)

The applicant complained about the additional security measures that were imposed on him after he attacked another prisoner. The Court first observed that the authorities “had well-founded reasons to believe that he could pose a threat to other prisoners and the prison officers” (§76), as he “had a history of violent behaviour” (§76), seriously attacked another prisoner and threatened to assault prison officers while he was subjected to security measures following this aggression.

The Court further noted that the conditions of his detention were correct, that he was allowed to have long-term and short-term visits both with his relatives and his lawyer, and had been under regular medical supervision.

Last, the Court observed that the necessity and proportionality of the security measures had been regularly reviewed and that the applicant “was afforded a possibility to express his opinion about the prolongation” of these measures (§85).

The Court therefore concluded that there had been no violation of Article 3.


20 November 2018

Günana and Others v. Turkey (nos. 70934/10 and others)

Facts – The applicants are three prisoners, who complained that the prison authorities (either on the occasion of cell inspections, or when they were attempting to hand over the document to a visitor) had seized handwritten documents prepared by the applicants during their imprisonment on sheets of paper or in a notebook, on the grounds that these writings promoted a terrorist organisation.

Law –Written by the applicants, the seized documents were undoubtedly the result of their exercise of their right to freedom of expression. The contested seizures thus amounted to interference with that right.

None of the legal provisions relied on by the Government or the prison authorities provided for the seizure of a prisoner’s handwritten manuscript, in any circumstances. In particular, the legal provisions identified by the Government as the legal bases for the contested measures concerned the sending and receipt by prisoners of letters, faxes or telegrams, and not the seizure of their manuscripts, whether in the course of cell inspections or when any such document was being handed over to a visitor.

Moreover, the prison authorities had relied on different legal grounds for seizing the applicants’ manuscripts, even when the cases were similar.

In short, the Government had not shown that there existed a relevant legal basis in domestic law for seizing a manuscript that belonged to a prisoner and did not have the nature of straightforward correspondence.

Conclusion: violation (unanimously).

© Council of Europe/European Court of Human Rights


22 November 2018

Konstantinopoulos and Others v. Greece (no. 2) (no. 29543/15)

“The 22 applicants are Greek, Albanian and Bulgarian nationals who are detained in Grevena Prison (Greece). On 13 April 2013 a surprise search was carried out of cells in Grevena Prison on the basis of information pointing to a possible prison break or mutiny. The search was conducted in the presence of a public prosecutor by prison staff, assisted by police officers belonging to the “EKAM” (a special anti-terrorist unit). After the search 28 prisoners were examined by the prison doctor, who noted bruises and traces of dermatitis, but was unable to determine their cause. A few days later, a number of prisoners lodged a complaint with the public prosecutor’s office of Grevena Criminal Court, alleging, in particular, that the EKAM officers had made excessive use of Tasers against 31 prisoners, had struck them and verbally abused them and had forced them to crawl on their hands and knees to the prison sports hall, strip naked and stand facing the wall for some time. A preliminary investigation was conducted, reaching the conclusion that no disciplinary offence had been committed. The police chief shelved the case. In November 2014 the public prosecutor with the criminal court decided that there was insufficient circumstantial evidence to bring criminal proceedings. The following month, the prosecutor with the court of appeal decided to drop the case.” (press release)


The Court dismissed the Government’s allegation that the 6-month period had not been respected by the applicants, arguing that the starting point of this period should be the date at which the latter received a copy of the closure decision by the prosecutor in charge of the file – 28 January 2015 (§§47-52).

Substantive limb

“The Court noted that the EKAM police unit had not been suddenly called in to deal with any spontaneous prison mutiny. Their intervention had been ordered and organised by the prison authorities and the public prosecutor’s office. The applicants had therefore not been injured during a random operation which might have given rise to unexpected developments triggering an impromptu reaction from the police, but during an operation which had been planned and sufficiently prepared for in terms of risk assessment. The Government attempted to justify the use of force with arguments relating to general security in the prison. Drawing on the findings of the prosecutor who had conducted the investigation, the Government submitted that the EKAM unit had been warned by the prison authorities that most of the prisoners were armed with improvised knives, that some prisoners had thrown objects at the EKAM officers, kicked over tables and attempted to occupy the corridor running along the cells in order to take control of the area outside the cells and confront the police. However, the Court noted that the same report pointed out that the prisoners had gone into their cells and that the cell doors had been immediately closed. Subsequently, the doors had been opened one by one and the EKAM officers had entered the cells in order to prevent any attempt at resistance by the prisoners or attacks with the aforementioned improvised weapons. The Court deduced that the whole EKAM team and the prison staff should have searched just one cell and its three occupants. Even supposing the latter had refused to comply, the Court considered that the security of the prison and the need to check on three prisoners who might have thrown objects and kicked over tables had necessitated the use possibly of truncheons, but certainly not of Tasers. However, the forensic doctor’s report had specified that some of the applicants had injuries which could have been caused by Tasers. Furthermore, during the administrative inquiry, one of the police officers questioned had stated that when the prisoners had reacted aggressively by throwing objects and kicking over tables, the police officers had used their Tasers. The Court therefore considered that the injuries noted on eleven of the applicants (in the forensic doctor’s report) had occurred during the search of 13 April 2013, and that they attained the requisite threshold of severity to fall foul of Article 3. It also held that those applicants had sustained ill-treatment and not been tortured. There had therefore been a violation of Article 3 in respect of eleven applicants.” (press release)

Procedural limb

“The Court voiced doubts about the impartiality of the prison doctor, who had been a prisoner himself and who, after examining the applicants at the end of the cell search, had claimed that he was unable to determine the cause of the bruises and traces of dermatitis. The Court also noted that the senior police officer and the public prosecutor had not intensified their investigation despite all the contradictory statements emerging about the use of Tasers. It further observed that the authorities had not acceded to the request submitted by the applicants’ representatives for a copy of the audio and video recording of the prison on the day of the search. Moreover, the authorities had failed in their obligation to conduct a thorough and prompt investigation: some twenty months had elapsed between the time of the applicants’ complaint and the authorities’ decision to discontinue the case. The Court also considered that there had been no independent inquiry into the allegations of ill-treatment: the inquiry had been assigned to a prosecutor attached to Grevena Criminal Court, even though the prosecutors of that court were also the prosecutors responsible for supervising Grevena Prison, one of whom had, furthermore, been present during the cell search of 13 April 2013. As regards the action for damages provided for in Article 105 of the Civil Code, the Court noted that that provision only applied to cases of damage caused by unlawful acts by State bodies in the exercise of public authority. In the instant case, however, the administrative inquiry had detected no unlawful act or omission on the part of the police. Therefore, an action based on Article 105 would have had no real chance of succeeding. In that connection, the Court pointed out that the obligation imposed by Article 3 on a State to conduct an investigation geared to identifying and punishing persons responsible for ill-treatment would be illusory if, in the context of a complaint lodged under that article, the applicant were required to exhaust a remedy which could only lead to an award of damages. The Court therefore noted shortcomings on the part of the Greek authorities in the investigation conducted into the allegations of ill-treatment, and held that that investigation had not been thorough, prompt or independent. There had therefore been a violation of the substantive limb of Article 3 (investigation) in respect of eleven applicants.” (press release)


4 December 2018

[GC] Ilnseher v. Germany (no. 10211/12)

Facts – In October 1999 the applicant was sentenced by a Regional Court to ten years’ imprisonment for a sexually motivated murder which he had committed at the age of 19 in 1997. His imprisonment was subsequently extended under successive judicial decisions, such as that given on 3 August 2012 by the Regional Court, based on psychiatric reports pointing to a high risk that if he were released he would commit further serious sexual and violent offences. In the meantime, on 4 May 2011, the Federal Constitutional Court delivered a leading judgment finding that the provisions on subsequent extensions of preventive detention and on subsequent preventive detention orders were incompatible with the Constitution. The court requested that the law be amended accordingly. The legislature therefore enacted the Preventive Detention (Distinction) Act, which came into force on 1 June 2013. Since 20 June 2013 the applicant has been held in a newly-built preventive detention centre providing an intensive treatment programme for sex offenders. On 18 September 2014 a fresh decision was issued ordering the continuation of the applicant’s preventive detention, in the framework of the periodic judicial-review procedure.

By unanimous judgment of 2 February 2017, a Chamber of the Court struck out of the list of cases the part of the application in respect of which the Government had made a unilateral declaration and which concerned the complaints of violations of Articles 5 § 1 and 7 § 1 in regard to the period of preventive detention from 6 May 2011 to 20 June 2013, which the applicant had spent in prison. The Chamber further unanimously found no violation of Articles 5 § 1 and 7 § 1 as regards the applicant’s retrospective preventive detention as of 20 June 2013. It considered, in particular, that the German courts had been justified in concluding that the applicant’s mental illness was such as to justify his detention as a person of unsound mind, and that since his preventive detention had been ordered because of that illness and with a view to treating it, that measure could not be classified as a “penalty”. Lastly, the applicant had been accommodated in an appropriate medical environment during the period in question.

The Chamber also unanimously found no violation of Article 5 § 4 on the grounds of the length of the judicial-review proceedings concerning the applicant’s provisional preventive detention, and no violation of Article 6 § 1 on the grounds of alleged lack of impartiality on the part of the Regional Court judge. That judge had reportedly warned counsel for the applicant to be careful if the latter were to be released, but the Chamber considered that the alleged warning had been given immediately following the delivery of the preventive detention decision and should therefore be interpreted, in substance, as a confirmation of the Regional Court’s findings.

On 29 May 2017 the case was referred to the Grand Chamber at the applicant’s request.

Law – The period from 6 May 2011 and 20 June 2013 falls outside the Grand Chamber’s jurisdiction since it was struck out of the list by the Chamber following the aforementioned unilateral declaration.

Complaint under Article 5 § 1 (e)

The period in issue in the proceedings before the Grand Chamber began on 20 June 2013, when the applicant was transferred from prison to the new preventive detention centre, and ended on 18 September 2014, when a fresh decision ordering the continuation of the applicant’s preventive detention was given in the framework of the periodic judicial-review procedure, which the applicant was able to challenge separately before the domestic courts.

(a) Grounds of detention – The domestic courts concluded, on the basis of an objective medical report drawn up by psychiatric experts that the applicant suffered from a very severe form of sexual sadism. His state of health necessitated comprehensive therapy, to be provided either in the preventive detention centre or in a psychiatric hospital. The applicant was therefore suffering from a mental disorder for the purposes of the applicable German law, which stated that such disorder did not have to be so serious as to exclude or diminish the criminal responsibility of the person concerned when committing the criminal offence. That was sufficient for the Court to find that the applicant’s state of health as diagnosed constituted a true mental disorder for the purposes of Article 5 § 1 (e) of the Convention.

Furthermore, the fact that the trial court concluded from the applicant’s lack of a severe mental disorder that he had acted with full criminal responsibility when committing his criminal offence in 1997 is insufficient to cast doubt on the facts as established by the domestic courts concerning the applicant’s mental health from 20 June 2013 onwards. The national authorities have a certain margin of discretion in particular on the merits of clinical diagnoses. Moreover, the Regional Court addressed the evolution in the assessment of the applicant’s mental condition by the medical experts and the courts. In the context of Article 5 § 1 (e) it is only necessary to assess whether the person concerned is of unsound mind at the date of adoption of the measure depriving that person of his liberty (as opposed to the date of the commission of a previous offence, which, in any event, is not a precondition for detention under that sub-paragraph). Moreover, in determining whether the mental disorder is of a kind or degree warranting compulsory confinement, it is usually necessary to assess the danger a person poses to the public at the time of the order and in the future. In view of these essential prospective elements, the preventive detention ordered against the applicant can best be described as “subsequent” to his previous offence and conviction, despite the fact that, in the assessment of his dangerousness, regard should also be had to his history of offences, thus embracing a retrospective aspect.

Moreover, the Regional Court was justified in considering that the applicant’s mental disorder was of a kind or degree warranting compulsory confinement in view of the high risk, as established by that court, that the applicant, as a result of this disorder, would again commit another serious offence similar to the one of which he had been found guilty, if released.

Finally, the validity of the applicant’s continued confinement depended upon the persistence of his mental disorder. In accordance with domestic law, the domestic courts could order the continuation of his preventive detention in the subsequent periodical judicial-review proceedings only if, and as long as, there was a high risk that he would reoffend as a result of that disorder if released. Nothing in the file indicates that this risk had ceased to exist during the period of time in issue in the present case.

The applicant was therefore “a person of unsound mind” for the purposes of Article 5 § 1 (e).

(b) “Lawful” detention “in accordance with a procedure prescribed by law” – The applicant’s detention was ordered in a judgment of the Regional Court of 3 August 2012, and confirmed on appeal. Under the principles established by the Federal Constitutional Court in its leading judgment of 4 May 2011, such as compliance with the requirements of Article 5 § 1 (e), as applied by the Regional Court, this meant that the applicant was to be detained in a suitable institution. The applicant’s transfer, on 20 June 2013, to the preventive detention centre thus complied with the initial order made by the Regional Court, which remained a valid basis for the applicant’s detention.

Therefore, since this centre offered the applicant a personalised treatment protocol corresponding to his needs and his mental health, considerably improving his material conditions of detention as compared with prison, he now had a therapeutic environment suited to a person detained as a patient suffering from mental illness, and for the purposes of Article 5 § 1 (e), therefore, the applicant was detained in an appropriate establishment.

The domestic courts, relying on expert opinions, concluded that there was a high risk that, if the applicant were released, he would commit a further sexual offence, and considered that measures less severe than deprivation of liberty would be insufficient to protect individual and collective interests. Given the high risk that the individuals concerned would be the victims of one of the most serious criminal offences punishable under the Criminal Code, therefore, the deprivation of the applicant’s liberty was necessary under the circumstances.

(c) Conclusion – The applicant’s subsequently ordered preventive detention, in so far as it was executed as a result of the impugned judgment from 20 June 2013 until 18 September 2014 in the preventive detention centre, had been justified under sub-paragraph (e) of Article 5 § 1 as the lawful detention of “a person of unsound mind”.

Finding: no violation (fifteen votes to two).

Complaint under Article 7

(a) The Court’s assessment in previous cases of preventive detention – When examining whether the impugned preventive detention of the applicant should be classified as a penalty for the purposes of Article 7 § 1, second sentence, in previous cases (see references at the end of this summary) the Court had to interpret the notion of penalty in Article 7 § 1 autonomously in these cases, also bearing in mind the classification of comparable measures in other Contracting Parties to the Convention.

In M. v. Germany the Court had concluded that preventive detention ordered and enforced in accordance with the German Criminal Code as it stood at the relevant time, that is detention in separate prison wings and without a mental disorder being a condition for such detention, had to be classified as a penalty. In Bergmann v. Germany the Court had been called upon to determine whether the subsequently prolonged preventive detention of the applicant, which was executed after the expiry of the above-mentioned transitional period, in accordance with the Preventive Detention (Distinction) Act, in a new separate centre for persons in preventive detention, that is to say in accordance with the new preventive detention regime, was compatible with Article 7 § 1 of the Convention. However, in cases such as that of the applicant, where preventive detention had been extended because of, and with a view to, the need to treat a mental disorder, which was a new precondition for subsequently extending his preventive detention, its nature and purpose had changed to such an extent that it was no longer to be classified as a penalty within the meaning of Article 7. Such preventive detention thus complied with Article 7 (see W.P. v. Germany).

(b) Measure imposed following conviction for a criminal offence – The preventive detention order against the applicant had not been made together with his conviction but had been imposed in a separate judgment in 2012. However, the order was nevertheless linked to the conviction – and thus “following” the latter – in compliance with domestic legislation.

It was clear when the Regional Court made its order on 3 August 2012 that, following the leading judgment of the Federal Constitutional Court of 4 May 2011 which the Regional Court applied, the applicant was to be transferred as soon as possible to an institution offering him not only conditions more assimilated to general living conditions but, in particular, therapeutic provision tailored to his needs as a mental health patient. The preventive detention order therefore covered the applicant’s detention in the new preventive detention centre in the period here in issue.

(c) Characterisation of the measure under domestic law – Domestic law has never considered preventive detention as a penalty to which the constitutional absolute ban on retrospective punishment applies. In its leading judgment of 4 May 2011, the Federal Constitutional Court again confirmed that principle, thus contradicting the Strasbourg Court’s findings concerning the notion of penalty under Article 7 of the Convention. However, the court considered that the provisions of the Criminal Code on the imposition and duration of preventive detention as they then stood failed to meet the constitutional requirement of differentiating between purely preventive measures of correction and prevention, such as preventive detention, and penalties, such as prison sentences. The court therefore ordered the legislature to amend the provisions on preventive detention in the Criminal Code so as to reflect that difference. Thus the legislative amendments to the Criminal Code introduced by the Preventive Detention (Distinction) Act serve to clarify and extend the differences between the way in which preventive detention and prison sentences are enforced.

(d) Nature and purpose of the preventive detention measure – In the framework of dialogue between the Court and the Federal Constitutional Court after the judgment in the case of M. v. Germany and the reply given by the latter in its leading judgment of 4 May 2011, the domestic authorities adopted wide-ranging measures at the judicial, legislative and executive levels with a view to tailoring the execution of preventive detention to the requirements both of the Constitution and the Convention. Thus, in the preventive detention centre set up under the new preventive detention system, the material conditions of detention imposed on the applicant as a person of unsound mind had been substantially improved as compared with those in ordinary prisons, the aim being to draw a distinction between those two forms of detention, as required by the Constitution. Above all, an increased number of specialised therapeutic staff provided inmates such as the applicant with individualised medical and therapeutic treatment in accordance with an individual treatment plan. It was only after the period covered by the proceedings here in issue that the applicant accepted some of the treatment offers made to him. However, the treatment in question was adequate, sufficient and available to the applicant at the relevant time.

It was a precondition for ordering or prolonging preventive detention subsequently that the person concerned should have been found guilty of a serious offence. However, the fact that the focus of the measure now lay on the medical and therapeutic treatment of the person concerned had altered the nature and purpose of the detention of persons such as the applicant and transformed it into a measure focused on the medical and therapeutic treatment of persons with a criminal history.

(e) Procedures involved in the making and implementation of the measure – The applicant’s preventive detention was imposed by the (criminal) trial courts; its subsequent implementation was to be determined by the courts responsible for the execution of sentences, that is to say courts also belonging to the criminal justice system. The courts belonging to the criminal justice system were particularly experienced in assessing the necessity of confining mental health patients who had committed a criminal act as they also dealt with decisions concerning detention in psychiatric hospitals. Furthermore, the criteria for the imposition of preventive detention would have been the same, irrespective of whether the civil or the criminal courts, which both belong to the courts with ordinary jurisdiction, had jurisdiction to impose that measure.

(f) Severity of the measure – The preventive detention order against the applicant did not stipulate any maximum period of detention. This type of order is therefore imposed as an ultima ratio measure because preventive detention is among the most serious measures which could be imposed under the Criminal Code. Also, since the applicant’s preventive detention had been ordered when he was thirty-five years old, he could potentially have remained in detention for a longer period of time than persons against whom such an order had been made at a more advanced age.

Nevertheless, the severity of the measure is not decisive in itself. Moreover, unlike in the case of prison sentences, the detention had no minimum duration either. The applicant’s release was not precluded until after a certain lapse of time, but was dependent on the courts’ finding that there was no longer a high risk that the applicant would commit the most serious types of violent crimes or sexual offences as a result of his mental disorder. The duration of the applicant’s detention thus depended to a considerable extent on his cooperation in necessary therapeutic measures. The applicant’s transfer to the new preventive detention centre had placed him in a better position to work towards his release by means of therapies tailored to his needs. Furthermore, his detention was subject to regular judicial reviews at relatively short intervals. That increased the probability that the measure would not last overly long. The severity of the preventive detention order was alleviated by these factors.

(g) Conclusion – The Court considered that preventive detention as implemented in accordance with the new legislative framework during the period here in issue could no longer be classified as a penalty within the meaning of Article 7 § 1. The applicant’s preventive detention had been imposed because of, and with a view to, the need to treat his mental disorder, having regard to his criminal history. The nature and purpose of his preventive detention, in particular, had been substantially different from those of ordinary preventive detention executed irrespective of a mental disorder. The punitive element of preventive detention and its connection with the criminal offence committed by the applicant had been erased to such an extent in these circumstances that the measure was no longer a penalty.

In view of these findings, it is not necessary to examine whether, by the order for and execution of the applicant’s subsequent preventive detention, a heavier measure was imposed on the applicant than the one that was applicable at the time he committed his criminal offence.

Conclusion: no violation (fourteen votes to three).

The Court also unanimously found no violation of Article 5 § 4 on the grounds of the length of the review proceedings into the lawfulness of the applicant’s provisional preventive detention, which had complied with his right to a prompt decision.

The Court further found, by fifteen votes to two, that there had been no violation of Article 6 § 1 in the framework of the proceedings concerning the lawfulness of the order placing the applicant in preventive detention, for lack of evidence that the judge was personally biased against the applicant or that there were objectively justified doubts as to his impartiality in the proceedings in issue.

(See M. v. Germany, 19359/04, 17 December 2009, Information Note 125; Bergmann v. Germany, 23279/14, 7 January 2016, Information Note 192; and W.P. v. Germany, 55594/13, 6 October 2016. See also Glien v. Germany, 7345/12, 28 November 2013, Information Note 168; and the Guide on Article 7 of the Convention)

© Council of Europe/European Court of Human Rights

In his partly dissenting opinion, Judge Sicilianos pointed out that “the criteria which the judgment describes as ‘static’ or ‘not susceptible to change after the point in time when the measure was ordered’ – that is to say the existence of a measure imposed following a conviction for an offence and the criterion on procedures involved in its making – … argue in favour of classifying the measure in question as a ‘penalty’” (§7). Judge Sicilianos further expressed his doubts “that the severity of preventive detention constitutes a ‘dynamic’ criterion” and stressed “that the third Engel criterion has regard to the maximum severity of the measure, in accordance with the applicable provisions. In other words, the third Engel criterion – which constitutes the principal source of inspiration in the present case – is not flexible or changeable but inflexible and rigid. If it were to be applied as it stands in the instant case, regard would have to be had solely to the fact that the applicable law does not set out any maximum period and that the preventive detention can consequently continue for the person’s whole life” (§10). Ultimately, according to the judge, “the use of a criterion which is ‘dynamic’, and therefore ongoing and changeable by definition, could well lead to uncertainties incompatible with the substance of the nullum crimen nulla poena sine lege principle [which is] the cornerstone of criminal law and criminal proceedings, and that it forms part of the hard core of the Convention” (§16).  

In his dissenting opinion Judge Pinto de Albuquerque dissected the majority’s reasoning point by point. In particular, he criticised the parameters taken into account to establish the change in the nature of the measure, stressing the break with the principles laid down in the Welch judgment (Welch v. the United Kingdom, 9 February 1995). According to his dissenting opinion “it cannot be maintained that the ‘nature’ or ‘purpose of a penalty can be changed retrospectively when the material conditions of detention improve. The misleading nature of this construction becomes very apparent if one asks about the exact time when the detention changed ‘nature’ or ‘purpose’: under the majority’s reasoning, after the addition of exactly how many square meters does preventive detention cease to be punishment… to become an acceptable therapy placement?  … How many doctors and nurses, how many visiting hours or phone calls should there be for a preventive detention unit to change nature and for detention therein to change its ‘purpose’?” (§109).  

He also pointed out the “the risk of manipulation of psychiatry for the purposes of social repression” (§42).


11 December 2018

Rodionov v. Russia (no.9106/09)

The applicant complained, among other matters, of the seizure by the prison authorities of the newspapers and magazines sent to him by his relatives. The Court considered in that regard that the seizure amounted to interference with the applicant’s right to receive information within the meaning of Article 10 of the Convention. It therefore had to determine whether the interference had been justified.

There was nothing to suggest that the material seized had been liable to present a danger to the well-being and lives of others, to disturb order in the prison or to be used to commit offences. Likewise, it had not been demonstrated that the fact that the applicant was receiving publications had entailed additional costs for the prison authorities. Under domestic legislation, prisoners were entitled to receive and make use of newspapers and magazines, provided that these were purchased through the prison management. It was precisely because that condition had not been satisfied in the instant case that the domestic courts had upheld the decision to seize the newspapers and magazines sent to the applicant by his relatives. However, that condition and its application by the domestic authorities in the applicant’s case had not met any pressing social need; accordingly, the measure in question had not been “necessary in a democratic society”.

Conclusion: violation.

The Court also held unanimously that there had been a violation of Article 3 on account of the applicant’s conditions of detention, the conditions in which he had been transferred to and from the courtroom and his placement in a metal cage during trial; a violation of Article 13 taken together with Article 3 on account of the lack of effective domestic remedies in that regard; a violation of Article 5 § 3 on account of the lack of sufficient reasons for the applicant’s continued pre-trial detention; a violation of Article 5 § 4 on account of the absence of a speedy review; a violation of Article 8 on account of the tapping of the applicant’s telephone and the recording of his telephone conversations; a violation of Article 13 taken together with Article 8 on account of the lack of effective domestic remedies in that regard; and a violation of Article 34 on account of the opening by the prison staff of letters sent to the applicant by the Court.

© Council of Europe/European Court of Human Rights


18 December 2018

Resin v. Russia (no.9348/14)

The applicant served his sentence from 2012 to 2014 at 7,000 kilometres from his home town. During his time in this facility he was able to have six short visits from his family, with a glass partition separating them and supervised by a prison officer. He made a request to have visits without such restrictions, but it was rejected. In addition he could not be visited by more than two people at the same time. In 2014 the applicant was transferred to a remand prison closer to his family but could not receive any visit from his family members.

The applicant complained of a violation of Article 8 “on account of various restrictions on visiting arrangements” (§19).

The Court first noted that the “Rules of Internal Order in Penal Facilities as in force at the material time restricted the number of adult family members who could visit a prisoner to two people” (§25) regardless of the duration of the visit and of the capacity of the visit premises. The Court considered this restriction “not necessary in a democratic society” (§27).

Second, as regards the separation with a glass partition and the presence of an officer during the visits, the Court recalled that “the prohibition of physical contact between the detainee and his visitor… cannot be considered necessary in the absence of any established security risk” (§31). Yet the Government “did not point to any security consideration which may have warranted physical separation of the applicant from his family or their constant supervision by a guard” (§32). The measure was therefore deemed to be not “necessary in a democratic society” (§34).

Third, as regards the refusal of short visits in the remand prison, the Court pointed at the applicable law “confers on the authority in charge of the case unrestricted discretion to grant or refuse prison visits” (§36) and therefore could not be considered “precise and foreseeable in its application” (§38). The interference could not therefore be considered to be “prescribed by law” (§38).

Fourth, as regards the refusal of long visits in the remand prison, the Court acknowledged that the Code of Execution of Sentences “bars convicted prisoners who… are brought to a remand prison from a correctional facility as part of an investigation from having long-stay family visits” (§40), but found that the Government “did not explain the legitimate aim or give any justification for the impugned measure” and could not therefore be considered “necessary in a democratic society” (§41).

In view of the above, the Court concluded that there had been a violation of Article 8.