Legal Resources

October – December 2019. Round-up of the ECtHR case-law

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  Newsletter no. 2020/1 – Round-up of the ECtHR case-law (October – December 2019)




Ulemek v. Croatia (application no. 21613/16) – Admissibility / Right to an effective remedy / Material conditions of detention. Relying in particular on Article 3, the applicant complained about the conditions of his detention in both prisons (violation of Article 3, no violation of Article 3). In addition, the applicant complained about the lack of an effective remedy in regards to his detention conditions (manifestly ill-founded).


I.L. v. Switzerland (application no. 72939/16) – Preventive detention. The applicant complained that the preventive measure that had been imposed on him had been unlawful (violation of Article 5 § 1).


Petrescu v. Portugal (application no. 23190/17) – Material conditions of detention/ structural problem (“quasi-pilot judgement”). The applicant complained about his detention conditions in two prison facilities in Portugal (violation of Article 3).


Jevtović v. Serbia (application no. 29896/14) – Ill-treatment / lack of effective investigation. Relying on Article 3, the applicant complained of being ill-treated by prison guards. He also complained under the same Article of the lack of an effective official investigation (violation of Article 3, substantive and procedural limbs).


J.M. v. France (application no. 71670/14)Violence by prison staff / lack of effective investigation. The case concerned the applicant’s complaints of inhuman and degrading treatment and disproportionate use of force by prison staff while he was in detention, and his allegation that the subsequent investigation had been ineffective and lacked independence. (violation of Article 3, substantive and procedural limbs)


31 October 2019

Ulemek v. Croatia (application no. 21613/16)

Facts – The applicant had served a prison sentence in two detention facilities in Croatia, namely Zagreb Prison and Glina State Prison. The prison regime and conditions of detention in these two prison facilities differed. As to the conditions of detention in Zagreb Prison, the applicant did not avail himself of the preventive remedy before the prison administration and/or the sentence-execution judge, which the European Court had already found in its case-law to be effective. As to the conditions in Glina State Prison, the applicant had made use of that remedy but, once his complaints were dismissed, he failed to complain to the Constitutional Court. The European Court had already found that lodging a complaint with the Constitutional Court was an additional required step in the process of exhausting the preventive remedy for conditions of detention in Croatia. Nevertheless, after his release from Glina State Prison, the applicant began a civil action for damages for the allegedly inadequate conditions in both facilities. After the dismissal of his constitutional complaint on the merits, the applicant lodged an application with the European Court within six months of receiving the Constitutional Court’s decision. He mainly complained under Articles 3 and 13 of the Convention about the inadequate conditions of his detention in both prisons and about the lack of an effective remedy in that regard.

Law (a)  Effective remedies under Article 13 of the Convention in general and specifically with respect to conditions of detention in the case-law of the European Court

The Court had recently examined the structural reforms in the systems of remedies of different countries. These reforms had been introduced in response to the Court’s pilot and leading judgments concerning inadequate conditions of detention. The Court had thereby reaffirmed its case-law, according to which the preventive and compensatory remedies in this context had to be complementary.


(b)  Exhaustion of remedies and compliance with the six-month rule in cases concerning conditions of detention in the case-law of the European Court

Applicants who were still in detention under the circumstances of which they complained were obliged to exhaust the available and effective preventive remedy before bringing their complaints before the Court.

However, in cases where unsatisfactory conditions of detention had already ended, the use of a compensatory remedy, such as a civil action for damages, was normally an effective remedy for the purposes of Article 35, when there had not been a preventive remedy providing for an effective avenue which the applicants could and should have used during their confinement. Accordingly, where an applicant had already been released when he or she lodged his application, a remedy of a purely compensatory nature could in principle have been effective and could have provided him or her with fair redress for the alleged breach of Article 3. By contrast, for countries where there had been an effective preventive remedy, the Court had considered the effectiveness of the compensatory remedy in combination with the use of an effective preventive remedy.

In this context, the use of a civil action for damages had not been an alternative to the proper use of the preventive remedy, irrespective of the fact that those remedies may be, as a whole, exercised through two separate sets of judicial proceedings. Moreover, it had not been unreasonable to require a prisoner to use the available and effective preventive remedy as a precondition for his or her use of the compensatory remedy, aimed at obtaining damages for inadequate conditions of detention in the past. Indeed, an effective preventive remedy was capable of having an immediate impact on an applicant’s inadequate conditions of detention. In the case of the compensatory remedy, this could only provide redress for the consequences of an applicant’s allegedly inadequate conditions of detention.

From the perspective of the State’s duty under Article 13, the prospect of future redress could not legitimise particularly severe suffering in breach of Article 3 and unacceptably weaken the legal obligation on the State to bring its standards of detention into line with the Convention requirements. Thus, given the close affinity between Articles 13 and 35 § 1 of the Convention, it would have been unreasonable to accept that once a preventive remedy had been established from the perspective of Article 13 – as a remedy found by the Court to be the most appropriate avenue to address the complaints of inadequate conditions of detention – an applicant could be dispensed from the obligation to use that remedy before bringing his or her complaint to the Court.

Thus, normally, before bringing their complaints to the Court concerning the conditions of their detention, applicants were first required to use properly the available and effective preventive remedy and then, if appropriate, the relevant compensatory remedy.

However, there might be instances in which the use of an otherwise effective preventive remedy would be futile in view of the brevity of an applicant’s stay in inadequate conditions of detention. In such a scenario, the only viable option would be a compensatory remedy opening up the possibility of obtaining redress for past placement in inadequate conditions. How short a period had to be that use of the preventive remedy was futile might depend on many factors related to the manner of operation of the domestic system of remedies and the nature of the alleged inadequacy of an applicant’s conditions of detention.

Use of the compensatory remedy could not be unlimited in time: it normally had to be used within six months of the allegedly inadequate conditions of detention ceasing to exist. This was without prejudice to the possibility that the relevant domestic law provided for different arrangements in the use of remedies or for a longer statutory time-limit for the use of a compensatory remedy, in which case the use of that remedy was determined by the relevant domestic arrangements and time-limits.

Where no effective remedy was available to the applicant, the period ran from the date of the acts or measures complained of, or from the date of the knowledge of that act or its effect on or prejudice to the applicant. When it was clear from the outset that the use of a remedy could not be considered effective for an applicant’s complaints, the use of that remedy could not interrupt the running of the six-month time-limit. Where, therefore, an applicant availed him or herself of an apparently existing remedy and only subsequently became aware of circumstances which rendered the remedy ineffective, it might be appropriate to take as the start of the six-month period the date when the applicant first had become or ought to have become aware of those circumstances.

Moreover, in the context of conditions of detention, a period of an applicant’s detention should have been regarded as a “continuing situation” where an applicant had been confined in different detention regimes and/or facilities as long as the detention had been effected in the same type of detention facility in substantially similar conditions. Short absences, during which the applicant had been taken out of the facility for interviews or other procedural acts, would have no incidence on the continuous nature of the detention. However, the applicant’s release or transfer to a different type of detention regime, both within and outside the facility, would put an end to the “continuing situation”. The complaint about the conditions of detention had to be filed within six months of the end of the situation complained of or, if there had been an effective domestic remedy to be exhausted, within six months of the final decision in the process of exhaustion.


(c)  Preliminary remarks concerning the Croatian preventive and compensatory remedies

The Croatian legal system provided for both preventive and compensatory remedies. The preventive remedy was exercised by making a complaint to the prison administration and/or the sentence-execution judge directly, while the compensatory remedy related to the possibility of obtaining compensation in the form of damages before the relevant civil courts. In any event, in case of an unfavourable outcome in the use of the preventive and/or compensatory remedy, an applicant could bring complaints before the Constitutional Court which also had the competence to order his or her release or removal from inadequate prison conditions.

Nevertheless the compensatory remedy, aimed at obtaining damages for the time the applicant had been detained in inadequate conditions of detention, had not been in itself effective. It was only in combination with an effective use of the preventive remedy, leading to an acknowledgment of a breach of the applicant’s rights and his or her removal from the inadequate conditions of detention, that civil proceedings could satisfy the requirements of effectiveness. Applicants had to use diligently the available preventive remedy and, in the event of an unfavourable outcome, to lodge a constitutional complaint before the Constitutional Court.

Accordingly applicants were required, before bringing their complaints to the European Court, to afford the Croatian Constitutional Court the opportunity of remedying their situation and addressing the issues they wished to bring before the European Court. Where applicants had failed to comply with that requirement, the Court had declared their applications inadmissible for non-exhaustion of domestic remedies.

According to the relevant practices of the domestic authorities, including the Constitutional Court, once the preventive remedy had been set in motion by first lodging a complaint before the prison administration and/or the sentence-execution judge directly, neither removal from inadequate conditions of detention nor release prevented the examination and finding of a breach of Article 3.

As regards the use of the compensatory remedy, the Constitutional Court had recently held that appellants were not required to use the preventive remedy before the sentence-execution judge in order formally to be allowed to lodge a civil action for damages before the civil courts (which itself would also have allowed them, if needed, to bring their complaints before the Constitutional Court). However, where appellants lodged their constitutional complaints after their civil actions for damages (related to inadequate conditions of detention) had been dismissed, it seemed that the Constitutional Court approached cases in two ways. On the one hand, in several such cases the Constitutional Court had limited its examination to the procedural assessment of the civil courts’ duty to elucidate the circumstances of a former prisoner’s conditions of detention. On the other hand, in other cases the Constitutional Court itself had examined the (in)adequacy of detention conditions, and not just the procedural aspect of the complaints.

The above principles concerning the effective remedies had been found to be applicable to the complaints under Article 8 of the Convention concerning the conditions and regime of an applicant’s detention.


(d)  Effectiveness of remedies in Croatia concerning allegations of inadequate conditions of detention

The European Court confirmed its case-law as to the existence of effective preventive and compensatory remedies in Croatia concerning allegations of inadequate conditions of detention.


(e)  Whether the applicant had properly exhausted the domestic remedies and complied with the six-month time-limit

Regarding the applicant’s complaint about the inadequate conditions of detention, an issue that had to be considered was whether the applicant had properly exhausted the relevant domestic remedies (preventive and compensatory) for some of the periods of his imprisonment, as required under the Court’s case-law. There was consequently also the question of whether the applicant had complied with the six-month time-limit for bringing his complaints to the Court. The Constitutional Court, as the highest court in the country, had examined on the merits the applicant’s complaints of inadequate conditions of detention for the overall period of his confinement in Zagreb Prison and Glina State Prison, and the applicant had duly lodged his application with the European Court after obtaining that decision of the Constitutional Court. As the Constitutional Court’s case-law stood, the applicant’s complaints could not be dismissed for failure to exhaust domestic remedies and/or non‑compliance with the six-month time limit.


(f)  Summing-up

In view of the above considerations, reiterating that there was nothing in the applicant’s arguments calling into question the general effectiveness of remedies in Croatia concerning allegations of inadequate conditions of detention, the Court found that the applicant’s complaint under Article 13 was manifestly ill-founded.


Conclusion: preliminary objections dismissed (exhaustion of domestic remedies).

 The Court also found, unanimously, a violation of Article 3 in respect of the applicant’s conditions of detention in Zagreb Prison; but no violation of Article 3 as regards the applicant’s conditions of detention in Glina State Prison.

 © Council of Europe/European Court of Human Rights


 3 December 2019

I.L. v. Switzerland (application no. 72939/16) 

The applicant complained that a preventive measure had been unlawfully applied to him during a period of three months. The measure was imposed “pending a court ruling on a request for an extension of the institutional therapeutic measure that had been imposed on I.L. five years previously” (press release). The measure was ordered “on the basis of provisions from the Code of Criminal Procedure governing pre-trial detention, applied by analogy” (idem).

 “The Court noted that the decision ordering detention on the grounds of public safety would not have been necessary if the judgment extending the institutional measure had been delivered in time. The Court found that it was undisputed that no explicit legal basis existed in Swiss criminal law for this type of detention; nor was there any consistent domestic case-law in this respect. It also considered that, having regard to the seriousness of the interference with the applicant’s personal liberty and the need for a strict interpretation of the requirements underpinning lawful detention, the application by analogy or by referral of a substantive provision could not be tolerated. It followed that the federal legislation did not meet the criteria of a “law” for the purposes of Article 5 § 1, and that the applicant’s detention […] had not been compatible with that Article.” (idem)


 Petrescu v. Portugal (application no. 23190/17) 

 Friendly settlement – The Court rejected the friendly settlement proposed by the Government, on the grounds that the problems revealed by the present case are of a structural nature (§65), as highlighted by reports published by the CPT and the UN Committee Against Torture (§§49-56).

Exhaustion of remedies – The Court rejected the Government’s claim that the applicant did not exhaust available domestic remedies; considering that: (1) a complaint to the prison authorities was not an effective remedy, since those bodies did not have the necessary independence to rule in this area; (2) the Government did not submit any evidence that a remedy before the administrative courts would have been effective. Furthermore, in view of the structural problem of prison overcrowding, even if those courts were to have issued a favourable decision, the prison authorities would have had difficulties in implementing it; (3) the Ombudsman’s decisions were not binding.

Merits -The Court observed that the applicant had endured “degrading treatment for 376 non-consecutive days, during which he was held in various multiple-occupancy cells providing a personal space of less than 3 sq. m. […]; inhuman and degrading treatment for 385 non-consecutive days, during which he was held in various cells providing a personal space of between 3 and 4 sq. m. […]; “inhuman and degrading treatment for 36 days, during which he had shared a cell with one other prisoner, where the sanitary area was only partly separated from the rest of the room by a chest-height partition.” (press release).

The Court therefore concluded that there had been a violation of Article 3. In addition, the Court recommends the defendant State to take general measures in order to tackle the structural problem identified. Such measures include the improvement of detention conditions, and the set-up of effective remedies in this respect (§117 – see also Torreggiani and others v. Italy, §50).


 Jevtović v. Serbia (application no. 29896/14) 

Facts – The applicant complained that he had been ill-treated by prison guards on four occasions in different facilities. The Court observed that the Serbian Constitutional Court found in 2013 that the applicant had “been subjected to inhuman treatment in respect of all four incidents” and that “the relevant authorities had failed to carry out an effective investigation in respect of the said four incidents” (§36). The applicant was granted by the Constitutional court 1,000 euros for the non-pecuniary damage suffered.

 LawStatus of victim – The Court dismissed the Government, observing that the compensation offered to the applicant by the Serbian Constitutional Court was substantially inferior to “the award the Court itself would have made, given a finding of a violation of the magnitude claimed” (§62).

Merits – The Court declared that the pieces of evidences presented before it, as well as the ruling of the Serbian Constitutional Court, enabled it to establish “that the applicant had suffered ill-treatment at the hands of State agents” (§78). Therefore, there had been a violation of Article 3 under its substantive aspect.

Furthermore, the Court recalled that the authorities failed to carry out an effective investigation in respect of the incidents. It saw no reason to depart from this analysis. In particular, as regards the investigation in respect of the last incident, the Court underlined “(i) the notable and unjustifiable lapse of time between some of the investigative steps taken […]; (ii) the overall duration of the investigation in question, which started on 14 March 2012 at the latest […] and was still pending as of 4 July 2016, having thus lasted, by that time, for a period of some four years and three months in all; (iii) the unnecessarily repetitive nature of some of the those steps; (iv) the failure by the relevant authorities to attempt to carry out an exercise to allow the applicant to identify the prison guards despite the applicant’s repeated and ostensibly reasonable proposals in that connection; and (v) the lack of transparency in terms of where, when and why video footage may or may not have been available.” Accordingly, there had been “a violation of the procedural limb of Article 3”.


5 December 2019

J.M. v. France (application no. 71670/14)

Facts – The applicant, who suffered from mental disorders, alleged that he had been beaten by the guards and hosed down with a fire hose before being transferred half-naked to another prison, where his injuries, including signs of strangulation, had been noted. The judicial authorities have ruled out any criminal offence.

LawArticle 3 Substantive aspect – It was not disputed that on 5 and 6 July 2007 the prison wardens had repeatedly used force against the applicant. Four medical certificates had all noted numerous injuries. In addition to the applicant’s physical suffering, the Court considered that the treatment to which he had been subjected had caused him fear, anguish and mental suffering. It therefore remained to be ascertained whether or not the physical force used against the applicant had been strictly necessitated by his conduct. The Court noted, like the domestic courts, that the applicant had been in an extremely agitated state at the time. However, it observed that he had also been in psychological distress. On the morning of 5 July 2007 he had been taken to the outpatient department after deliberately cutting himself on the arm. Hence, the applicant had been particularly vulnerable owing to his psychological problems and the fact that he was in detention. As to the risk of fire, the Court noted that the prisons inspectorate had itself found that the use of a fire hose had been disproportionate in the circumstances. The use of a fire hose rather than an extinguisher had been bound to flood the cell. This lack of judgment on the part of the warden had led to the applicant and his belongings being drenched unnecessarily, creating a feeling of humiliation. The Court also observed that the various medical certificates had noted numerous bruises on the applicant’s body. Despite the preliminary and judicial investigations carried out, the cause of the 18 cm strangulation mark on the applicant’s neck had never been established. Lastly, when being transferred from Salon-de-Provence Prison to the prison at Varennes-le-Grand, the applicant had been dressed only in a T-shirt with just a sheet to cover himself. Such treatment had caused feelings of arbitrariness, inferiority, humiliation and anguish and showed a serious lack of respect for his human dignity. The Court therefore held that the applicant had been subjected to inhuman and degrading treatment. It followed that there had been a violation of the substantive aspect of Article 3. 

 Article 3 Procedural aspect – The Court noted that independent investigations had been conducted speedily. On the very day of the applicant’s arrival at Varennes-le-Grand Prison, the public prosecutor’s office had instituted an investigation of its own motion into the circumstances of the applicant’s transfer and his allegations of violence. An investigation had been carried out by a judge who had not merely echoed the findings of the internal administrative investigation and the investigation by the prisons inspectorate, but had interviewed and questioned the applicant and all the wardens involved before issuing a reasoned decision finding that there was no case to answer. Nevertheless, the Court noted that the investigation had not led to the identification and punishment of those responsible for the inhuman and degrading treatment it had established. In the Court’s view the investigating judge and the Investigation Division appeared to have applied different criteria in assessing the different witness statements, with the applicant’s statement being considered subjective, unlike those of the wardens. The credibility of the latter’s statements should have been checked carefully. Furthermore, certain measures required in order to elucidate the facts had not been ordered. For instance, no medical and technical expert report had been ordered with a view to establishing the cause of the strangulation mark that had been observed. The Court held that the applicant had not had the benefit of an effective investigation, and found a violation of the procedural aspect of Article 3.” (excerpt from the press release).