Aliyev v. Azerbaijan (no. 68762/14) – health care / material conditions of detention. The case concerned the detention of a lawyer and human rights activist on charges including illegal entrepreneurship, embezzlement and tax evasion. He complained about the conditions of his pre-trial detention and about the lack of adequate medical care and his detention conditions (violation of Article 3). In addition, the applicant complained that his deprivation of liberty was a means to silence and punish him as a critic of the Government and a Human rights defender (violation of Article 18).
Gaspari v. Armenia (no. 44769/08) – material conditions of detention / overcrowding. The case concerned the applicant’s complaints about the conditions of his detention (violation of Article 3)
Dec. Mazziotti v. France (no. 65089/13) – disciplinary measures. The applicant was subjected to a seven-day disciplinary sanction after the prison administration found a cell phone in his cell. He complained under Article 3 that this sanction amounted to an inhuman or degrading treatment due to his psychological suffering at the time of the events, and under Article 13 that he had been unable to appeal against the decision of the prison disciplinary board (inadmissible).
Arrozpide Sarasola and Others v. Spain (no. 65101/16 and others) – heavier penalty / mutual recognition. The applicant was sentence to ten years’ imprisonment in France. After his extradition to Spain, he was sentenced to the maximum term of thirty years’ imprisonment under Spanish law for having committed other criminal offenses. The authorities rejected the applicant’s request to have his prison sentence already served in France combined with the thirty-year maximum set in Spain (no violation of Article 7).
Provenzano v. Italy (no. 55080/13) – medical care / medical release / special regime. Relying on Article 3 the applicant complained of inadequate medical care in prison (no violation of Article 3), and about the continuation of the special prison regime until his death, despite his ill health (violation of Article 3)
Jatsõšõn v. Estonia (no. 27603/15) – transport conditions. The applicant requested a prison leave in order to attend his grandmother’s funeral. He claimed that the transport conditions in the prison van were contrary to Article 3 as he had limited floor space and he lacked a seat belt (no violation of Article 3).
20 September 2018
Aliyev v. Azerbaijan (no. 68762/14)
The case concerned the detention of a lawyer and human rights activist on charges including illegal entrepreneurship, embezzlement and tax evasion. He complained about the conditions of his pre-trial detention and about the lack of adequate medical care and his detention conditions. In addition, the applicant complained that his deprivation of liberty was a means to silence and punish him as a critic of the Government and a Human rights defender.
Complaint under Article 3
The Court found that Mr Aliyev’s medical care in detention had not led to a violation of Article 3 as he had not shown convincingly that it had been inadequate. It found a violation of this provision related to his pre-trial detention between 9 to 12 August 2014 owing to a lack of space in his cell, aggravated by having to share beds with other inmates. However, as of 12 August the conditions of his detention had complied with the Convention.
The Court rejected his complaint about the conditions of his transport to the court on 24 October 2014 as he had not used all the available domestic legal remedies before turning to Strasbourg.
Complaint under Article 18
The Court observed that it was not disputed that the applicant is a human-right lawyer, and is in particular “the legal representative before [it] in a large number of cases” (§208). The Court further noted that it found that the charges against the applicant “were not based on a ‘reasonable suspicion’” (§209, see also §§164-165), and that “the applicant’s arrest was accompanied by stigmatising statements made by public official against the local NGOs and their leaders” (§210). In addition, the Court observed that the search of the applicant’s home and office was conducted in an arbitrary manner as the authorities seized case files unrelated to the charges pressed against him (§211). The Court declared that “the applicant’s situation cannot be viewed in isolation” (§214) as “several notable human-rights activists who have cooperated with international organisations for the protection of human rights, including, most notably, the Council of Europe, have been similarly arrested and charged with serious criminal offences entailing heavy prison sentences” (§214). In view of the above, the Court concluded that “the authorities’ actions were driven by improper reasons and the actual purpose of the impugned measures was to silence and to punish the applicant for his activities in the area of human rights as well as to prevent him from continuing those activities” (§215).
Application of Article 46
The Court observed that similar violations of Article 18 had been found in other cases against Azerbaijan and took the view that this revealed “a troubling pattern of arbitrary arrest and detention of government critics, civil society activists and human-rights defenders through retaliatory prosecutions and misuse of criminal law in defiance of the rule of law” (§223). The Court therefore stated that the Government shall take measures ensuring “the eradication of retaliatory prosecutions and misuse of criminal law against this group of individuals and the non‑repetition of similar practices in the future” (§226).
Gaspari v. Armenia (no. 44769/08)
Relying in particular on Article 3, the applicant complained about the conditions of his detention in seven different cells in Nubarashen Remand Prison. He alleged that certain cells had been overcrowded, had lacked natural light and fresh air and had been regularly flooded by sewage, that in others he had had to take turns sleeping with fellow inmates and that he had been constantly exposed to cigarette smoke.
The Court found a violation of Article 3 on account of the conditions of Mr Gaspari’s detention in cells nos. 4, 9, 20, 29 and 42 because of the lack of personal space, overcrowding, unsanitary conditions and the constant exposure to smoke.
But it found no violation of Article 3 concerning his conditions of detention in cells nos. 10 and 79. It noted in particular that while the space element remains a weighty factor in the Court’s assessment, the applicant did not make any other allegations regarding the conditions of his detention in these cells and the space element is not sufficient on its own for the Court to conclude that the conditions of the applicant’s detention amounted to degrading treatment within the meaning of Article 3.
11 October 2018
Dec. Mazziotti v. France (no. 65089/13)
The applicant was subjected to a seven-day disciplinary sanction after the prison administration found a cell phone in his cell. He complained under Article 3 that this sanction amounted to an inhuman or degrading treatment due to his psychological suffering at the time of the events, and under Article 13 that he had been unable to appeal against the decision of the prison disciplinary board.
The Court considered that the sanction was justified on security grounds. In addition, the Court observed that the sanction was relatively short, and further shortened by two days after the prison administration accepted the applicant’s request to replace the last two days with community work. The Court stated that this proves that the administration carried out a regular analysis of the applicant’s situation. The Court went on to note that the applicant had been under regular medical supervision. Lastly, the Court observed that he did not complain of the material conditions of detention in the disciplinary cell. Therefore, the Court concluded that the application is manifestly ill-founded.
Accordingly, the Court declared that the complaint under Article 13 shall be considered ill-founded as well.
23 October 2018
Arrozpide Sarasola and Others v. Spain (no. 65101/16 and others)
The three applicants were members of the terrorist organisation ETA. They were arrested in France between 1987 and 1992, and were given prison sentences by French courts for offences committed in France. Once extradited to Spain, between 1996 and 2000, they were convicted and sentenced for attacks and/or murders which had been committed by the ETA in Spain before their convictions in France.
In 2014 the applicants asked the Spanish courts to take account of the length of sentences handed down and served in France for the purposes of calculating their new term of imprisonment within the maximum thirty-year term in Spain. Their request was based on Framework Decision 2008/675/JHA of the Council of the European Union of 27 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings.
Those requests were upheld at first instance, but subsequently dismissed by the Supreme Court.
Article 7: The application of the maximum term of imprisonment prescribed by the Criminal Code was a measure which concerned the scope of the sentences imposed on the applicants. The impugned decisions of the Supreme Court, refusing to grant their requests to take account of time already served in France for the purposes of applying the maximum term in Spain, also concerned the scope of sentences and thus fell within the provision in the last sentence of Article 7 § 1 of the Convention.
At the time when the applicants had committed the criminal offences and at the time when the decisions were taken to calculate the total length and/or the ceiling of their aggregate prison sentences, the relevant Spanish law, as a whole (including case-law), did not provide, to a reasonable extent, for time already served in another State to be taken into account for the purposes of calculating the term of imprisonment in Spain.
The three applicants had sought the combining of their sentences with those already served in France, on the basis of the above-mentioned EU Framework Decision, only after the delivery of Supreme Court judgment no. 186/2004, in March 2014, in a case where that court had been called upon for the first time to interpret the Framework Decision. Even though it observed that it was in favour of taking account of time already served in another EU State for the purposes of combining sentences, it pointed out that there was no domestic legislation transposing the Framework Decision or any regulations expressly governing this matter. In accordance with that approach, some Sections of the Criminal Division of the Audiencia Nacional had combined sentences served in France with sentences handed down in Spain for the purposes of calculating the prison term. But all those decisions, except for three isolated cases, had been annulled by the Supreme Court following the introduction of appeals by the public prosecutor on points of law and the delivery of the leading judgment no. 874/2014 in January 2015 by the plenary formation of the Criminal Division of the Supreme Court. That judgment had dismissed the possibility of taking into account sentences handed down and served in another EU member State for the purposes of calculating the length of prison sentences to be served in Spain within the maximum term.
Under Spanish law, case-law was not a source of law and only precedent established in a reiterated manner by the Supreme Court could complement statute law. Judgment no. 186/2014 was not accompanied by any jurisprudential or administrative practice which had become consolidated over time, and which could have given rise to legitimate expectations as to a stable interpretation of the relevant criminal law. The present case could be clearly distinguished from Del Río Prada v. Spain where, in view of the previous practice concerning the interpretation of the criminal law and the scope of the sentence, the Court had taken the view that the departure from precedent by the Supreme Court (the “Parot doctrine”), as applied to the applicant in that case, could not be regarded as foreseeable, and there had therefore been a violation of Article 7 of the Convention.
In the present case, the discrepancies between the various courts concerned, as to the possibility of combining the terms of prison sentences served in other EU member States with the sentences to be served in Spain, had lasted for only about ten months, until the delivery by the Supreme Court – the highest Spanish court in criminal matters – of its leading judgment no. 874/2014. The solutions adopted in the applicants’ cases had merely followed that judgment.
Accordingly, having regard to the relevant domestic law at the time when the applicants had committed the offences, when the decisions on the calculation of the length and/or ceiling of the prison terms were adopted, and when the applicants had requested that the sentences served in France be taken into account, the impugned decisions had not changed the scope of the sentences handed down. The maximum length of the time to be served had always been set at thirty years, as a result of the combination and/or ceiling of individual sentences imposed on the applicants by the Spanish criminal courts, without taking account of the sentences handed down and served in France. The impugned decisions of the Supreme Court had not therefore led to any change in the scope of the applicants’ sentences.
Conclusion: no violation (unanimously).
(See Del Río Prada v. Spain [GC], 42750/09, 21 October 2013, Information Note 167; see also Borcea v. Romania (dec.), 55959/14, 22 September 2015; and Koprivnikar v. Slovenia, 67503/13, 24 January 2017, Information Note 203)
© Council of Europe/European Court of Human Rights
25 October 2018
Provenzano v. Italy (no. 55080/13)
Relying on Article 3 the applicant complained of inadequate medical care in prison, and about the continuation of the special prison regime until his death, despite his ill health.
The applicant was imprisoned under the section 41bis regime, a restrictive regime in Italy to prevent those convicted of mafia-related crimes from maintaining contact with members of the criminal organisation within or outside prison. The regime was extended every year until 2010, then every two years until 2016.
The applicant became progressively seriously ill in prison and, notably, his cognitive functioning declined. At the end of 2013 he became permanently bedridden and had artificial nutrition via a feeding tube. He was eventually hospitalised in 2014 in the correctional wing of a civil hospital, where he remained until his death in 2016.
Between 2013 and 2016 he brought court proceedings requesting that his sentence be suspended for health reasons and applying to lift the special prison regime, all without success.
Concerning the incompatibility of the applicant’s detention with his health, allegations of inadequate medical care, and other aspects of conditions of detention, the Court did not find it established that the applicant’s detention per se could be considered incompatible with his – albeit serious – health conditions and advanced age, or that, given the practical demands of imprisonment, his health and well-being were not adequately protected. Therefore, it found no violation of Article 3 in so far as this part of the complaint was concerned.
Concerning the continued application of the section 41bis special regime, the Court was not persuaded that the Government had convincingly demonstrated that, in the particular circumstances of the present case, the extended application of the section 41bis regime in 2016 was justified. It considered that in the order renewing the imposition of this special regime not only should the statement of reasons militating in favour of renewal have been increasingly detailed and compelling, but the applicant’s evolving cognitive deterioration needed to be taken into account. While the order provided a detailed account of the applicant’s criminal history, his prominent role in the criminal organisation, and the proven, continuing activity of such an organisation, the Court noted that there was little mention of the applicant’s cognitive situation. It concluded therefore to a violation of Article 3 on this account.
30 October 2018
Jatsõšõn v. Estonia (no. 27603/15)
The applicant requested a prison leave in order to attend his grandmother’s funeral. The applicant claimed that the transport conditions in the prison van were contrary to Article 3 as he had limited floor space and he lacked a seat belt.
The Court observed that the applicant was place in an individual compartment with 0.51 sq.m., which is far below the standards established by the CPT (§40). However, the Court accepted the Government’s argument that “the requirement concerning seat size and available leg space specified in Directive 2001/85/EC [relating to special provisions for vehicles used for the carriage of passengers comparison more than eight seats] were complied with” (§42). As regards the absence of a seatbelt or handles, the Court recalled that it had found that this mere fact cannot lead to a violation of Article 3 (Voicu v. Romania, no. 22015/10, 10 June 2014) and found no aggravating factor in the present case. Lastly, the Court noted that the applicant spent only a short time in the van. Therefore, there had been no violation of Article 3.