This compilation gathers the most important judgments and decisions on prison issues handed down by the European Court of Human Rights and the Court of Justice of the European Union.
By reporting on the main trends in European prison case law, it aims to support legal practitioners in the prison field in their research and litigation, as well as to identify blind spots in European case law to build strategic litigation avenues.
EUROPEAN COURT OF HUMAN RIGHTS
PINTUS v. ITALY ■ Application no. 35943/18
Detention of a prisoner suffering from mental disorders for approximately eight months under the ordinary detention regime, despite the incompatibility of his state of mental health with this regime, due to the lack of space in a specialised facility: no violation of Article 2, no violation of Article 3.
SİL AND OTHERS v. TÜRKIYE ■ Application no. 8130/19 and 2 others
Uploading of correspondence of prisoners onto a national server regulated by unpublished internal regulations to which prisoners did not have access: violation of Article 8.
GHIBAN v. ROMANIA ■ Application no. 10862/19
Refusal of leave to a prisoner to attend the funeral of close relatives: violation of Article 8.
Inadequate conditions of detention: inadmissible.
ASADULLAYEV AND OTHERS v. RUSSIA ■ Application no. 1510/21 and 49 others
SLIVIN AND OTHERS v. RUSSIA ■ Application no. 28279/21 and 49 others
MOROZOV AND OTHERS v. RUSSIA ■ Application no. 37564/19 and 47 others
Inadequate conditions of transport: violation of Article 3.
BURTSEV AND OTHERS v. RUSSIA ■ Application no. 45302/19 and 34 others
Permanent video surveillance in prison cells, including by opposite-sex operators, in lavatory and shower rooms and in solitary confinement cells: violation of Article 8.
RUDIK AND OTHERS v. RUSSIA ■ Application no. 13050/17 and 10 others
ZAVGORODNIY AND OTHERS v. RUSSIA ■ Application no. 28355/18 and 22 others
YEMANOV AND OTHERS v. RUSSIA ■ Application no. 42771/19 and 22 others
Inadequate conditions of detention of life prisoners under strict imprisonment regime: violation of Article 3.
I.L. v. SWITZERLAND (No. 2) ■ Application no. 36609/16
Lengthy solitary confinement of the applicant with mental disorders in the absence of adequate therapeutic care: violation of Article 3.
Inhuman and degrading treatment as a result of the forced medication and lack of effective remedies in this respect: inadmissible (non-exhaustion of domestic remedies).
Unlawful detention on account of holding a mentally ill person in an inappropriate facility: violation of Article 5 § 1.
Lack of promptness in consideration of the applicant’s application for release: violation of Article 5 § 4.
LYPOVCHENKO AND HALABUDENCO v. THE REPUBLIC OF MOLDOVA AND RUSSIA ■ Applications nos. 40926/16 and 73942/17
Detention in the secessionist “Moldavian Republic of Transnistria”: jurisdiction of Russia and Moldova.
Inadequate detention conditions, inadequate medical treatment, forced psychiatric treatment: violation of Article 3 by Russia, no violation of Article 3 by Moldova.
Conviction and detention ordered by “MRT” courts: violation of Articles 5 § 1 and 6 by Russia, no violation of Articles 5 § 1 and 6 by Moldova.
SIMON v. UKRAINE ■ Application no. 41877/21
Inadequacy of medical care in detention and lack of effective remedy in this respect: violation of Articles 3 and 13.
PĂILĂ AND OTHERS v. ROMANIA ■ Application no. 26096/16 and 9 others
Applicant deceased before the Court’s judgment was handed down: judgment revised; application struck out.
EUROPEAN COURT OF HUMAN RIGHTS
PINTUS v. ITALY ■ Application no. 35943/18 ■ First Section ■ 1 February 2024
Art 2 (substantive) ■ Positive obligations ■ Maintenance in ordinary detention of a man suffering from psychiatric disorders who had injured his forearm with a razor blade on three occasions ■ Certainty and immediacy of the risk to the applicant’s life known to the prison authorities after the first self-injury episode ■ Access by the applicant to ongoing psychiatric treatment under the supervision of the staff of the psychiatric facility within the penitentiary, where he could not be placed while waiting to find an establishment more suited to his condition ■Additional and constant medical examination and psychiatric check-up after each of the episodes ■ Authorities having done what could reasonably be expected of them in the circumstances of the case to prevent the risk in question from materialising.
Art 3 (substantive) ■ Absence of inhuman and degrading treatment
Facts ■ The applicant was sentenced to six years’ imprisonment and was incarcerated in October 2017 in the Rebibbia Nuovo Complesso prison in Rome (Italy). The applicant’s lawyer sought his transfer to a psychiatric treatment centre run by a private organisation.
In January 2018, a judge, taking into consideration two medical reports describing the history of the applicant’s mental health disorders (including chronic residual psychosis, personality disorder, mental retardation, and addiction to psychotropic substances), ordered the applicant’s transfer to a specialised centre for the treatment of persons with psychiatric disorders who committed crimes and posed a danger to the public. Although one of the medical reports noted the incompatibility of the applicant’s state of health with his continued detention, the second one reached a different conclusion, arguing that his state of health had stabilised and that he was under regular psychiatric supervision.
At the material time, persons sentenced to more than four years’ imprisonment could not be transferred to an external centre. Consequently, and in view of the lack of space in a facility of this type located in Rebibbia prison (ATSM), the authorities asked the judge to alter the enforcement order.
In March 2018 the applicant’s lawyer applied to the judge anew, pointing to the non-enforcement of the transfer order. Due to a continued shortage of places in the ATSM mentioned above, the applicant was kept in prison. The prison authorities stressed that the psychiatric institution was in the same building as the prison, and its patients shared common areas with prisoners.
Between March and May 2018, the applicant’s state of health deteriorated significantly, and he committed self-harm (he cut his forearm and swallowed batteries). The applicant reported the incidents himself and was provided with medical aid and psychological support. The prison psychiatrist confirmed the incompatibility of the applicant’s state of health with the prison conditions.
In June 2018, the applicant was transferred to a psychiatric treatment centre run by a private organisation. By validating such a transfer, the judicial authorities preceded a 2019 ruling of the Constitutional Court extending the possibility of being transferred to external centres to all prisoners with a mental health disorder.
The applicant complained under Article 2 and Article 3 that his continued detention prevented him from receiving adequate medical treatment, caused a degradation of his health and exposed him to a risk to his physical integrity.
Law ■ Admissibility
The Court rejected the Government’s plea of non-exhaustion of domestic remedies, arguing that the applicant had used one of the remedies suggested by the Government, that the Government had failed to produce judicial decisions attesting to the effectiveness of another remedy (the appointment of a commissioner ad acta in charge of dealing with the enforcement of non-enforced judicial decisions was bound to fail, given the absence of places in the specialised centres; and a compensatory remedy suggested by the authorities, was irrelevant in the present case).
Law ■ Article 2
General principles: Fernandes de Oliveira v. Portugal [GC], no. 78103/14, §§ 104, 110, 125-126, 2019; Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 134, 2019; Jeanty v. Belgium, no. 82284/17, § 70, 2020; Renolde v. France, no. 5608/05, § 80, 2008; Keenan v. the United Kingdom, no. 27229/95, § 91, 2001; Mosendz v. Ukraine, no. 52013/08, § 92, 2013.
The applicant complained that his continued detention in an ordinary prison exposed him to a real and immediate risk to his life.
The Court observed that the prison authorities acted on the basis of the information contained in the medical reports, which testified to the improvement of the applicant’s health. They thus neither knew nor could have known, before the first self-harm episode, that the applicant’s state of mental health put him at the risk of self-harm.
The Court noted that, once the first self-harm episode occurred, the authorities provided the applicants with psychiatric supervision, psychological support, medical aid, and organised his transfer to a specialised facility outside the prison.
Consequently, the Court concluded that the authorities had done what could reasonably have been expected from them in the circumstances of the case to prevent the risk to the applicant’s life from materialising.
Conclusion ■ No violation of Article 2.
Law ■ Article 3
General principles: Rooman v. Belgium [GC], no. 18052/11, §§ 141, 145-146, 2019; Enea c. Italie [GC], no. 74912/01, § 57, 2009; Murray v. The Netherlands [GC], no. 10511/10, § 105, 2016; W.D. v. Belgium, no. 73548/13, §§ 114-115, 2016; Strazimiri v. Albania, no. 34602/16, §§ 108-112, 2020; Sy v. Italy, no. 11791/20, §§ 79-81, 2022.
The applicant complained that his detention in an ordinary prison against the opinion of medical reports, deprived him of appropriate medical treatment, which caused a degradation of his state of health.
The Court reiterated that the decision to place the applicant in a psychiatric annexe or to order his hospitalisation in a therapeutic centre outside the penitentiary falls within the jurisdiction of the national courts and that Article 3 does not create a general obligation to release prisoners on health grounds or to transfer them to civilian hospitals.
As regards the compatibility of the applicant’s state of health with his detention, the Court observed that in 2017 the applicant himself had withdrawn his requests for a transfer to a specialised institution and that while in prison he was provided with regular, individualised treatment involving psychological and psychiatric care as well as medication. Furthermore, following the first self-harm incident, the applicant received reinforced care and the authorities diligently organised his transfer to a facility outside the prison. In this respect, the Court underlined the “pioneering” nature of this transfer (§66), which preceded the 2019 Constitutional Court ruling mentioned above.
Conclusion ■ No violation of Article 3.
Article 41 ■ For the eight applicants for whom a violation has been found the Court has awarded a sum ranging from 2,300 EUR to 10,900 EUR in respect of non-pecuniary damage and 1,000 EUR each to five applicants in respect of costs and expenses.
SİL AND OTHERS v. TÜRKIYE ■ Application no. 8130/19 and 2 others ■ Second Section Committee ■ 6 February 2024
Art 8 ■ Uploading of prisoners’ correspondence to a judicial IT server not provided for by law ■ Unpublished internal documents
Facts ■ The applicants complained under Article 8 about the uploading of their incoming and outgoing correspondence in the judicial IT server UYAP during their detention in various prisons in Türkiye. The domestic courts (including the Constitutional Court) rejected the applicants’ attempts to challenge this practice.
Law ■ Article 8
Having examined all the material submitted to it, the Court saw no reason to depart from the conclusion reached in its leading cases on this matter (Nuh Uzun and Others v. Türkiye, no. 49341/18 and 13 others, 2022). The Court reiterated that the uploading of the applicants’ correspondence in the IT judicial system could not be regarded as having been “in accordance with the law” with the meaning of Article 8 of the Convention.
Conclusion ■ Violation of Article 8.
Article 41 ■ The finding of a violation constituted sufficient just satisfaction for any non‑pecuniary damage sustained by the applicants.
GHIBAN v. ROMANIA ■ Application no. 10862/19 ■ Fourth Section Committee ■ 8 February 2024
Art 3 ■ Inadequate detention conditions
Art 8 ■ Refusal of leave to a prisoner to attend the funeral of close relatives
Facts ■ The applicant complained under Article 8 that he had been unable to attend the funeral of his mother following the refusal of the prison authorities to grant him compassionate leave, on the grounds that the “conditions to obtain leave were not met”. The domestic courts dismissed the applicant’s complaints against the prison authorities’ decision.
The applicant also complained under Article 3 of the Convention about the inadequate conditions of his detention in the Bucharest Rahova, Jilava, Giurgiu, Mărgineni and Craiova prisons since 6 March 2009.
Law ■ Article 8
The Court found that the complaint raised issues similar to those addressed in a previous judgment (Kanalas v. Romania,no. 20323/14, 2016). The Court considered that in the instant case, the reasons invoked by the prison authorities to dismiss the applicant’s request for leave were not sufficient to demonstrate that the interference was “necessary in a democratic society”.
Conclusion ■ Violation of Article 8.
Law ■ Article 3
The Court recalled that it had recognised an action in tort to be an effective compensatory remedy, to be used by prisoners who are no longer held in inadequate detention conditions from 13 January 2021 onwards (Polgar v. Romania, no. 39412/19, §§ 94-96, 2021).
The Court noted that on 24 April 2023, the applicant was transferred to Arad prison, and did not complain about his detention conditions there. Since, following his transfer to better detention conditions, the applicant did not make use of the action in tort the Court dismissed this part of the complaint for failure to exhaust domestic remedies.
Conclusion ■ Inadmissible.
Article 41 ■ EUR 3,000 in respect of pecuniary and non-pecuniary damage and costs and expenses
ASADULLAYEV AND OTHERS v. RUSSIA ■ Application no. 1510/21 and 49 others
SLIVIN AND OTHERS v. RUSSIA ■ Application no. 28279/21 and 49 others
MOROZOV AND OTHERS v. RUSSIA ■ Application no. 37564/19 and 47 others ■ Fourth Section Committee ■ 15 February 2024.
Art 3 ■ Inadequate conditions of transport
Facts ■ The148 applicants complained under Article 3 of the inadequate conditions of detention during their transport (by train, van, transit cell), due to i.a. overcrowding, lack of fresh air, lack of access to natural light, lack of or restricted access to potable water, lack of or insufficient quantity of food, no or restricted access to toilet, lack of or poor quality of bedding and bed linen.
Law ■ Article 3
The Court recalled it had found the problem of inadequate detention conditions during prisoners’ transport to be of a structural nature (Tomov and Others v. Russia, nos. 18255/10 and 5 others, §182, 2019), and saw no reason to depart from its well-established case law in this respect. It found a violation of Articles 3 in respect of each applicant (without substantive analysis).
Conclusion ■ Violation of Article 3.
Law ■ Other complaints: Article 13, Article 3, Article 8
The Court also found a violation of Article 13, in most of the cases, as well as additional violations under Article 3 (confinement in a metal cage in a courtroom, poor conditions of detention, inadequate medical assistance) and Article 8 (pertaining to constant video surveillance in prison cell).
Article 41 ■ The Court awarded a lump-sum of EUR 1,000 to most of the applicants, irrespective of the length or the number of transports complained of, and without “monetising” additional violations of Article 13 and/or Article 8 of the Convention. Several applicants were awarded EUR 8,500 each (confinement in metal cages, inadequate medical assistance). One applicant was awarded EUR 16,300 (inadequate detention conditions).
BURTSEV AND OTHERS v. RUSSIA ■ Application no. 45302/19 and 34 others ■ Fourth Section Committee ■ 15 February 2024.
Art 8 ■ Permanent video surveillance ■ Opposite-sex operators ■ Lavatory and shower rooms ■ Solitary confinement cells
Facts ■ The 35 applicants complained under Article 8 of permanent video surveillance, including by opposite-sex operators and in lavatory and/or shower rooms and in solitary confinement (SHIZO) cells.
Law ■ Article 8
The Court recalled it had found a violation of Article 8 in similar cases (Gorlov and Others v. Russia, nos. 27057/06 and 2 others, 2019), in which it found that prisoners’ permanent video surveillance was to be regarded as a serious interference with their right to respect for his or her privacy, and that the national law cannot be regarded as being sufficiently clear, precise or detailed to have afforded appropriate protection against arbitrary interference by the authorities with the prisoners’ rights. It saw no reason to depart from this conclusion and found a violation of Article 8 in respect of each applicant (without substantive examination).
Conclusion ■ Violation of Article 8.
Law ■ Other complaints: Article 13, Article 3, Article 6 § 1, Article 6 § 1
The Court also found violations under Article 13 (lack of effective remedy), Article 3 (confinement in metal cages in courtrooms, inadequate conditions of detention and transport), Article 6 § 1 (inability to participate in civil hearings), Article 6 § 15 (excessive length of pre-trial detention and the lack of adequate compensation for the breach of the right to liberty).
Article 41 ■ The finding of a violation constituted sufficient just satisfaction for any non‑pecuniary damage sustained by the applicants. Some of the applicants were awarded just satisfaction varying between EUR 1,000 and EUR 10,000, depending on the auxiliary violations established in their respective cases.
RUDIK AND OTHERS v. RUSSIA ■ Application no. 13050/17 and 10 others
ZAVGORODNIY AND OTHERS v. RUSSIA ■ Application no. 28355/18 and 22 others
YEMANOV AND OTHERS v. RUSSIA ■ Application no. 42771/19 and 22 others ■ Fourth Section Committee ■ 15 February 2024
Art 3 ■ Strict imprisonment regime ■ Life sentence
Facts ■ The 57 applicants are life prisoners. They complained under Article 3 of inadequate detention conditions under the strict imprisonment regime imposed on them.
Law ■ Article 3
The Court recalled it had found that the strict prison regime automatically imposed on life prisoners in Russia for the first ten years of their sentence amounts to a violation of Article 3 (N.T. v. Russia, no. 14727/11, 2020). It saw no reasons to depart from this conclusion and found a violation of Article 3 in respect of each applicant, on account of the cumulative effects of the strict regime restrictions (without substantive analysis).
Conclusion ■ Violation of Article 3.
Law ■ Other complaints: Article 13, Article 3, Article 8
The Court also found violations under Article 13 (lack of effective domestic remedies), Article 3 (confinement in metal cages in courtrooms, inadequate conditions of detention and transport, routine handcuffing 3), and Article 8 (constant video surveillance in prison cells).
Article 41 ■ The Court awarded between EUR 3,000 and EUR 5,000 depending on the number and gravity of additional violations found.
I.L. v. SWITZERLAND (No. 2) ■ Application no. 36609/16 ■ Third Section ■ 20 February 2024
Art 3 ■ Detention of the applicant in solitary confinement in prisons unable to provide him with appropriate care, combined with the imposition of disciplinary sanctions sometimes accompanied by the use of handcuffs ■ Exacerbation of the applicant’s suffering linked to his mental illness.
Art. 5 § 1 ■ Unlawful deprivation of liberty for lack of an appropriate establishment on account of holding a mentally ill person in an inappropriate facility.
Art. 5 § 4 ■ Application for release not examined “promptly”
Facts ■ In June 2011, the applicant was sentenced to fourteen months’ imprisonment. The applicant having been diagnosed with mental health disorders, his sentence was suspended pending completion of an institutional therapeutic measure in a specialised facility. The applicant was however detained in Thoune and Berne prisons, “for safety reasons” (§ 12) pending his transfer to this facility.
In November 2011, due to the lack of space for long-term stays in the therapeutic establishments contacted, the applicant was placed in Thorberg prison for the execution of his institutional therapeutic measure. “For security reasons” (§ 18), and pending his transfer to a therapeutic service, he was placed in solitary confinement in the prison’s high-security wing. During his stay in Thorberg prison (until 16 March 2015), the applicant was mainly detained in security wings and spent only five months in normal wings (ca. three months) and in the therapeutic wing (ca. two months). He was also repeatedly subjected to solitary confinement as disciplinary sanctions pronounced on various grounds (refusal to work, threats and harm on detainees and prison guards, refusal to obey).
In August 2012, the applicant was expelled from the therapeutic service following his aggression towards a staff member of this service.
In September 2012, the Thorberg prison administration informed the cantonal prison administration that the applicant’s state of health commanded his transfer “as soon as possible” to a specialised therapeutic establishment. This assessment was confirmed by an expert report submitted in September 2013, which also recommended putting in place a new type of treatment. A second expert report insisted that forced medication would be inefficient in the absence of complementary psycho-educational, psychotherapeutic and sociotherapeutic interventions.
In March 2015, due to the lack of space in specialised therapeutic establishments, the applicant was transferred to Lenzburg prison, where he was mainly held in solitary confinement in the security wing and was also repeatedly subjected to disciplinary sanctions involving security confinement. In November 2015, in a letter sent to the cantonal administration, a doctor reiterated that the applicant should be transferred to a specialised therapeutic establishment.
In January 2016, the applicant was transferred to Bostadel prison, where he was held in solitary confinement in the high security wing. A month later, the prison director requested the urgent transfer of the applicant to a specialised clinic.
In February 2016, the applicant was transferred to a specialised forensic psychiatric ward in the University Hospital of Bern, where he was subjected to forced medication. The applicant’s requests to stop the forced medication and to be released were rejected by the national courts.
Since September 2014, the applicant had also requested that the therapeutic measure be lifted and that he be released and in subsequent applications complained about the lengthiness of the procedures for his transfer to a specialised establishment. In December 2015, the Federal tribunal rejected the applicant’s application, considered that the continued detention of the applicant (for a period of time three times higher than his initial sentence that had been suspended) to be proportionate in view of the necessity of a treatment, that the applicant’s placement in solitary confinement had been the result of his behaviour, that the conditions were not met to accept his request of release, and that the transfer procedures due to a shortage of time had not exceeded an acceptable length of time.
In May 2016, the applicant was transferred to the Rheinau specialised clinic. He was released on license (with respect to the institutional therapeutic measure) on 20 June 2019, subject to a two-year probationary period.
Law ■ Article 3
General principles: Rooman v. Belgium [GC], no. 18052/11, §§ 141‑148, 2019; Keenan v. United Kingdom, no. 27229/95, § 116, 2001I; Renolde v. France, no. 5608/05, 2008.
The applicant complained about his placement in solitary confinement in high-security wings and in solitary confinement cells, and the lack of adequate medical treatment.
The Court observed that the applicant had been placed in solitary confinement during most of his detention in Thorberg, Lenzburg and Bostadel prisons (for a total of three years, one month and 28 days out of a total detention period in these prisons of four years, three months and nine days).
The Court observed that no consideration had been given to the applicant’s mental illness when disciplinary action had been taken against him, and that the prison administration adopted a repressive approach to his behaviour instead of a therapeutic approach. The Court noted that the applicant was handcuffed in the application of at least two disciplinary sanctions.
The Court also noted that the applicant had not been provided with therapeutic sessions since September 2012, on which date the prison administration requested the transfer of the applicant to a specialised establishment. Given the circumstances of the case, the Court rejected the Government’s arguments that the applicant himself refused therapy as not decisive. The Court also referred to CPT reports concluding to potentially very harmful effects of solitary confinement on the mental health of persons held in high-security sections of Swiss prisons (§ 87). Conversely, the Court noted that the applicant’s state of health improved rapidly following his transfer to a specialised centre.
\The Court concluded that the applicant’s detention in solitary confinement from 27 July 2012 to 25 February 2016 in prisons unable to provide him with appropriate care, combined with the disciplinary action taken against him and occasionally involving the use of handcuffs, must have exacerbated the suffering caused by his mental illness and amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention.
Conclusion ■ Violation of Article 3.
Law ■ Article 3 in conjunction with Article 13
The Court dismissed the applicant’s claim that he had not had effective remedies to complain about his forced medication. The Court accepted the Government’s argument that a remedy was available at the material time, and rejected the applicant’s argument that there were doubts as to the effectiveness of this remedy in view of the length of the proceedings.
Conclusion ■ Inadmissible.
Law ■ Article 5 § 1
The applicant complained that his detention between 24 June 2011 and 25 February 2016 was unlawful because he did not receive the adequate medical care required by his state of health during that period.
Having analysed its previous case law, the Court decided to examine the applicant’s request under Article 5 § 1 (e) (§§ 134-143).
The Court decided that although the 2011 judgment did not expressly provide for the applicant to be placed in a prison in order to carry out the institutional therapeutic measure ordered, any decision to that effect fell within the jurisdiction of the executing authority. The deprivation of liberty in question had therefore been decided “in accordance with the law”.
As regards the lawfulness of the detention, the Court reiterated that the applicant’s continued detention in prison facilities, in solitary confinement and without adequate medical treatment, amounted to a violation of Article 3. The Court stressed in particular that the applicant’s therapy was interrupted between July 2012 and February 2016 (three years and seven months). In spite of the prison administration’s efforts to have the applicant transferred, he was maintained in prison facilities which were unable to provide him with adequate medical care until February 2016. The Court recalled that a lack of space in a specialised institution could not justify this continued detention (see Sy v. Italy, no. 11791/20, § 135).
Conclusion ■ Violation of Article 5 § 1 (e).
Law ■ Article 5 § 4
The applicant complained under Article 5 § 4 that his application for release was not considered “promptly”.
The Court noted that the applicant submitted a request for release three years and seven months after his initial deprivation of liberty. In view of the time that had elapsed, he was entitled to see his request examined promptly by a court (M.H. v. United Kingdom, no. 11577/06, §§ 97-98, 2013). The Court noted however that in total the proceedings lasted one year, three months and twelve days.
The main cause of the length of proceedings is the obligation imposed on the applicant by the law of the Canton of Berne to lodge prior administrative complaints with bodies within the cantonal administration that are not “courts” within the meaning of the Convention.
The Court emphasised that Contracting States had a duty to organise their judicial systems to meet the Convention’s requirements, including timely case hearings.
Conclusion ■ Violation of Article 5 § 4.
Article 41 ■ EUR 32,500 in respect of non-pecuniary damage and EUR 8,000 in respect of costs and expenses.
LYPOVCHENKO AND HALABUDENCO v. THE REPUBLIC OF MOLDOVA AND RUSSIA ■ Applications nos. 40926/16 and 73942/17 ■ Second Section ■ 20 February 2024
Art 1 ■ Jurisdiction of Russia and Moldova over the “Moldavian Republic of Transnistria (MRT)”
Art 3 ■ Inhuman and degrading treatment ■ Inadequate conditions of detention ■ Failure to provide sufficient medical assistance and treatment ■ Repeated forcible psychiatric hospitalisation and treatment
Art 5 § 1 (a) and (c) ■ Art 6 § 1 (criminal) ■ Unlawful arrest, detention and conviction ■ De facto MRT authorities and courts not constituting a “tribunal established by law” ■ No basis for assuming “MRT legal system” as a whole reflected a judicial tradition compatible with the Convention
Art 13 ■ Lack of an effective remedy
Art 34 ■ Hindrance of the exercise of the right of application ■ No appearance of a failure on respondent States’ part to comply with their obligation
Facts ■ The first applicant, a Ukrainian national, was arrested in 2015 by the de facto authorities of the self-proclaimed “Moldovan Republic of Transnistria” (“MRT”, a separatist entity on the territory of Moldova) for criticising them on social media. He was convicted in 2016 of incitement to extremism and sentenced to three and a half years’ imprisonment and served the sentence in full in a “MRT” prison. He complained about his detention conditions, his forced hospitalisation on a prison hospital’s psychiatric ward and the forced administration of psychotropic drugs, as well as the lack of appropriate medical treatment for his health problems (hepatitis C and thrombophlebitis). He also submitted that the authorities prevented him from obtaining and sharing documents for the purposes of his application to the Court.
His mother applied to both the Moldovan and Russian authorities. The Russian authorities replied that the complaints did not involve any breach of Russian law on the territory of the Russian Federation. The Moldovan authorities initiated a criminal investigation into the applicant’s kidnapping and detention, and repeatedly requested the applicant’s release. The Moldovan Supreme Court also quashed the judgments of the de facto “MRT courts” in respect of the applicant, on the grounds that these courts are unconstitutional and cannot therefore lawfully convict the applicant.
The second applicant, a Moldovan national, was a part-time lecturer at a university in Tiraspol (a city in the “MRT”). He was apprehended in 2016 and remanded in custody on charges of taking a bribe from a student. He was released after posting bail and he left the “MRT” for Moldova. The decision to release him on bail was subsequently rescinded, the bail was later forfeited and paid into the “MRT” treasury. He applied to the Russian and Moldova authorities. The Russian authorities replied that they do not exercise jurisdiction on the territory of the “MRT”. The Moldovan authorities initiated a criminal investigation into what the applicant argued was a “provocation” having caused his arrest, but eventually suspended it having been unable to identify the perpetrators.
Law ■ Jurisdiction
The Court held that both the Russian and Moldovan governments had jurisdiction on the territory of the “MRT”.
As regards Russia, the Court recalled that in view of “the ongoing military presence of the Russian Federation in Transnistria, contrary to the will of the Moldovan Government, the renewed calls for the withdrawal of its troops, and the economic and political support of the Russian Federation for the “MRT” regime – which was not disputed by the Russian Federation”, it is unable to reach a different conclusion from that reached in previous cases concerning the “MRT” (Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, 2004; Catan and Others v. the Republic of Moldova and Russia [GC], nos. 43370/04 and 2 others, 2012; Mozer v. the Republic of Moldova and Russia [GC], no. 11138/10, § 111, 2016; Eriomenco v. the Republic of Moldova and Russia, no. 42224/11, § 47, 2017).
Law ■ Admissibility
The Court rejected both governments’ pleas of non-exhaustion of domestic remedies. First, it rejected Russia’s objection that the first applicant failed to avail himself of remedies offered by the so-called “courts” of Transnistria. The Court has reiterated that remedies before de facto “MRT courts” are not to be exhausted, owing to the absence of any indication that those courts are “part of a judicial system operating on a constitutional and legal basis reflecting a judicial tradition compatible with the Convention” (§ 99, see Draci v. the Republic of Moldova and Russia, no. 5349/02, § 48, 2017).
Second, the Court rejected as unspecific the Russian government reference to remedies to be exhausted within the “MRT”, and the Moldovan government’s reference to remedies to be exhausted within Moldova.
Law ■ Article 3
As regards detention conditions, the Court noted that the applicant described with details his living conditions in the “MRT” prison no. 3 in which he spent three years and eight months (overcrowding, poor hygiene in the cells, restricted access to shower and outdoor exercise), and made reference to its previous case law on the same prison, in which it had found detention conditions to be substandard (Eriomenco, § 57; Braga v. the Republic of Moldova and Russia, no. 76957/01, § 37, 2017; Apcov v. the Republic of Moldova and Russia, no. 13463/07, § 43, 2017). It concluded accordingly that they had been contrary to Article 3.
The Court further held that the applicant, who had been suffering from hepatitis C and thrombophlebitis, had not received any medical supervision and treatment despite his regular complaints about his state of health, in breach of Article 3.
Finally, the Court found that repetitive prolonged psychiatric hospitalisations of the applicant, despite the position of doctors who had seen no need for his inpatient treatment, constituted degrading treatment.
The Court found that the Moldovan authorities, who had limited means to secure the applicant’s release, fulfilled their positive obligations to take appropriate and sufficient measures to secure the applicant’s rights. As regards Russia, the Court considered that the Russian authorities exercised effective control over the “MRT” during the period of the applicant’s detention and reiterated that it is not necessary to determine whether or not Russia exercised detailed control over the policies and actions of the subordinate local administration (Mozer, § 117).
Conclusion ■ No violation of Article 3 by Moldova, violation of Article 3 by Russia.
Law ■ Articles 5 § 1 and 6
The Court found no arguments allowing it to depart from its well-entrenched case-law position formulated first in Ilaşcu, namely, that the de facto “courts” of the MRT belong to a system that could hardly be said to function on a constitutional and legal basis reflecting a judicial tradition compatible with the Convention, and that such judicial bodies cannot authorise “lawful detention” “in accordance with a procedure prescribed by law” (§ 123, see Ilaşcu, § 462).
The Court held that the de facto authorities and courts in the Transnistrian region could not order the first applicant’s “lawful arrest or detention” within the meaning of Article 5 § 1 (c) and 5 § 1 (a) of the Convention and did not constitute a “tribunal established by law” within the meaning of Article 6 of the Convention that was empowered to determine any criminal charges against the applicant. Accordingly, both the applicant’s detention and conviction were unlawful for the purposes of those provisions.
Conclusion ■ No violation of Articles 5 § 1 and 6 by Moldova, violation of Articles 5 § 1 and 6 by Russia.
Law ■ Other complaints: Article 1 of Protocol No. 1, Article 2 of Protocol No. 4, Article 13, Article 34
The second applicant complained about the seizure and forfeiture of the money he had posted as a bail by the MRT “authorities”. He also complained about his inability to travel to Transnistria in view of the search and arrest warrant issued by the MRT court.
As both interferences with the applicant’s rights had no legal basis within the meaning of the respective provisions of the Convention and in view of the Court’s general approach to all acts and decisions “adopted” by the MRT “authorities”, the Court found a violation by Russia of the relevant provisions on both accounts. In addition, based on its established case law, the Court found the absence of effective remedies against violations committed by the MRT authorities (see Mozer) to constitute a violation of Article 13 by Russia.
In response to the allegations of the first applicant about hindering his right of individual petition, the Court found no failure by the respondent States to fulfil their obligation under Article 34.
Conclusion ■ No violation of Article 1 of Protocol No. 1, Article 2 of Protocol No. 4, and Article 13 by Moldova, violation of Article 1 of Protocol No. 1, Article 2 of Protocol No. 4 and Article 13 by Russia, no violation of Article 34, not necessary to examine separately a complaint under Article 8 linked to the complaint under Article 2 of Protocol No. 4.
Article 41 ■ EUR 26,000 to the first applicant and EUR 6,500 to the second applicant in respect of non-pecuniary damage, as well as EUR 4,000 to each applicant in respect of costs and expenses, to be paid by Russia.
SIMON v. UKRAINE ■ Application no. 41877/21 ■ Fifth Section Committee ■ 22 February 2024
Art 3 ■ Inadequacy of medical treatment in detention
Art. 13 ■ Lack of effective remedy in respect of the complaint about inadequacy of medical treatment in detention
Facts ■ The applicant complained under Article 3 of the Convention that he did not receive medical care in prison (anaemia, haemorrhoids, osteochondrosis, inflammatory disease of the stomach and duodenum, benign neoplasm on the left leg, diathesis in the kidneys, and neurasthenia).
He further complained under Article 13 of the Convention of a lack of an effective remedy in this respect.
Law ■ Article 3
The Court found that the present case raised issues similar to those addressed in its previous judgment delivered against Ukraine (Nevmerzhitsky v. Ukraine, no. 54825/00, §§ 103-05, 2005; Melnik v. Ukraine, no. 72286/01, §§ 104-06, 2006; Logvinenko v. Ukraine, no. 13448/07, §§ 68-78, 2010).
In the present case, drug therapy, medical examination and consultation by a specialist were lacking or delayed. Consequently, the Court found that there was a breach of Article 3 of the Convention.
Equally, relying on its previous case-law (Melnik v. Ukraine, §§ 113-16; Logvinenko v. Ukraine, §§ 84-85), the Court found that the domestic law did not provide the applicant with an effective remedy to complain about inadequate medical treatment in detention.
Conclusion ■ Violation of Article 3 and Article 13
Article 41 ■ EUR 7,500 in respect of pecuniary and non-pecuniary damage.
PĂILĂ AND OTHERS V. ROMANIA ■ Application no. 26096/16 and 9 others ■ Fourth Section Committee ■ 22 February 2024
Rule 80 of the Rules of Court ■ Revision of judgment
Facts ■ its judgment Păilă and Others v. Romania handed down on 15 December 2022, the Court found that there had been a violation of Article 3 on account of the applicants’ detention conditions, including for M. Gheorghe Moșoi Zarafim (application no. 71424/16), inadequate conditions of detention.
On 2 March 2023, the Government was informed that the applicant had died on 27 August 2022, months before the Court adopted its judgment. Accordingly, on 7 March 2023 the Romanian Government requested the Court to revise the judgement under Rule 80 of the Rules of Court.
On 27 June 2023 and 10 October 2023, the Court sent two letters to the applicant’s last known address of correspondence inviting the applicant’s potential heirs to inform the Court whether they wished to pursue the application before the Court. No one responded to these letters and no heir contacted the Court either.
Law ■ Request for revision
The Court noted that the applicant had died before it adopted the judgment of 15 December 2022 and that potential heirs had not submitted any observations.
Referring to its previous case-law on the matter (Cioată and Others v. Romania, no. 48095/07, §§ 5-17, 2021; Neghină and Others v. Romania (revision), nos. 37620/15 and 10 others, §§ 5-13, 2021), the Court accepted the Government’s request for revision of its judgment and decided to strike out application no. 71424/16 of the Court’s list of cases in accordance with Article 37 § 1 of the Convention.
Conclusion ■ The Court Decided to revise its judgment of 15 December 2022 in the case of Păilă and Others v. Romania and to strike application no. 71424/16, lodged by Mr Gheorghe Moşoi Zarafim, out of its list of cases.
In partnership with:
Funded by the European Union and the Robert Carr Fund. Views and opinions expressed are however those of the authors only and do not necessarily reflect those of the European Union or the Robert Carr Fund. The European Union and the Robert Carr Fund cannot be held responsible for them
