February 2025

EUROPEAN COURT OF HUMAN RIGHTS

M.B. v. SPAIN ■ Application no. 38239/22

Imposition of a security measure of continued detention on mental health grounds on the basis of medical reports dating from the commission of the offence almost two years earlier; no assessment of the need to monitor the applicant on the basis of a prediction of her future behaviour: violation of Article 5 § 1.

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SUMMARY JUDGMENTS

Inadequate conditions of transport of prisoners (Tashuyev v. Russia, no. 67503/17, 6 February 2025): violation of Article 3.

Denial of family visits in pre-trial detention facilities (Golubev v. Russia, no. 66647/17, 6 February 2025 and Bikbulatov v. Russia no. 71537/17, 6 February 2025): violation of Article 8.

COURT OF JUSTICE OF THE EUROPEAN UNION

ALCHASTER II (AG Opinion) ■ Case C‑743/24 (Request for a preliminary ruling, Ireland)

The concept of “heavier penalty” contained in Article 49 of the Charter of Fundamental Rights does not cover a situation where a parole regime has been made stricter (from a right to automatic entitlement to release on licence once the first half of an imposed sentence has been served, to a right to release once at least two thirds of an imposed sentence has been served, dependent on an assessment conducted by Parole Commissioners).

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EUROPEAN COURT OF HUMAN RIGHTS

M.B. v. SPAIN ■ Application no. 38239/22 ■ Fifth Section ■ 6 February 2025

Art 5 § 1 (e) ■ Imposition of a security measure of continued detention on the applicant on mental health grounds ■ Domestic courts’ assessment of the applicant’s mental health condition based on reports drafted almost two years before the measure’s imposition ■ No assessment of the applicant’s therapeutic or medical needs or the need to monitor her, and no mention of the prediction of future behaviour

Facts ■ The case concerned the imposition of preventive detention measures on the applicant following her acquittal on grounds of diminished responsibility.

In March 2018, the applicant was arrested and placed in pre-trial detention for setting fire to the flat in which she was living. Medical reports indicated that the applicant suffered from mental health disorders (this was confirmed four years after the fact, in April 2022, when the applicant was recognised as suffering from paranoid schizophrenia).

The applicant’s appeals against the decision to detain her in prison, and requests that she be admitted in a psychiatric hospital, were dismissed in March and May 2018. The applicant’s pre-trial detention was extended in February 2019.

In February 2020, the applicant was found responsible for an offence of aggravated arson by the Salamanca Audiencia Provincial but excluded from criminal responsibility owing to her mental health disorders. They imposed a security measure on the applicant entailing treatment in a secure unit for a period of between five and fifteen years. This security measure could be replaced by treatment in a mental health facility depending on the progress of the treatment and the relevant reports and assessments to be made during the execution of the judgment. In May 2020, the Audiencia Provincial prolonged the applicant’s pre-trial detention during the appeal proceedings.

The applicant’s applications before the Castile and León High Court, the Supreme Court and the Constitutional Court were unsuccessful.

The applicant was admitted to the prison psychiatric hospital of Alicante in July 2021. A year later, in June 2022, the Audiencia Provincial ordered the replacement of the applicant’s security measure to be served in a prison with her placement in a centre for persons with mental health problems. The applicant was transferred to such a centre in November 2023.

The applicant complained before the Court both about her pre-trial detention in spite of her state of health and her acquittal, and the imposition of a security measure.

Law ■ Article 5 § 1, 5 § 3 and 5 § 4 (pre-trial detention)

The Court upheld the Government’s preliminary objection of non-exhaustion of domestic remedies regarding her pre-trial detention.

(a) Initiation and prolongation of pre-trial detention by the investigating judge (March 2018, February 2019)

The Court observed that the applicant’s appeal against her initial placement in pre-trial detention (March 2018) was rejected by competent domestic courts and that no further appeal was made before the Constitutional Court. The prolongation of the applicant’s pre-trial detention (February 2019) was not challenged by the applicant.
Although the Court acknowledged the “vulnerable situation of the applicant, a foreign woman with a mental health condition who was held in pre‑trial detention in different locations during the criminal proceedings against her” (§ 48), it also noted that the lawyers representing her have provided legal assistance and have appealed several judgments and decisions, and that the applicant has not complained about the quality of the legal aid provided (§ 49).
It therefore saw no reason to consider that the applicant had been deprived of effective legal representation and upheld the Government’s objection.

(b) Prolongation of the pre-trial detention by the Audiencia Provincial (May 2020)

Although no appeals or requests for a review were lodged against the Audiencia Provincial to prolong the applicant’s pre-trial detention (May 2020), the applicant did mention her prolonged pre-trial detention in spite of her acquittal in her applications before the Supreme Court and the Constitutional Court.
The Court noted that the Supreme Court had not addressed this aspect of the applicant’s complaint, but also observed that the appeal before the Supreme Court was directed against the Audiencia Provincial’s judgment (February 2020), not against the decision to prolong the applicant’s pre-trial detention (May 2020).
Furthermore, the Court recalled that the Constitutional Court found the applicant’s complaint inadmissible for failure to exhaust domestic remedies – namely an action for the annulment of proceedings against the Supreme Court decision. The Court found this requirement to be “reasonable and foreseeable” and saw “no reasons […] to question it” (§ 54). The Court therefore upheld the Government’s objection.

Conclusion ■ Inadmissible

Law ■ Article 5 § 1 (security measure)

General principles: Ilnseher v. Germany [GC], nos. 10211/12 and 27505/14, § 127, 4 December 2018; Rooman v. Belgium [GC], no. 18052/11, § 192, 31 January 2019; Denis and Irvine v. Belgium [GC], nos. 62819/17 and 63921/17, § 125, 1 June 2021

The Court noted that the domestic courts (including the Audiencia Provincial in its judgment from February 2020 imposing the impugned security measure) based their judgments on medical reports prepared following the commission of the offence, i.e. two years earlier (March 2018). Neither the Audiencia Provincial nor the higher courts having reviewed its judgment conducted a thorough scrutiny of the medical reports and of the seriousness of applicant’s condition (§ 78).

Similarly, the Audiencia Provincial “made no reference to the applicant’s therapeutic or medical needs or to the need to monitor her in order to prevent her from, for example, causing harm to herself or others” (§ 79). The Court noted that the High Court having reviewed the judgment of the Audiencia Provincial stated that the imposition of the security measure “had been based on implicit reasons, without any further analysis of those reasons” (§ 76). The other judgments rendered by the High Court, the Supreme Court and the Constitutional Court “did not provide any kind of clarification on the potential risks posed by the applicant” (idem).

Consequently, the Court found that the imposition of a security measure on the applicant on mental health grounds fell short of guarantees against arbitrariness.

Conclusion ■ Violation of Article 5 § 1.

Article 41 ■ EUR 20,000 in respect of non-pecuniary damage.

COURT OF JUSTICE OF THE EUROPEAN UNION

ALCHASTER II (AG Opinion) ■ Case C‑743/24 (Request for a preliminary ruling, Ireland) ■ 13 February 2025

Art 49(1) CFR ■ Principle of legality of criminal offences and penalties ■ Reference for a preliminary ruling ■ Trade and Cooperation Agreement between the European Union and the United Kingdom ■ Judicial cooperation in criminal matters ■ Arrest warrant ■ Adverse amendment to the parole system in the issuing State

Facts ■ The case concerns the surrender of MA by Ireland to the United Kingdom (UK), following arrest warrants issued by UK judges (Northern Ireland) in respect of four offences involving terrorism, alleged to have been committed between 18 and 20 July 2020. Cooperation in judicial matters between the UK and the European Union (EU) is governed by the Trade and Cooperation Agreement, entered into force in May 2021.

The Supreme Court of Ireland submitted that, should MA be surrendered to the UK and sentenced to imprisonment, his right to conditional release in the UK would be governed by legislation adopted after the alleged commission of the offences.

According to the new parole regime in force as of 30 April 2021 (which applies to offences committed before that date), persons convicted to a determinate custodial sentence may be released on parole after having served two thirds of the “appropriate custodial term” determined by the judge, provided that the Parole Commissioners are satisfied that their continued detention is not necessary for the protection of the public.

Prior to April 2021, persons sentenced to a fixed term of imprisonment were automatically released on parole after a “custodial period” that could not exceed half of the sentence imposed.

Consequently, the referring court considers that the amendments could result in MA remaining in prison for a longer period. Through a reference for preliminary ruling, it asked whether those amendments, which increase the term to be served in detention (from half to two thirds of a custodial period), and abolish a regime under which conditional release was automatic, “can still be regarded as relating solely to the enforcement of sentences or whether it must be considered as retroactively altering the very scope of the sentence” (§ 25).

Law ■ Article 49(1) of the Charter of Fundamental Rights (CFR)

Advocate General (AG) Spielmann based his reasoning on the ECtHR case law, chiefly the judgment Del Río Prada v. Spain [GC] (no. 42750/09, 21 October 2013, especially § 89). The AG saw no reason why Article 49 CFR should provide more extensive protection than Article 7 ECHR. Among other things, he argued that aligning Article 49 CFR with Article 7 ECHR would best serve the objective of a “high level of trust” between the EU and the UK “as regards respect for fundamental rights” (§ 103).

The AG insisted that the present case differs from Del Río Prada, in which legal changes totally deprived a prisoner from the possibility of obtaining sentence remissions (§ 74), since, as argued by the UK authorities at the hearing, prisoners are “always released, subject to a licence” during the last year of serving their sentence (§ 91). AG Spielmann explained that his task is therefore to examine whether in the present case there have been “a series of measures which have the effect of increasing the intrinsic seriousness of the sentence initially provided for” (§ 92).

As regards the change in the eligibility threshold for release on parole (from half to two-thirds of the custodial sentence), AG Spielmann argued that the “eligibility threshold for release on licence forms part of the execution of a sentence and, therefore, does not fall within the remit of Article 7(1) ECHR” (§ 89).

As regards the changes brought to the release procedure (from automatic release to release upon approval by the Parole Commissioners), although they specifically target those convicted of terrorist offences, which “could be construed as an indication that, in reality, the intention was to raise the penalty for such offences” (§ 94), AG Spielmann argued that they have not altered the penalty (see § 95 a reference to Hogben v. the United Kingdom, no. 11653/85, 3 March 1986, in which the measure complained of also targeted specific categories of offences).

Moreover, the “introduction of an assessment of the potential danger of an individual to the public appears […] to form part of prison policy” (§ 96), provided that the role of the Parole Commissioners is limited to examining whether the person concerned “poses a threat to the public at a given time, that the assessment is conducted thoroughly in accordance with a fixed protocol and that it is properly documented” (§ 97). Under these conditions, such assessment does not change the sentence, since “it is up to the individual at the moment [of the assessment] to act accordingly and show to the Parole Commissioners that he or she is fit to leave” (§ 96).

Conclusion ■ The concept “heavier penalty” contained in Article 49 CFR “does not, in principle, cover a situation where the legal provisions governing a parole regime have been amended to provide that a right to automatic entitlement to release on licence, once the first half of an imposed sentence has been served, has been replaced by a right to release once at least two thirds of an imposed sentence has been served, where that release is dependent on an assessment conducted by Parole Commissioners” (§ 107).