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
AKTAŞ v. TÜRKİYE ■ Application no. 64870/19
Prison administration’s refusal to hand over to a prisoner copies of a five-volume book series which had been sent to him by post: violation of Article 10.
MATYUSHONOK v. UKRAINE ■ Application no. 34590/06
Numerous cases of ill‑treatment and torture in detention and lack of an effective investigation in that respect: violation of Article 3 (substantive and procedural limbs).
W.W. v. POLAND ■ Application no. 31842/20
Prison administration’s refusal to allow transgender person to continue hormone therapy in prison: violation of Article 8.
SAHRAOUI AND OTHERS v. FRANCE ■ Application no. 35402/20
Death of prisoner suffering from drug addiction from overdose of various medications, some of which had not been prescribed by medical authorities: no violation of Article 2.
NURLYGAYANOV AND OTHERS v. RUSSIA ■ Applications nos. 3215/20 and 6 others
Permanent video surveillance in prison cells, including by opposite-sex operators, in cells and in lavatory and shower rooms: violation of Article 8.
SHUSHKIN and LEBEDEV v. RUSSIA ■ Applications nos. 20693/19 and 39300/19
Inadequate conditions of transport: violation of Article 3.
B.D. v. BELGIUM ■ Application no. 50058/12
Prisoner suffering from mental disorders repeatedly denied the opportunity to have the lawfulness of the extension of his detention in the psychiatric wing of an ordinary prison reviewed and to have it terminated: violation of Article 5 § 4.
Prisoners suffering from mental disorders detained in the psychiatric wing of ordinary prisons without care and treatment appropriate to his state of mental health: violation of Article 5 § 1.
YASAK v. TÜRKİYE ■ Application no. 17389/20
Prisoner held in an overcrowded cell where he had to sleep for long periods on a mattress on the floor; personal space between 3 and 4 sq. m.: no violation of Article 3 (concurring opinion of Judge Krenc).
NAMIK YÜKSEL v. TÜRKİYE ■ Application no. 28791/10
Restrictions imposed on prisoner’s contact with his four-year-old son staying with his wife in the same prison (one hour weekly non-contact visits with his son and one hour monthly contact visits with his wife and son): no violation of Article 8.
EUROPEAN COURT OF HUMAN RIGHTS
AKTAŞ v. TÜRKİYE ■ Application no. 64870/19 ■ Second Section Committee ■ 9 July 2024
Art 10 ■ Refusal to hand over to a prisoner a set of five books sent by post ■ Freedom to receive information in prison
Facts ■ In October 2015, the prison education board of the İmralı Prison, where the applicant was serving a life sentence, refused to give him a copy of a five-volume series of books by Abdullah Öcalan, which had been sent to him by post, pointing out that it had been subject to a prohibition order issued by the Mersin Magistrates’ Court in August 2015.
The applicant’s appeal was partially upheld by the domestic courts – he was allowed to receive one of the volumes (the fourth one) not covered by the ban. The applicant challenged this decision before the Bursa Assize Court and the Constitutional Court, but to no avail.
In 2014, in a separate, earlier ruling, the plenary assembly of the Constitutional Court had found a violation of Mr Öcalan’s right to freedom of expression as a result of the ban imposed on the fifth volume of the book series by the Istanbul Magistrates’ Court.
Law ■ Article 10
The Court rejected the Government’s inadmissibility objections concerning the alleged lack of significant disadvantage and the absence of his victim status, referring to Osman and Altay v. Türkiye (nos. 23782/20 and 40731/20, § 33, 2023) and Mehmet Çiftci v. Turkey (no. 53208/19, § 25, 2021), in which it had already dealt with the similar objections.
The Court further recalled that it had examined similar complaints in those two cases (concerning the withholding of periodicals sent to prisoners by post) and had found a violation of Article 10 of the Convention on the grounds that the national courts had failed to provide sufficient reasons for their decisions to demonstrate convincingly the necessity of the interference with the applicants’ right to freedom of expression.
The Court also gave particular weight to the findings of the Consitutional Court, which in 2014, i.e. before the decision of the İmralı Prison Education Board in the present case, had found a violation of Mr Öcalan’s right to freedom of expression as a result of the prohibition of the fifth volume of the series.
The Court found a violation of Article 10 of the Convention in that the domestic courts had failed to provide any reasons to show that there were circumstances of a substantial and compelling nature which would have justified a reassessment of an earlier judgment of the Constitutional Court on the same matter with regard to the fifth volume of the book series.
The Court did not consider it necessary to examine the complaint in respect of the other volumes in the series.
Conclusion ■ Violation of Article 10.
Article 41 ■ The finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant. The Court awarded EUR 1,000 for costs and expenses.
MATYUSHONOK v. UKRAINE ■ Application no. 34590/06 ■ Fifth Section Committee ■ 11 July 2024
Art 3 ■ Ill-treatment ■ Absence of effective investigation
Facts ■ The applicant was found guilty of two counts of premeditated murder committed as part of a group, and of a related offence and was sentenced to life imprisonment in 2005. He complained of regular ill-treatment at Kyiv Pre-Trial Detention Facility (SIZO), Dnipropetrovsk SIZO and Ladyzhyn Prison no. 39 beetween 2005 and 2007. In particular, he complained that he was placed in an extremely small cell (1.2 x1.5 m) for a whole day, beaten, tortured (and placed in a “torture room” for a whole night), and transported in handcuffs for many hours.
His complaints to the Ombudsman, the prosecutor’s office and the Prosecutor General did not lead to the opening of criminal investigation into his allegations. He also claims that his complaints to the heads of the facilities and his requests for medical assistance following the ill-treatment were ignored.
Law ■ Article 3
General principles: Bouyid v. Belgium [GC], no. 23380/09, 2015, §§ 81-90 and 100-101.
The Court noted that the domestic investigation failed to verify the applicant’s allegations of ill-treatment. The Court recalled that it had found that “pre-investigation inquiries”, such as those conducted by the authorities, fall short of the effective remedy standards, due to the limited number of procedural steps that could be taken by the investigating officer, lack of formal procedural status for the victim, and therefore no means for their effective participation in the procedure (see Strogan v. Ukraine, no. 30198/11, § 53, 2016).
Neither the applicant, nor witnesses identified by him were questioned and no forensic medical examination was ordered until 2010, i.e. several years after the events. On this aspect, the Court also noted that “while the medical units’ refusals to register his injuries constituted a part of the applicant’s complaints, the absence of such registered injuries was repeatedly referred to by the authorities as grounds to reject the applicant’s allegations of ill‑treatment owing to a lack of evidence” (§ 7).
Although the forensic medical examination carried out in 2010 revealed traces of healed wounds, the Government failed to explain them, thus failing to discharge the burden of proof lying on them. The Court, accordingly, accepted the applicant’s allegations which were presented in a coherent and detailed manner, that the injuries were sustained in detention.
Conclusion ■ Violation of Article 3 (substantive and procedural).
Law ■ Other complaints: Article 3, Article 8, Article 13, Article 34
In a summary manner, the Court also found violations of Articles 3, 8, 13 and 34 of the Convention in respect of the applicant’s remaining complaints pertaining to his poor conditions of detention, the monitoring of his correspondence (including letters from the Court), the lack of effective domestic remedies, and the refusal of access to case-file materials.
In respect of parts of the applicant’s complaints under Articles 3 and 8, concerning conditions of detention and transport in certain facilities, the lack of medical care and the failure of the domestic authorities to send some of the applicant’s letters out, the Court held it considered it had examined the main legal questions raised in the case and that there was no need to examine those parts of the complaint separately (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, 2014, § 156).
Conclusion ■ Violation of Articles 3, 8, 13 and 34.
Article 41 ■ EUR 15,600 to the applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage.
W.W. v. POLAND ■ Application no. 31842/20 ■ First Section ■ 11 July 2024
Summary prepared by the ECtHR Registry
Art 8 ■ Refusal to allow transgender person to continue hormone therapy in prison ■ Vulnerability of imprisoned transgender person undergoing a gender reassignment procedure
Facts ■ The applicant is a transgender woman who at the time of lodging the application was legally recognised as a male. Her request for legal recognition was granted in 2023.
Between 2013 and 2024 she served several terms of imprisonment in male prisons. In June 2018 the applicant was hospitalised after performing a bilateral orchiectomy on herself. Upon the request of the governor of the prison where she was then detained, she was examined by a medical expert who recommended that she pursue hormone replacement therapy associated with gender reassignment. The prison governor allowed the applicant to undergo such treatment.
In May 2020 the applicant was transferred to Siedlce Prison. Her request to that prison’s governor for permission to be sent the necessary medication to continue her treatment was left without examination pending a further opinion of an endocrinologist. The applicant submitted such an opinion which prescribed her hormone therapy. The applicant ran out of medication on 18 July 2020 and her hormone treatment was interrupted as of that date.
On 30 July 2020, under Rule 39 of the Rules of Court, the Court indicated to the respondent Government to “administer the applicant … with the hormones prescribed by her endocrinologist … in doses prescribed, at her own expense, until otherwise decided by an endocrinologist”.
The applicant received the medication on 31 July 2020.
Law ■ Article 8
(a) Interference or positive obligation
The applicant had undergone hormone replacement therapy associated with gender reassignment for nearly one and half years in two previous prisons and had been refused such therapy only when she had been transferred to Siedlce Prison.
Thus, she had not complained of inaction on the part of the domestic authorities, but rather of the fact that the Siedlce Prison authorities had prevented her from continuing the treatment which she had initially been allowed to undergo.
Therefore, the Court approached the case as one involving an interference with the applicant’s right to respect for her private life.
(b) Compliance with Article 8 § 2
The interference at issue had been “in accordance with the law” and had pursued the legitimate aim of protecting the applicant’s health. The remaining question was thus whether it had been “necessary in a democratic society”.
The prison authorities’ decision, which had concerned access to hormone treatment, had touched upon the applicant’s freedom to define her gender identity, one of the most basic essentials of self-determination. In that regard, the Court also noted the impact of that decision on the applicant’s right to sexual self-determination; it had repeatedly held that given the numerous and painful interventions involved in gender reassignment and the level of commitment and conviction required to achieve a change in social gender role, it could not be suggested that there was anything arbitrary or capricious in the decision taken by a person to undergo such a procedure.
The applicant had been diagnosed with gender dysphoria after she had performed genital self‑mutilation and had been prescribed hormone replacement treatment, which, according to the medical reports, had had beneficial effects on her physical and mental health. The doctors who had prescribed the hormone replacement therapy had considered it to be necessary.
Therefore, the domestic authorities had had strong elements before them indicating that hormone therapy had been an appropriate medical treatment for the applicant’s state of health. That therapy had been provided to her in previous prisons and had had a beneficial effect on her. At Sieldlce Prison the treatment had been interrupted before she could be consulted. The burden that had been placed on the applicant to prove the necessity of the prescribed medical treatment by undergoing an additional consultation with an endocrinologist appeared disproportionate in the circumstances. In any event, the endocrinologist’s opinion she had submitted to the prison authorities confirming the necessity of the hormonal therapy had not resulted in her request being granted.
The Government had not referred to any detrimental effects which the therapy might have had on the applicant’s physical and mental health, nor had they maintained that allowing her to continue the therapy would have caused any technical and financial difficulties for the prison authorities. Indeed, the applicant had borne the cost of the medications herself, thus imposing no additional costs on the State. Although her hormone treatment had been interrupted only for a relatively short period, between 18 July and 31 July 2020, the applicant had submitted that since the beginning of July 2020 she had been taking half of the prescribed dose of medication. Most importantly, she had eventually received the medication, not because of a sudden change of approach on the authorities’ part, but as a consequence of the Court’s indication of interim measures under Rule 39.
Accordingly, the authorities had failed to strike a fair balance between the competing interests at stake, including the protection of the applicant’s health and her interest to continue the hormone therapy associated with gender reassignment. In so concluding, the Court bore in mind the applicant’s particular vulnerability as an imprisoned transgender person undergoing a gender reassignment procedure, which had required enhanced protection from the authorities. The Government’s preliminary objection relating to the applicant’s victim status, which had been joined to the merits, was therefore dismissed.
Conclusion ■ Violation of Article 8.
Article 41 ■ EUR 8,000 in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
SAHRAOUI AND OTHERS v. FRANCE ■ Application no. 35402/20 ■ Fifth Section ■ 11 July 2024
Summary prepared by the ECtHR Registry
Art 2 (material) ■ Death of a drug-addicted prisoner as a result of intoxication caused by medication, some of which had not been prescribed by the authorities ■ Prisoner suffering from pathologies which contributed to the aggravation his condition ■ Competent medical authorities not fully aware of the applicant’s medical condition ■ Death not linked to a faulty lack of supervision or vigilance on the part of the competent authorities.
Facts ■ The applicants’ relative (their husband and father), an opioid addict, was transferred from one prison to another on 17 March 2009; he was subsequently found dead in his cell on 30 April 2009.
According to the inquiry reports, the prisoner, who had been in poor health, had died as a result of an overdose, caused by consuming a methadone substitution treatment and other medication prescribed by the relevant medical authorities to treat his opioid addiction and mental-health issues alongside other non-prescribed medication, which had probably been stolen from his cellmate or procured for him by that person.
The deceased’s family applied to the administrative court, requesting that the State be ordered to pay compensation for the damage they had sustained. Their application was dismissed. In the domestic court’s view, the death could not be shown to be linked to a negligent lack of monitoring or care on the part of the relevant authorities.
Law ■ Article 2
As In addition to his drug addiction and mental-health issues, the deceased prisoner (“S.T.”) had also suffered from other health conditions, which had contributed to the deterioration in his state, and about which the relevant medical authorities had not been fully aware. In those circumstances, the Court examined whether the State, having regard to the manner in which S.T.’s health, and his vulnerable condition, had been managed, had failed in its positive obligation to take all measures necessary to safeguard his life. Only where it could be shown that the authorities had not done all that could reasonably be expected of them to avoid a real and immediate risk to life could a possible violation of a positive obligation on their part be envisaged. In reaching its finding, the Court took the following factors into consideration.
First, when S.T. arrived at the second prison, information concerning his drug addiction and medical treatment had been transmitted by the first prison. In addition, a doctor had been appointed to take charge of the treatment for his drug addiction, and this treatment was put in place with the care team of the Outpatient Consultation and Treatment Unit (unité de consultation et de soins ambulatoires – “the UCSA”). S.T. had undergone an assessment, at which his opioid addiction was noted and it had been suggested that the substitution treatment be continued, at a dose comparable with that which the State authorities had undertaken to provide for the population as a whole, together with the other medication associated with this treatment. A few days after his arrival, his situation had been reviewed by the doctor and assessed by a multi-disciplinary committee, including nurses from the UCSA; it was not considered that he was at risk or that he needed to be more closely monitored. The UCSA played a key role in monitoring and administering the treatment, given its specific risks, the comorbidities associated with addiction and the need to respect medical confidentiality.
Secondly, it appeared from the toxicology report drawn up during the inquiry that the prescription and dispensing instructions had been complied with in the week leading up to the day before S.T.’s death. No adverse effects on S.T.’s health from taking the substitution treatment and the medication prescribed by the medical service had been observed. He had been in daily contact with health professionals, enabling them to assess his state of health and stability, and any side effects of the medication prescribed. There was no evidence before the Court that there had been a failure to monitor S.T.’s adherence to the treatment plan or that his medical care had at any time appeared inappropriate or to have required adjustment and a more in-depth clinical assessment of his situation. S.T.’s death had resulted from a polydrug overdose, caused in part by his having consumed medication other than that prescribed to him by the doctors, apparently obtained through an exchange with or theft from his cellmate. In consequence, the Court examined whether, having regard to the strength of the drug treatment that S.T. had been prescribed, the known risks of taking methadone with other substances and the constraints of the prison environment, the authorities had failed in their duty of care by not providing for more stringent monitoring. In that regard, and although trafficking in medication between prisoners was a long-standing and always concerning practice, the Court was well aware that any obligation on the domestic authorities in this sphere could only be an obligation of means, not one of result. It was incumbent on the authorities to pay particular attention to the possibility that prisoners suffering from addiction might consume non-prescribed medication, given their vulnerability, the extent of their psychiatric comorbidities and the anxiety-inducing effects of imprisonment, and accordingly to conduct, if necessary, more thorough medical examinations or other adjustments in the provision of care or management of detention.
In the present case, according to the domestic courts, the investigation had shown that there was nothing to indicate that the prison authorities, in consultation with the medical service, should have exercised their powers under the internal regulations to organise differently the dispensing of medication and to prevent S.T. from being in possession of medication other than that prescribed to him. Above all, it had been only six weeks since S.T. had been transferred to the second prison, and in that time there had been no evidence of trafficking of medication between him and his cellmate. Lastly, a decision had been taken, albeit regrettably at a late stage, to move the cellmate elsewhere on account of his complaints about S.T.’s drug addictions. Thus, although the role of the non-prescribed medication consumed had been considered a possible additional decisive factor when establishing the cause of death, the Court considered that the authorities had not failed in their positive obligation to ensure, in so far as possible, that S.T. received the proper treatment in accordance with the doctor’s instructions.
Lastly, the Court examined the treatment received by S.T. on the day he died. The fact that the doctor – who had noted that S.T. was nervous and anxious – had adjusted his medication on the previous day was not mentioned in the toxicology report as a possible contributing factor in the rapid deterioration in his health. S.T. had, moreover, gone to the medical centre to take his substitution treatment. Finally, it was clear from the inquiry and the concurring reasoning of the domestic courts that S.T. had received appropriate and diligent care when, initially, he had been found “conscious”, “a bit slow” and in “his usual state” – in other words, in a state that all those involved had considered to be hardly surprising – and that the vital-signs checks carried out by the nurses had appeared to be good, before he was later discovered dead.
In the light of all these considerations, the Court concluded that S.T. had been treated and monitored appropriately while in prison and that it was not possible to establish a causal link between the omissions alleged by the applicants and his death. There was therefore no reason to depart from the domestic courts’ finding that S.T.’s death could not be shown to be linked to a negligent lack of monitoring or diligence on the part of the relevant authorities.
Conclusion ■ No violation of Article 2.
(See also Wenner v. Germany, 62303/13, 1 September 2016, Legal Summary; Abdyusheva and Others v. Russia, 58502/11 et al., 26 November 2019, Legal Summary)
© Council of Europe/European Court of Human Rights
NURLYGAYANOV AND OTHERS v. RUSSIA ■ Applications nos. 3215/20 and 6 others ■ Second Section Committee ■ 11 July 2024
Art 3 ■ Permanent video surveillance ■ Opposite-sex operators ■ Lavatory and shower rooms
Facts ■ The seven applicants, detained in pre-trial and post-conviction detention facilities, complained of permanent video surveillance in prison cells including by opposite-sex operators and in lavatory and/or shower rooms.
Law ■ Article 8
The Court recalled it’s previous case law on similar cases, in which it held that permanent video surveillance of prisoners was to be regarded as a serious interference with their right to respect for 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 (Gorlov and Others v. Russia, nos. 27057/06 and 2 others, 2019). 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 3, Article 13, Article 3 of Protocol No.1
The Court also found violations in respect of some of the applicants under Article 3 (inhuman treatment of “outcast” inmates within the informal prisoner hierarchy, conditions of detention and solitary confinement), Article 13 (lack of effective remedy), Article 3 of Protocol No.1 (inability to vote in parliamentary elections).
Conclusion ■ Violation of Article 3, Article 13, Article 3 of Protocol No.1.
Article 41 ■ The finding of a violation constitutes sufficient just satisfaction. The Court awarded EUR 16,300 in respect of non-pecuniary damage and costs and expenses to three applicants, in cases where additional violations of Article 3 were found.
SHUSHKIN and LEBEDEV v. RUSSIA ■ Applications nos. 20693/19 and 39300/19 ■ Third Section Committee ■ 18 July 2024
Art 3 ■ Inadequate conditions of transport
Facts ■ The two applicants complained under Article 3 of the inadequate conditions of detention during transport (by train, van, as well as conditions in transit cells), due to overcrowding, insufficient sleeping places, lack of fresh air, poor quality of potable water, no or restricted access to toilet.
Law ■ Article 3
The Court recalled it had found violations of Article 3 in respect of inadequate detention conditions during prisoners’ transfer in Russia (Idalov v. Russia [GC], no. 5826/03, §§ 103-08, 2012; 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. It found a violation of Article 3 in respect of each applicant (without substantive analysis).
Conclusion ■ Violation of Article 3.
Law ■ Other complaints: Article 13
The Court also found a violation of Article 13 due to the lack of effective domestic remedy in respect of inadequate detention conditions during transport.
Conclusion ■ Violation of Article 13.
Article 41 ■ EUR 1,000 in respect of non-pecuniary damage and costs and expenses for each applicant.
B.D. v. BELGIUM ■ Application no. 50058/12 ■ Second Section ■ 27 August 2024
Art 5 § 4 ■ Detention of mentally ill prisoners in psychiatric wings of ordinary prisons ■ Prisoner denied the opportunity to have the lawfulness of the extension of his detention reviewed and to have it terminated
Art 5 § 1■ Unlawful detention of the applicant for a certain period in the psychiatric wing of ordinary prisons ■ Inadequate treatment and care ■ Social defence wings not offering better conditions
Facts ■ The applicant was arrested in 1999 and charged with robbery, but was found to be not resonsible for his actions. The domestic court that tried him ordered that he be detained in the psychiatric wing of a prison before being transferred to a special facility following a decision by the Social Defence Commission (“CDS”).
Between 1999 and 2015, he was detained in the psychiatric wings or social defence wings of the prisons of Ghent, Merksplas and Turnhout, following decisions of the CDS. During this period, he was granted leave of absence and did not return to prison on several occasions.
The applicant informed the CDS on several occasions that he wished to have access to his file and to appeal against the decisions to keep him in prison. The CDS replied to his requests that only his lawyer could access his file or file an appeal.
The lawyers chosen by the complainant stated that they did not wish to represent him after receiving threatening letters and did not file an appeal as requested by the applicant.
In 2015, the applicant was admitted to the forensic psychiatric centre in Ghent, where he remained until 8 June 2020, when he was released on parole.
The applicant claimed that the repeated refusal of his court-appointed lawyers to appeal against the decisions of the CDS, combined with the obligation for detained persons to be represented by a lawyer and the impossibility for him to have access to his file, constituted a violation of his right to a decision on the lawfulness of his detention.
The applicant also complained about the conditions of his internment, in particular the fact that he did not receive the care necessary for his condition in the psychiatric annexes and social defence sections of the ordinary prisons in which he was held for many years.
Law ■ Article 5 § 4
General principles: Stanev v. Bulgaria [GC], no. 36760/06, § 170, 2012; N. v. Romania, no. 59152/08, § 186, 2017; M.S. v. Croatia (no. 2), no. 75450/12, § 153, 2015; Ilnseher v. Germany [GC], nos 10211/12 and 27505/14, § 254, 2018; Musiał v. Poland [GC], no. 24557/94, § 43, 1999
The Court found that neither the fact that the law required the detainee to be assisted by a lawyer nor the fact that only the lawyer had access to the file was contrary to Article 5 § 4.
On the other hand, the Court noted that the applicant had informed the prison administration and the CDS that he wished to appeal against the decisions of the CDS ordering his detention in the psychiatric or social defence wing of the prisons where he was held and that he had complained to the President of the Ghent Bar Association about the refusal of his lawyers to appeal against the decisions of the CDS. The Court also noted that both the CDS and the prison administration, when repeatedly informed of these requests for appeal, replied to the applicant “in a standardised and formalistic manner that only his lawyer could lodge an appeal” (§ 58).
The applicant had thus “clearly demonstrated on several occasions that he wished to challenge the legality of the CDS’s decisions and that he was unable to do so for lack of legal assistance” (§ 58).
The Court emphasised that, given the structural nature of the problem of detainees being held in prisons which are, in principle, unsuitable for the treatment of persons with mental disorders (see the pilot judgment W.D. v. Belgium, no. 73548/13, 2016), the possibility of reviewing the lawfulness of detention by challenging a decision to prolong detention is all the more necessary (§ 60).
While stressing that “the independence of lawyers is an essential component of a State governed by the rule of law” (§ 61), the Court emphasised, in the particular circumstances of the present case, that “although Article 5 § 4 does not oblige States to introduce a remedy for review of the lawfulness of detention, a State, such as Belgium, which provides for such a remedy must guarantee effective access to it” (§ 62).
Conclusion ■ Violation of Article 5 § 4.
Law ■ Article 5 § 1
The Court decided to limit the examination of the lawfulness of the applicant’s detention to the period of deprivation of liberty between 26 October 2011 and 31 August 2015 (the date on which the applicant was admitted to the Ghent forensic psychiatric centre, which is a priori adapted to receive persons interned on account of their state of mental health).
Observing that the applicant had been on the run for a period of more than six months (March 2011-October 2011), which could not be regarded as being of short duration, it concluded that “the periods of deprivation of liberty of the applicant prior to his flight cannot be regarded as forming a whole with the deprivation of liberty subsequent to 26 October 2011, the date of his return to prison” (§ 72).
On the other hand, the period of one and a half months during which he was declared to be ‘on the run’ in 2013 was considered to be of short duration and “the period of detention prior to that flight can therefore be considered to form a whole with the subsequent period” (§ 73).
Basing itself on a large body of established case-law (see in particular the four leading judgments: L.B. v. Belgium, no. 22831/08, §§ 72-74, 2012; Claes v. Belgium, no. 43418/09, 2012; Dufoort v. Belgium, no. 43653/09, 2012 and Swennen v. Belgium, no. 53448/10; and the W.D. v. Belgium pilot judgment cited above), the Court observed that “the applicant was detained for several years in prisons in which he did not receive the care and treatment appropriate to his state of mental health” (§ 75).
The Court, rejecting the Government’s objection that it should consider only the periods during which the applicant had been detained in the psychiatric wings of Ghent Prison (and not the periods during which he had been detained in social defence wings in other prisons), recalled that it already held that the situation of individuals held in these wings “was no different from that of the many people detained in the psychiatric wings of a prison, awaiting transfer to a social defence institution or a private institution, and deprived of the therapeutic care that could contribute to a successful reintegration into social life” (§ 76).
Conclusion ■ Violation of 5 § 1
Article 41 ■ EUR 7,300 in respect of non-pecuniary damage.
YASAK v. TÜRKİYE ■ Application no. 17389/20 ■ Second Section ■ 27 August 2024
Art 3 (substantive) ■ Overcrowding ■ Prisoner sleeping on a mattress on the floor for long periods ■ Personal space between 3 and 4 sq. m. ■ Conditions of applicant’s detention not inhuman or degrading ■ Deviation from CPT standards
Facts ■ The applicant was detained in 2018 for membership of the organisation designated by the Turkish authorities as “Fetullahist Terrorist Organisation/Parallel State Structure” (FETÖ/PDY), to which the Turkish authorities attribute responsibility for the attempted coup of 15 July 2016.
The applicant complained about his detention conditions at Çorum prison and alleging in particular that he lacked personal space and had to sleep on a mattress on the floor. He also complained under Article 7 about his criminal conviction. The present summary focuses on the applicant’s detention conditions.
Law ■ Article 3
(a) Admissibility
The Court rejected the Government’s objection that the applicant had not exhausted the domestic remedies available to him to complain of his detention conditions. It reminded that it has already examined the remedies available and concluded that with “the exception of the individual remedy before the Constitutional Court, it was not possible to conclude with sufficient certainty that Turkish law provided a person in a situation such as that of the applicant in the present case with a preventive and/or compensatory remedy by means of which he could complain about the conditions of his detention (ibid., § 162).
The Court sees no reason to hold otherwise in the present case” (§ 100, see İlerde and others v. Türkiye, nos 35614/19 and 10 others, 2023, esp. §§ 145-165).
(b) Merits
The Court recalled that at the material time, Türkiye’s prison system was overcrowded following the many arrests that had followed the July 2016 attempted coup. The Court was also able to establish that the Çorum prison in which the applicant was held was one the facilities experiencing overcrowding: although the initial capacity of the facility (initially 477 prisoners), had been increased to 1,592 inmates by adding bunk beds, the number of prisoners held in this prison during the applicant’s detention varied between 1,950 and 2,000.
In this respect, the Court noted that the significant increase of the capacity of units (comprising a common living area, a sanitary annex, dormitories and a yard) “had the effect of exposing prisoners to the harmful effects of overcrowding, as the overall infrastructure of the units was clearly not designed to accommodate such a large number of prisoners for such a long period” (§ 106).
Deducting from the Government’s estimate the area of the yard and the sanitary areas, the Court concluded that the applicant had a personal space of 3.6 to 4.6 sq. m. during 14 months and 4 to 6 sq. m. during more than two years respectively in the two units in which he was held in Çorum prison. The Court also added that the overall detention conditions concerning hygiene (e.g. sanitary annexes were separated by a door), cleanliness, ventilation, lightning, access to the backyard) were satisfactory (§ 112).
The Court acknowledged that “for a long part of his detention the person concerned suffered the effects of overcrowding in the prison, in particular in that he was then obliged to sleep on a mattress placed on the floor”, contrary to the CPT standard (§ 113). However, the Court argued that it has “never found a violation of Article 3 for the simple reason that a prisoner was obliged to sleep on a mattress placed on the floor, except in cases where, in addition to inadequate sleeping conditions, the prisoner had less than 3 sq. m. of personal space”. Although the Court expressed its “concern” at the fact that the applicant had to sleep on a mattress on the floor, it did not consider that “this aspect, taken in isolation or in conjunction with other material aspects of his detention, subjected him to distress or hardship of an intensity greater than the inevitable level of suffering inherent in detention” (idem).
Conclusion ■ No violation of Article 3.
Concurring opinion of Judge Krenc ■ Judge Krenc expressed concern that such a decision risked “trivialising such conditions of detention and, by the same token, relativising the requirements of Article 3 of the Convention” (§ 9).
Judge Krenc noted that “the number of detainees was four times higher than the [original] capacity of the facility” (§ 4) and that “this severe overcrowding inevitably led to the inadequacy of the prison infrastructure” (§ 5) – including the sanitary facilities (only two toilets and two showers), the communal living area (shrunk by the addition of bunk beds) and the exercise yard (64 sq. m.).
The judge also noted that “we are […] far from an exceptional or temporary situation, or one of more limited duration, which the Court has had to deal with in other cases” (e.g. Ilerde mentioned above), as the applicant had spent 14 months in a unit with a personal space of between 3.6 and 4.6 sq. m (§ 8).
NAMIK YÜKSEL v. TÜRKİYE ■ Application no. 28791/10 ■ Second Section ■ 27 August 2024
Summary prepared by the ECtHR Registry
Art 8 ■ Family life ■ Restrictions imposed on applicant’s contact with four-year-old son staying with his wife in the same prison ■ Domestic authorities having taken all necessary steps that could have been reasonably expected ■ Fair balance struck between competing interests
Facts ■ The applicant and his wife were convicted of aiding and abetting a terrorist organisation and each sentenced to three years and nine months’ imprisonment. The applicant’s wife was transferred to Gebze Prison together with their four-year-old son to serve her sentence. The applicant’s request, in order to have contact with his wife and son, to be transferred to the same prison to serve his sentence was granted. After his transfer the applicant filed a petition with the Gebze enforcement judge requesting an order for the prison administration to take measures to allow him to spend more time with his son. Simultaneously, the administration and observation board of Gebze Prison (“the observation board”) examined the applicant’s request and ordered that the applicant be allowed to have physical contact with his child for one hour during his non-contact visits and that the child and the parents could meet for one hour during monthly visits. Following the observation board’s decision, the Gebze enforcement judge examined the applicant’s petition and dismissed his request. The applicant’s objection against that decision was dismissed.
Law ■ Article 8
The interference had been “in accordance with the law” and had pursued the legitimate aims of protecting the rights of others and the prevention of disorder. The remaining question was thus whether it had been necessary in a democratic society.
The Court reiterated that in cases involving the care of children and contact restrictions, the child’s interests must come before all other considerations. Where the family was in detention, while mutual enjoyment by parent and child of each other’s company constituted a fundamental element of family life, it could not be inferred from that that the sole fact that the family unit was maintained necessarily guaranteed respect for the right to a family life. Furthermore, Article 8 required the States to take into account the interests of the prisoner and his or her family members and to evaluate them not in terms of broad generalities but in relation to the specific situation. The issue of the contact with a child whose both parents were in detention had not been explicitly addressed in the relevant international material, according to which the best interests of the child were to be a primary consideration in all actions concerning them. The right of a child who was separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if that contact was contrary to the child’s best interests, was the common principle referred to in that material and international standards providing principled guidance as regards the holding of children in prison with their imprisoned parents.
At the time of the events, both the applicant and his wife had been serving prison sentences following their conviction for aiding and abetting a terrorist organisation. The national authorities, in allowing a request by the applicant’s wife in that regard, had placed her and their son in a section of the Gebze prison which had been designated for prisoners convicted of ordinary offences rather than terrorism-related offences, notwithstanding she had been convicted of the latter. Furthermore, the applicant’s request to be transferred to the Gebze Prison, in order to maintain regular contact with his wife and son had been granted. Moreover, immediately after his transfer to the Gebze Prison, the applicant had filed a petition with the national authorities, requesting that they take certain measures to allow him to spend more time with his son. In that connection, the observation board of the Gebze Prison, on the basis of humane grounds, had decided that he could have contact visits with his son for one hour once a week in the visiting area and that the child and the parents could meet for one hour during monthly visits. In that context, although prisoners had been entitled to have contact visits with their family members only once per month pursuant to the relevant Regulations on visiting rights, the decision of the observation board had enabled the applicant to have contact visits with his son four times per month.
Regarding the decision-making process, the members of the observation board had included the prison’s doctor, teacher and psychologist, who had been in the best position to assess the best interests of the child, as they had been in direct contact with him and were familiar with the conditions of the prison in question. Subsequently, the applicant had also had the possibility to file objections to the prison administration decision and to present his additional contact requests before the enforcement judge and assize court, which had found appropriate the contact arrangements that had been put in place by the observation board. Additionally, it had not been in dispute that the visiting rights of the applicant had been extended and that there had been no restriction put in place in practice by the national authorities as regards the enjoyment of those contact rights. However, even assuming that, as alleged by the applicant, the opportunity could not be used in practice because of the child’s emotional response to following the relevant procedures for his transfer within the prison, on a practical basis, there might indeed come a stage where it became futile, if not counterproductive and harmful, to attempt to force a child to conform to a situation which, for whatever reasons, he or she resists. Coercive measures against children were not desirable and must be limited in that sensitive area. A parent could not be entitled under Article 8 to have such measures taken as would harm the child’s health and development.
The domestic authorities, by allowing the applicant to have his son with him in the visiting area for one hour during the non-contact visits once a week and to meet his wife and son for one hour during monthly contact visits, had taken all necessary steps that could have been reasonably expected from them. Having regard to the prison context, the applicant had not demonstrated in which other ways he could have spent more time with his son during his approximately eight months stay in the same prison. In the particular case-circumstances a fair balance had been struck between the competing interests by the national authorities, which had taken considerable measures in good faith to defend the best interests of the child and to allow the applicant to maintain regular contact with his son.
Conclusion ■ No violation of Article 8
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