JUNE 2024

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.

TEMPORALE v. ITALY ■ Application no. 38129/15 ■ First Section ■ 20 June 2024

Art 3 ■ Treatment for mental and somatic health issues
Art 38 ■ Obligation to provide necessary facilities for the examination of the case

Facts ■ The applicant is disabled (disability rate: 100%) and suffers from chronic delusional psychosis and several somatic health issues. In March 2015, the investigative judge (giudice per le indagini preliminari) ordered his pre-trial detention on suspicion of Mafia association, illegal possession of weapons and drug trafficking.

The investigative judge rejected the applicant’s request to have his pre-trial detention released by house arrest on account of his medical situation. The judge based its decision on a report prepared by the prison health service (under the authority of the Ministry of Health) saying that the applicant needed permanent assistance and his state of health was poor, but he was constantly monitored and provided with the necessary care. The judge did not order a legal expert report.

The applicant filed the present application in August 2015 and asked the Court to order his release as an interim measure. The Court rejected the applicant’s request.

The applicant also filed an appeal against the investigative judge’s decision. The appellate court rejected his application on the basis of a legal expert report (prepared in the frame of the applicant’s penal trial) finding the applicant’s state of health to be compatible with his continued detention. Several other legal expert reports were prepared in the frame of the applicant’s penal trial. All confirmed the compatibility of the applicant’s state of health with his continued detention. Ultimately, a report prepared by the prison health service dated January 2017 declared that the prisoner’s medical conditions were difficult to treat in prison, even taking into account the use of internal and external health services.

Consequently, a domestic court ordered the applicant’s release in January 2017. The applicant was released in August 2017.

He complained that his continued detention was incompatible with his state of health and that he did not receive adequate treatment while in prison.

Law ■ Article 3

General principles: Rooman v. Belgium ([GC], no. 18052/11, 2019, §§ 141-148

(a) The applicant’s state of health

The Court noted that the applicant’s somatic health problems had worsened during his detention (his mental health problems had remained stable). However, according to the Court, the cause of his worsening health cannot be clearly identified. The Court therefore decided to examine whether the applicant’s continued detention until 2017 was compatible with his state of health (b) and if he received adequate treatment (c).

(b) Compatibility of the applicant’s health with his continued detention

The Court observed that judicial experts considered that the applicant had access to specialist treatment within prison, and could occasionally be transferred to receive in-patient treatment.

The Court also noted that the applicant was released in 2017, after the prison health service recommended so in view of his health condition. Although the applicant was not released until eight months after the competent court ordered his release (January-August 2017), the Court noted that he did not complain or inform the Court of this. The Court therefore considered that this period is excluded from the scope of its review (§ 86).

This was sufficient for the Court to consider that the domestic authorities had adequately examined the question of whether or not to continue the applicant’s detention, and that until his release in 2017 his detention was not incompatible with his continued detention.

(c) Adequacy of the medical treatment received

With regard to the applicant’s physical pathologies, the Court considered that the domestic authorities offered him adequate care and reacted with due diligence when his state of health worsened. The applicant’s health was regularly monitored, and he underwent several treatments (his heart treatment was also adjusted following an expert report).

The Court also underlined that he was placed in a special section of the prison (intensive assistance service, SAI), where he had nursing and medical assistance available 24 hours a day, in addition to the assistance of a fellow inmate for daily living. Furthermore, as mentioned above, the applicant was released once the prison health services reported that the applicant’s state of health had worsened and that it was difficult to provide him with adequate care in prison.

With regard to the applicant’s mental health issues, the Court observed that he underwent monthly psychiatric examinations between March and August 2015. The Court also observed that these psychiatric examinations were almost completely suspended for several months, and that the applicant did not receive any psychological support. However, on the one hand, the Court noted that his examination resumed and became more frequent after an expert report recommended so. On the other hand, the Court noted that another expert report stated that, because of his age (60 years old) and the chronic nature of his condition, psychological therapy (although often envisaged) may not be indicated for the applicant.

The Court concluded that, taken as a whole, the treatment to which the applicant was subjected did not reach the threshold of severity required to fall within the scope of Article 3 of the Convention.

Conclusion ■ No violation of Article 3.

Law ■ Article 38

The Court noted that the Government initially refused to submit a legal expert report with regard to the applicant’s state of health and whether such a state of health was compatible with the conditions in which he was detained. At the time the Court made this request (August 2015), only reports prepared by the prison health service were available. The Government argued that the appointment of a legal expert fell within the remit of the judiciary.

The Government subsequently submitted a legal expert report prepared in the context of the applicant’s penal trial (February 2016) before the Court had ruled on the admissibility and the merits of the case.

Conclusion ■ No violation of Article 38.

NAMAZLI v. AZERBAIJAN ■ Application no. 8826/20 ■ First Section ■ 20 June 2024

Art 8 ■ Private life ■ Correspondence ■ Inspection of a lawyer’s documents by prison staff before and after meeting his client in prison in the absence of any suspicion of wrongdoing ■ Domestic provisions of a general nature with no distinction between inmates’ lawyers and other visitors, in disregard of the special status of lawyers in the administration of justice ■ Lack of a clear and detailed framework or safeguards against possible abuse or arbitrariness ■ Interference not “in accordance with the law”

Facts ■ The applicant, a lawyer, visited Gobustan Prison on 10 August 2018 to meet his client, whom he represented in domestic criminal proceedings and before the Court.

He alleged he had only been allowed to meet his client after his document had been inspected at the entrance of the prison by prison staff. He claimed this was unlawful but the prison staff ignored his objections.

After the meeting had ended, prison staff conducted a personal search of the applicant and seized a handwritten statement his client gave him, which they refused to return on the instructions of the prison governor.

On the next day, the applicant filed complaints with the prison service and the competent administrative court, alleging the inspection and seizure of a written statement given to him by his client breached the principle of confidentiality of his communication with his client.

The prison service dismissed his complaint, denying any wrongdoing. The administrative court also dismissed the applicant’s complaint citing lack of evidence supporting his allegations. The applicant’s appeal was dismissed in April 2019. The Supreme Court upheld this decision in July 2019, concluding that the lower courts had appropriately handled the case based on the evidence presented.

The applicant argued that the inspection, seizure and failure to return of a handwritten statement given to him by his client in Gobustan Prison violated his right to private life and correspondence. He also complained of a lack of access to a court and of effective remedies in this respect.

Law ■ Article 8

General principles: Michaud v. France, no. 12323/11, 2012, §§ 117-19; Laurent v. France, no. 28798/13, 2018, §§ 35 and 44; lçi and Others v. Turkey, nos. 23145/93 and 25091/94, 2003, § 669; Piechowicz v. Poland, no. 20071/07, 2012, § 239, André and Another v. France, no. 18603/03, 2008, § 42; and Altay v. Turkey (no. 2), no. 11236/09, 2019, § 56

(a) Whether there was interference

The Court noted significant discrepancies between the applicant’s and the Government’s versions of events concerning the seizure of a written statement by the prison staff. However, it was not disputed that the applicant’s documents were inspected before and after his meeting with his client in prison, by prison staff, and in the absence of any suspicion of wrongdoing.

The Court concluded that there had been an interference with the applicant’s rights under Article 8.

(b) Whether the interference was justified

The Government argued that the interference was in accordance with the law because, in the relevant domestic laws, lawyers are not in the category of the persons entitled to enter prisons without hindrance. The Court however noted that the Government did not provide any explanation as to how this general provision interplays with specific provisions protecting the privilege accorded to the lawyer-client relationship and the confidentiality principle. There are no specific provisions governing the inspection of inmates’ representatives by prison staff, and seemingly no domestic case law either.

The Court recalled that exchanges between lawyers and their clients enjoy “strengthened protection” (§ 50) under Article 8, that serious interferences such as searches “must […] be based on law that is particularly precise” (idem). It therefore concluded that the general provision relied on by the Government, because it “disregard[s] the special status of lawyers in the administration of justice” (§ 51), does not meet the ‘quality of the law’ requirement and does not “provide a clear and detailed legal framework or safeguards against possible abuse or arbitrariness” (idem).

Conclusion ■ Violation of Article 8

Law ■ Other complaints (Article 6, Article 13)

The Court found it unnecessary to consider the applicant’s complaints under Articles 6 and 13 pertaining to the lack of access to a court and of effective remedies, since it had already “examined the main legal question raised in the present application” (§ 56, see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, 2014, § 156).

Article 41 ■ EUR 4,500 in respect of non-pecuniary damage; EUR 39.56 in respect of costs and expenses.

BECHI v. ROMANIA ■ Application no. 45709/20 ■ Fourth Section ■ 25 June 2024

Art 3 ■ Poor detention conditions under semi-open and open regime not exceeding the unavoidable level of suffering inherent in detention
Art 3 + Art 14 ■ Detention in a separate wing without possibility to contact other prisoners or undertaking work on account of being tested positive for HIV necessitated by the particular circumstances characterising Romanian prisons ■ Differential treatment meant to provide better conditions tailored to his medical needs and well-being
Art 8 ■ Prisons located far from family residence

Facts ■ The applicant, who had tested positive for HIV, was detained in Târgu Ocna Prison (2020-2021) and in Poarta Albă Prison (2021-2022). In both prisons he complained of his material detention conditions (overcrowding, bedbugs, insufficient ventilation, passive smoking, detention with an HCV-positive detainee, etc.). He also complained about his placement in a section designated for HIV-positive detainees, who were separated from other detainees and were barred from engaging in any work.

In those prisons he was detained under a semi-open and open regime respectively.
The applicant filed several complaints before domestic courts. His complaints concerning his detention conditions were partially dismissed, on account of his detention regimes. One court acknowledged the poor detention conditions in which he was held (overcrowding, dilapidated furniture, presence of mold).

As regards the applicant’s detention in a specific section, the domestic courts declared that this has been decided to protect him. The domestic courts also declared that the fact that prisoners held in this section were barred from working “did not infringe their rights, as the prison authorities’ intention was to protect both them and other detainees” (§ 12).

The applicant also complained to the national prison administration that both prisons were located far away from his domicile (500 km and 800 km respectively), which made it difficult to maintain contact with his family. The prison administration said that such transfers were decided because both prisons were “equipped to accommodate vulnerable detainees” (§ 17).

The applicant was granted leave to present his own case in the proceedings before the Court.

Law ■ Article 3 in conjunction with Article 14

(a) Material conditions of detention

The Court noted that the applicant had most of the time a personal space of more than 4 sq. m., but “for short non-consecutive periods of time he had between 3 and 4 square metres” (§ 47). Furthermore, the Court noted that the applicant was detained in a semi-open regime (Târgu Ocna Prison) and an open regime (Poarta Albă Prison) and was therefore “able to leave his cell and move freely around the accessible facilities for a significant amount of time” (§ 51).

The Court also dismissed the applicant’s allegation that he was detained with smokers and prisoners suffering from HCV as unsubstantiated, since the applicant did not submit any document, and these claims were dismissed as unfounded by domestic courts.

In view of the above, the Court concluded that the overall detention conditions in both facilities did not cause the applicant distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention.

(b) Allegation of segregation and stigmatisation

The Court mentioned the Government’s submission that the applicant’s placement in specific sections “had been justified by the need to improve his medical treatment and to ensure better nutrition” (§ 56). The Court also noted that the applicant was detained under a semi-open and open regime and “was not completely separated from other detainees, as he was able to take daily walks – together with prisoners detained in the medical wing of the hospital penitentiary” (§ 57).

The Court also accepted the Government’s allegation that HIV-positive prisoners detained in the same wing who were willing to work were selected by the prison administration to carry out different (unspecified) activities, and noted that the applicant did not contest this allegation and did not show that he had requested to perform work while detained.

The Court also referred to a CPT report on its visit to Romania in 2018 (CPT/Inf (2019) 7), which read that although “HIV-positive detainees were held separately from the rest of the prison population in collective cells, had separate hours for accessing outdoor yards or prison shops, and were not engaged in any work” (§ 59) and although “there was no public-health justification for detaining HIV-positive prisoners separately from the rest of the prison’s population solely because of their HIV status” (§ 60), pointed that detention conditions in those specific wings were better than in ordinary detention wings, “marked by severe overcrowding, poor material and hygienic conditions, a lack of medical confidentiality and high levels of prejudice against people living with HIV” (idem).

The Court therefore concluded that “the applicant’s placement in the prison hospitals in Târgu Ocna and Poarta Albă Prisons was necessitated by the particular circumstances characterising Romanian prisons” and was meant to provide him with better conditions.

Conclusion ■ No violation of Article 3 alone or in conjunction with Article 14.

Law ■ Article 8

General principles: Khoroshenko v. Russia [GC], no. 41418/04, 2015, § 106; Vintman v. Ukraine, no. 28403/05, 2014, § 77; Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, 2013, § 835-837; Labaca Larrea and Others v. France (dec.), no. 56710/13 and others, 2017, § 41; Rodzevillo v. Ukraine, no. 38771/05, 2016, § 83; Polyakova and Others v. Russia, nos. 35090/09 and 3 others, 2017, §§ 81 and 100; Messina v. Italy (no. 2), no. 25498/94, 2000, § 61; Klibisz v. Poland, no. 2235/02, 2016, § 355.

The Court noted the Government’s argument that the prisoners’ placement in those facilities located approximately 500 km and 800 km, respectively, from his family residence was decided “to secure him specialist medical treatment for his disease and a diet appropriate to his medical condition” (§ 75). The Court also noted that the applicant was able to maintain contact with his family via email, telephone calls and letters.

The Court argued that “The applicant was not sent to a remote detention facility […but] simply transferred to detention facilities located in different counties than that in which his family residence was located” and that there was “no evidence to indicate that the journeys that his close relatives had to make involved any insurmountable or particularly difficult problems” (§ 75). Furthermore, the Court pointed out that the overall duration of the applicant’s detention was of less than two years and five months.

Consequently, the Court declared that the restriction complained of did not disclose any appearance of a violation of Article 8 of the Convention.

Conclusion ■ Inadmissible.

UKRAINE v. RUSSIA (RE CRIMEA) ■ Application nos. 20958/14 and 38334/18 ■ Grand Chamber ■ 25 June 2024

The analysis below focuses on parts of the judgment pertaining to prisoners’ rights. It is based on the legal summary prepared by the Court’s registry.

Extension of Russian law in Crimea ■ Impugned measures deprived of legal basis ■ Crimean courts not considered to have been ‘established by law’ within the meaning of Art 6

Art 8 ■ Family life ■ Administrative practice of unlawful transfers of Crimean prisoners to penal facilities located in Russian territory
Art 46 ■ Respondent State to make measures to ensure the safe return of transferred prisoners from Crimea to Russia

Art 2 (substantive and procedural) ■ Administrative practice of enforced disappearances and lack of effective investigation into credible allegations of such practice ■ Applicability of Art 2 engaged regardless of the release of most of those abducted

Art 3 (substantive and procedural) Administrative practice of ill-treatment of Ukrainian soldiers, ethnic Ukrainians, Crimean Tatars and journalists ■ Administrative practice of ill-treatment of “Ukrainian political prisoners” both in Crimea and the Russian Federation and lack of effective investigation ■ Degrading conditions of detention of “Ukrainian political prisoners” in the Simferopol SIZO in Crimea ■ Systemic problem resulting from overall shortcomings in organisation and functioning of Crimean prison system

Art 5 ■ Administrative practice of unacknowledged and incommunicado detention of Ukrainian soldiers, ethnic Ukrainians, Crimean Tatars and journalists

Art 5 ■ Art 7 ■ Ongoing administrative practice of unlawful deprivation of liberty, prosecution and/or conviction of “Ukrainian political prisoners” based on application of Russian law in Crimea ■ Retroactive application of criminal law and extension of criminal-law provision in an unforeseeable manner by the courts in Crimea

Art 38 ■ Failure to provide material and to respond to the Court’s requests for documents

Facts ■ The present two inter-State applications concern mostly events in Crimea, which includes the Autonomous Republic of Crimea (the “ARC”) and the City of Sevastopol. The Ukrainian Government maintain that the Russian Federation was responsible for administrative practices resulting in numerous human-rights violations under the Convention from 27 February 2014, the date from when they alleged that Russia exercised extraterritorial jurisdiction over Crimea. They allege that these administrative practices were part of a large, interconnected campaign of political repression implemented by the respondent State aimed at stifling any political opposition and entailed systematic violations of civil rights and freedoms.

Law ■ Common preliminary observations for both applications

(a) Scope of the case

In so far as application no. 20958/14 was concerned the Court’s examination at the merits stage was confined to the complaints as relinquished to it and as delimited by its admissibility decision in the case. The new complaints that had been raised by the applicant Government did not fall within the scope of the case.
In so far as application no. 38334/18 was concerned the applicant Government had not requested a determination of the individual cases which it had referred to; rather it had requested that they be treated as evidence of an administrative practice in breach of the Convention. Accordingly, individual instances of alleged Convention violations were outside the scope of the case.

(b) Approach to evidence and compliance with Article 38

The Court adhered to its usual approach to the burden of proof for the purposes of assessing the evidence, that is, the “beyond reasonable doubt” standard of proof. It emphasised that it was particularly difficult to establish the facts in the context of an inter-State case such as the present one, which concerned the aftermath of what the applicant Government had referred to as an “invasion” and the purported use of a judicial and law-enforcement machinery in the territories controlled by the respondent State for “ulterior purposes” other than those for which they had been established. It also concerned a great number of persons and, in so far as application no. 38334/18 was concerned, events spanning both a significant period of time (the applicant Government complaining of ongoing human rights violations) and a vast geographical area (Russia and Crimea). Another relevant factor was the continuing denial of access to Crimea to Ukrainian officials and/or independent monitors.

The respondent Government had not provided, in response to the Court’s express request, material which undoubtedly had been within their possession; in the specific case circumstances, they had been most likely the only entity in a position to provide it in a comprehensive manner. Furthermore, the respondent Government had remained silent since the submission of its memorial in February 2022. They did not respond to the Court’s letters or specific requests for documents, submit any evidential material or additional observations or participate in the hearing. That did not represent a constructive engagement with the proceedings for the examination of the case as required under Article 38. Such lack of cooperation had unnecessarily hampered the Court’s ability to clarify important issues and had had prejudicial effects on its examination of the present case. The respondent State had thus failed to comply with its obligations under Article 38.

Consequently, the Court noted that it would draw all the inferences that it deemed relevant and combine such inferences with contextual factors. At the same time, it had to be satisfied on the basis of the available evidence that the claims had been well‑founded in fact and in law. It thus carefully analysed the facts established in various sources of evidence – in particular material originating from intergovernmental organisations (“IGOs”), non-governmental organisations (“NGOs”) and first-hand witness testimony.

(c) Jurisdiction ratione temporis of the Court

The Court reiterated its finding at the admissibility stage as regards application no. 20958/14 that Russia had exercised extraterritorial jurisdiction over Crimea between 27 February 2014, the date from when Russia had had “effective control”, until 26 August 2015, when the second application was introduced (regarded as the “period under consideration” in so far as application no. 20958/14 was concerned). In the absence of any relevant information to contradict that conclusion, the Court found that it continued to be valid after 26 August 2015 in respect of events which had occurred in Crimea relevant for application no. 38334/18.

The Court also established that it had jurisdiction to deal with the Ukrainian Government’s complaints in both applications in respect of facts that had taken place before 16 September 2022, the date on which Russia had ceased to be a contracting Party to the European Convention. As concerned application no. 38334/18 the Court had jurisdiction beyond 16 September 2022 for detention which had started before that date on account of the “continuous” effect of the detention order.

(d) Relationships between the provisions of the Convention and the rules of international humanitarian law

The factual basis on which the respondent State had obtained extraterritorial jurisdiction and continued to exercise it throughout the relevant period(s) on the basis of “effective control” over Crimea, militated in favour of taking account of the relevant provisions of international humanitarian law (“IHL”) when interpreting the Convention rights in issue in this case, as provided for by Article 31 § 3 (c) of the Vienna Convention on the Law of Treaties of 23 May 1969. The Court notes that the Office of the United Nations High Commissioner for Human Rights (“OHCHR”) and a number of NGOs as well as the Office of the Prosecutor at the International Criminal Court (“ICC”), on whose reports the Court had placed some reliance in its admissibility decision, had expressed the view that certain practices of the respondent State had amounted to violations of IHL The Court therefore would consider the rules of IHL, in so far as relied on by the applicant Government, when considering the compatibility of an alleged administrative practice with the Convention right(s) in question. In so doing it would follow the methodology applied in Georgia v. Russia (II) [GC] and in Ukraine and the Netherlands v. Russia (dec.) [GC] according to which it would examine the interrelation between the two legal regimes with regard to each aspect of the case and each Convention Article alleged to have been breached and would ascertain each time whether there was a conflict between the provisions of the Convention and the IHL rules. That approach was limited to the interpretation and application of the Convention in so far as necessary in the circumstances of the present case. The Court underlined the necessary interplay between IHL and the Convention, as two international legal regimes relevant to the case. It had no bearing on the issues pertaining to Crimea’s status under international law, which, as stated in the admissibility decision, were outside the scope of the case.

(e) The general issue of “lawfulness” as required by the Convention

The court’s case-law concerning the “law” and the “lawfulness of acts” of internationally unrecognised entities be divided into two categories. On the one hand, in Loizidou v. Turkey (merits) the Court had held that the acts (the Constitution) of the internationally unrecognised entity (the “TRNC”) had no legal validity. On the other hand, the remaining cases (Mozer v. the Republic of Moldova and Russia ([GC], Ilaşcu and Others v. Moldova and Russia [GC] and Mamasakhlisi and Others v. Georgia and Russia) had concerned the issue of lawfulness of the acts of such entities and whether they had reflected a judicial tradition compatible with the Convention. Whereas the Court had held that “TRNC domestic law” had been based on the Anglo-Saxon legal tradition and had therefore been “law” for Convention purposes, in cases concerning Transdniestria (the “MRT”), the Court found that there had been no basis for assuming that in the “MRT” there had been a system reflecting a judicial tradition compatible with the Convention similar to the one in the remainder of the Republic of Moldova. The Court had reached similar conclusions regarding the “law” of Abkhazia and the “lawfulness” of Abkhaz courts.

The present case was to be distinguished from the above-mentioned cases for the following reasons: firstly, in none of those cases had the Court been called upon to interpret the Convention in the light of the rules of IHL, as in the present case; secondly, those cases had not directly dealt with the issue of whether the law that had been applied by the local or federal authorities (courts) giving rise to the complaints in question could have been regarded as “law” within the meaning of the Convention, thirdly, the “law” that had been applied in the aforementioned second category of cases had been substantively different from the “law” applied in the present case.

Furthermore, whereas the above cases concerned the “law” of internationally unrecognised entities the present case concerned the application of Russian law and acts of the “Russian courts” operating in Crimea following the establishment of “effective control” over that territory. Furthermore, while the “MRT” and Abkhaz-related cases concerned the “law” of unrecognised entities that did not reflect a judicial tradition similar to the one in the remainder of the Republic of Moldova or to the rest of Georgia respectively, in Cyprus v. Turkey (merits) the Court had held that the civil courts operating in the “TRNC” had been in substance based on the Anglo‑Saxon tradition and had not been essentially different from the courts operating before the 1974 events and from those which existed in the southern part of Cyprus. That aspect made the latter case similar, yet different from the present case. The Cyprus v. Turkey case had concerned the continued application of pre-existing Cypriot law valid in the territory of the “TRNC” before Turkey had obtained actual control of that territory, whereas the present case concerned the application in Crimea of the law of the Russian Federation (or the “law” of the local authorities, as its derivative) replacing the previously applicable and valid Ukrainian law.

Accordingly, this was the first case in which the Court had been called upon to determine whether the law of the Russian Federation, which had served as a legal basis for the measures complained of, taken while the Russian Federation exercised extra-territorial jurisdiction over Crimea on account of effective control, could be regarded as “law” within the meaning of the relevant provisions of the Convention.

After 18 March 2014 (date of signature of the Treaty between the Russian Federation and the Republic of Crimea on the Accession of the Republic of Crimea to the Russian Federation and the formation of new constituent entities of the Federation – the “Accession Treaty”) there had been a general and wholesale replacement of Ukrainian law. Equally important were the facts that the respondent State had applied Russian law immediately after signing the “Accession Treaty” and also Crimea’s admission, as a matter of Russian law, as a constituent part of the Russian Federation. However, the relevant rules of IHL clearly provided that there was an obligation to respect and thus maintain the laws in force in the “occupied” territory and not modify, suspend or replace them with its own legislation”.

In such circumstances the Court considered that, when the respondent State had extended the application of its law to Crimea, it had done so in contravention of the Convention, as interpreted in the light of IHL. In conclusion, Russian law could not be regarded as “law” within the meaning of the Convention and any administrative practice based on that law could not be regarded as “lawful” or “in accordance with the law”.

(f) The concept of administrative practice 

The Ukrainian Government’s complaints came under the concept of an “administrative practice” of human-rights violations, as outlined in the early inter-State cases, the admissibility decision in the present case, and most recently in the decision in Ukraine and the Netherlands v. Russia [GC]. An administrative practice required two elements to be demonstrated, namely the repetition of acts constituting the alleged violation and official tolerance of those acts by the respondent State.

Law ■ Overall conclusion on the merits in the case

The Court found that it had sufficient evidence – in particular IGO and NGO reports, corroborated by witness testimony and other material – to conclude beyond reasonable doubt, in respect of each of the complaints raised, that the incidents had been sufficiently numerous and interconnected to amount to a “repetition of acts”. Moreover, there had been sufficient evidence showing that such practices had been officially tolerated by the Russian authorities; thus, the Court found that the “official tolerance” element had also been established beyond reasonable doubt. Accordingly, it found that the respondent State had been responsible for an administrative practice of violations of the Convention. With regard to the allegations in relation to application no. 38334/18 the Court found that no issue arose under the six-month rule as the administrative practices at issue had continued after the allegations had been brought before it on 10 August 2018.

Law ■ Findings on administrative practices in both applications

(a) Article 6

Judicial system functioning in Crimea from the time of its admission to the Russian Federation– There had been a wholesale application of Russian law in Crimea, both of substantive and procedural laws, in breach of the Convention in the light of IHL. That situation had resulted from the “Accession Treaty” and Crimea’s admission, as a matter of Russian law, as a constituent entity of the Russian Federation and had stemmed from general, regulatory measures applying throughout the territory of Crimea. Those were binding for all courts and applied to all judicial proceedings and to all persons concerned. That was sufficient evidence to prove that, after enforcement of the “Accession Treaty”, the courts in Crimea could not be considered to have been “established by law” within the meaning of Article 6.

Conclusion ■  Violation (unanimously).

(b) Article 8

[…]

Transfer of Crimean prisoners to penal facilities located in the Russian Federation –  The 2017 Report of the Office of the United Nations High Commissioner for Human Rights on the situation of human rights in the temporarily occupied Autonomous Republic of Crimea and the city of Sevastopol (Ukraine) (“the 2017 OHCHR Report”) had noted that a sizeable number of Crimea’s prison population had been transferred to the Russian Federation and that transfers of pre-trial detainees had also taken place, the key reason being the lack of specialised penitentiary facilities in Crimea. According to the most recent information from 2022, 12,500 Crimean prisoners had apparently been transferred to penal facilities located on Russian territory. Such transfers entailed long distances from home for certain prisoners, in particular the “Ukrainian political prisoners” referred to by the Ukrainian Government and therefore hardship because of the separation from their families. The Court in cases against Russia, concerning transfers to a remote penal facility of prisoners tried and convicted in Russia by the Russian courts, had also had regard to the geographical situation of the colonies concerned and the realities of the Russian transport system, which rendered a trip from the applicants’ home city to their colonies a long and exhausting endeavour, especially for their young children, resulting in the applicants receiving fewer visits from their families. The limited prospects of any such visits carried out during a time of war were also relevant.

Furthermore, having regard in particular to its findings in Polyakova and Others v. Russia, the Court found that even assuming that the  applicable law in the light of Convention could be Russian law, the relocation of the Ukrainian prisoners from Crimea to the Russian Federation as of March 2014 had not complied with the “in accordance with the law” requirement. Moreover, notwithstanding the amendments that had been passed in the relevant Russian law in 2020, there were no real opportunities for the prisoners to be transferred back to Crimea. In line with its practice in individual applications, the Court also observed that the alleged administrative practice of transferring prisoners to penal facilities on the territory of the Russian Federation concerned the long-term repercussions on their family life which they had continuously experienced over the years as a result of the transfer. Lastly, a number of international organisations as well as civil society representatives had expressed the view that the practice of transfers of Crimean detainees to distant regions of Russia was contrary to the relevant IHL provisions.

Conclusion ■ Violation (unanimously).

Law ■ Specific findings of administrative practices in application no. 20958/14 from 27 February 2014 to 26 August 2015

(a) Article 2 (substantive and procedural)

Alleged enforced disappearances and lack an effective investigation in that regard – There had been forty-three documented cases of disappearances between 2014 and 2018. As reported by relevant international and national authorities the whereabouts and fate of some eight individuals abducted in that period were still unknown. Given the lapse of time since their abduction, those individuals could be presumed dead in the absence of any reliable news regarding their fate. However, the overall examination of the complaint about the existence of an administrative practice of enforced disappearances was not confined only to those individuals who had remained unaccounted for. The following factors were of particular importance even though the presumption of death applied only to those individuals: the overall context of a large number of instances of irregular deprivation of liberty and the relatively short period during which the abductions had taken place; based on the available evidence, the abductions had been perpetrated either by the Crimean self-defence forces (“CSDF”), the Cossacks, Russian Federation armed forces or by agents of the Russian Federal Security Service (“FSB”) – acts by any of those perpetrators had entailed the respondent State’s responsibility irrespective of whether it exercised detailed control over their policies and actions; the victims had been predominantly pro-Ukrainian activists, journalists and Crimean Tatars who had been perceived as opponents to the events that had unfolded in Crimea at the time; the abductions had followed a particular pattern and had been used as a means to intimidate and persecute such individuals in the enforcement of a global strategy of the respondent State to suppress the existing opposition in Crimea to the Russian “occupation”.

There had been “sufficiently numerous” instances of abduction to amount to a pattern or system which was itself life-threatening to engage the applicability of Article 2 as regards that administrative practice, regardless of the fact that most of those abducted had been released soon after they had gone missing.

The evidential material further showed consistently that the respondent State’s prosecuting authorities had not carried out an effective investigation, if any investigation at all, into the incidents underlying the credible allegations made by relevant international organisations and the Russian Ombudsman of an administrative practice of enforced disappearances. Furthermore, the impugned “pattern or system” of enforced disappearances had continued for several years after the period under consideration.

Conclusion ■ Violation (unanimously).

(b) Article 3 (substantive and procedural) and Article 5

Alleged ill-treatment and unlawful detention of Ukrainian soldiers, ethnic Ukrainians, Crimean Tartars and journalists – The 2017 OHCHR Report had noted “multiple and grave violations… such as arbitrary arrests and detention… ill-treatment and torture” which involved “elements of sexual violence. The victims were kept incommunicado, tied blindfolded, beaten up, … electrocuted…, and threatened with rape”. Similar findings had been made in other reports by other IGOs and NGOs. Testimonies of witnesses and victims, concerning alleged abduction, detention and ill-treatment, which had appeared to be truthful and credible, had also been consistent with the information contained in those reports. The victims had been predominantly Ukrainian soldiers, pro-Ukrainian activists, journalists and Crimean Tatars; the treatment they had been subjected to had caused them undeniable mental and physical suffering. Based on the evidence, such acts had been perpetrated directly by or with the cognisance of, either members of the CSDF, Cossack groups, the FSB, the police or Russian servicemen. The respondent Government had failed to submit any records of detention although such material had been in their exclusive possession.

Conclusion ■  Violations (unanimously).

[…]

Law ■ Specific findings of administrative practices in application no. 38334/18

(a) Article 3 (substantive and procedural)

(i) Alleged ill-treatment of “Ukrainian political prisoners” in Crimea and the Russian Federation and lack of an effective investigation in that respect – The Court reiterated that there had been consistent information before it that there had been “multiple and grave violations of the right to physical and mental integrity” committed by members of the CSDF, various Cossack groups and later by representatives of the Crimean FSB and the police. The Ukrainian Government had specifically alleged that “Ukrainian political prisoners” had been subjected to beatings, the use of electric shocks, mock executions and the administration of unknown drugs aimed at inflicting severe pain or suffering in order to obtain information, extract confessions about crimes or testimony about acts carried out by others or inflict punishment or intimidation. The severity of such treatment taken together with the element of intent warranted its classification as acts of torture. Other types of conduct, such as, for example, threats of ill-treatment or psychological pressure had amounted at least to inhuman or degrading treatment. The above allegations were corroborated either by direct testimony of victims and/or their lawyers, by IGO and NGO reports and by the Ukrainian prosecuting authorities. There had been an administrative practice of ill-treatment of “Ukrainian political prisoners” which had caused them undeniable mental and physical suffering. Furthermore, there had been a lack of an effective investigation in that respect and those responsible had not been brought to account.

Conclusion ■ Violation (unanimously).

(ii) Conditions of detention in the Simferopol SIZO – The evidence that had been submitted – by detainees, their lawyers, local NGOs and IGOs – showed that, since 2014, “Ukrainian political prisoners” had been held in inadequate conditions of detention in the Simferopol SIZO, the only pre-trial detention facility in Crimea up until the Autumn of 2022. Those conditions had amounted to degrading treatment, in particular on account of the severe overcrowding and other deficiencies such as insufficiency of sleeping space, inadequate temperatures, lack of ventilation, infestation, lack of privacy of toilets and poor food. The scale and systemic nature of the administrative practice had been the result of overall shortcomings in the organisation and functioning of the Crimean prison system.

Conclusion ■ Violation (unanimously).

(b) Articles 5 and 7

Alleged unlawful deprivation of liberty, prosecution and conviction of “Ukrainian political prisoners” – The Ukrainian Government had submitted a body of information and evidence from many different sources describing arrests, placement in pre-trial detention and conviction by the courts established in Crimea by the Russian Federation of members of different groups of Ukrainians for having exercised, inter alia, their freedom of expression, association or peaceful assembly. The sources of the evidence included, importantly, case material from the criminal proceedings against the prisoners in question. The impugned measures had been based on the application of the law of the Russian Federation in Crimea, which the Court had already found could not be regarded as “law” within the meaning of the Convention and the courts in Crimea could not be considered to have been “established by law” within the meaning of Article 6. Moreover, among other shortcomings, not only had the acts which had been the subject of certain proceedings taken place before the Russian Federation had established effective control over Crimea (on 27 February 2014), as a matter of international law (including the Convention), the courts in Crimea, comprising judges assigned by Ukrainian authorities, were required to assess individual acts by reference to the requirements of Ukrainian and not Russian law. It was the Court’s view, therefore, that the proceedings before and decisions of the Crimean “courts” had run counter to the principle of the non-retroactivity of the criminal law enshrined in Article 7, as interpreted in the light of IHL. Several IGO and NGO reports had criticised the retroactive application of criminal law by the Crimean “courts”. Even assuming, however that those “courts” had correctly applied Russian law and thus that the impugned measures had had a legal basis, in some instances the application of criminal-law provisions had been extended in an unforeseeable manner, contrary to the object and purpose of the above provision.

Conclusion ■ Violation (unanimously).

(c) Articles 10 and 11

Alleged unlawful deprivation of liberty, prosecution and conviction of “Ukrainian political prisoners” – The wealth of evidence available concerning the overall situation in Crimea contained information about the arrest and prosecution of political opponents accused of extremism or terrorism, of Ukrainians who had participated in the Euromaidan protests, of Crimean activists, of Crimean Tatars linked to the Mejlis, of practising Muslims accused of belonging to banned Islamic groups, and of journalists or individuals posting messages on social media expressing dissent or critical of the authorities of the Russian Federation. The alleged administrative practice also covered instances of both pre-trial detention and criminal convictions. Reiterating its previous findings concerning the extension of Russian law to Crimea, the Court found that such a practice, which had started in 2014 and, according to recent international reporting still continued unabated, could not be regarded as “lawful”.

Conclusion ■ Violation (unanimously).

(d) Article 18 in conjunction with Articles 5, 6, 7, 8, 10 and 11 – Alleged ulterior purpose for violations in relation to “Ukrainian political prisoners”

(i) Applicability – In the light of the principles in the Court’s case-law no question arose when assessing the applicability of Article 18 taken in conjunction with Articles 5, 8, 10 and 11; the Court had already found a breach of Article 18 in conjunction with those Articles. By contrast, the question arose as to its applicability in conjunction with Articles 6 and 7, in connection to which the Court had taken different approaches in its case-law. The Grand Chamber thus had to examine whether Articles 6 and 7 contained any express or implied restrictions which might form the subject of the Court’s examination under Article 18. That required an examination of the applicability of Article 18 in the light of any substantive developments in the Court’s case-law in relation to those provisions.

In so far as Article 6 was concerned the Court noted that its provisions allowed for both explicit and implicit restrictions. An express limitation applied to the public pronouncement of judgments whereas the Court had recognised in its case-law several implied limitations. Having regard to its extensive case-law on the matter, the Court found that the rights protected under Article 6 were guarantees with reference to which fundamental abuses by a State might be likely to manifest themselves. Therefore, trials before a court must never be used for “ulterior purposes” and thereby undermined. Article 18 was thus capable of applying in conjunction with Article 6.

However, the situation was not the same in relation to Article 7; the Convention required the observance of Article 7 guarantees, including in the most difficult of circumstances. Given the non-derogable nature of the Article 7 guarantee, the Court considered that Article 18 could not apply in conjunction with it.

Conclusion ■ Article 18 applicable in conjunction with Articles 5, 6, 8, 10 and 11 (compatible ratione materiae); Article 18 not applicable in conjunction with Article 7 (incompatible ratione materiae).

(ii) Merits – The Court considered that in the present case the complaint under Article 18 constituted a fundamental aspect of the case that had not been addressed with regard to the previous complaints and merited separate examination. In that connection, the Court reiterated its findings of administrative practices in breach of Articles 5, 6, 8, 10 and 11 with respect to the sequence of events which had occurred in Crimea and, more specifically, its findings under each of those Articles that the “lawfulness” requirement had not been complied with. With regard to some complaints, it had carried out a supplementary review and concluded that the provisions applied, in any event, had not satisfied the “quality of law” requirement. Those findings, however, could not in themselves be sufficient to find a violation of Article 18; the mere fact that a restriction of a Convention right or freedom did not meet all the requirements of the clause that permitted it did not necessarily raise an issue under Article 18. The case thus had to be examined from the standpoint of a potential plurality of purposes. In particular, whether the impugned measures had pursued an ulterior purpose (a purpose not prescribed by nor permissible under the Convention, involving misuse of power) and, if that was the case, whether that ulterior purpose had been the predominant purpose of the restriction applied.

The Court observed, that on the evidence before it, the purported acts of persecution had not been directed at random individuals, but at particular groups consisting either of Ukrainian activists and journalists, or of Crimean Tatars who had exercised their fundamental rights to freedom of expression or freedom of peaceful assembly or association, and who had been perceived as being supporters of the State sovereignty and integrity of Ukraine. Those acts had been performed on the basis of Russian criminal law, and in particular, anti-terrorist and anti-extremism legislation. Furthermore, political and non-governmental organisations in Crimea perceived as having “extremist” views and the Mejlis itself had been banned, while the population at large had been encouraged to identify and report anyone who opposed the Russian Federation’s interests and policies. The Court was also mindful of the authoritative international reporting on the human rights situation in Crimea which described a widespread climate of intimidation, harassment and pressure targeting those who expressed dissent and criticism against the Russian authorities. It noted, inter alia, that in many of the criminal proceedings referred to by the applicant Government, the Crimean law-enforcement authorities had tried to link the charges brought against those individuals to their political views or their (actual or perceived) affiliation to different banned organisations regarded as holding anti-Russian views, such as the Mejlis or Ukrainian organisations that had been banned in Russia. The Court also noted the significant changes in Russian legislation as of February 2014, increasing and expanding criminal liability for conduct which had pertained to the exercise of freedom of expression, peaceful assembly and association. The same type of contextual evidence had been taken into account in Navalnyy v. Russia [GC] in order to corroborate the view that the authorities were becoming especially severe in their response to the conduct of political activists in the sphere of freedom of assembly.

The Court concluded that the prosecution and conviction of the “Ukrainian political prisoners” referred to by the Ukrainian Government had had the ulterior motive of punishing and silencing any political opposition. The reprehensibility of that ulterior purpose was corroborated by the fact that a number of resolutions had been adopted within the Council of Europe or the European Union urging the Russian Federation to release political prisoners held either in Crimea or in Russia, with the European Parliament finding that the judicial system was being instrumentalised as a political tool to repress those opposed to the Russian annexation of the Crimean peninsula. The Court thus found that the cases of the “Ukrainian political prisoners” were emblematic of a pattern of retaliatory prosecution and misuse of criminal law and illustrative of a general crackdown on political opposition to Russian policies in Crimea. The elements of the case demonstrated the existence of a continuous State policy of stifling any opposition to the Russian policies, a course of action which had been developed and publicly promoted by prominent representatives of important Russian authorities.

The Russian authorities ultimately sought to suppress that political pluralism which formed part of “effective political democracy” governed by “the Rule of law”, both being concepts to which the Preamble to the Convention referred. The Court was satisfied that the ulterior purpose of restricting the rights of “Ukrainian political prisoners” constituted the predominant purpose.

Conclusion ■ Violation (unanimously).

Article 46 ■ The Court found that the general principles from its case-law for the adoption of individual measures should also be applied to inter-State applications.
In view of the particular circumstances of the case, in particular its finding of a violation of Article 18 in conjunction with Article 8, the respondent State had to take every measure to secure, as soon as possible, the safe return of the relevant prisoners transferred from Crimea to penal facilities located on the territory of the Russian Federation.

Article 41 ■ Just satisfaction reserved

(See also Loizidou v. Turkey, 15318/89, 18 December 1996, Legal Summary; Cyprus v. Turkey [GC], 25781/94, 10 May 2001; Ilaşcu and Others v. Moldova and Russia [GC], 48787/99, 8 July 2004, Legal Summary; Catan and Others v. the Republic of Moldova and Russia [GC], 43370/04 et al., 19 October 2012, Legal Summary; Georgia v. Russia (I) [GC], 13255/07, 3 July 2014, Legal Summary; Mozer v. the Republic of Moldova and Russia [GC], 11138/10, 23 February 2016, Legal Summary; Polyakova and Others v. Russia, 35090/09 et al., 7 March 2017, Legal Summary; Navalnyy v. Russia [GC], 29580/12 et al., 15 November 2018, Legal Summary; Ukraine v. Russia (re Crimea) (dec.) [GC], 20958/14 and 38334/18, 16 December 2020, Legal Summary; Georgia v. Russia (II) [GC], 38263/08, 21 January 2021, Legal Summary; Dadusenko and Others v. Russia (dec.) 36027/19 et al., 7 September 2021, Legal Summary; Ukraine and the Netherlands v. Russia (dec.) [GC], 8019/16 et al, 30 November 2022, Legal Summary; Svetova and Others v. Russia, 54714/17, 24 January 2023, Legal Summary; Mamasakhlisi and Others v. Georgia and Russia, 29999/04 and 41424/04, 7 March 2023; Georgia v. Russia (IV) (dec.) [GC], 39611/18, 28 March 2023, Legal Summary)

© Council of Europe/European Court of Human Rights

RYBAKIN AND OTHERS v. RUSSIA ■ Applications nos. 83322/17 and 2 others ■ Fourth Section Committee ■ 27 June 2024

Art 3 ■ Inadequate conditions of transport

Facts ■ The 3 applicants complained of their conditions of transport by van or convoy (overcrowding, single-prisoner cubicle, lack of fresh air, lack of or insufficient natural or electric light, lack of or insufficient quantity of food, no or restricted access to toilet, inadequate temperature, numerous transports).

Law ■ Article 3

The Court recalled that it had found a violation of Article 3 in similar cases (Tomov and Others v. Russia, nos. 18255/10 and 5 others, 2019, §§ 124-27). It reiterated that “a strong presumption of a violation arises when detainees are transported in conveyances offering less than 0.5 square metres of space per person” (§ 8). For longer journeys, “factors such as a failure to arrange an individual sleeping place for each detainee or to secure an adequate supply of drinking water and food or access to the toilet seriously aggravate the situation of prisoners during transfers” and are also indicative of a violation of Article 3.

Having examined all the material submitted to it, the Court saw no reason to depart from its well-established case-law.

Conclusion ■ Violation of Article 3.

Article 41 ■ EUR 1,000 for each applicant

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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