MAY 2024

EUROPEAN COURT OF HUMAN RIGHTS

MAISAIA v. GEORGIA ■ Application no. 75969/14

Ill-treatment as part of large-scale and systematic ill-treatment of prisoners; failure to conduct an effective investigation: violation of Article 3 (substantive and procedural).

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CRĂCIUN AND OTHERS v. ROMANIA ■ Applications nos. 512/21 and 4 others

Refusal to allow prisoners to attend the funerals of close family members: violation of Article 8.

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MAFALANI v. CROATIA ■ Application no. 3646/17

Prisoner placed in relative isolation for 11 months (alone in a cell, without the right to communicate with other inmates or have access to television or print media, but allowed daily one-hour outside walks and visits from his family and his lawyers): manifestly ill-founded (Article 3).

Unlawful monitoring of the applicant’s correspondence with his lawyer: violation of Article 8.

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EUROPEAN COURT OF HUMAN RIGHTS

MAISAIA v. GEORGIA ■ Application no. 75969/14 ■ Fifth Section Committee ■ 7 May 2024

Art 3 ■ ill-treatment in prison, which purportedly formed part of large-scale and systematic ill-treatment of prisoners at the material time ■ Failure to conduct an effective investigation

Facts ■ The applicant was arrested on 5 May 2009 on suspicion of espionage and transferred to Gldani prison on 8 May 2009. During the admission process, a doctor noted that he had no injuries and was in good health.

On 25 August 2010, the applicant reported to the authorities that he had been ill-treated by prison guards the previous day (24 August 2010). An investigation was opened, and a medical examination of the applicant was conducted the same day, showing multiple bruises and lesions. During the questioning, he provided a detailed account of the event, as well as the names of the alleged perpetrators. On this occasion, the applicant also alleged that he had been subjected to regular ill-treatment between 8 May and 23 June 2009.

Although one of the applicant’s cellmates corroborated his account, other witnesses claimed that the applicant inflicted the injuries on himself. Despite the applicant’s repeated complaints and inquiries about the progress of the investigation, the authorities provided limited responses, and no significant progress was made.

In September 2012, footage of the ill-treatment of inmates in Georgian prisons, including Gldani, was released, leading to public outcry. The applicant was released from prison in 2013. He continued to inquire about the investigation until October 2014, but his efforts were largely ignored. As of the time of the Court’s assessment, the investigation was still ongoing without substantial progress.

Law ■ Article 3

(a) Admissibility

The Government argued that the applicant had failed to voice his grievances promptly before the relevant domestic authorities.

The Court noted that the applicant reported the beating by prison guards to the domestic authorities on the following day.
As regards the allegations of ill-treatment suffered between 8 May and 23 June 2009, which he reported during his questioning in August 2010, the Court considered that the timeline was not significant enough to question the applicant’s due diligence, especially considering the psychological effects of ill-treatment when the victim remains within the same agents’ control (see Ochigava v. Georgia, no. 14142/15, § 51, 2023).

Overall, the Court concluded that the applicant had voiced his grievances in a timely fashion and made sustained efforts to pursue domestic remedies before lodging his application with the Court.

(b) Merits, procedural aspect

General principles: Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-88 and 114‑23, 2015).

The Court reiterated that effective deterrence against serious acts, such as intentional attacks on the physical integrity of a person, requires an efficient criminal-law response (compare, for instance, Pulfer v. Albania, no. 31959/13, § 71, 2018).

The Court further noted significant deficiencies in the respondent State’s criminal response. Despite the applicant’s formal complaint and detailed information provided in August 2010, the domestic authorities failed to conduct an effective investigation or bring the perpetrators to justice.
There were periods of unexplained inactivity, and the applicant was unjustifiably denied the procedural standing of an aggrieved party, which hindered his ability to follow and contribute to the investigation.
The Court emphasised that “justice delayed is often justice denied” (§ 17), and the lack of diligence and unreasonable periods of inactivity rendered the investigation ineffective.

(c) Merits, substantive aspect

The Court recalled that that it had already established in an almost identical case that there had been “systematic and systemic abuse” of inmates at a number of prisons in Georgia by representatives of the prison authority at the material time (Ochigava, §§ 7, 34 and 61).

In that respect, it is noteworthy that in the Ochigava case, the domestic authorities themselves found that seven prison officers were guilty of the systematic ill-treatment of inmates at Gldani Prison between 2010 and 2012 with the aim to instil fear and thus obtained complete submission and, therefore, control over the prisoners.

Taking into consideration its previous findings in the Ochigava case, the Court acknowledged that the applicant in the present case had provided sufficient medical evidence and details of his alleged ill-treatment. Given the lack of an effective investigation and the corroborative medical evidence, the Court concluded that the applicant’s ill-treatment occurred and was attributable to the respondent State.

In light of the foregoing, the Court concluded that there has been a violation of both the substantive and procedural aspects of Article 3 of the Convention.

Conclusion ■ Violation of Article 3 (substantive and procedural aspects)

Article 41 ■ EUR 15,000 in respect of non-pecuniary damage.

CRĂCIUN AND OTHERS v. ROMANIA ■ Applications nos. 512/21 and 4 others ■ Fourth Section Committee ■ 16 May 2024

Art 8 ■ Refusal to allow prisoners to attend the funerals of close family members

Facts ■ The applicants were in detention when the death of their close family members occurred. They applied to the prison authorities for leave to attend the funeral.
Their requests were turned down. In some applications, the authorities substantiated the refusals by referring to the health crisis caused by COVID-19: In other applications, they referred to a general statement that the prisoners had failed to meet the conditions for leave.

Law ■ Article 8

The Court referred to  previous pre-Covid-19 case-law (Kanalas v. Romania, no. 20323/14, 2016) where a violation of Article 8 was found on account of refusal to grant prison leave to attend the funeral of a close family member.

The Court further noted that in the current case, the Government argued that the COVID-19 pandemic justified the refusal to grant prison leave. However, the Court noted that the authorities only cited the general health crisis without providing specific circumstances that would pose a real risk to the applicants or others.

Additionally, the Court observed that the state of emergency due to the COVID-19 pandemic had already been lifted in Romania at the time of the refusal.

In view of the above, the Court concluded that the reasons given by the national authorities for denying the applicants’ leave to attend their close family members’ funerals were insufficient to demonstrate that the interference was “necessary in a democratic society.”

Conclusion ■ Violation of Article 8

Article 41 ■ The Court awarded diferent sums to each of the applicants (EUR 3,000 to 6,000) in respect of non-pecuniary damage and costs and expenses.

MAFALANI v. CROATIA ■ Application no. 3646/17 ■ Second Section Committee ■ 21 May 2024

Art 3 ■ Relative social isolation for 11 months ■ No right to communicate with other inmates and to have access to television or print media ■ Prisoner allowed one-hour outside walks and visits
 Art 8 ■ Right to respect of correspondence ■ Breach of lawyer-client confidentiality

Facts ■ The application concerned the applicant’s conditions of detention under the special prison regime and the authorities’ alleged monitoring of his correspondence with his lawyer.

The applicant was arrested in 2008 and detained in Zagreb prison – first as a remand prisoner, and then as a convicted prisoner after he was sentenced to sixteen years’ imprisonment for aggravated murder in 2010. Over 11 months (November 2008 – September 2009), special supervision and security measures were applied to him, including: placement in a cell alone, prohibition from communicating with other inmates, prohibition from receiving newspapers, watching TV, and listening to the radio.
Special measures were also taken for the applicant’s attendance at court hearings, to which he was transferred in handcuffs and shackles at his arms and legs.
In 2012, he received a letter from his lawyer which had been opened. The domestic court, acting upon the applicant’s inquiry, confirmed that the security measures decision did not envisage the opening of his correspondence with the lawyer.
In 2013, the applicant lodged a complaint against his inadequate detention conditions. The domestic court dismissed his claim and held that the prison conditions did not attain the threshold of severity under Article 3 of the Convention, and that the contested restrictions were only of a temporary nature and were justified in view of the gravity of charges against him.

Before the Court he complained of various aspects of his detention conditions (special prison regime and measures and lack of legal safeguards, material detention conditions, medical care) under Article 3, and of a breach of the confidentiality of his correspondence with his lawyer under Article 8.

Law ■ Article 3

The Court concurred with the domestic authorities and dismissed the applicant’s complaint under Article 3 as manifestly ill-founded.

First, it found that the special regime imposed on the applicant was justified in view of the gravity of charges and the large amount of public attention which his case had attracted. It further held that the applicant had not been completely isolated, since he was placed alone in a cell for a period of eleven months before being transferred to a shared cell, and that he received numerous visits from his family (168 monitored visits with his family over a period of over two years, and numerous unmonitored visits with his lawyers). The Court therefore concluded that “the eleven months which the applicant had spent alone in a detention cell without the right to communicate with other inmates, or have access to television or print media, [had not] been of such duration or severity to have amounted to a “complete sensory” or “total social” isolation contrary to Article 3 of the Convention” (§ 16).

The Court also considered the security measures applied to the applicant during transport to the courthouse (shackles and handcuffs) to be proportionate to the security aim these measures pursued.

As regards the lack of legal safeguards concerning the special measures imposed (lack of communication of the measures and the reasons thereof, lack of possibility to appeal), the Court considered that the authorities had adequately reassessed and reviewed the measures, adapting them to the applicant’s situation (e.g. the Court noted that the applicant was placed in a cell with another inmate and gained access to various media after the end of the investigation against him). Furthermore, the Court noted that the security measures imposed on the applicant were reviewed by domestic courts, together with his detention conditions.

Second, as regards the applicant’s detention conditions, the Court noted that he had to stay in a shared cell 23 hours a day, and while the cell was of an adequate size, he and his cellmate had to eat food close to a semi-partitioned sanitary facility. However, although “deplorable” (§ 17), this fact alone did not constitute a breach of Article 3.

Third, the Court found no grounds to question the adequacy of medical treatment the applicant had received in detention in connection with the injuries he had received during his arrest as he was examined on numerous occasions by doctors during his detention and was provided treatment for all the conditions identified.

Conclusion ■ Manifestly ill-founded

Law ■ Article 8

The Government did not contest the fact of the opening of one of the letters the applicant had received from his lawyer, stating that it had been done inadvertently.
The Court noted that it was done in a direct breach of the explicit prohibition set forth int the Code of Criminal Procedure law.
Accordingly, the Court concluded that this interference with the applicant’s right to respect for his correspondence was not “in accordance with the law”.

Conclusion ■ Violation of Article 8

Article 41 ■ The Court awarded the applicant EUR 2,000 in respect of non-pecuniary damage and EUR 2,850 in respect of costs and expenses.

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