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
LOMBARDI v. ITALY ■ Application no. 80288/13
Prisoner with orthopaedic and neurological diseases (recurrent spinal disc herniation, spinal arthritis and acute lumbar pain) resulting in impaired mobility, maintained in detention, where he could not receive prescribed physiotherapy: violation of Article 3.
ELDAR HASANOV v. AZERBAIJAN ■ Application no. 12058/21
Prisoner with various chronic illnesses (including multiple disc herniations and protrusions, spinal cord compression, osteochondrosis, various cardiac and cardiovascular conditions) maintained in detention; lack of or delay in medical examinations; lack of comprehensive medical examinations in order to engage a comprehensive therapeutic strategy: violation of Article 3 (partial).
Government’s lack of compliance or delay in compliance with interim measures ordered by the Court: violation of Article 34.
KESZTHELYI AND OTHERS v. HUNGARY ■ Applications nos. 44977/20 and 2 others
FÖLDES-SZABÓ AND OTHERS v. HUNGARY ■ Applications nos. 36189/22 and 8 others
Prisoners condemned to life sentences with a possibility of release on parole only after having served long periods of time (between 25 years and 11 months and 37 years and 7 months): violation of Article 3.
MEDVID v. UKRAINE ■ Applications no. 7453/23
Clear and realistic prospect of reducibility of life sentences after new release on parole mechanism became fully operational: no violation of Article 3; violation of Article 3 for the twenty-year period prior to the entry into force of the new mechanism.
HAUGEN v. NORWAY ■ Application no. 59476/21
Civil claim for non-pecuniary damage under domestic tort law for human rights violations at the material time not an effective remedy: application admissible.
Failure to safeguard the life of the applicant’s son who suffered from psychiatric disorders and committed suicide in pre-trial detention in an ordinary prison unit: violation of Article 2.
Lack of an effective remedy for the applicant to obtain a determination of the alleged failure to protect his son’s right to life and to obtain satisfaction for the damage suffered: violation of Article 13.
CESARANO v. ITALY ■ Application no. 71250/16
Applicant facing life imprisonment not entitled to a reduced sentence of thirty years’ imprisonment in exchange for accepting to be tried under summary procedure, as this procedure was requested long after the legal framework had been amended in more severe terms: no violation of Article 7, no violation of Article 6 § 1 (partly dissenting opinion of Judge Felici).
S.M. v. ITALY ■ Application no. 16310/20
Prisoner with severe cognitive deficit and multiple diseases (HIV, Kaposi sarcoma, HIV-related encephalopathy and chronic HCV-related hepatopathy, progressive neurological deterioration, impaired mobility), requiring assistance to perform daily tasks maintained in detention, including in the context of the COVID-19 pandemic: no violation of Article 3 (partly dissenting opinion of Judge Jelić and Judge Hüseynov)
KOBALIYA AND OTHERS v. RUSSIA ■ Applications nos. 39446/16 and 106 others
Restrictions on the rights of Russian non‑governmental organisations (NGOs), including NGOs active in the area of prisoners’ rights, media organisations and individuals designated as “foreign agents”: violation of Articles 8, 10, and 11 (concurring opinion of Judge Serghides).
EUROPEAN COURT OF HUMAN RIGHTS
LOMBARDI v. ITALY ■ Application no. 80288/13 ■ First Section Committee ■ 3 October 2024
Art 3 ■ Applicant’s continued detention in prison over two years in spite of orthopaedic and neurological diseases ■ Failure to provide him with adequate medical treatment in prison
Facts ■ The applicant, who was sentenced to a cumulative term of 30 years’ imprisonment, entered the Ferrara prison in 2008. He suffered from orthopaedic and neurological diseases (recurrent spinal disc herniation, spinal arthritis and acute lumbar pain), resulting in impaired mobility (he had undergone three surgeries and had been prescribed physical therapy after his last surgery in 2006).
In 2009, the applicant applied to a supervisory court for a postponement of his sentence on health grounds. The court-appointed expert noted the deterioration of the applicant’s condition – upon arrival in prison, the applicant could walk with sufficient autonomy, two years later he had to use a wheelchair and needed assistance to stand. The expert recommended that the applicant undergo an intensive rehabilitation programme in a specialised facility. In the course of the proceedings, the applicant was transferred from Ferrara prison to Turin prison, where he received physiotherapy, and his application was rejected by the supervisory court.
The applicant immediately submitted a new application to another court, which was granted in view of the deterioration of his health and the inadequacy of the physiotherapy. The applicant was placed under house arrest in May 2011 for six months.
The applicant’s mobility improved. Citing medical reports and recommendations that he continue physical therapy, the applicant requested an extension of his house arrest. The application was rejected and the applicant returned to prison. A repeated request for house arrest was again denied by the domestic court at two levels of jurisdiction. The new medical reports noted the lack of significant improvement in the applicant’s condition and the continued need for physiotherapy. After two years in prison (2011-2013), the applicant’s renewed request for house arrest was finally granted.
The applicant spent the next five years (2013-2018) under house arrest undergoing necessary surgeries which led to the improvement of his mobility. The medical reports noted his health problems and the necessity of further physiotherapy. In 2018 another request for the extension of house detention was dismissed, and the applicant returned to prison. He was ultimately released in 2020.
The applicant complained that his continued detention in the absence of adequate treatment breached Article 3 of the Convention
Law ■ Article 3
(a) Admissibility
The Court found that the applicant’s complaint regarding his detention in 2008-2011 was belated and that his complaint regarding his detention in 2018-2020 was only formulated in his observations. The Court noted that it lacked a detailed description and was not supported by medical documents. Moreover, it was unclear whether the applicant had requested additional treatment from the prison authorities during the period in question or whether he had raised this complaint before the domestic courts. This part of the communication was therefore rejected as “not sufficiently substantiated”.
The Court limited its examination on the merits to the period between 2011-2013.
(b) Merits
General principles: Rooman v. Belgium ([GC], no. 18052/11, §§ 144-48, 2019.
Despite the applicant’s orthopaedic and neurological diseases, and his need for regular if not constant physiotherapy, he had access to only ten sessions of physiotherapy during the two-year period of his detention examined by the Court. The Court noted that a domestic court considered such treatment insufficient. The Court found this sufficient to conclude that the applicant had not received adequate care in prison, in breach of Article 3 of the Convention.
Conclusion ■ Violation of Article 3.
Article 41 ■ EUR 8,000 in respect of pecuniary and non-pecuniary damage. Claim for the costs and expenses dismissed as not supported by any documents.
ELDAR HASANOV v. AZERBAIJAN ■ Application no. 12058/21 ■ First Section ■ 10 October 2024
This summary focuses on the aspect of the complaint concerning prisoners’ rights
Art 3 (substantive) ■ Inhuman and degrading treatment ■ Inadequate medical treatment provided to a former Prosecutor General and former ambassador for his illnesses while in detention during the period between his arrest and his first transfer to a prison medical facility ■ Resulting prolonged mental and physical suffering diminishing the applicant’s human dignity ■ Medical treatment during subsequent detention adequate
Art 34 ■ Hinder the exercise of the right of application ■ State’s failure to comply with initial interim measures indicated by the Court under Rule 39 and excessively long delays in complying with subsequent measures
Facts ■ The applicant, serving a prison sentence in Baku, is the former Prosecutor General of Azerbaijan (1995-2000), and a former Ambassador (2001-2020). In August 2020 the applicant was arrested in Baku on charges of embezzlement and abuse of office. The competent domestic court ordered his detention on remand, in a facility under the authority of the State Security Service (SSS).
His appeal and a request for release on bail or for transfer under house arrest, in which he argued that he was suffering from serious health conditions, were dismissed. The applicant claimed to suffer from various chronic illnesses, including multiple disc herniations and protrusions, spinal cord compression, osteochondrosis, various cardiac and cardiovascular conditions, hypercholesterolemia, colon problem (polyps), hyperuricemia, type 2 diabetes, immunodeficiency, vitamin D deficiency.
While in detention on remand at the SSS detention facility between August 2020 and July 2021he received some medical treatment, was examined by specialists and medical commissions, and underwent some specialist consultations at the State Military Hospital (MMD hospital).
In July 2021 the applicant was temporarily transferred to the MMD hospital, in accordance with the instructions of the Court under Rule 39. Due to the lack of cooperation by the respondent Government, the Court issued in total three decisions on interim measures ordering the applicant’s transfer to a specialised facility where his state of health could be assessed and where he could receive appropriate medical treatment. (May 2021, June 2021), and ordering that he receive adequate treatment in detention, either on an outpatient or inpatient basis (November 2021). The applicant was subsequently transferred back to the SSS detention facility, and occasionally transferred to the MMD hospital for further medical examinations.
The applicant was convicted and sentenced to ten year’s imprisonment and transferred to a post-conviction detention facility in April 2022. There, his health was monitored by the Medical Department of the Ministry of Justice.
Law ■ Article 3
General principles: Kudła v. Poland [GC], no. 30210/96, § 91, 2000; Muršić v. Croatia [GC], no. 7334/13, § 97, 2016; Peers v. Greece no. 28524/95, § 74, 2001; Stanev v. Bulgaria [GC], no. 36760/06, § 203, 2012
The Court observed that when detained, the applicant had been suffering from several chronic conditions and illnesses, “including, among other things, multiple spinal disc herniations and protrusions and spinal cord compressions, various heart and cardiovascular conditions, colon problems and type 2 diabetes, and that he was taking up to twenty types of medication on a daily basis” (§ 97).
(a) The applicant’s detention between August 2020 – July 2021
As regards the adequacy of the applicant’s medical treatment in August 2020-July 2021 when detained at the SSS facility, before his hospitalisation at the MMD Hospital, the Court noted that although the applicant was initially (August-September 2020) regularly visited by a doctor (“who appears to have been a member of the SSS detention facility’s medical staff”, § 100) and underwent some medical tests, it noted that “during this period, the applicant’s complaints were addressed on a symptomatic basis, without comprehensive medical examinations in order to accurately diagnose the underlying conditions and to engage a comprehensive therapeutic strategy” (idem).
The Court also noted that although medical examinations revealed a need for specialised intervention, this recommendation was not “followed through in a prompt manner in the following months, although it appears that the authorities [had been] informed” (§ 101), and that the medical record book did not contain entries for specific periods.
The Court also observed that some of the medical interventions recommended were refused by the applicant “because of his “lack of trust” of unfamiliar doctors” (§ 101). In view of the delay in arranging an examination by a medical committee he requested, the applicant requested to be examined by private doctors of his own choice at his own expense. His requests were rejected by the prosecution.
The Court also noted that although the applicant’s state of health started to deteriorate significantly from February 2021, there had been no prompt and accurate action by the authorities as “no medical examinations or tests were carried out for more than two and a half months” (§ 104) and he did not undergo any medical examinations until April 2021 after he had already lodged a Rule-39 request with the Court. Following that, no specialised examinations or treatment were provided for until the applicant’s transfer to the MMD hospital in July 2021 (despite the fact that in the meantime the Court made two indications under Rule 39 of the Rules of Court).
The Court rejected the Government’s argument that the delay in the applicant’s transfer to the MMD Hospital was attributable to the applicant who himself refused to be transferred. The Court declared that it “does not attach significant importance to that incident, especially taking into account the lack of adequate medical assistance during the previous months and the Government’s delayed compliance with the interim measures indicated” (§ 106).
In view of the above, the Court found that there had been a violation of Article 3 for the period considered.
(b) The applicant’s detention after July 2021
The Court noted after July 2021, the applicant “received both inpatient and outpatient medical treatment which, on the whole, cannot be considered inadequate” although “there might have been some shortcomings and there might have been some time periods during which the medical supervision might not have been very regular” (§ 114).
The applicant was first hospitalized for a period of three weeks when he underwent a number of complex examinations, including some that had been recommended several months earlier. In the following months, he was also transferred to the MMD hospital on several occasions for additional medical supervision.
The Court also noted that, according to the information provided by the Government on the period following the third decision under Rule 39 (November 2021), “the applicant was under regular medical supervision as an outpatient, underwent a number of medical examinations, was allowed to be examined by doctors of his choice numerous times, and was prescribed and administered physiotherapeutic treatment and medication, and that his medication intake was supervised, as it was noted that he himself did not always regularly take the prescribed medication” (§ 113).
In view of the above, the Court found no violation of Article 3 for the period considered.
Conclusion ■ Violation of Article 3 in respect of the period of the applicant’s detention between 13 August 2020 and 2 July 2021, no violation of Article 3 in respect of the period of the applicant’s detention after 2 July 2021.
Law ■ Article 34
The Court found that the Respondent State failed to comply with its obligations under Article 34 of the Convention in view of the significant and unexplained delays in the implementation of interim measures indicated by the Court.
The Court’s first interim measures (7 May 2021) recommended the applicant’s transfer to a prison medical facility for a comprehensive medical examination and ordered the Government to inform it of the measures taken by 11 June 2021. By this date, the applicant had not been transferred and no comprehensive medical examination had been carried out. As regards the applicant’s alleged refusal to be transferred to the MMD hospital, the Court noted that the applicant was merely insisting to be transferred as an inpatient (in accordance with the Court’s decision), and that the Government did not inform it about this refusal before its June 2021 report. The Court therefore concluded that the failure of the Government to execute its decision cannot be attributable to the applicant’s conduct.
The Court adopted a second decision on interim measures on 22 June 2021, asking for the immediate transfer of the applicant to a prison medical facility. The Government complied but with a 10-day delay, which “appears very long in itself” (§ 179).
The Court adopted a third decision on interim measures on 17 November 2021, asking that the applicant be provided with any necessary and adequate medical treatment in detention, whether on an outpatient or inpatient basis, as considered appropriate by qualified doctors, and to inform the Court periodically. The Government did provide periodic reports “of which four were late and two were very late” and two were submitted after reminders from the Court (§ 182).
In view of the above, the Court found that the respondent State has failed to comply with its obligations under Article 34 of the Convention.
Conclusion ■ Violation of Article 34.
Article 41 ■ EUR 6,000 in respect of non-pecuniary damage and EUR 3,234 for costs and expenses.
KESZTHELYI AND OTHERS v. HUNGARY ■ Applications nos. 44977/20 and 2 others ■ First Section Committee ■ 10 October 2024
FÖLDES-SZABÓ AND OTHERS v. HUNGARY ■ Applications nos. 36189/22 and 8 others ■ First Section Committee ■ 10 October 2024
Art 3 ■ Life sentences with a possibility of release on parole only after having served a long period of time.
Facts ■ The 12 applicants complained of their life sentences with a possibility of release on parole only after having served long periods of time (between 25 years and 11 months and 37 years and 7 months).
Law ■ Article 3
The Court recalled it had already found a violation of Article 3 in its leading case regarding life sentences with a possibility of release on parole only after very long periods of time (see Bancsók and László Magyar v. Hungary (no. 2), nos. 52374/15 and 53364/15, 2021).
It saw no reason to depart from this conclusion and insisted that the waiting period unduly delays the domestic authorities’ review of “whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds” (Keszthelyi, § 9, quoting Vinter and Others v. the United Kingdom ([GC], nos. 66069/09 and 2 others, § 119, 2013).
Conclusion ■ Violation of Article 3.
Article 41 ■ The Court made no award of non-pecuniary damages and awarded each applicant EUR 250 in costs and expenses, except for two applicants who did not have a representative.
MEDVID v. UKRAINE ■ Applications no. 7453/23 ■ Fifth Section ■ 10 October 2024
Summary prepared by the ECtHR Registry (read also here)
Read here our analysis of the new mechanism for the release on parole of life sentenced prisoners in Ukraine.
Art 3 ■ Clear and realistic prospect of reducibility of life sentences after new release on parole mechanism became fully operational ■ New mechanism introduced by legislative reform provided life prisoners with possibility, after serving fifteen years of original life sentence, to apply for its commutation into fixed-term imprisonment that was further reducible ■ New mechanism offered applicant realistic opportunity to have life sentence reviewed within well-defined timeframe under clear conditions in compliance with Art 3 ■ Reformed system allowed for a uniformity of approach to the assessment of prisoners’ rehabilitation and reformation ■ Ultimate decision of life prisoners’ suitability for a reduction in their sentence taken by the domestic courts with prisoners’ participation and their lawyer ■ Need for life prisoners to undergo continuous rehabilitation even after life sentence commuted to a fixed term of imprisonment not overlooked ■ Reformed system efficient in theory and in practice
Art 3 ■ Situation of uncertainty with a lack of any clear and realistic prospect of early release between date of final sentencing to life imprisonment and date new release on parole mechanism became fully operational
Facts ■ On 6 November 2022 Law no. 2690-IX of 18 October 2022 entered into force amending the Criminal Code by providing the possibility for a person sentenced to life imprisonment to apply, after having served at least fifteen years of the original sentence, for its commutation into fixed-term imprisonment from fifteen to twenty years, to be served from the moment of the commutation. The period of fixed term imprisonment can be further reduced for good behaviour. Secondary legislation was subsequently introduced clarifying the procedure for the assessment of the degree to which life prisoners were reformed.
On 18 June 2003 the applicant was sentenced to life imprisonment for committing a double murder – a sentence upheld by the Supreme Court on 2 October 2003. Before the introduction of the new amendments the applicant had lodged several unsuccessful applications with the domestic courts for his life sentence to be commuted to fifteen years’ imprisonment as well as an unsuccessful application for release on parole. Following the amendments, a commission convened in the prison where he is detained to examine the degree to which the applicant had been reformed; it found that he did not qualify to lodge an application for the commuting of his life sentence to a fixed term of imprisonment.
The applicant complained that his life sentence could not be reduced in breach of Article 3 and maintained that the new release on parole mechanism for life prisoners did not remedy the situation.
Law ■ Article 3
In view of the fact that States were in principle free to choose their own criminal-justice systems and while the introduced release on parole mechanism did not foresee the possibility of direct release from life imprisonment apart from through the commutation thereof by means of a court decision, such an approach to the possibility of reducing life sentences had been examined by the Court before and had been found to be satisfactory. It appeared from the relevant legislation that a life prisoner could expect his life imprisonment to be commuted as early as the point at which that prisoner had served fifteen years of the original sentence calculated from the start of the prisoner’s pre-trial detention. It provided the prisoner with the hope that if he had engaged in good behaviour and shown signs of resocialisation, the original life sentence would be downgraded in practice to a fixed term of imprisonment of thirty years. Furthermore, if the prisoner remained on the path of reform, he or she could expect to be released after serving twenty-six years and three months of the original sentence. Such a system provided a life prisoner with a sufficiently defined procedure that offered a clear timeframe and indicated an attempt to achieve a proper balance between the interests of the person concerned and the society to which he or she strove to return.
The system allowed for a uniformity of approach to the assessment of prisoners’ rehabilitation and reformation. When considered in conjunction with the relevant legislative provisions, it appeared clear that the assessments to determine whether the prisoner in question was ready for the commutation of his sentence or for early release were not conducted at the same time. Depending on the expected outcome, the two types of assessment could be arguably said to be focused on different questions: – namely, (i) the progress that a prisoner had made in reforming (which could lead to a commutation of the sentence), and (ii) the degree of a prisoner’s rehabilitation (which could lead to early release). A commission convened within a prison was not qualified to assess the suitability of a life prisoner for early release but had to determine the degree of rehabilitation he/she had achieved for the purpose of deciding whether to commute the life sentence to a fixed term of imprisonment. Therefore, it could not be said that the contested methodology was confusing, misleading or insufficiently clear.
Furthermore, the ultimate decision in all assessments of life prisoners’ suitability for a reduction in their sentence was taken by the domestic courts, which had jurisdiction to review any findings reached by prisons and to assess all material contained in a prisoner’s prison file, with the participation of the prisoner and his/her lawyer.
Lastly, the respondent State had not overlooked the need for life prisoners to undergo continuous rehabilitation – even after a life sentence had been changed to a fixed-term sentence, with a view to possible release on parole and eventual reintegration into society; a measure in conformity with Article 3.
In the light of the above considerations and the fact that some life prisoners had succeeded in securing the commutation of their life sentence to a fixed-term sentence, it could not be said that the system was not efficient in theory or in practice.
The Court considered that the release on parole mechanism had only become fully operational on 3 March 2023 when amending Order no. 631/5 of the Ministry of Justice had entered into force. From that date the mechanism had offered the applicant the realistic opportunity to have his life sentence reviewed within the above-noted well‑defined timeframe and under clear conditions. Thus, there had been no violation of Article 3 after that date.
However, during the period before that date starting from the applicant’s final sentencing to life imprisonment (2 October 2003), the applicant had been in a situation of uncertainty without any clear and realistic prospects of early release.
Conclusion ■ Violation of Article 3 for the period prior to the entry into force of the new mechanism, No violation of Article for the period thereafter.
Article 41 ■ The finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant
(See also Petukhov v. Ukraine (No. 2), 41216/13, 2019 ; Dardanskis and Others v. Lithuania (dec.), 74452/13 et al, 2019)
© Council of Europe/European Court of Human Rights
HAUGEN v. NORWAY ■ Application no. 59476/21 ■ Second Section ■ 15 October 2024
Summary prepared by the ECtHR Registry (read also here)
Art 35 § 1 ■ Lack of effective remedies at the time of lodging the application, offering the applicant reasonable prospects of obtaining non-pecuniary damages for his son’s death ■ Civil claim under general tort law for non-pecuniary damage for human rights violations not an effective remedy at the material time ■ No statutory domestic-law provision for granting such compensation ■ Absence of consistent and unambiguous domestic court practice and relevant legislative framework unclear and uncertain ■ Recent Supreme Court rulings which provided clarification, eliminating void in domestic law and creating precedents
Art 2 ■ Failure to safeguard the life of the applicant’s son who suffered from psychiatric disorders and committed suicide in pre-trial detention in an ordinary prison unit ■ Applicant’s son in a particularly vulnerable situation and at risk of self-harm, requiring special attention, monitoring of his situation and continuous assessment of his suicide risk ■ Shortcomings in the authorities’ actions after the applicant’s son returned to prison from hospital ■ Absence of an in-depth assessment of the suicide risk and limited medical attention and treatment ■ Lack of prison healthcare service involvement in the decision to transfer him into an ordinary cell without the benefit of reinforced supervision and care ■ Serious deficiencies in the coordination of the medical care and in the communication between the various medical authorities
Art 13 (+ Art 2) ■ Lack of an effective remedy for the applicant to obtain a determination of the alleged failure to protect his son’s right to life and to obtain satisfaction for the damage suffered
Facts ■ In 2019, the applicant’s son, X, who suffered from psychiatric disorders, was sentenced to compulsory mental-health treatment following an attempted murder and other criminal acts committed in a state of psychosis. He was admitted to a secure unit at an in-patient psychiatric department, IHT Reinsvoll. X’s state of health improved as a result of his hospitalisation and treatment with antipsychotic injections. On 11 December 2019 he was transferred to a municipal residential facility with fewer security restrictions, to live in shared housing with other patients. On 17 January 2020 he killed a fellow patient there and was charged with murder. Owing to the risk of his committing suicide, X was placed in pre-trial detention in unit 1 in Oslo Prison, where detainees in need of special health treatment were held and where he was under supervision every thirty minutes. On 30 January 2020, in view of the overall suicide risk, he was admitted to IHT Sanderud hospital where he was further diagnosed with an adjustment disorder. On 4 February 2020 he was returned to Oslo Prison as the acute risk of suicide was considered lower and was being managed within the framework of follow-up counselling. He was again placed in unit 1 but on 14 February 2020, after an overall assessment by the head of department, his supervision every thirty minutes was stopped. On 28 February 2020 he was moved to an ordinary prison unit. Two days later he committed suicide.
The applicant unsuccessfully sought to have criminal proceedings instituted against the various authorities he considered responsible for his son’s death.
Law ■ Article 2
(a) Admissibility
It had not been shown by the Government that at the time of lodging of the application any of the remedies they had relied on, whether alone or in combination, would have offered the applicant reasonable prospects of obtaining non‑pecuniary damages for the death of his son.
As regards the remedy of a declaratory judgment coupled with a claim for non-pecuniary damage, the Court noted that domestic law did not contain a specific provision on State liability for damage as a consequence of a violation of the Convention. Therefore, the applicant would have had to rely on the general provisions of Norwegian tort law, more specifically section 3-5 of the Compensation Act, which required intent or gross negligence for non-pecuniary damages to be awarded in a particular case. However, the applicant’s criminal complaints had already been rejected; the domestic authorities had found that no responsibility or fault on the part of the authorities could be established. The Oslo police had explicitly stated that there had been no grossly negligent breach of official duty or professional misconduct on the part of Oslo Prison, the prison healthcare service, the District Court or the judges which had been involved in the decision to place X in pre-trial detention.
Furthermore, a number of domestic sources had indicated that at the material time the legislative framework for awarding non-pecuniary damages to victims of breaches of the Convention had been unclear and uncertain.
The Supreme Court had clarified the issue with two judgments delivered in June 2014, awarding non-pecuniary damage for violations of the Convention with reference to its Article 13. In doing so, it had confirmed that there had been no statutory provision for granting such compensation. It further made clear, with reference to the 1999 Human Rights Act, that to the extent that there was a duty under the Convention to award non-pecuniary damage to the victims of a violation of their Convention rights, their claim should be accommodated by Norwegian law, without any further legislation in principle being needed. Although those rulings had created precedents for the future, filling in an apparent void in Norwegian law, they could not provide any redress for the applicant in the present case.
Most importantly, there were no factors justifying a departure from the general principle whereby the assessment of whether domestic remedies had been exhausted was carried out with reference to the date on which the application had been lodged before the European Court.
Nor could the remaining remedies relied on the Government be considered effective in the circumstances: section 2-1 of the Compensation Act related solely to pecuniary damage; section 4 of the Patient Injury Act expressly excluded from its ambit any compensation claims for non-pecuniary damage under section 3-5 of the Compensation Act, and the Norwegian Parliamentary Ombud could not issue binding decisions.
(b) Merits
The Court held that the applicant’s mental disorders had been of considerable gravity and that his risk of suicide must have been well known to the authorities.
As regards the Government’s argument that X’s mental state had improved to such an extent that the authorities had no longer needed to be aware of his heightened risk of suicide, the Court noted that such a conclusion could not be accepted in the absence of any in-depth assessment of his risk of suicide following his release from IHT Sanderud. In any event, given all the circumstances, the authorities had known or ought to have known that X had been in a particularly vulnerable situation and at risk of self-harm, which had required special attention, monitoring of his situation and continuous assessment of his suicide risk.
As to the measures that had been taken by the authorities to mitigate the suicide risk, it did not appear that X had undergone a complete forensic psychiatric examination as recommended by the psychiatrist who had examined him immediately after his arrest. Although action had been taken to safeguard X’s life in Unit 1 and IHT Sanderud, following his return to Oslo Prison in February 2020 there had been a number of shortcomings in the authorities’ subsequent actions.
Firstly, it had remained unclear which of the various health authorities that had been involved in X’s case had assumed ultimate responsibility for his medical treatment and follow-up during his detention in Oslo Prison. Following his return to that prison, it seemed that he had not been provided with any sort of treatment or therapy for his suicidal thoughts or diagnosed adjustment disorder, and his mental state or risk of suicide had never been assessed. Between his return and his placing in the ordinary prison unit he had had only had two visits from senior psychiatrists, who had primarily come to administer prescribed antipsychotics and had had a short conversation with him. The lack of follow-up had been criticised by the County Governor as “a deviation from good practice” to provide routine healthcare to detainees by the prison healthcare service of such a degree as to amount to a “breach of professional care” on its part.
Secondly, the Court had serious concerns about the manner in which X had been transferred to an ordinary prison unit, where he had no longer been under close supervision and had unrestricted access to items suitable for taking his own life, such as strings and ropes, which he had ultimately used to take his own life two days later. There had been no detailed information, let alone documents, to show that any medical professionals had in fact been involved in the decisions to terminate his close supervision or to transfer him to an ordinary prison unit.
Accordingly, there had been serious deficiencies in the coordination of X’s medical care and in the communication between the various medical authorities involved in his case, which had resulted in X being provided with only limited medical attention and treatment after his return from IHT Sanderud, despite his diagnosed mental disorders and repeated suicidal thoughts. Ultimately, that had culminated in his transfer to an ordinary prison unit, where he no longer had the benefit of reinforced care and supervision and where he took his life only two days later. The authorities therefore had not done everything that could reasonably have been expected of them to safeguard the life of the applicant’s son, who had been entirely under their control.
Conclusion ■ Violation of Article 2.
Law ■ Article 13
In view of the Court’s finding under Article 2 the applicant’s complaint was “arguable” for the purposes of Article 13 taken in conjunction with that provision. The Court had found within the framework of the Government’s preliminary objection for non-exhaustion of domestic remedies under Article 2, that the applicant had not had available to him an appropriate means of obtaining a determination of his allegations that the authorities had failed to protect his son’s right to life and the possibility of including of obtaining an enforceable award of compensation for the damage suffered thereby. That was an essential element of a remedy under Article 13 for a bereaved parent.
Conclusion ■ Violation of Article 13.
Article 41 ■ EUR 30,000 in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
CESARANO v. ITALY ■ Application no. 71250/16 ■ First Section ■ 17 October 2024
Art 7 ■ Heavier penalty ■ Domestic courts’ refusal of applicant’s request for a reduction of his sentence from life imprisonment to thirty years’ imprisonment after he chose to be tried under summary procedure ■ Assessment not in abstracto but based on specific case circumstances ■ Applicant not entitled to a sentence of thirty years’ imprisonment as summary procedure requested long after statutory framework amended in more severe terms, with that term being substituted by life imprisonment without daytime isolation ■ Procedural choices of a defendant and subsequent terms of any agreement between a defendant and the State pivotal as regards applicable penalty ■ Length of reduced sentence to be imposed in the event of a conviction to be clearly identified by the law in force at the time of the agreement ■ Identification of most lenient law among all the laws in force during the period between commission of the offence and the delivery of the final judgment strictly linked to domestic court’s agreement to the applicant’s request for a summary trial ■ Offences committed punishable with life imprisonment with daytime isolation but applicant, after trial under summary procedure, sentenced to life imprisonment without daytime isolation, a more lenient penalty
Art 6 § 1 (criminal) ■ Fair hearing ■ Request for summary procedure constituting an unequivocal waiver of certain procedural safeguards in exchange for certain advantages, including life imprisonment without daytime isolation ■ No legitimate expectation on the basis of the legal framework at the material time of incurring another sentence ■ Imposition of penalty foreseeable
Facts ■ The applicant stood trial in 1995 on charges of mass murder (strage) and murder, committed in 1983. At the material time, these crimes were punishable by a life sentence with daytime isolation. A law adopted in April 1999 (entered into force in January 2000) allowed defendants facing a sentence of life imprisonment to be tried under the summary procedure (consisting of the defendant waiving a number of procedural safeguards), in which case their sentence would be of a maximum of thirty years’ imprisonment. At the time, the applicant did not request to be tried under the summary procedure to have his sentence reduced to thirty years.
In November 2000, a Decree-Law specified that defendants facing life imprisonment with daytime isolation, such as the applicant, could only have their sentence reduced to life imprisonment without daytime isolation – not to a thirty-year term.
The applicant was sentenced in October 2007, following a trial under the ordinary procedure (the penalty imposed at this stage is not clear).
In September 2009, the Court handed down the judgment Scoppola v. Italy (no. 2) ([GC], no. 10249/03, 17 September 2009. In this judgment, it found a violation of Article 7 on the grounds that the authorities failed to grant Mr Scoppola a reduction of his life sentence to thirty years’ imprisonment, although he had been tried under the summary procedure. It also found a violation of Article 6 § 1 “as a result of the frustration of [Mr Scoppola]’s legitimate expectation that thirty years’ imprisonment was the maximum sentence to which he was liable” (§ 12).
In February 2010, the applicant’s conviction was quashed by the Court of Appeal. In 2012, he was tried again on the same charges and asked to be tried under the summary procedure. Following a trial under the summary procedure, the applicant was sentenced to life imprisonment without daytime isolation. The judge argued that the situation of the applicant was not identical to that of Mr Scoppola, who had been tried before the 2000 Decree-law (limiting the possibility to obtain a thirty-year term to defendants facing life sentence without daytime isolation) entered into force.
This decision was confirmed before the Appeal and Cassation courts.
The applicant complained under Article 7 that although he had been tried under the summary procedure, he was sentenced to life imprisonment and not to a thirty-year term. He argued that his sentence was heavier “than the one prescribed by the law which, of all the laws in force during the period between the commission of the offence and the delivery of the final judgment, had been the most favourable to him” (§ 53).
Law ■ Article 7
The Court observed that at the time the applicant committed the crimes of which he stood accused (1983), and at the time he was first committed to trial (1995) the legal framework did not afford the possibility to be tried under the summary procedure.
When the 1999 law, allowing defendants liable to life imprisonment opting for the summary procedure to face a maximum sentence of thirty years, entered into force, the applicant’s proceedings were pending. He did not avail himself of this possibility.
When the applicant was retried in 2012, following the quashing of his conviction at first instance, and asked to be tried under the summary procedure, that was already long after the relevant legal framework had been amended in more severe terms (in 2000): for defendants facing a life sentence with daytime isolation tried under the summary procedure, the maximum term of thirty years’ imprisonment had been substituted by life imprisonment without daytime isolation. The applicant did not provide any reason justifying his belated request.
This contrasts with the case of the applicant in Scoppola, who requested the summary procedure at the preliminary hearing immediately after the enactment of the 1999 law introducing it. In the applicant’s case, “by the time [he] requested the summary procedure, the penalty of thirty years’ imprisonment was no longer a possible sentence for the crimes of which he stood accused at his trial under that procedure” (§ 82).
The Court further observed that in this case, the possibility to benefit from a reduced sentence “depends on the procedural and defence choices made by the accused person and plays a role […] in determining the starting-point of the time frame within which the most lenient penalty is to be identified” (§ 84). The Court insisted that “the penalties applicable in the abstract in summary procedures before the individual’s choice is made should not be considered among those relevant for the identification of the lex mitior in a given case, as they do not pertain to the legal instruments applicable in concreto in the accused’s situation” (idem). Otherwise, the rationale behind the purpose of the summary procedure would be undermined.
Consequently, the Court argued that in this specific case, it is “the date of the applicant’s request to be tried under the summary procedure which marked the beginning of the time frame to be taken into account for the identification of the law prescribing the more lenient penalty” (§ 85). The applicant having applied for a summary procedure long after the relevant legal framework had been amended in more severe terms, “the applicant was no longer entitled to a sentence of thirty years’ imprisonment” (§87).
Conclusion ■ No violation of Article 7.
Law ■ Article 6 § 1
The Court referred, of its own motion, a question to the parties under Article 6 § 1. The Court noted that the applicant, who was assisted by a lawyer of his choice, voluntarily requested to be tried under the summary procedure and therefore to waive a number of procedural guarantees (to have a public hearing, to have witnesses called, to produce new evidence, to examine prosecution witnesses), in exchange for a more lenient penalty.
The Court noted that at the time the applicant (who faced life imprisonment with daytime isolation) chose to be tried under the summary procedure (2012), the relevant legal framework in force provided that this more lenient penalty would be life imprisonment without daytime isolation.
Accordingly, the Court found that the imposition of that penalty was foreseeable and did not infringe his right to a fair trial.
Conclusion ■ No violation of Article 6 § 1.
Partly dissenting opinion of Judge Felici ■ Judge Felici disagreed with the majority that Article 7 had not been violated in this case and argued that this conclusion goes against the principle established in Scoppola, according to which the applicant should be sentenced in accordance with “the law which, of all the laws in force during the period between the commission of the offence and delivery of the final judgment, was most favourable to him” (Scoppola, § 119).
Judge Felici argued that this principle being well established, this case (which cannot be distinguished from Scoppola) should have been dealt with by a Committee; or, if there were reasons to think this well-established principle should have been amended, should have been relinquished to the Grand Chamber.
He further argued that by posing the “question whether the time frame within which the most lenient law is to be identified runs in abstracto from the commission of the offence until the final conviction or whether, when it comes to simplified procedures – which depend on a request by the accused person – the time frame begins from the moment at which such a request is formulated”, the judgment “introduce[d] an element that is entirely exogenous to the assessment which the Court is called upon to carry out” and limited the scope of the principle established by the Grand Chamber (§ 4).
Judge Felici insisted that the present judgment “does not provide acceptable reasoning and […] introduces confusion between the procedural and substantive aspects”, whereas Scoppola clearly considers the legal provision introducing the possibility to be sentenced to a more lenient penalty after having agreed to be tried under the summary procedure “is a provision of substantive criminal law concerning the length of the sentence to be imposed in the event of conviction following trial under the summary procedure” (idem, quoting Scoppola, § 113).
S.M. v. ITALY ■ Application no. 16310/20 ■ First Section ■ 17 October 2024
Art 3 (substantive) ■ Sufficient measures to protect a vulnerable disabled detainee suffering from multiple HIV-related conditions from the risk of contracting COVID-19 ■ Adequate medical care ■ No evidence of any deterioration of the applicant’s state of health state or that he did not receive treatment in prison ■ Authorities showed sufficient diligence in searching for alternative accommodation ■ Continued detention not amounting to inhuman or degrading treatment ■ Domestic authorities, faced with a global pandemic of a novel disease, acted with sufficient diligence in implementing measures for the prevention of COVID-19 ■ Domestic authorities under no obligation to grant the applicant house arrest and refusal to do so in case-circumstances not unreasonable
Art 35 § 1 ■ Exhaustion of domestic remedies ■ Present application filed while proceedings pending before the competent Supervisory Court ■ Applicant’s uncertainty as to the possibility of having his case considered promptly in view of suspensions and delays affecting proceedings before that court at the outbreak of the COVID-19 pandemic and his decision to apply to the Court without waiting longer, justified
Facts ■ The applicant was convicted for several offences committed between 1998 and 2015 (including theft, fraud, drug possession and trafficking, unauthorised possession of weapons, forgery and tax evasion). He was sentenced to over eleven years’ imprisonment and had been detained since 2010. In view of his severe cognitive deficit and multiple diseases (HIV, Kaposi sarcoma, HIV-related encephalopathy and chronic HCV-related hepatopathy, progressive neurological deterioration, impaired mobility), causing him to need help to perform daily tasks which were repeatedly found to be incompatible with detention, he was initially placed under house arrest. The applicant’s placement under house arrest was revoked in November 2019 following several incidents and he was placed in Milan San Vittore Prison.
In March 2020, the applicant unsuccessfully petitioned the domestic courts for his transfer to house arrest in view of the risks associated with the COVID pandemic and the aggravated situation in prison. His request was denied. Domestic courts eventually granted the repeated request in July 2020. A year later, in July 2021, he completed his sentence.
The applicant complained that the authorities had not taken sufficient steps to protect him from the risk of contracting COVID-19 while in detention, in breach of Article 2; and that his continued detention in spite of his multiple diseases and the risk of contracting COVID-19, was in breach of Article 3 of the Convention.
Law ■ Article 2 & Article 3
(a) Legal characterisation of the complaints
The Court noted, with reference to Fenech v. Malta (no. 19090/20, §§ 104-08, 1 March 2022), it was not possible to rule out the possibility that, on account of the nature of the applicant’s underlying health condition (HIV with multiple correlated diseases), he had been at an increased risk of developing a severe form of COVID-19.
Nevertheless, the Court cannot speculate as to whether the applicant’s health condition would have made it certain or quite likely for him to die in case of an infection with COVID-19. Moreover, the Court attached importance to the fact that, during his detention, the applicant did not contract that disease. In such circumstances, the Court considered that the facts complained of by the applicant do not call for a separate examination under Article 2 of the Convention but would be more appropriately examined under Article 3 instead.
(b) Admissibility
The Court rejected the Government’s objections relating to the applicant’s alleged failure to exhaust domestic remedies. The Government argued that the applicant filed his complaint to the Court while proceedings on the applicant’s request to be placed under house arrest were still pending. The Court noted that the competent domestic court was facing organisational problems as a result of the COVID-19 pandemic, which fuelled the applicant’s “uncertainty as to the possibility of having his case considered promptly” (§ 46). In these particular circumstances, the Court therefore held that the applicant’s decision to submit his application to it immediately, without waiting for a final decision by the national courts, was justified.
The Court held that part of the applicant’s complaint relating to the alleged absence of a comprehensive and adequate therapeutic care plan was manifestly ill-founded, as the applicant had not specified the treatment he needed and which he had been denied. Similarly, the Court dismissed the applicant’s complaint concerning the assistance provided to him by a carer in prison on the basis of the contradictory and unspecific accounts he had given before the Court and at the domestic level. These parts of the complaint were therefore declared inadmissible as manifestly ill-founded.
(c) Merits
General principle: Rooman v. Belgium [GC], no. 18052/11, §§ 144-48, 2019, Tarricone v. Italy, no. 4312/13, §§ 71-80, 2024; see also Fenech v. Malta, no. 19090/20, §§ 19-29, 2022 on the specific context of the COVID-19 pandemic.
(i) Compatibility of the applicant’s state of health with detention
In view of the applicant’s health conditions and lack of autonomy in performing daily tasks, the Court found it “sufficiently established that he was more vulnerable than other detainees to the dangers posed by COVID-19” (§ 84).
As to the quality of care, the Court noted that there was no indication that the applicant’s state of health deteriorated in prison; and that a medical certificate shows that he had been monitored by a virologist, received antiretroviral treatment and had several specialist examinations scheduled.
As to the applicant’s continued detention, the Court took note that a number of domestic authorities “had acknowledged the incompatibility of his state of health with detention in prison” (§ 91). However, the medical reports on which these decisions had been made have not been made available. The Court also referred to a 2018 medical report stating that the applicant could remain in prison and did “not see any reason to call that finding into question” (§ 93): the documents available do not show a deterioration of the applicant’s state of health that would have commanded his release, nor that the medical treatment required was not available or not provided in prison.
Furthermore, the Court noted that the applicant was placed in the prison infirmary, and eventually placed in a residential unit, which shows the authorities “sufficient diligence in searching for alternative accommodation” (§ 95). The Court therefore concluded that there had been no violation of Article 3 of the Convention in respect of the compatibility of the applicant’s state of health with detention.
(ii) Protection against the risk of contracting COVID-19
The Court noted from the outset that the applicant did not contract COVID-19. However, the Court underlined that given the applicant’s state of health and “the nature and effects of COVID-19 and the fact that it can be easily transmitted, the applicant’s fears for his health should he contract the virus were not insignificant” (§ 101, see also Epure v. Romania, no. 73731/17, § 80, 11 May 2021). The Court nevertheless stressed that “at the time in question, such fears were shared by a vast majority of the population, within or outside prison” (idem) and therefore decided to examine whether, considering his specific vulnerability, “the applicant was exposed to a significantly higher risk of contracting COVID-19 in prison than the population outside” (§ 102).
In this respect, the Court noted that the authorities adopted decrees in March and April 2020 setting out specific measures (encouraged use of alternative measures, quarantine for persons entering prisons, limited contacts with the outside world). The Court also referred to the precautionary measures put in place by the authorities masks, safe distancing and sanitising procedures), and to the 2022 CPT report which described some of the measures adopted (quarantine for all persons entering prison, limited contact with the outside world and increased use of non‑custodial measures).
Although the Government did not provide detailed information on the measures taken in San Vittore Prison, the Court noted that “the applicant has not specifically contested the Government’s arguments, nor has he suggested any additional measures that should have been adopted by the domestic authorities” (§ 107).
As regards the applicant’s complaint that he had to share a cell with other inmates, the Court stated that “given the practical demands of imprisonment and the novelty of the situation, it may not be possible to make arrangements for each vulnerable individual to be moved to safer quarters” (§ 109, see also Fenech, § 137).
Concerning the applicant’s argument that he should have been provided with alternative accommodation, the Court considered that although “domestic and international instruments called for increased recourse to alternative measures” (§ 111), the domestic authorities were not “under an obligation to grant him house arrest” (idem). The Court also found reasonable the argument of the supervisory judge having rejected his application for house arrest that residential units were not accepting new patients as a result of the COVID-19 pandemic, and that “staying in prison, where he could receive medical treatment, was for the time being in [his] best interests” (§ 112).
Conclusion ■ No violation of Article 3.
Partly dissenting opinion of Judge Jelić and Hüseynov ■ Judges Jelić and Hüseynov concurred with the finding of no violation of Article 3 of the Convention in respect of the compatibility of the applicant’s state of health with his continued detention. However, they disagreed with the majority’s finding that there has been no violation of Article 3 of the Convention in respect of the measures to protect the applicant from the risk of contracting COVID-19.
They argued that “the Government have failed to convincingly demonstrate that all necessary measures were taken in Milan San Vittore Prison to prevent or limit the spread of COVID-19 and to protect the particularly vulnerable applicant prisoner with pre-existing health conditions from the risk of contracting the coronavirus disease” (§ 4). In particular, the Government has not provided specific information on the measures taken at San Vittore prison. The Judges also criticised the majority’s reliance on the 2022 CPT report on Italy, which does not concern this prison either. They also criticised the majority’s argument that the applicant had not “suggested any additional [precautionary] measures that should have been adopted by the domestic authorities”, which is “at odds with the Court’s case-law relating to the distribution of the burden of proof in the context of Article 3” (§ 7).
The Judges also argued that the majority failed to draw all necessary conclusions from the Fenech judgment. While they agree that the broad statement that “given the practical demands of imprisonment and the novelty of the situation, it may not be possible to make arrangements for each vulnerable individual to be moved to safer quarters in the prison” (§ 9), they also recall that the Fenech judgment insists that “refined allocation procedures should be considered allowing prisoners at highest risk” (idem, quoting Fenech, § 137), such as the applicant in the case at hand. In this respect, the Judges noted that there was “no indication that any specific measures were adopted [by the Italian authorities] in respect of detainees who, like the applicant, were particularly vulnerable” (§ 10, see contra Faia v. Italy (dec.) [Committee], no. 17222/20, 29 August 2023).
KOBALIYA AND OTHERS v. RUSSIA ■ Applications nos. 39446/16 and 106 others ■ Third Section ■ 22 October 2024
Art 10 and Art 11 ■ Freedom of expression ■ Freedom of association ■ Expanded application of “foreign agents” legislation to media organisations, journalists, activists and other individuals ■ Vague and unpredictable criteria for “foreign agent” designation leading to arbitrary application ■ Absence of “relevant and sufficient” reasons for designating applicants as “foreign agents” ■ Lack of “pressing social need” for burdensome labelling requirements on all public communications ■ Stigmatising effect of mandatory “foreign agent” label chilling public discourse and civic engagement ■ Disproportionate and excessive fines for non-compliance with labelling rules ■ Forced dissolution of NGOs as extreme sanction for alleged violations ■ Expanded “foreign agents” framework incompatible with pluralism and “not necessary in a democratic society”
Art 8 ■ Private life ■ Multiple and unjustified repercussions on individual applicants’ private and professional life as a result of their designation as “foreign agents” ■ Publication of applicants’ personal data on Ministry of Justice website not serving any public interest ■ Obligation to submit frequent and detailed reports on personal income and expenses exceeding what could be considered necessary to ensure transparency ■ Broad restrictions on the exercise of certain professions including teaching minors and writing for the youth unjustified
Facts ■ The case concerned restrictions on the rights of Russian non‑governmental organisations (NGOs), media organisations and individuals designated as “foreign agents”. The applicants complained that the statutory requirements introduced by the “foreign agent” legislation and the practice of its application had constituted restrictions on their freedom of expression and association, in breach of Articles 10 and 11. Individual applicants further alleged that these measures have violated individual applicants’ right to respect for private life under Article 8.
Among other numerous various restrictions, “foreign agents” were barred from participation in the Public Monitoring Commissions – formally independent bodies carrying out prison visits (read in this respect our submission to the Committee in Ministers concerning the implementation of the case Buntov v. Russia, no. 27026/10, 2012). See the table appended to the judgment for further details on the restrictions and sanctions imposed.
Law ■ Articles 10 and 11
(a) Existence of an interference
The Court noted that designating organisations or individuals as ‘foreign agents’ was “stigmatising”, triggered additional “accounting, auditing and reporting requirements” and imposed restrictions on their activities (§ 67). The Court also noted that non-compliance with the ‘foreign agent’ legislation resulting in “sanctions and penalties ranging from administrative fines to forced dissolution” (idem). All this resulting in an interference with the applicant’s rights.
(b) Justification for the interference
The Court noted that the shortcomings of the legal framework governing the status of ‘foreign agent’ were further aggravated since its first leading judgment on the matter (Ecodefence and Others v. Russia, nos. 9988/13 and 60 others, 2022) as its scope was significantly broadened to include journalists, bloggers, content creators, public figures and “any individual engaged in broadly defined ‘political activities’” (§ 73).
Furthermore, the stigmatising effect of the ‘foreign agent’ labelling has been reinforced, including by the imposition of new restrictions excluding individuals and organisations from specific activities “such as holding public office, participating in election commissions, supporting political campaigns, educating minors and producing content for children” (§ 75).
The Court also noted that the requirement to label all communications of organisations designated as a ‘foreign agent’ with a notice on their status was applied indiscriminately, “without regard to the actual content or context of the publications” (§ 82), whereas the standards of freedom of expression require a “context-based assessment” (idem). The notice also almost equalled the character limit on social media, thereby limiting the targeted organisations’ capacity to effectively make use of those.
Examples provided by the Court on the use of the law led it to conclude that “the authorities’ purpose was punitive rather than seeking to increase transparency” and that the severity and scope of the sanctions “were manifestly disproportionate to the declared aim of ensuring transparency” and created “a significant chilling effect on civil society and public debate” (§ 97).
The Court concluded that the legislative framework was arbitrary and “not necessary in a democratic society” (§ 98) and “has contributed to shrinking democratic space by creating an environment of suspicion and mistrust towards civil society actors and independent voices, thereby undermining the very foundations of a democracy” (idem).
Conclusion ■ Violation of Article 10 and Article 11.
Law ■ Article 8 in respect of individual applicants
(a) Existence of an interference
The Court noted that the designation of individual applicants as ‘foreign agents’ had multiple repercussions. First, those individuals’ personal data were published on the Ministry of Justice’s website (names, dates of birth, tax and social security numbers); second, they were required to report regularly to the Ministry of Justice on their incomes and expenses (regardless of the importance and origin of the sums declared); third, they were barred from exercising certain professions, to interact with the youth, and from receiving revenues from private advertisers – which resulted in a loss of income and limited possibility to pursue a career.
(b) Justification for the interference
The Court reiterated that the broad scope of the law led to a misuse of the label of ‘foreign agent’, which “does not require evidence of any actions undertaken in the interests of foreign entities” (§ 112). Against this background, “this fundamental flaw […] undermines any possible justification for the various forms of interference with the applicants’ private lives” mentioned above (§ 113).
Conclusion ■ Violation of Article 8.
Article 41 ■ n respect of non-pecuniary damage, the Court awarded sums varying between EUR 5,500 and 30,000 (the Court reserved the determination of the non-pecuniary damages in respect of some of the applicants); in respect of pecuniary damage, sums varying between EUR 700 and 955,000 were awarded; for costs and expenses the awards varied between EUR 700 and EUR 9,900.
Concurring opinion of Judge Serghides ■ Judge Serghides, elaborated on the negative aspects of the freedom of expression (Article 10) and the freedom of association (Article 11), i.e. the right “not to be compelled to express oneself” (§ 3, see also § 84 of the judgment) and the right “not to be forced to join [an association]” (§ 4), which have been under-addressed in the Court’s case law.
This negative aspect of these rights is of paramount importance for the “full, comprehensive, and holistic protection of a right or freedom [which] is a requirement of the principle of effectiveness which ensures that the right or freedom is protected from every angle so that no aspects are left unexamined and unprotected” (§ 84).
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