TABLE OF CONTENTS
January – April 2021
January 2021
Kargakis v. Greece (no. 27025/13) – conditions of pre-trial detention incompatible with the state of health: violation of Article 3; ineffective remedy as to the appeal to the decision of placement in pre-trial detention: violation of Article 13 taken in conjunction with Article 3; sixty-five days of review of the appeal: the proceedings is not regarded as lengthy in light of the circumstances of the case, no violation of Article 5 § 4.
Shlykov and Others v. Russia (nos. 78638/11, 6086/14, 11402/17, and 82420/17) – Insufficient justification for prolonged systematic handcuffing of life prisoners without regular and individualised review of specific security concerns: violation of Article 3 and of Article 6 § 1 as regards particular applicants.
February 2021
Ramazan Demir v. Turkey (no. 68550/17) – unjustified limitations on a prisoner’s ability to access Internet sites publishing legal information, on security grounds: violation.
March 2021
Loizou v. Greece (no. 17789/16)* – continued pre-trial detention, interrupted to serve a prison sentence for other offenses, in the absence of a clear legal basis in national law: violation of Article 5 § 1; unreasonable delay in the decision on the legality of the applicant’s detention: violation of of Article 5 § 4.
Fenech v. Malta (no. 19090/20) – lawful suspension of criminal proceedings for unspecified time during Covid-19 crisis and continued detention lasting three months: inadmissible.
D.C. v. Belgium (application no. 82087/17) – placement in compulsory confinement of a person based on a psychiatric expertise – no violation of Article 5 § 1; lawfulness of the proceedings leading to such placement – no violation of Article 5 § 4.
April 2021
Venken and Others v. Belgium – 46130/14, 76251/14, 42969/16 et al. – Compensation of a sufficient amount covering the entire period of the applicants’ compulsory confinement in the psychiatric wing of a prison: loss of victim status; inadmissible; Compulsory confinement of mentally-ill offenders for a significant period in the psychiatric wing of a prison without hope of change and without appropriate medical support: violation
E.G. v. the Republic of Moldova – 37882/13 – Article 35-1, Six-month period, account taken of entire period of failure to enforce sex offender’s sentence for purposes of six-month rule: preliminary objection dismissed; Article 3 and Article 8: Failure by authorities to enforce sex offender’s sentence following grant and subsequent annulment of amnesty: violation.
SUMMARIES
14 January 2021
Kargakis v. Greece (no. 27025/13)
Art 3 (material) • Poor conditions of detention (handicap and duration)
Art 13 + 3 • Effective remedy • Failure to respond to complaints relating to conditions of detention, notwithstanding the release of the person concerned
Art 5 § 4 • Control on short notice • 65-day period between the request for release citing medical reasons and the release order • Extension partially due to the legal obligation for the investigating judge to consult the prosecution • Complexity of the case • The fact that the detention had already itself been decided by an examining magistrate, an authority offering guarantees of independence and impartiality • Longer tolerable delays
Facts – The applicant, being a wheelchair-bound diabetic, having suffered from several strokes throughout the time of his pre-trial detention and diagnosed with reactional self-destructive depression, complained of having been placed in a cell of 20 sq. m. with four other inmates, unsanitary conditions of detention, as well as no adaptation to the needs of people with disabilities. The food was also not suitable for his health conditions. The complaints also included the impossibility for him to benefit from the authorised exercise periods because of the lack of adaptation of the courtyard for persons with disabilities.
Mr Kargakis lodged appealed with the judge against the order placing him in pre-trial detention. There were several requests from him to speed up the examination of this appeal. The prosecutor has pointed to the grave state of health of Mr Kargakis and the need to replace pre-trial detention with other restrictive measures. Although the investigating judge has supported this submission, later on, Mr Kargakis was sentenced to five years’ imprisonment. He appealed against this decision.
Law – Article 3:As regards the complaint regarding personal living space, the Court has noted that each prisoner benefited from an individual area of approximately 4.4 sq. m. The Court could not comment on the applicant’s allegations regarding conditions relating to heating, hot water, lighting, cleanliness of dormitories and provision of hygiene items. However, it has noted that the prison where the applicant had been held did not have any canteen and the prisoners had to eat their meals in their cells right on their beds. The Court has admitted that, indeed, the courtyard was not adapted to the needs of the applicant, the food in prison was not appropriate for his diabetic condition, and that he should have shared the cell with smokers, which was in direct breach of his doctor’s prescriptions. After the examination of all relevant circumstances, the Court concluded that there has been a violation of Article 3 of the Convention due to poor conditions of detention of the applicant.
Article 13 read in conjunction with Article 3: The Court has examined the available remedy from the point of view of its effectiveness both in law and in practice. During his appeal against the decision to put him in pre-trial detention, the applicant has emphasised his health conditions and invalidity, having noted that the poor conditions of detention were incompatible with his state of health.
The Court noted that although the investigating judge had eventually decided to release the applicant on a licence, he had only done so after ascertaining that the latter was unlikely to commit any further offences. There has been lack of scrutiny on the part of the investigating judge in the analysis of the applicant’s conditions of detention and his state of health, notwithstanding the opinion of the prosecutor who was of an opinion that the applicant should be released from pre-trial detention on the medical grounds because his continued detention in prison conditions incompatible with his state of health was capable of putting his life at risk. The Court found the remedy available to the applicant ineffective, therefore, it has confirmed violation of Article 13 of the Convention read in conjunction with Article 3.
Article 5 § 4:Regarding the “speediness” requirement of Article 5 § 4, the Court has taken into account the whole period of the examination of the applicant’s appeal for his release on license. The proceedings lasted for sixty-five days. The ECtHR has also noted that the court that ordered the placement of the applicant to pre-trial detention was independent and impartial. The Court has evaluated the examination of the appeal by the investigating judge as independent and impartial as well, which has also adjudicated on the basis of the public prosecutor’s opinion. The proceedings were relatively complex in both legal and factual terms, as the investigating judge had to assess the appeal against the decision to put the applicant in pre-trial detention.
The Court pointed to the relative complexity of the proceedings before the investigating judge in both legal and factual terms. The investigating judge had to assess, at second instance, the applicant’s appeal against his placement in detention. The involvement of the public prosecutor’s office where the appeal has been transferred before the hearing could have also impacted the length of the proceedings. Therefore, the ECtHR has concluded that the requirement of “speediness” was complied with taking into account the circumstances of the case. Therefore, the Court has declared that there has been no violation of Article 5 § 4 of the Convention.
Conclusion: violation of Article 3, violation of Article 13 taken in conjunction with Article 3, no violation of Article 5 § 4 of the Convention.
Article 41: EUR 3,900 in respect of non-pecuniary damage and EUR 1,000 in respect of costs and expenses.
19 January 2021
Shlykov and Others v. Russia (nos. 78638/11, 6086/14, 11402/17, and 82420/17)
Art 3 • Degrading treatment • Insufficient justification for prolonged systematic handcuffing of life prisoners without regular and individualised review of specific security concerns
Art 3 • Degrading treatment • Cumulative factors of isolation and limited outdoor exercise during life imprisonment • Possible risk of institutionalisation syndrome
Art 6 § 1 (civil) • Fair hearing • Applicants’ inability to attend hearings in civil proceedings which they instituted to challenge systematic handcuffing
Facts – The four applicants, all serving sentences of life imprisonment at various prison facilities, were systematically subjected to handcuffing every time they left their cells on the grounds that they had a life sentence, had disciplinary records or had been placed under surveillance as dangerous prisoners by a prison commission.
Law – Article 3: The applicants had been handcuffed for long periods of time every time they left their cells. Even though their handcuffing had not been exposed to the public, any such measure that diminished self-esteem or self-image in the eyes of others, especially when lasting for extended periods of time, had to be considered as potentially “degrading”.
The routine handcuffing of persons sentenced to life imprisonment did not seem to be based on domestic legislation. The relevant domestic provisions did not require that inmates sentenced to life imprisonment be handcuffed systematically when leaving their cells but presupposed discretion. It also transpired from domestic practice that this measure had not been applied automatically in all detention facilities housing such inmates. Nonetheless, when handcuffing had been applied routinely, the prisoners concerned found it very difficult to obtain a change in their situations. Furthermore, although the applicable domestic regulations provided that the use of restraint measures had to be regularly reviewed, there was no evidence that this had been systematically done during the applicants’ detention. Nor had any evidence been submitted of conduct that would have justified the use of the routine measure upon the applicants for extended periods of time. In the absence of evidence of any risk assessment by the authorities in charge of the applicants, it was unclear to the Court how the prison administration and domestic courts had reached and maintained their conclusions that the measure applied had been prompted by such a risk.
Although the Court was mindful of the difficulties States might encounter in maintaining order and discipline in penal institutions and that disobedience of detainees might quickly degenerate into violence, a life sentence could not justify routine and prolonged handcuffing that was not based on specific security concerns and the inmate’s personal circumstances and not be subject to regular review. Furthermore, restraint measures against life-sentenced prisoners could only be taken as a proportionate response to a specific risk for the time strictly necessary to counter that risk.
The applicants in the present case had been handcuffed for prolonged periods every time they left their cells, without a proper evaluation of their individual situation and any regular assessment of whether the application of the measure in question was appropriate or pursued a specific aim. In view of this, their systematic handcuffing in a secure environment had been a measure which lacked sufficient justification and could thus be regarded as degrading treatment.
Conclusion: violation (unanimously)
The Court also held, unanimously, that there had been a violation of Article 3 on account of the conditions of the prison regime in which one of the applicants had been held, and of Article 6 § 1 on account of some of the applicants having been deprived of the opportunity to attend hearings in the proceedings they had instituted to challenge the practice of systematic handcuffing.
Article 41: the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by one of the applicants; EUR 3,000 to another applicant and EUR 1,950 for each of the remaining two applicants in respect of non-pecuniary damage.
Article 46: respondent State invited to implement measures of a general character with regard to a violation of Article 3 (the practice of prolonged handcuffing of life prisoners).
(See also Goriunov v. the Republic of Moldova, no. 14466/12, 29 May 2018; Yevdokimov and Others v. Russia, nos. 27236/05 and 10 others, 16 February 2016, Legal Summary)
© Council of Europe/European Court of Human Rights
9 February 2021
Ramazan Demir v. Turkey – 68550/17
Art 10 • Freedom to receive information • Unjustified restrictions on the possibility for a detainee to access websites publishing legal information for security reasons • Access under the control of the authorities for the purposes of training and reintegration provided for in Turkish law • Lack of concrete examination by the national courts of the reasons supporting the refusal and its necessity • Lack of relevant and sufficient reasons
Facts – The applicant, a lawyer detained on charges of membership of a terrorist organisation and of disseminating propaganda in favour of a terrorist organisation, asked the prison authorities for permission to access the Internet sites of the Court, the Constitutional Court and the Official Gazette, with a view to preparing his own defence and following his clients’ cases. However, this request was rejected by the authorities.
Law – Article 10: As prisoners’ access to certain Internet sites for the purposes of training and rehabilitation was provided for in Turkish law, the restriction on the applicant’s access to the Internet sites of the Court, the Constitutional Court and the Official Gazette, which contained only legal information that was potentially useful for the applicant’s development and rehabilitation in the context of his profession and his interests, amounted to an interference with his right to receive information. This interference was prescribed by law and pursued the legitimate aims of preventing disorder or crime.
In restricting the applicant’s access to the Internet sites in question, the national courts’ decisions seemed to be based primarily on the provisions of Turkish law. However, the national courts did not provide sufficient explanations as to why the applicant’s access to these Internet sites could not be considered as relating to his training and rehabilitation, where prisoners’ access to the Internet was authorised under national law, nor if and why the applicant ought to be considered as a prisoner presenting a certain danger or belonging to an illegal organisation, in respect of whom Internet access could be restricted under those same provisions.
No explanation was given as to why the impugned measure had been necessary in the light of the legitimate aims of maintaining order and security in the prison and the prevention of crime. The necessary regulations concerning prisoners’ Internet use, subject to supervision by the prison authorities, had in any event been adopted with regard to training and rehabilitation programmes. Although the security considerations relied on by the national authorities could be regarded as pertinent, the domestic courts had not carried out any detailed analysis of the security risks which would allegedly have resulted from the applicant’s access to the three Internet sites, especially since the sites in question belonged to State entities and an international organisation, and the applicant would have had access to them only under the authorities’ supervision and in the conditions determined by them.
It followed that the reasons adduced by the national authorities to justify the impugned measure had been neither relevant nor sufficient and the measure in question had not been necessary in a democratic society.
Conclusion: violation (unanimously).
Article 41: EUR 1,500 in respect of non-pecuniary damage.
(See also Kalda v. Estonia, 17429/10, 19 January 2016, Legal summary)
© Council of Europe/European Court of Human Rights
18 March 2021
Loizou v. Greece (no. 17789/16)*
Art 5 §§ 1 and 1 c) • Illegality of continued pre-trial detention, interrupted to serve a prison sentence for other offenses, in the absence of a clear legal basis in national law • No prompt notification of the judgment providing for the transformation of the prison sentence into a financial penalty and the interruption of the pre-trial detention • Applicant not being able to quickly declare his intention to redeem the prison sentence and to pay the amount so as not to interrupt his detention • Uncertainties as to the legal basis and the reasons for his detention • Insufficient protection of the national authorities against arbitrariness
Facts – The applicant was born in 1966 and at the date of filing of the application he was detained in Diavata prison. Suspected of having committed several offenses, in particular that of leading a criminal organization and facilitating the illegal transport of migrants, the applicant was arrested on 30 September 2014 and transferred to the police station of Thessaloniki. He was remanded in custody under a warrant dated October 6, 2014. On 12 December 2014, the applicant’s pre-trial detention was interrupted to serve an 18-month sentence to which he had been sentenced on 10 March 2011 by the Criminal Court of Piraeus.
In fact, on March 10, 2011, the Criminal Court of Piraeus sentenced the applicant in absentia to a sentence of 18 months’ imprisonment, convertible into a financial penalty of 10 euros per day. The applicant had not been present at the trial because the summons to appear had been served on him as a person at an unknown address while on the date of this notification the applicant was detained at the General Police Directorate in Thessaloniki.
The applicant alleged that this judgment was not validly notified to him and that he learned from it that he was serving a sentence under this judgment and not as a provisional detainee, on 4 February 2015, when he requested and received a certificate of detention from Diavata prison.
On the other hand, the Government affirmed that the applicant was aware of the judgment on 3 December 2014, when the public prosecutor of Piraeus sent it by fax to the Aghios Athanasios police station where the applicant was detained. As proof of this, the Government cited the fact that the applicant appealed against this judgment on 4 December 2014. The applicant lodged objections against his detention that was allegedly not compliant with the law, however, they were rejected by the indictment chamber of the Court of Appeal.
Law – Art 5 §§ 1
The Court has emphasised that according to the relevant domestic law, in the event of a coincidence between the period of pre-trial detention and that of the execution of a prison sentence imposed for an offense other than that for which there is provisional detention, the period of execution of the prison sentence does not count as a period of provisional detention. The only exception to this principle is the case provided for in Article 3 § 10 of Law No. 2408/1996. In this case, when it is a question of the simultaneous execution of a prison sentence transformed into a financial penalty and of pre-trial detention, the prosecutor in charge of this execution must ask the detainee for a written declaration as to his intention to pay the sum resulting from the conversion of the prison sentence. On the other hand, pre-trial detention is not interrupted if the detainee declares that he wishes to pay and actually pays the required amount. However, the Court noted that the judgment of conviction of March 10, 2011, which provided for the transformation of the prison sentence into a financial penalty, was not brought to the knowledge of the applicant until December 3, 2014 when he was in custody at the police station in Thessaloniki.
In addition, the applicant was not informed, formally and within a reasonable time, by the authorities that the period of his pre-trial detention had been interrupted for let the execution of the prison sentence begin. According to the applicant, he did not learn of this until 4 February 2015, when he requested a certificate of detention from Diavata prison. In this regard, the Court considers that what must determine the detainee’s willingness to fulfill the obligation to buy back his prison sentence must depend on the three criteria which the courts must take into account explicitly: prompt notification of the judgment providing for the conversion of a prison sentence into a financial penalty; the express declaration of the detainee, and at the express invitation of the authorities, that he intends to pay the required amount so as not to interrupt the execution of the pre-trial detention; the payment of the sum within a reasonable time and according to the terms laid down in advance.
The Court also recalled its case-law according to which a detention undergone by virtue of a judgment of conviction rendered in a proceeding determined is deducted from the period of pre-trial detention ordered in another procedure, only where there is a causal link between the deprivation of liberty following the applicant’s conviction and that imposed for pre-trial detention. However, in the present case such causal link was absent. In these circumstances, the Court considered that the judicial authorities did not offer the applicant sufficient protection against arbitrariness, which constitutes an essential element of the legality of the detention within the meaning of Article 5 § 1 (c).
Conclusion: violation of Article 5 § 1.
Article 5 § 4
The applicant emphasizes that he formulated his objections to the legality of his detention on 8 May 2015 and that the indictments chamber did not rule until 16 September 2015. However, this period of four months and eight days is not compatible with the “short time limit” provided for in Article 5 § 4 of the Convention. The Government maintained that the time it took for the indictments chamber to rule on the applicant’s objections was reasonable and justified in view of all the acts carried out by the judicial authorities.
The ECtHR has pointed out that when the initial detention order has been made by a court (that is, by an independent and impartial judicial body) in the context of a procedure offering the appropriate judicial guarantees, and when domestic law establishes a double degree of jurisdiction, the Court is prepared to tolerate the review before a court of second instance taking more time. Referring to the Ilnseher case, the Court also asserted that in the event that an additional body solely responsible for examining the conformity of a detention measure with the right to liberty, the requirement of promptness may meet less strict criteria when: the complexity of a specific procedure (such as that in the Ilnseher case before a Constitutional Court) justifies it; this additional instance does not remain inactive; the applicant has the possibility at the same time to lodge a new request for judicial review of his detention with another court.
In the present case, the proceedings lasted four months and eight days. Additionally, it is apparent that the applicant did not contribute to the length of the proceedings before that court, the proceedins were not complex from a legal or factual point of view: they raised only one question, that of whether or not the applicant’s pre-trial detention was interrupted. The Court therefore considered that the present case must be distinguished from the above-mentioned Ilnseher case. The ECtHR then concluded that the proceedings before the indictment chamber of the Court of Appeal did not meet the requirement of speed in the circumstances of the case. Accordingly, there has been a violation of Article 5 § 4 of the Convention in this regard.
Conclusion: violation of Article 5 § 4.
Violation of Article 5: EUR 4,500 for non-pecuniary damage and EUR 1,000 for costs and expenses.
23 March 2021
Fenech v. Malta (dec.) – 19090/20
Art 5 § 1 • Lawful suspension of criminal proceedings for unspecified time during Covid-19 crisis and continued detention lasting three months: inadmissible
Facts – The applicant was arrested and detained on remand, on suspicion of involvement in murder. Due to the spread of the coronavirus (Covid-19), national measures were introduced which led to the suspension of the criminal proceedings, and which were to remain in force until lifted on order of the competent authority. Domestic courts retained discretion to hear urgent cases or related matters. The proceedings resumed three months later.
The applicant made several unsuccessful applications for bail. During the Covid-19 crisis, he also made an unsuccessful habeas corpus petition, alleging unlawful detention due to the decision to suspend all criminal proceedings for an unspecified time.
Law – Articles 5 § 1 (c) and 5 § 3:
The Court first had to determine whether the purpose of the applicant’s continued detention had been to bring the applicant before a “competent legal authority”. Despite the different context, the principles in previous cases (Brogan and Others v. the United Kingdom; Petkov and Profirov v. Bulgaria) remained relevant. The mere fact that due to the emergency measures, enacted in the light of the Covid-19 pandemic, the committal proceedings had been suspended sine die, and could not be continued unless authorised, did not mean that the prosecution had had no intention of bringing the applicant before the competent legal authority. The Court believed that, had it been possible and without risk to the different persons involved, including the applicant, the committal proceedings would have continued, as they in fact had resumed in June 2020. Moreover, the suspension had not exceeded three months. It followed that it could not be said that the applicant’s detention in that period, during which the emergency measures had been in place, had not been for the purposes of bringing him before the competent legal authority.
In so far as the applicant had relied on Article 5 § 3, he had not articulated any specific complaint which went beyond the issuance of the emergency measures. Between the date of his arraignment/detention on remand and the last decision on his bail request, that is to say a period of less than five months, the applicant had lodged four bail applications. Those had been decided speedily by the domestic courts in all circumstances and two had been decided by the Criminal Court despite the closure of the courts, because the court had deemed it necessary and had applied its discretion granted to it under domestic law.
Each of those decisions had been based on relevant and sufficient reasons to justify holding the applicant in custody for the entire period of time: the applicant’s detention had continued to be for the purpose of being brought before the competent authority; the domestic courts had given detailed decisions on the basis of the Court’s case-law and the evidence available to them, substantiating the several grounds justifying the continuation of that detention; and it had been further considered that no other alternatives to the detention could have achieved the aim pursued. Furthermore, the domestic courts had given details of the grounds of the decisions in view of the developing situation and had stated whether and why the original grounds had remained valid despite the passage of time, despite the particularly brief intervals between the bail applications.
In relation to the denial of the applicant’s last request for bail, the Criminal Court had considered the stage reached in the proceedings – involving further witness testimony to be heard and potential procedural pleadings – which, in its view, had heightened the risk of witnesses being influenced and obstructing the course of justice. A temporary suspension of hearings did not affect the validity of that ground for detention, as there had been no doubt that once the suspension had been lifted, the proceedings would resume. Once the proceedings resumed, the Attorney General could again ask for the hearing of witnesses, and if that had not been the case, the applicant having been committed for trial, witnesses would once again be heard at trial. Reliance on that ground amongst others had therefore also been justified, it being a relevant consideration for the bail assessment.
As to whether the authorities had acted with due diligence, the proceedings had been suspended for a little less than three months. There was no indication that they had not been actively pursued before the emergency measures had been put in place or afterwards. Moreover, the temporary suspension had been due to the exceptional circumstances surrounding a global pandemic which, as held by the Constitutional Court, had justified such lawful measures in the interest of public health, as well as that of the applicant. It therefore could not be said in the circumstances of the present case that the duty of special diligence had not been observed.
Conclusion: inadmissible (manifestly ill-founded).
Article 5 § 4:
The applicant claimed that the Criminal Court, in its decree rejecting his habeas corpus application, had refused to consider the lawfulness of his detention. The applicant’s main argument had been that the introduction of the emergency measures which suspended the committal proceedings had rendered his detention unlawful. The domestic court had disagreed, considering in particular that the proceedings could still continue had the applicant so requested. The court had also noted that the proceedings had continued in respect of his requests for bail and the habeas corpus application it was deciding. Therefore, his request had been premature in that respect, or in any event ill-founded given the access he had had to the courts. Therefore his detention could not be considered unlawful on that ground.
Moreover, despite the limited formulation of the applicant’s complaint, the Criminal Court had proceeded to ascertain the lawfulness of his detention and had referred to the requirement that the duration of detention should not be excessive. The decision of the Criminal Court had thus dealt sufficiently with the applicant’s complaint based on the arguments in his bail application and had even gone further, covering issues of a substantive and procedural nature not raised by the applicant.
Conclusion: inadmissible (manifestly ill-founded).
The Court also rejected as inadmissible (manifestly ill-founded) the applicant’s complaint under Article 6 that the emergency measures had deprived him of his right of access to court to challenge the prosecution case and to trial within a reasonable time. It adjourned the examination of the applicant’s complaints as to the conditions of detention and the risk to his life due to the pandemic and his vulnerable status under Articles 2 and 3.
(See also Brogan and Others v. the United Kingdom, 11209/84 et al., 29 November 1988; Petkov and Profirov v. Bulgaria, nos. 50027/08 and 50781/09, 24 June 2014)
© Council of Europe/European Court of Human Rights
30 March 2021
D.C. v. Belgium (application no. 82087/17)
Art 5 § 1 • Alienated person • Decision of regular internment based on a psychiatric expertise established on the elements of the file given the persistent refusal of the applicant to submit to it • Observation of the procedure provided for by law • Sufficient motivation by the court of investigation of the reasons related to the applicant’s state of mental health justifying his internment at the time of the decision
Art 5 § 4 • Procedural control guarantees respected when refusing to publicise certain hearings • Publicity not provided for by the new law on internment • Absence of special circumstances requiring publicity
Facts – The applicant, D.C., is a Belgian national who was born in 1987. At the time the application was lodged he was being detained in Leuven Prison. The case concerned the lawfulness of the applicant’s placement in compulsory confinement, and alleged shortcomings in the proceedings leading to his placement. In particular, D.C. alleged that his detention, ordered by the investigating judicial authorities, had been unlawful as it had been based on a report produced by a psychiatrist who had never met him and a psychological report written over a year and a half previously. He also complained of the refusal of the investigating judicial authorities to call certain witnesses and experts and the fact that the hearings had not been conducted in public, and alleged that the Indictment Division had lacked impartiality. In August 2015 D.C. attacked an individual with a knife and was arrested by the police the same day. The following day he was charged with attempted murder and detained in Lantin Prison. In September 2015 a psychologist issued a diagnosis of paranoid schizophrenia, taking the view that the applicant posed a danger to himself and to society. In June 2016 the Committals Division ordered his compulsory confinement. The Indictment Division upheld that decision in February 2017. An appeal on points of law by the applicant was dismissed in May 2017. The Social Protection Division ordered the applicant’s release for a trial period as of 22 March 2018 with a view to his admission to a psychiatric hospital. D.C. relied in particular on Articles 5 §§ 1 and 4 (right to liberty and security/right to a speedy decision on the lawfulness of detention) of the European Convention on Human Rights.
Law – Article 5 § 1
During his arrest on 1 August 2015, the applicant, suspected of having committed a crime, was in a first time deprived of his liberty in accordance with Article 5 § 1 c). It soon became apparent, from the first hours of his detention, that he was exhibiting a number of symptoms which could indicate that he was suffering from a mental disorder. The ensuing proceedings before the council chamber aimed, as requested by the public prosecutor, to determine whether the applicant fulfilled the legal conditions for internment, which fell within the scope of subparagraph e) of Article 5 § 1. The Court has examined whether the applicant’s alienation has been conclusively established. It first examined the provisions of national law, according to which there is no obligation for the psychiatric expert to meet the accused to establish the psychiatric state of the person.
Additionally, the applicant complained of the fact that the code of medical ethics has not been observed, namely, the provision on the doctor’s obligation to have seen and questioned the patient personally. However, the ECtHR has established that the code of medical ethics has no binding force vis-à-vis third parties, including the courts, as noted by the Court of Cassation. Therefore, the Court has not found any breach of the procedure provided for by domestic law with regard to the establishment of forensic expertise.
As to the compliance with the pther requirements of Article 5 § 1, in the present case, in view of the applicant’s repeated refusals to submit to a psychiatric examination when he did not dispute that he had suffered from a serious mental disorder at the time of the facts, the expert had no other options than to draw up a report on the basis of the file and the elements to which he might have had regard. This is what the doctor appointed by the court did, at the request of the Indictments Chamber. The Indictments Chamber cannot therefore be criticized for having relied on a psychiatric expertise established on the basis of the evidence in the file, as it took into account, in its assessment, the entire file, including the hearings of the applicant and witnesses as well as the various medical reports drawn up at the request of the investigating courts or of the applicant himself.
Therefore, in view of the applicant’s continued refusal to submit to a psychiatric examination, the indictments chamber gave sufficient reasons, on the basis of the information at its disposal, the reasons for which it considered that it was established that the state of mental health of the applicant was, at the time of the taking of the decision, still such as to justify his internment.
Conclusion: no violation of Article 5 § 1 of the Convention.
Article 5 § 4
The applicant complained of the lack of publicity of the hearings before the Council Chamber and the Indictment Chamber because they were held behind closed doors. The ECtHR has examined whether such hearings should, in order to meet the requirements of Article 5 § 4 of the Convention, be held in public. The applicant requested several times that these hearings be held in public. The indictments chamber replied that this was not provided for by the applicable law, which was endorsed by the Court of Cassation. The Court reiterated that Article 5 § 4 does not, as a general rule, require that hearings relating to detention be public. It then noted that the applicant had been charged with attempted murder and that the criminal proceedings before the investigating courts were aimed at determining whether there were sufficient charges against him in order to send him back to a court which would rule on the merits, if he should benefit from a dismissal, or if he should be interned due to the fact that he could not be held criminally responsible for the acts he was suspected of having committed. Admittedly, this last question was important and delicate insofar as the investigating courts were called upon to rule on whether the applicant’s state of mental health justified his internment. The Court took into account the particularity of the internment procedure, especially before the investigating courts, and concluded that Article 5 § 4 did not require in this case the publicity of the hearing of the indictments chamber.The Court has also considered that the Indictment Chamber was not impartial in its refusal to satisfy the applicant’s claims as he was pointing to the doctor’s breach of the code of medical ethics. Also, in the opinion of the Court, the general allegations as formulated by the applicant were not based on any tangible element which would cast doubt on the independence and impartiality of the court in question.
Conclusion: no violation of Article 5 § 4 of the Convention.
6 April 2021
Venken and Others v. Belgium – 46130/14, 76251/14, 42969/16 et al.
Art 3 (material) • Degrading treatment • Internment of mentally ill offenders for a significant period of time in the psychiatric annex of a prison without hope of change and without appropriate medical supervision
Art 34 • Loss of victim status due to reparation of sufficient amount covering the entire period of internment • Applicants still victims in the absence of adequate and sufficient reparation • Encouraging steps by the authorities following the 2016 W.D. v. Belgium pilot judgment, but further efforts needed to definitively resolve the structural problem
Art 5 § 4 and Art 13 (+ Art 3) • Effectiveness or not in practice of preventive remedies
Facts – The applicants had been placed in compulsory confinement in the psychiatric wings of ordinary prisons, where, they alleged, that they did not receive therapeutic treatment that was adapted to their mental-health condition; they also submitted that no effective remedy had been available to them.
The applicants are now all residents in an institution that is in principle suited to their psychiatric condition; they do not dispute that they are receiving appropriate treatment therein.
Law – Article 3 (substantive limb) and Article 5 § 1
1. Pilot procedure and subsequent developments – In its 2016 pilot judgment W.D. v. Belgium, the Court had encouraged the Belgian State to take action within two years to reduce the number of offenders with mental disorders who were detained in prison psychiatric wings without receiving appropriate treatment.
Implementation of the measures adopted by the authorities had made it possible to reduce significantly the number of individuals in compulsory confinement who were being held in prisons. Many places had been made available outside prison structures over the past five years, including the opening of two forensic psychiatry centres. According to the most recent report from the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), the treatment of detainees in these institutions appeared to be satisfactory. Indeed, on the date of adoption of this judgment, the Court had received no applications challenging the conditions of detention or therapeutic structure in those centres.
However, on 1 December 2019 an appreciable number of individuals in compulsory confinement were still being detained in prisons in inappropriate conditions. The Court therefore urged the respondent State to confirm this positive trend by continuing its efforts to resolve this problem definitively and to guarantee to each detainee living conditions that were compatible with the Convention.
2. Admissibility
(a) Were the remedies capable of depriving the applicants of their victim status?
A compensatory remedy was in principle sufficient to redress the alleged violation where, as in the present case, the applicants were no longer, at the date of the Court’s examination, detained in conditions that they considered contrary to the Convention and where a question arose as to their continued victim status.
However, an effective preventive remedy was required for individuals who were still held in conditions that were contrary to Articles 3 and 5 § 1, that is, a remedy likely to redress the situation complained of and to prevent the continuation of the alleged violations. Therefore, in so far as the applicants were still detained in the impugned conditions when their applications were lodged, the Court would deal separately with the question of the effectiveness of the preventive remedy at their disposal for the purposes of Articles 5 § 4 and 13 of the Convention.
(b) Had the authorities acknowledged the violations of the Convention?
The domestic courts had expressly acknowledged a breach of the Convention in respect of all the applicants and had found that the State had committed a fault within the meaning of Article 1382 of the Civil Code.
(c) Did the applicants receive appropriate and sufficient redress?
i. Did the compensation cover the entire period complained of?
α. Mr Rogiers, Mr Neirynck and Mr Van Zandbergen (the applicants) – The domestic courts had applied a five-year limitation period, finding that the claim that the applicants were entitled to make arose anew each day, thus extending the limitation period. However, the application of a limitation period was not compatible with the Court’s case-law. Although the applicants had occasionally been granted short periods of conditional release in external institutions, they had on each occasion been imprisoned again. The length of their detention in prison psychiatric wings had considerably exceeded the reasonable period required for them to be placed in an appropriate institution. Accordingly, in so far as they had never been granted final discharge and their status as individuals held in compulsory confinement had not changed, the consecutive periods of detention had to be considered in their entirety, and therefore as an ongoing violation.
To require applicants to pursue a compensatory remedy before the alleged ongoing violation had ended amounted to placing an excessive procedural burden on them. Such a requirement would not take account of the vulnerability of persons in compulsory confinement, arising from both their mental health condition and the fact of their detention; nor would it take account of the fact that while the applicants had been detained in the conditions complained of, their main concern had been to secure a change in those conditions, by requesting their transfer to an appropriate institution or their discharge.
Thus, during the period of detention in conditions that were incompatible with the Convention, only a preventive remedy, capable of ending the contested situation, could be regarded as effective.
Thus, given that the compensation awarded to the applicants by the domestic courts did not cover the entirety of the period of the ongoing violation concerned, they had not lost their victim status.
β. Mr Venken and Mr Clauws – The applicants had obtained redress for the entirety of the period for which they had requested compensation. It was therefore necessary to verify whether the amount of the compensation they received had been appropriate and sufficient.
ii. Was the amount of the compensation appropriate and sufficient?
A wide margin of appreciation had to be left to the national authorities in assessing the amount of compensation. This had to be organised in a manner consistent with their own legal system and traditions and consonant with the standard of living in the country concerned, even if that resulted in the awards of amounts that were lower than those fixed by the Court in similar cases.
The Court had also to take account of the measures taken by the authorities to put an end to the structural problem identified, as the applicants in the present case had benefited from those measures.
Having regard to these considerations, the length of the disputed situations, the amounts awarded by the Court in similar cases and the circumstances of the present case, the sum of EUR 1,250 per year of detention in conditions contrary to the Convention was not unreasonable. It followed that Mr Venken, who had received EUR 1,250 per year of detention in conditions contrary to the Convention, and Mr Clauws, who had received more than EUR 2,000 per year of detention in the conditions complained of, had obtained appropriate and sufficient redress for the violations they had endured.
Lastly, the division of procedural costs equally between the parties had been decided by a court taking into account all the elements of the case, particularly the fact that Mr Clauws had been only partially successful and that he had received legal aid. The Court did not consider that any disproportionate burden had been imposed.
Conclusion: inadmissible (incompatibles ratione personae) (Mr Venken and Mr Clauws).
Conclusion: preliminary objection dismissed (victim status) (Mr Rogiers, Mr Neirynck and Mr Van Zandbergen)
3. Merits
As with the cases previously examined by the Court, the fact that Mr Rogiers, Mr Neirynck and Mr Van Zandbergen had been held in a prison psychiatric wing for a significant period, with no real hope of any change and without appropriate medical supervision had effectively broken the link between the ground for their detention and the place and conditions of detention. This had also amounted to particularly acute hardship, causing them distress of an intensity exceeding the unavoidable level of suffering inherent in detention.
Furthermore, during its last periodic visit to Belgium in 2017, the CPT had noted that these well-known systemic problems persisted in the psychiatric wings of prisons.
Conclusion: violation (unanimously).
With regard to the existence of an effective remedy in practice, likely to redress the situation of which the applicants were victims and to prevent the continuation of the alleged violations, the Court also concluded, unanimously, that there had been a violation of Article 5 § 4 in the case of Mr Venken; a violation of Articles 5 § 4 and 13 taken together with Article 3 in the cases of Mr Rogiers and Mr Neirynck; and, by six votes to one, no violation of Articles 5 § 4 and 13 taken together with Article 3 with regard to Mr Clauws and Mr Van Zandbergen.
Applications similar to the present cases had been adjourned pending expiry of the time-limit set by the Court in the W.D. v. Belgium pilot judgment. The Court considered that it would be appropriate to continue examining these cases in the light of the principles established in the present judgment, once it had become final.
Article 41: EUR 2,500 to Mr Venken, EUR 6,100 to Mr Rogiers, EUR 6,900 to Mr Neirynck and EUR 16,200 to Mr Van Zandbergen in respect of non-pecuniary damage.
(See also W.D. v. Belgium, 73548/13, 6 September 2016, Legal summary; Rooman v. Belgium [GC], 18052/11, 31 January 2019, Legal summary; Ulemek v. Croatia, 21613/16, 31 October 2019, Legal summary; J.M.B. and Others v. France, 9671/15 et al., 30 January 2020, Legal summary; Shmelev and Others v. Russia (dec.), 41743/17 et al., 17 March 2020, Legal summary; Barbotin v. France, 25338/16, 19 November 2020, Legal summary)
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13 April 2021
E.G. v. the Republic of Moldova – 37882/13
Art 3 and Art 8 • Failure of the authorities to comply with their positive procedural obligations to enforce the sentence imposed on the perpetrator of a sexual assault following the granting and subsequent annulment of his amnesty • Amnesties and pardons governed by domestic law and not contrary to international law, except where they concern acts constituting serious violations of fundamental human rights • Amnesty that enabled the convicted person to leave the country • Lack of coordination between State services • Unjustified delays in issuing wanted notices for the convicted person
Art 35 § 1 • Consideration of the entire period of non-execution of the criminal sanction for the application of the six-month time-limit • Failings of the authorities inextricably linked and analysed as a continuous situation
Facts – In December 2009 V.B. and two other individuals including R.G., who had all been released pending trial, were sentenced to five years’ imprisonment for sexually assaulting the applicant. However V.B. was not immediately arrested and detained.
In a final decision of the Court of Appeal dated 22 May 2012, V.B., who was still free, was granted an amnesty pursuant to the Amnesty Law of 2008. The amnesty was first annulled in June 2012 but later reinstated in December 2012. In November 2013 a second decision annulling V.B.’s amnesty was taken and at the end of January 2014, the public prosecutor informed the police and requested that he be located. However, it was observed that in November 2013 V.B. had left Moldova for Ukraine. Since then, in spite of an international arrest warrant, V.B. has not been located.
Law – Articles 3 and 8:
(a) Admissibility:
Not all continuing situations would be identical. In any event, applicants had to ensure that their claims were raised before the Court with the necessary expedition once it became clear that there was no realistic prospect of a favourable outcome in respect of their complaints at domestic level.
In response to the Government’s argument that the applicant should have filed an application with the Court within six months of the decision to grant the amnesty in May 2012, the Court noted that the main aspect of the applicant’s complaints under Articles 3 and 8 concerned the de facto impunity of V.B. for the sexual assault committed against her. The specific failings in relation to these complaints, namely the alleged unlawful grant of the amnesty and the alleged inaction of the authorities in locating V.B., were inextricably linked. For this reason, the entire period in which the authorities had failed to enforce the criminal sanction imposed on V.B. had to be considered for the purposes of applying the six-month rule.
Thus, the failings of the Moldovan authorities taken together could be regarded as a continuous situation. Moreover, the prospects of the Moldovan authorities enforcing V.B.’s sentence had not become unrealistic.
Conclusion: objection rejected (six-month rule).
(b) Merits:
Rape and serious sexual assault amounted to treatment falling within the ambit of Article 3 of the Convention, and these offences also typically implicated fundamental values and essential aspects of “private life” within the meaning of Article 8. The applicant’s complaints could thus be examined jointly under these two Articles.
Under Article 2 of the Convention, the requirement for the authorities to carry out an effective criminal investigation could also be interpreted as imposing an obligation on States to enforce the final sentence without undue delay. The enforcement of a sentence imposed in the context of the right to life was an integral part of the State’s procedural obligation. The same approach had to be applied in the present case and States had a positive obligation inherent in Articles 3 and 8 to enforce sentences for sex offences.
Amnesties and pardons should not be tolerated in cases of torture or ill-treatment by State agents. This principle also applied to acts of violence committed by private individuals. However, amnesties and pardons were essentially a matter for the domestic law of the member States and, in principle, they were not incompatible with international law, except where they concerned acts which constituted serious violations of fundamental human rights. The sexual assault committed against the applicant had constituted a serious breach of her right to protection from bodily harm and mental distress, and the granting of an amnesty to one of the perpetrators of that assault was, in the particular circumstances of the case, at odds with the respondent State’s obligations under Articles 3 and 8 of the Convention
There was no uniform practice of the Court of Appeal in relation to the application of the 2008 Amnesty Law. R.G., who had been in a similar situation to V.B. and had already served part of his sentence, had been denied the benefit of the amnesty. In the case of V.B. the judges of the Court of Appeal had thus exercised their discretion in minimising the consequences of an extremely serious illegal act rather than showing that such acts could not be tolerated in any way.
Whilst the granting of the amnesty to V.B. had ultimately been annulled, the fact that he had benefited from it for a total period of approximately one year was at odds with the procedural requirements of Articles 3 and 8, particularly as it had enabled him to leave Moldova shortly before the adoption of the last decision annulling the benefit of the amnesty.
As to the question whether the measures adopted by the authorities to enforce V.B.’s sentence, outside the periods when the amnesty was applicable, were sufficient, the Court observed that the State authorities appeared to have disregarded the first decision, on 29 June 2012, to annul the benefit of the amnesty. They had arrested him on 22 October 2012, but had released him that same day on the basis of the 22 May 2012 decision, which had already been annulled and which no longer had force of law at that time. The Court saw this as, at best, a lack of coordination between the different State services, resulting in V.B.’s release without a valid legal basis.
The last decision to annul the benefit of the amnesty, taken on 18 November 2013, had been transmitted to the authority competent to conduct the search for V.B. more than two months after its adoption. In the opinion of the public prosecutor’s office this time-frame had not complied with domestic rules. Even though it had subsequently been established that V.B. had left the country by 18 November 2013, the issuance by the authorities of their wanted notice within the Commonwealth of Independent States must have been delayed accordingly. Moreover, the international wanted notice had not been issued until 2015 and there was no explanation in the file for this delay. These delays were inconsistent with the requirement of reasonable diligence and expedition.
Consequently, the measures taken by the State for the enforcement of V.B.’s sentence had not been sufficient in the light of its obligation to enforce criminal sentences handed down against the perpetrators of sexual assaults.
In conclusion, the granting of an amnesty to V.B. and the authorities’ failure to enforce his sentence had been incompatible with the positive obligations of the Moldovan State under Articles 3 and 8 of the Convention.
Conclusion: violation (unanimously).
Article 41: EUR 10,000 in respect of non-pecuniary damage.
(See also M.C. v. Bulgaria, 39272/98, 4 December 2003, Legal summary; Marguš v. Croatia [GC], 4455/10, 27 May 2014, Legal summary ; Kitanovska Stanojkovic and Others v. “the former Yugoslav Republic of Macedonia”, 2319/14, 13 October 2016, Legal summary; Akelienė v. Lithuania, 54917/13, 16 October 2018, Legal summary; Makuchyan and Minasyan v. Azerbaijan and Hungary, 17247/13, 26 mai 2020, Legal summary)
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