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8 NOVEMBER 2022
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This roundup 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 the European case-law to build strategic litigation avenues.
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OVERVIEW OF CASES PUBLISHED IN JULY–AUGUST 2022
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Ukrainian soldier allegedly detained by Russian forces in a POW camp: Interim measure, Russia asked to ensure respect for Convention rights and to provide medical assistance if necessary.
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General and indiscriminate ban on prisoner possession of pornographic material not permitting proportionality assessment in an individual case: violation of Article 8.
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Prisoner held in a cell with less than 3 sq. m. of personal space for more than three years: violation of Article 3.
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Inadequate medical care (cancer) and absence of effective remedy in this respect: violation of Article 3, violation of Article 13.
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Permanent video surveillance of detainees in post-conviction detention facilities and lack of an effective remedy in that respect: violation of Article 8, violation of Article 13.
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Inadequate medical care (conjunctival lymphoma) and absence of effective remedy in this respect: violation of Article 3, violation of Article 13.
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Inadequate medical care (i.a. bronchial asthma, thyroid cancer, tumour in eye, conjunctiva, prostate cancer) and absence of effective remedy in this respect: violation of Article 3, violation of Article 13.
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Restrictions on long-term conjugal visits for four years for a remand prisoner: violation of Article 8.
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Systematic handcuffing of life prisoners out of their cells: violation of Article 3.
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Strict imprisonment regime of life prisoners (i.a. segregation and routine handcuffing): violation of Article 3.
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Permanent video surveillance of detainees in remand and post-conviction detention facilities and lack of an effective remedy in that respect: violation of Article 8, violation of Article 13.
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Inadequate medical care (HIV, hepatitis, lung diseases, cataract in both eyes, osteoarthritis, retinal separation, swelling in feet and ankles) and absence of an effective remedy in this respect: violation of Article 3, violation of Article 13.
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Permanent video surveillance of detainees in remand and post-conviction detention facilities and lack of an effective remedy in that respect: violation of Article 8, violation of Article 13.
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Permanent video surveillance of detainees in remand and post-conviction detention facilities and lack of an effective remedy in that respect: violation of Article 8, violation of Article 13.
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Inadequate medical care (i.a. paradental disease, absence of teeth, hepatitis, stomach ulcer, hip fracture, jaw fracture) and absence of effective remedy in this respect: violation of Article 3, violation of Article 13.
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Inadequate medical care (HIV, cancer, hypertension, cerebrovascular accident, broken element in a hip replacement mechanism) and absence of an effective remedy in this respect: violation of Article 3, violation of Article 13.
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Prisoners with disabilities not provided with assistance or special equipment and absence of effective remedy in this respect: violation of Article 3, violation of Article 13.
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Absence of surgery for cataract of the prisoner for several years due to which his vision has significantly impaired and he lost ability to work: violation of Article 3.
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Ukraine asked the Court to indicate interim measures to the Russian Government with regard to Ukrainian prisoners of war captured by Russia at Azovstal plant, Mariupol: request covered by previous interim measures indicated in the case Oliynichenko v. Russia and Ukraine (Application no. 31258/22).
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Rule 39 ■ Interim measures ■ Prisoner of war ■ Medical assistance
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Facts ■ The applicant’s husband is a Ukrainian soldier who was allegedly captured by Russian forces in Mariupol and placed in a prisoner of war (POW) camp. The applicant provided eyewitness accounts of alleged torture inflicted on Ukrainian soldiers in the camp where her husband is allegedly held captive. She requested the Court to ask the Russian and Ukrainian governments to “to establish her husband’s whereabouts, to ensure his safety and to release him” (see press release).
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Conclusion ■ The Court requested the Russian Government to ensure respect for the applicant’s husband’s Convention rights and “provide him with medical assistance should he need it” (idem). The Ukrainian Government should also, “in so far as possible, ensure respect for [his] Convention rights”
The Government of the Russian Federation was also instructed by the Court to provide, within one week, information (a) on whether the applicant’s husband is held in captivity by Russian forces, and, if so, (b) on the conditions in which he is being held, including the medical treatment provided to him supported by evidence. The Government of Ukraine was also asked to submit “any relevant information” within the same timeframe.
The Court decided to extend “this measure to cover any requests made on behalf of Ukrainian prisoners of war in Russian custody in which sufficient evidence has been provided to show that they face a serious and imminent risk of irreparable harm to their physical integrity and/or right to life” (press release, see also below Ukraine v. Russia (X), no. 11055/22)
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Art. 8 ■ Private life applicable ■ General and indiscriminate ban on prisoner possession of pornographic material not permitting proportionality assessment in an individual case
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Facts ■ The applicant is serving a life sentence in prison. After a routine search, pictures from adult magazines and depicting “classic” adult heterosexual intercourse were found in his possession. The material was found to be pornographic and, as such, a threat to morality within the meaning of the Execution of Prison Sentences Act. The material was taken away from the applicant and he was found guilty of a disciplinary offence, for which he received a reprimand. He appealed unsuccessfully and his constitutional complaint was also dismissed.
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(a) Applicability and interference – It was uncontested that the applicant had held printed material capable of being used as a stimulant for auto-eroticism in his private sphere for that purpose. The case accordingly involved no issue of any positive obligations in relation to it in general or in concreto. The Court noted that the possession of such material was not normally against the law in the respondent State. However, in the applicant’s specific situation it had been forbidden. Moreover, the fact that the prison system concerned allowed for no conjugal visits formed a part of the context in which the impugned restriction on the applicant’s ability to lead a sexual life had to be viewed.
In those circumstances, the facts of the present case fell within the material scope of the right to respect for private life under Article 8. The seizure of the material from the applicant and the reprimand he had received for its possession had accordingly constituted an interference with that right.
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(b) Justification for the interference – The interference had been in accordance with the law. The Court expressed some doubt as to the whether the disputed measure had in fact pursued any of the legitimate aims put forward by the Government (protection of morals, the prevention of disorder and the protection of the rights and freedoms of others) but did not find it necessary to take a definitive stance, since, in any event, it had not been necessary in a democratic society.
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The possession of explicit material in the prison context put the private interest of the person concerned in opposition to the public interest.
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As to the applicant’s private interest, since imprisonment entailed a total exclusion of intimate contact with the opposite sex, the Constitutional Court had recognised that pornography could serve as a stimulus for auto-erotic satisfaction. In addition, and concerning the applicant’s individual situation, his state of deprivation of any direct intimate contact was long-term, if not permanent. There was no indication that he had ever been convicted of a sexual offence or had suffered from any condition in which the material in question could trigger violent or otherwise inappropriate behaviour. Furthermore, there had been no suggestion that the material in question had involved any elements proscribed by law as such. On the contrary, material of that kind was commonly available through the general distribution of the press to the adult population in the respondent State and beyond. The material had been kept in the applicant’s private sphere and had been destined exclusively for his individual and private use within that sphere, in particular in his cell of which he had been the sole occupant. In that context, the relatively negligible level of penalty that had been imposed on the applicant was not decisive as the core of the problem was the underlying ban and not the sanction. In addition, had the ban been breached repeatedly, the sanction had been bound to increase in severity.
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Concerning the public interests at play, while the margin of appreciation in relation to the means of protection of morals was a wide one, a justification for any restriction on Convention rights of prisoners could not be based solely on what would offend public opinion. As to the prevention of disorder in prison and the protection of the rights and freedoms of others, no concrete evidence of examples had been furnished supporting the allegation that possession of adult content as in the applicant’s case had entailed genuine risks in relation to those values. As to the rehabilitation and reintegration aspect of the purpose of a prison sentence, it was generally recognised at the national level and prisoners were forbidden to keep objects incompatible with that purpose. However, that particular ground for sanctioning the applicant for the possession of the impugned material had not been relied on in the assessment of the case at the national level.
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Lastly, there had not been any balancing of the competing individual and public interests. There had been no legislative scope for taking into account any individual interests, the prison administration had been unable in practice to deal with individual cases in a differentiated manner, and the Constitutional Court had held that it had no power to deal with the problem in response to an individual complaint, presuming that the lawmakers would have based the legislation they had passed on the requisite expert assessment. That presumption, however, had not been supported by reference to any actual expert evaluation.
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The contested ban thus had amounted to a general and indiscriminate restriction not permitting the required proportionality assessment in an individual case. The absence of such an assessment both at the legislative level and on the facts of the applicant’s individual case regarding a matter of importance for him fell outside any acceptable margin of appreciation, such that a fair balance had not been struck between the competing public and private interests involved.
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Conclusion ■ Violation of Article 8
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Article 41 ■ EUR 2,600 in respect of non-pecuniary damage
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© Council of Europe/European Court of Human Rights
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Art 3 ■ Overcrowding ■ Personal space less than 3 sq. m. ■ Victim status
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Facts ■ The applicant complained of the inadequate conditions of his detention in three separate prison facilities. He complained mostly about overcrowding (personal space less than 4 sq. m. for a period of almost two years and less than 3 sq. m. for more than three years), lack of or inadequate hygiene facilities, lack of or insufficient physical exercise in fresh air, lack of or restricted access to leisure or educational activities.
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Law ■ Article 3 ■ The Court, recalling that “a strong presumption of a violation of Article 3 arises where the personal space available to a detainee falls below 3 sq. m of floor surface” (§12, see in particular Muršić v. Croatia [GC], no. 7334/13, 2016), and finding the Government’s submission insufficient to rebut this presumption, acknowledged that the applicant was held in poor conditions.
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As regards the Government’s submission that the applicant’s civil action for compensation before domestic courts for specific periods had become time-barred, the Court highlighted that detention should be considered a continuing situation “as long as it was effected in the same type of detention facility in substantially similar conditions in order not to impose an unreasonable procedural burden on applicants (§10, see in particular Nikitin and Others v. Estonia, nos. 23226/16 and 6 others, §§ 136 and 141, 2019).
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Conclusion ■ Violation of Article 3.
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Article 41 ■ EUR 12,500 for non-pecuniary damage; EUR 250 for costs and expenses.
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Art. 3 ■ Insufficient medical care ■ No effective remedy
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Facts ■ The applicant suffers from cancer. He alleged that he did not receive adequate medical care in detention and that there was no effective remedy in that regard.
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Law ■ Articles 3 and 13 ■ Having examined all the material submitted to it, the Court concluded that there had been a violation of Article 3 of the Convention. As regards the applicant’s complaint under Article 13, the Court recalled it had established on numerous occasions that there is a lack of effective domestic remedies to complain about the quality of medical treatment in detention in Russia (see i.a. Reshetnyak v. Russia, no. 56027/10, 2013 and Koryak v Russia, no. 24677/10, 2012), and saw no reason to depart from this conclusion.
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Conclusion ■ Violation of Articles 3 and 13.
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Article 41 ■ EUR 15,000 for non-pecuniary damage
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Art. 8 ■ Permanent video surveillance • No effective remedy
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Facts ■ The three applicants complained mostly of the permanent video surveillance to which they were subjected and of the lack of an effective remedy in that respect
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Law ■ Articles 8 and 13 ■ The Court recalled it had already established that the national legal framework governing the placement of detainees under permanent video surveillance in penal institutions falls short of the standards set out in Article 8 of the Convention as it cannot provide appropriate protection against arbitrary interference, and it does not presuppose any balancing exercise or enable an individual to obtain a judicial review of the proportionality of his or her placement under permanent video surveillance to the vested interests in securing his or her privacy (see Gorlov and Others v. Russia nos. 27057/06, 2019). The Court also noted that the applicants did not have any judicial remedy in this respect.
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Conclusion ■ Violation of Articles 8 and 13.
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Article 41 ■ The finding of a violation constitutes sufficient just satisfaction for non-pecuniary damage sustained by the applicants.
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Art, 3 ■ Insufficient medical care ■ No effective remedy
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Facts ■ The applicant suffers from conjunctival lymphoma. He alleged that he did not receive adequate medical care in detention and that there was no effective remedy in that regard.
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Law ■ Articles 3 and 13 ■ Having examined all the material submitted to it, the Court concluded that there had been a violation of Article 3 of the Convention. As regards the applicant’s complaint under Article 13, the Court recalled it had established on numerous occasions that there is a lack of effective domestic remedies to complain about the quality of medical treatment in detention in Russia (see i.a. Reshetnyak v. Russia, no. 56027/10, 2013 and Koryak v Russia, no. 24677/10, 2012), and saw no reason to depart from this conclusion.
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Conclusion ■ Violation of Article 3 and Article 13.
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Article 41 ■ EUR 19,500 for non-pecuniary damage.
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Art 3 ■ Insufficient medical care ■ No effective remedy
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Facts ■ The applicants suffer from various serious medical conditions (bronchial asthma, thyroid cancer, tumour in eye, conjunctiva, prostate cancer). They alleged that they did not receive adequate medical care in detention and that there was no effective remedy in that regard.
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Law ■ Article 3 and Article 13 ■ Having examined all the material submitted to it, the Court concluded that there had been a violation of Article 3 of the Convention. As regards the applicant’s complaint under Article 13, the Court recalled it had established on numerous occasions that there is a lack of effective domestic remedies to complain about the quality of medical treatment in detention in Russia (see i.a. Reshetnyak v. Russia, no. 56027/10, 2013 and Koryak v Russia, no. 24677/10, 2012), and saw no reason to depart from this conclusion.
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Conclusion ■ Violation of Article 3 and Article 13.
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Article 41 ■ EUR 15,000 for non-pecuniary damage for each applicant.
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Art. 8 ■ Restrictions on long-term conjugal visits for remand prisoners ■ No individual assessment for the refusal of long-term conjugal visits ■ No physical contact with the spouse during short-term visits
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Facts ■ The applicant complained that he was not allowed long-term family visits with his spouse during his four-year detention in a remand prison. He was allowed short-term visits, but these had to take place with a glass partition – he was therefore unable to have physical contact with his wife. The applicant also complained of his placement in metal cages and glass cabins during the criminal proceedings in his case on the domestic level, and of the excessive length of review of his detention order (the appeal was reviewed only after 68 days).
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Law ■ Article 8 ■ As regards the ban on long-term family visits over a period of four years, the Court referred to a previous judgment in which it found that the “impossibility for the applicants to benefit from long-term family visits during their placement in remand prisons which lasted for more than ten years, coupled with the rigidity of the domestic legal framework as regards the modalities of short-term visits which excluded any physical contact constituted an interference with the right of the persons concerned to respect for their private and family life, which was not necessary in a democratic society” (§13, see Pshibiyev and Berov v. Russia, no. 63748/13, §§ 43‑53, 2020). The Court also noted that when processing the applicant’s request to be granted long term visits, the domestic authorities “failed to justify the prohibition of long-term family visits beyond reference to domestic legislation without any explanation as to why this prohibition had been necessary and justified in the applicant’s specific situation” (§15). Accordingly, the Court found a violation of Article 8 (see contra the case Nazarenko v. Latvia no. 76843/01, §§ 68‑76, 2007, in which the Court found inadmissible a similar complaint filed by a prisoner who was unable to obtain a conjugal visit during a period of four months).
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Law ■ Remainder of the complaints, based on Article 3, Article 5 § 3, and Article 5 § 4 ■ Referring to its well-established case-law concerning the use of metal cages during court hearings (Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, 2014), the excessive length of pre‑trial detention (Dirdizov v. Russia, no. 41461/10, 2012), and the lack of a speedy review of detention matters (Idalov v. Russia [GC], no. 5826/03, §§ 154-58, 2012), the Court concluded that there had been a violation of Articles 3, 5 § 3, and 5 § 4. Concerning the placement of the applicant in a glass cabin during judicial hearings, the Court declared this part of the complaint manifestly ill-founded as “the applicant failed to describe, even in a summary manner, the dimensions of the cabin and the amount of space afforded to him in it” (§19).
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Conclusion ■ Violation of Articles 8, Article 3, Article 5 § 3, and Article 5 § 4.
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Article 41 ■ EUR 7,000 for non-pecuniary damage, EUR 850 for costs and expenses.
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Art 3 ■ Routine handcuffing of lifers outside their cells ■ Unreliable evidence submitted by the prison administration
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Facts ■ The applicants complained of being routinely handcuffed when being out of their cells. The alleged practice occurred in different penitentiary facilities.
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(a) Admissibility. All applications found admissible, with one exception: Mr Khashagulgov (no. 59463/18). In this specific case, the Court observed that the applicant was handcuffed during a transfer from one correctional colony to another, was “directly linked to the applicant’s specific behaviour as confirmed by a reasoned decision of the prison administration and did not go beyond what could be reasonably considered necessary” (§21). Furthermore, nothing indicates that the applicant was ill or that the application of handcuffs was imposed on him in order to humiliate him or caused any harm to his health. Lastly, the applicant was not exposed in public while being handcuffed. Concluding that “such treatment did not attain the minimum level of severity required by Article 3 of the Convention” (idem) the Court found this application inadmissible.
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(b) Merits. The Government denied the existence of regular handcuffing and submitted certificates produced by the prison administration. The Court found these documents to be insufficiently reliable as they were either undated or dated 2020 and were intended to cover the periods of several years prior to that date (2009 onwards). Furthermore, these certificates at times contradicted submissions of representatives of the prison administration, who during domestic proceedings admitted that the applicant had been routinely handcuffed.
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As regards the specific situation of one of the applicants (Mr Rudykh, no. 55659/14), the victim status of which was contested by the Government, the Court recalled that (a) it had found in previous judgment a violation of Article 3 of the Convention on account of the systematic use of handcuffs at that colony (see in particular N.T. v. Russia, no. 14727/11, § 53, 2020, Shlykov and Others v. Russia, nos. 78638/11 and 3 others, §§ 36-40, 2021); (b) the applicant’s submission that he was subjected to handcuffing until 2018 despite having successfully challenged this practice before domestic courts in 2015 and 2016 is supported by testimonies of previous co-detainees ; and (c) the Government was unable to provide any document to support his claim that handcuffing with respect to this applicant stopped in 2016.
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Conclusion ■ Violation of Article 3.
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Law ■ Article 13 ■ When it comes to the allegations of lack of available remedies with regard to inadequate medical care, the Court has recalled its case law (Reshetnyak, cited above, §§ 49-101, and Koryak, cited above, §§ 70-110) to conclude that in the present case there was no reason to reach a different conclusion.
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Conclusion ■ Violation of Article 13.
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Article 41 ■ The finding of a violation constitutes sufficient just satisfaction for non-pecuniary damage sustained by the applicants with regard to their routine handcuffing; Mr Rudykh is not to be made any award in non-pecuniary damage in view of the previous awards made to him by the Court.
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Art. 3 ■ Strict imprisonment regime for lifers
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Facts ■ The applicants were sentences to life sentence. They complained of the inadequate conditions of detention under strict imprisonment regime, involving segregation and routine handcuffing.
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Law ■ Article 3 ■ The Court recalled it had found a violation of Article 3 in a leading case raising similar issues than the cases at hand (N.T. v. Russia, no. 14727/11, 2 June 2020). It saw no reason to depart from this conclusion.
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Conclusion ■ Violation of Article 3.
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Article 41 ■ EUR 3,000 for non-pecuniary damage for the first applicant; EUR 9,750 for the second applicant (who also complained that he was confined in a cage at a court hearing); EUR 3,000 for the third applicant
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Art. 8 ■ Permanent video surveillance ■ No effective remedy
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Facts ■ The three applicants complained mostly of the permanent video surveillance to which they were subjected and of the lack of an effective remedy in that respect
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Law ■ Articles 8 and 13 ■ The Court recalled it had already established that the national legal framework governing the placement of detainees under permanent video surveillance in penal institutions falls short of the standards set out in Article 8 of the Convention as it cannot provide appropriate protection against arbitrary interference, and it does not presuppose any balancing exercise or enable an individual to obtain a judicial review of the proportionality of his or her placement under permanent video surveillance to the vested interests in securing his or her privacy (see Gorlov and Others v. Russia nos. 27057/06, 2019). The Court also noted that the applicants did not have any judicial remedy in this respect.
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Conclusion ■ Violation of Articles 8 and 13.
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Article 41 ■ EUR 1,500 for non-pecuniary damage for each applicant.
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Art 3 ■ Insufficient medical care ■ No effective remedy
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Facts ■ The five applicants suffer from various serious medical conditions (i.a. HIV, hepatitis, lung diseases, cataract in both eyes, osteoarthritis, retinal separation, swelling in feet and ankles). They alleged that they did not receive adequate medical care in detention and that there was no effective remedy in that regard.
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Law ■ Articles 3 and 13 ■ Having examined all the material submitted to it, the Court concluded that there had been a violation of Article 3 of the Convention. As regards the applicant’s complaint under Article 13, the Court recalled it had established on numerous occasions that there is a lack of effective domestic remedies to complain about the quality of medical treatment in detention in Russia (see i.a. Reshetnyak v. Russia, no. 56027/10, 2013 and Koryak v Russia, no. 24677/10, 2012), and saw no reason to depart from this conclusion.
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Conclusion ■ Violation of Articles 3 and 13.
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Article 41 ■ EUR 15,000 for non-pecuniary damage for each applicant.
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Art. 8 ■ Permanent video surveillance ■ No effective remedy
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Facts ■ The five applicants complained mostly of the permanent video surveillance to which they were subjected and of the lack of an effective remedy in that respect
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Law ■ Articles 8 and 13 ■ The Court recalled it had already established that the national legal framework governing the placement of detainees under permanent video surveillance in penal institutions falls short of the standards set out in Article 8 of the Convention as it cannot provide appropriate protection against arbitrary interference, and it does not presuppose any balancing exercise or enable an individual to obtain a judicial review of the proportionality of his or her placement under permanent video surveillance to the vested interests in securing his or her privacy (see Gorlov and Others v. Russia nos. 27057/06, 2019). The Court also noted that the applicants did not have any judicial remedy in this respect.
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Conclusion ■ Violation of Articles 8 and 13.
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Article 41 ■ The finding of a violation constitutes sufficient just satisfaction for non-pecuniary damage sustained by the applicants.
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Art. 8 ■ Permanent video surveillance ■ No effective remedy
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Facts ■ The four applicants complained mostly of the permanent video surveillance to which they were subjected and of the lack of an effective remedy in that respect
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Law ■ Articles 8 and 13 ■ The Court recalled it had already established that the national legal framework governing the placement of detainees under permanent video surveillance in penal institutions falls short of the standards set out in Article 8 of the Convention as it cannot provide appropriate protection against arbitrary interference, and it does not presuppose any balancing exercise or enable an individual to obtain a judicial review of the proportionality of his or her placement under permanent video surveillance to the vested interests in securing his or her privacy (see Gorlov and Others v. Russia nos. 27057/06, 2019). The Court also noted that the applicants did not have any judicial remedy in this respect.
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Conclusion ■ violation of Articles 3 and 13.
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Article 41 ■ The finding of a violation constitutes sufficient just satisfaction for non-pecuniary damage sustained by the applicants.
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Art 3 ■ Insufficient medical care ■ No effective remedy
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Facts ■ The five applicants suffer from various serious medical conditions (i.a. paradental disease, absence of teeth, hepatitis, stomach ulcer, hip fracture, jaw fracture). They alleged that they did not receive adequate medical care in detention and that there was no effective remedy in that regard.
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Law ■ Articles 3 and 13 ■ Having examined all the material submitted to it, the Court concluded that there had been a violation of Article 3 of the Convention. As regards the applicant’s complaint under Article 13, the Court recalled it had established on numerous occasions that there is a lack of effective domestic remedies to complain about the quality of medical treatment in detention in Russia (see i.a. Reshetnyak v. Russia, no. 56027/10, 2013 and Koryak v Russia, no. 24677/10, 2012), and saw no reason to depart from this conclusion.
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Conclusion ■ violation of Articles 3 and 13.
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Article 41 ■ EUR 19,500 for non-pecuniary damage for the first applicant (who also complained of the use of metal cages and/or other security arrangements in courtrooms); EUR 15,000 for the remaining applicants.
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Art 3 ■ Insufficient medical care ■ No effective remedy
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Facts ■ The seven applicants suffer from various serious medical conditions (i.a. HIV, cancer, hypertension, cerebrovascular accident, broken element in a hip replacement mechanism). They alleged that they did not receive adequate medical care in detention and that there was no effective remedy in that regard.
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Law ■ Articles 3 and 13 ■ Having examined all the material submitted to it, the Court concluded that there had been a violation of Article 3 of the Convention. As regards the applicant’s complaint under Article 13, the Court recalled it had established on numerous occasions that there is a lack of effective domestic remedies to complain about the quality of medical treatment in detention in Russia (see i.a. Reshetnyak v. Russia, no. 56027/10, 2013 and Koryak v Russia, no. 24677/10, 2012), and saw no reason to depart from this conclusion.
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Conclusion ■ violation of Articles 3 and 13.
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Article 41 ■ EUR 19,500 for non-pecuniary damage for the first applicant (who also complained of the use of metal cages and/or other security arrangements in courtrooms); EUR 15,000 for the remaining applicants.
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Art. 3 ■ Prisoners with disabilities not provided with assistance or equipment ■ No effective remedy
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Facts ■ The six applicants suffer from various disabilities (i.a. amputated leg, hemiparesis, blindness, paraplegia). They alleged that they did not receive the assistance or specific equipment necessitated by their condition and complained of the lack of effective remedy in this respect.
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Law ■ Articles 3 and 13 ■ Having examined all the material submitted to it, the Court concluded that there had been a violation of Article 3 of the Convention. As regards the applicant’s complaint under Article 13, the Court recalled it had established on numerous occasions that there is a lack of effective domestic remedies to complain about the quality of medical treatment in detention in Russia (see i.a. Topekhin v. Russia, no. 78774/13, 2016, and Butrin v. Russia, no. 16179/14, 2016), and saw no reason to depart from this conclusion.
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Conclusion ■ violation of Articles 3 and 13.
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Article 41 ■ EUR 15,000 for non-pecuniary damage for each applicant
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Art 3 ■ Inadequate medical care in detention ■ No surgery to treat cataract for five years ■ Inability of the prisoner to pay for the surgery
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Facts ■ The applicant complained about the inadequacy of the medical care he received in detention, in particular the lack of surgery to treat the cataract in his right eye. He first mentioned vision disorders at the beginning of his detention (2014-2019). He could only see a specialist after four months and was first hospitalised three months after this first visit. Ophthalmologists repeatedly stressed that the applicant’s condition required surgery and a domestic court ordered the Government to provide the applicant with adequate medical care. Such surgery could only be performed in a public hospital at the applicant’s own expense. Although he agreed to cover the costs of the surgery (the amount was not disclosed to him), he was informed that he did not have the necessary funds. The operation did not take place while he was in detention, resulting in a “significant reduction” in the applicant’s visual acuity. The Government stated in general terms that the applicant had agreed to postpone the operation on several occasions.
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Law ■ Articles 3 ■ In the Court’s view, the Government was unable to provide any explanation for the fact that the applicant had to wait four months for a consultation with a specialist, another three months for hospitalisation, and that no surgery had taken place during the other four years of his detention – despite a domestic court judgment ordering the Government to provide the applicant with adequate medical care. Responding to the Government’s argument that the applicant used his savings to buy goods and make telephone calls, the Court observed that this had never been explained to the applicant, who had always been told that he did not have the necessary resources, without further explanation. Moreover, the fact that the applicant had agreed to postpone the surgery (as the Government claimed) did not absolve the Government of their obligation to provide him with adequate medical care.
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Conclusion ■ violation of Articles 3.
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Article 41 ■ EU 7,500 for non-pecuniary damage.
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Rule 39 ■ Interim measures ■ Prisoners of war ■ Show trial ■ Risk of being sentenced to death penalty
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Facts ■ The Ukrainian Government requested the Court to indicate interim measures to the Russian Government with regard to Ukrainian prisoners of war (POWs), in particular those captured by Russian forces at the Azovstal plant in Mariupol. The Ukrainian government submitted that these POWs face a serious and imminent risk of irreparable harm, “given the plans to hold a ‘show trial’ of Ukrainian military captives and taking into account that there is no access to prisoners of war, the constant failure of the Russian Federation to provide information regarding their captivity and plans to sentence them to the death penalty” (press release).
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Conclusion ■ The Court decided that the issues raised in the present request were covered by its decision on interim measures in the case Oliynichenko v. Russia and Ukraine (no. 31258/22, see above). This decision covers “any requests made on behalf of Ukrainian prisoners of war in Russian custody in which sufficient evidence had been provided to show that they faced a serious and imminent risk of irreparable harm to their physical integrity and/or right to life” (idem). The Court therefore reiterated that the Russian government must ensure that POWs’ Convention rights are respected, and that medical assistance must be provided to them should they need it.
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This newsletter is funded by the European Union and the Robert Carr Fund. Views and opinions expressed are however those of the authors only and do not necessarily reflect those of the European Union, the European Commission or the Robert Carr Fund. Neither the European Union, the European Commission nor the Robert Carr Fund can be held responsible for them.
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