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15 SEPTEMBER 2022
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This newsletter 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 MAY–JUNE 2022
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Inadequate conditions of detention: violation of Article 3; absence of effective judicial remedy in that regard: violation of Article 13.
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Ill-treatment during a riot in prison; unnecessary use of force by prison officers: violation of Article 3.
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Inadequate detention conditions in open-type and closed-type premises: no violation of Article 3; absence of effective remedy in that regards: violation of Article 13 taken in conjunction with Article 3.
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Lack of adequate medical examination and treatment for prisoners with serious medical conditions (HIV/AIDS, cancer): violation of Article 3.
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Muslim prisoner held in a high-security prison denied permission to allocate a room for congregational Friday prayers without proper justification: violation of Article 9 (1).
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Moroccan prisoner of war sentenced to death in the so-called “Donetsk People’s Republic”: indication of urgent measures.
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Inadequate detention conditions of prisoners with disabilities: violation of Article 3.
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Inadequate detention conditions of prisoners with disabilities: violation of Article 3.
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Lack of medical examination and palliative treatment for a prisoner with serious medical conditions (cancer): violation of Article 3.
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Two British prisoners of war sentenced to death in the so-called “Donetsk People’s Republic”: indication of urgent measures.
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Art. 13 + Art. 3 ■ Art. 3 (substantive) ■ Ineffective domestic judicial remedies for complaints as to inadequate conditions of detention ■ Cumulative effects of detention conditions, including inadequate personal space in cells, amounting to degrading treatment
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Facts ■ The applicant was held in pre-trial detention for approximately a year and a half. He alleged that the cells in the prison were overcrowded and that there were a number of other inadequacies in detention conditions. At domestic level, the applicant lodged a complaint with the General Jurisdiction Court of a district (“the District Court”), asking them to acknowledge and put an end to the ongoing violation of his rights under Article 3 resulting from his detention conditions, and to provide compensation in respect of non-pecuniary damage.
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His complaint was dismissed for being outside the competence of the District Court, and that the matter fell rather within the competence of the Administrative Court. On appeal, the Civil Court of Appeal quashed the decision against the applicant, reasoning that the applicant’s application had raised criminal-law matters which came within the scope of the courts of general jurisdiction, whereas the District Court had examined it under the rules of civil procedure.
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Subsequently, the District Court again declared the applicant’s application inadmissible under the rules of civil procedure. The applicant appealed unsuccessfully up to the Court of Cassation.
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Law ■ Article 13 in conjunction with Article 3 ■ The Government had argued that the applicant had failed to exhaust domestic remedies. The issue was closely linked to the merits of the applicant’s complaint that he had not had at his disposal an effective remedy for his complaint under Article 3 regarding the alleged inadequate conditions of his detention. The Court therefore joined the Government’s objection to the merits of the complaint under Article 13. The Court had previously rejected objections of non-exhaustion raised by the Armenian Government in cases concerning inadequate conditions of detention (see Kirakosyan v. Armenia, no. 31237/03, 2 December 2008; Gaspari v. Armenia, no. 44769/08, 20 September 2018).
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In the present case, the Government had raised a new ground for its objection, mainly based on the argument that, by submitting a civil claim instead of instituting administrative or criminal proceedings, the applicant had made use of a clearly futile remedy. The Government, however, had failed to submit any argument or evidence regarding the effectiveness of those remedies in respect of the applicant’s particular complaints.
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Firstly, it was not clear what result could have been achieved in the applicant’s situation by applying to a judicial authority, whether administrative or criminal, against the penitentiary service and the prison authority, considering that the issues raised had apparently been of a structural nature. The Government had failed to explain the scope of such potential judicial review and the kind of redress the applicant could have obtained had he pursued any of those remedies, in particular, any preventive and compensatory measures that the courts could have ordered. They had neither referred to any specific domestic rules nor provided any examples of domestic judicial decisions taken in relevantly similar cases.
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Secondly, there had been confusion in domestic law and practice at the material time as to which procedure – administrative or criminal – had to be pursued when lodging complaints against the penitentiary authorities, with disagreement on the matter between the District Court and Court of Appeal. The Government had also referred to both remedies without, however, clarifying which of the two had been applicable to the applicant’s case. That ambiguity had been acknowledged in 2019 by the Constitutional Court, which had called for legislative amendments in order to resolve the issue and, pending such changes, had assigned such cases, with some exceptions, to the Administrative Court. The remedies referred to had therefore, in addition, lacked the requisite clarity at the material time.
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Thirdly, the Government’s argument that the applicant had had to apply to the Constitutional Court, in order to have his claim subsequently examined by the Administrative Court, could not be accepted. The Court had previously held that the constitutional remedy was generally not considered as a domestic remedy to be exhausted due to the specificities of the judicial role of the Armenian Constitutional Court (see Gevorgyan and Others v. Armenia (dec.), no. 66535/10, 14 January 2020) and there was no reason to depart from that conclusion in the present case.
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For those reasons, none of the judicial review proceedings indicated by the Government had provided an effective domestic remedy for the applicant’s complaints regarding the allegedly inadequate conditions of detention, had been available both in theory and in practice, and been capable of preventing the continuation of the alleged violation and, if necessary, providing compensation for the damage sustained, as required by Article 13.
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Conclusion ■ preliminary objection dismissed; violation of Article 13 (unanimously).
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Article 41 ■ EUR 3,900 in respect of non-pecuniary damage.
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(See also Kirakosyan v. Armenia, no. 31237/03, 2 December 2008; Gaspari v. Armenia, no. 44769/08, 20 September 2018; Gevorgyan and Others v. Armenia (dec.), no. 66535/10, 14 January 2020)
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© Council of Europe/European Court of Human Rights
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Art. 3 (substantive) ■ Ill-treatment during a riot in prison ■ Unnecessary use of force
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Facts ■ The applicant alleged that he was ill-treated by officers during a riot in prison, even though he did not participate in it. He claimed he was in his dormitory room watching television when a masked officer told him to leave the dormitory and head towards the yard. During the process, he “received multiple blows from truncheons, hands and legs on various parts of his body” (para. 8).
The applicant was subsequently examined by a doctor who concluded that the applicant sustained a total of eight injuries, classified as negligible, although “it could not be ruled out that they had been self-inflicted” (para. 9).
Following complaints lodged by the applicant and other prisoners, an investigation was opened into allegations of abuse of office by the officers involved in the events.
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The Kaunas Regional Court ruled that “the physical force which the officers had used on 22 July 2016 had not constituted abuse of office but had been justified by the violent actions of prisoners” (para. 11), The civil claim of the applicant for compensation of the non-pecuniary damage was also dismissed by the domestic courts on the basis of the findings made in the criminal proceedings mentioned above (“in the absence of any unlawful actions by the officers, the civil liability of the State could not arise”, para. 13).
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Law ■ Article 3 ■ Since the applicant did not complain that the investigation into his allegations had been ineffective, the case concerns solely the substantive limb of Article 3 of the Convention. The Court dismissed the Government’s argument that the applicant’s injuries might have been self-inflicted. During the domestic proceedings, “it was acknowledged that physical force had been used against prisoners” (para. 18) and similar injuries were detected on eighty-two other prisoners following the riot. Therefore, the Court considered it established that the injuries were “sustained at the hands of the officers” (para. 18).
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The Court then observed that the applicant consistently argued in all his submissions that he had not participated in the riot and had not resisted the officers. Furthermore, he was not listed among the main organisers of and participants in the riot and it was never established that the use of force against the applicant had been made “strictly necessary by his own conduct” (para. 19) as the national courts “limited their assessment to whether the law entitled officers to use physical force in the event of prison riots, without any assessment of the necessity and proportionality of its use in the applicant’s case” (para. 19).
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Accordingly, the Court declared it is “unable to find that the recourse to physical force against the applicant was made strictly necessary by his own conduct” (para. 20). In spite of the minor severity of the injuries sustained by the applicant, it concluded that “such use of force amounted to inhuman and degrading treatment” (para. 20 – see also Artyomov v. Russia, no. 14146/02, §§ 169-72, 27 May 2010; Gladović v. Croatia, no. 28847/08, §§ 38, 54 and 55, 10 May 2011; and Balajevs v. Latvia, no. 8347/07, § 95, 28 April 2016).
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Conclusion ■ violation of Article 3 (substantive limb).
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Article 41 ■ EUR 8,000 for non-pecuniary damage, EUR 1,000 for costs and expenses.
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Art. 3 (substantive) ■ Inadequate conditions of detention ■ Part of the application inadmissible as a result of non-exhaustion of domestic remedies and of lack of reliable evidence ■ Ombudsperson report ■ No violation
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Facts ■ The 34 applicants complained of inhuman and degrading detention conditions. In particular they complained of lack of personal space (less than 3 sq. m.), poor hygiene conditions, bad food quality, lack of heating, humidity, lack of recreational activities and access to information, inadequate medical care (para. 6-12).
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Law ■ Article 3 – Admissibility ■ The Court accepted the Government’s objection as to non‑exhaustion of domestic remedies only for the 13 applicants who had been released at the time they filed their complaint and had not made use of the domestic compensatory remedy available to them. (see, among others, Zournatzidis and Others v. Greece, no. 23261/13, §§ 31-35, 24 April 2017, and Koureas and Others v. Greece, no. 30030/15, §§ 58 60, 28 May 2018). As for the other applicants who were still detained at the time they filed their complaint, the Court declared their complaint admissible. For this category of applicants, to whom no preventive remedy is available, the compensatory remedy mentioned above cannot be deemed effective and it could therefore not be required from them that they use it before filing a complaint with the Court (see Pilalis and Others v. Greece, no. 5574/16, § 44).
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Law ■ Article 3 – Merits ■
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(a) Detention conditions in semi-liberty regime and in open-type premises – The Court based its reasoning on the findings of the Greek Ombudsperson who conducted a visit to the Kassandra prison around nine months after the reception of the applications. This report contradicts the applicants’ allegation that they were held in overcrowded cells. According to the Ombudsperson the personal space available ranged from 8 to 6.67 sq. m. and in any event was superior than 3 sq.m. Furthermore, those prisoners detained in open-type premises and under semi-liberty regime, enjoyed greater autonomy and freedom of movement. These findings led the Court to conclude that there was no lack of personal space for applicants held in open-type premises and under semi-liberty regime.
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The Court found the remainder of the complaint (passive smoking, poor medical treatment, lack of drug addiction therapy) insufficiently substantiated. The complaints that concerned prisoners who use drugs were not substantiated by any evidence or precise information as to who exactly were those prisoners who could not benefit from harm substitution therapy and detoxification, they also have not specified whether there was any harm caused in the absence of necessary medical assistance. With regard to medical or pharmaceutical care for prisoners with health problems, no precise information or concrete complaints were formulated in the applications. In contrast, the Government has provided a detailed list indicating the names of the applicants and the dates of the medical and dental treatment received.
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Conclusion ■ inadmissible (ill-founded).
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(b) Detention in closed-type premises (including the special premises for foreigners pending deportation) – The Court limited its examination to the part of the complaints relating to the material detention conditions in the Kassandra prison. The remainder of the complaint (passive smoking, poor medical treatment, lack of drug addiction therapy) was considered insufficiently substantiated.
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The Court based its analysis on the Ombudsperson report and on findings that were not discussed by the parties. The Court noted that the number of detainees in this closed-type part of the prison was below its capacity, and that according to the Ombudsperson report, prisoners had a personal space of around 4.7 sq. m., which is above the minimum standards.
Furthermore, the Court observed that detainees had access to a courtyard eight hours per day and therefore enjoyed significant freedom of movement during the day outside their cells.
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The Court was not convinced by the other parts of the complaints (lack of food and poor quality of food, poor hygiene, lack of outdoor activities). First, the Court noted that the prison administration provided other facilities with food, which contradicts the allegation of food scarcity. As regards the quality, the Court referred to the weekly menu provided by the Government and the Ombudsperson’s observation to dismiss the applicants’ claims. Second, concerning hygiene, the Government submitted invoices of a private company in charge of the disinfection of parts of the prison. The Court also noted that hygiene products and clothes were provided by donations from the Church and citizens. Last, the Court relied on the Ombudsperson’s observations that rooms were equipped with television sets and that sport activities were organised regularly to dismiss the applicants’ allegation of recreational activities.
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The Court acknowledged that the applicants’ allegations about problems with building infrastructure, heating and hot water were confirmed by the Ombudsperson’s report but declared that “these elements are not sufficient in themselves to conclude that there has been a violation of Article 3 of the Convention” (para. 122).
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Some of the applicants complained of inadequate conditions of detention in the special premises where foreigners awaiting deportation were staying. However, according to the evidence provided by the Government, each inmate had about 6.5 m2 of personal space and cells were equipped with a toilet, a shower, bed, hangers, a television, a table and a refrigerator. The Court has concluded that the conditions of detention in those rooms could not be considered as inhuman or degrading.
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Conclusion ■ no violation of Article 3.
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Law ■ Article 13 in conjunction with Article 3 ■ With regard to the applicants who were held in open-type premises and at semi-liberty and were subsequently released from the Kassandra prison, the Court has concluded that their applications under Article 3 were declared inadmissible, therefore, the allegations under Article 13 were also rejected as manifestly ill-founded.Turning to the applicants who were held in closed-type part of the prison, the Court recalled its case law, where it has already found that the compensatory remedy for inadequate conditions of detention provided in the Greek legislation lacks preventive character, therefore, could not be considered effective remedy (see, for example, Konstantinopoulos and others v. Greece, no. 69781/13, § 39, Patrikis and others v. Greece, no. 50622/13, § 37, 28 January 2016, Adiele and others v. Greece, no. 29769/13, §§ 34-35, 25 February 2016). Accordingly, the Court reached an identical conclusion.
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Conclusion ■ violation of Article 13 in conjunction with Article 3.
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Article 41 ■ EUR 2,000 for non-pecuniary damage to each of the applicants for whom violation has been found.
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Art. 3 (substantive) ■ Prisoner with HIV/AIDS ■ Prisoner diagnosed with cancer ■ Lack of adequate medical treatment
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Art 13 ■ No effective remedy with regard to complaints
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Facts ■ The applicants (respectively diagnosed with cancer, hepatitis and HIV for the first applicant, oesophageal cancer for the second) 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 ■ Locus standi of the applicants’ relatives ■ The father of the first applicant and the mother of the second applicant expressed the wish to pursue the applications on behalf of the deceased applicants. The Government objected against the right of the second applicant’s mother to represent the applicant, as, in their view, the rights claimed under Articles 3 and 13 of the Convention belonged to the category of non-transferable rights and that his mother could not claim to be the victim of a violation on behalf of the deceased.
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The Court reiterated that what matters in this situation is not whether the rights at issue are transferable but whether the victim made a choice to exercise his or her right of individual application under Article 34 of the Convention by lodging a complaint with the Court. In principle, “the next-of-kin or heir may in principle pursue the application, provided that he or she has sufficient interest in the case” (para. 8, see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, 17 July 2014, § 97). The Court added that “human rights cases before it generally have a moral dimension and persons near to an applicant may thus have a legitimate interest in ensuring that justice is done, even after the applicant’s death” (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, 12 July 2001). Therefore, the mother of the second applicant, having a legitimate interest in pursuing the application, has locus standi in the present case.
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Law ■ Article 3 ■ With regard to the allegations of inadequate medical treatment in detention, the Court has started by noting that both applicants suffered from serious medical conditions, which could not but affect their everyday functioning. This could have led to a considerable level of anxiety that they could have experienced with regard to the adequacy of the medical care provided to them. The adequacy of care, according to the Court’s established case law presupposes prompt and accurate diagnosis and care. Supervision should also be regular and systematic and involve a comprehensive therapeutic strategy. The Court has also referred to the equivalence of care, which nevertheless does not envisage the guarantee for the treatment of prisoners equivalent to the best healthcare establishments outside prison facilities. Based on its well-established case law (see Blokhin v. Russia [GC], no. 47152/06, §§ 12-50, ECHR 2016, Reshetnyak v. Russia, no. 56027/10, §§ 49-101, 8 January 2013 and Koryak v. Russia, no. 24677/10, §§ 70-110, 13 November 2012), the Court has found that in the present case the applicants did not receive comprehensive and adequate medical care in detention.
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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 ■ EUR 20 000 in respect of the first applicant, EUR 15 000 in respect of the second applicant, for pecuniary and non-pecuniary damage and costs and expenses.
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Art. 9 ■ Manifest religion or belief ■ Positive obligations ■ Unjustified refusal to allocate room in high-security prison to Muslim prisoner for congregational Friday prayers ■ Fair balance not struck between competing rights and interests ■ Failure to carry out individualised assessment and explore less restrictive modalities
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Facts ■ When the present application was lodged, the applicant was a convicted person who had been in detention for more than eleven years and was serving his sentence in a high-security prison. The prison’s administration refused his request to allocate a room so that he could offer congregational Friday prayers. His challenges thereto were unsuccessful.
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Law ■ Article 9 ■
(a) Applicability – It was common ground that congregational Friday prayers were one of the precepts of Islam and there was no reason to doubt that the applicant’s wish to offer them had been genuine, reasonable and sufficiently connected to his right to manifest his religion. Although not decisive, it was also relevant that the domestic authorities had at no point during the domestic proceedings given any consideration to the question of whether the applicant had (or had not) been required to offer Friday prayers owing to his being deprived of his liberty. Accordingly, the applicant was entitled to lay claim to the protection afforded by Article 9.
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(b) Merits – The applicant had been able to perform individual acts of worship in his cell and to obtain and possess books or other written material relating to his religious beliefs. Given that he had been sharing his cell with other inmates and there had been no indication that his cell mates had also been willing to offer congregational Friday prayers, the Court could not subscribe to the Government’s argument that the applicant could have practised those prayers in his cell. Furthermore, as his complaint centred on the authorities’ refusal to make the necessary arrangements enabling him to offer congregational Friday prayers with other inmates in a separate place allocated for that purpose, the Court had to determine whether the State in this case had been compliant with its positive obligations under Article 9. It found that it had not, the domestic authorities not having struck a fair balance between the competing rights and interests at stake, that is, the applicant’s freedom of collective worship in the prison and the public order interests (security and order in prison), by adducing relevant and sufficient reasons for their refusal. In particular, the reasons adduced by the prison authorities had been essentially based on three grounds:
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(i) The institution in which he had been held was a high-security prison: although such prisons were subjected to a stricter set of rules, which might call for a higher degree of restrictions on the exercise of rights under Article 9, that fact alone should not be construed as excluding any real weighing of the competing individual and public interests but should rather be interpreted in the light of the circumstances of each individual case. On this point, the Court attached importance to the fact that it did not appear that the domestic authorities had carried out an individualised risk assessment in respect of the applicant; they had not considered whether he had been classified as a dangerous or high-risk inmate or had otherwise acted violently, attempted to escape from prison or failed to abide by the disciplinary rules relating to prison order.
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(ii) Collective gatherings posed a risk to prison security: the domestic authorities had not sufficiently assessed whether the gathering of a certain number of inmates for Friday prayers might, in the individual circumstances of the case, have generated a security risk that they should have been treated differently from the collective gatherings of inmates for cultural or rehabilitative purposes, which were permitted by domestic law.
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(iii) Absence of appropriate premises for Friday prayers in the prison: the domestic authorities had not explored any other modalities, including those which were less restrictive of the applicant’s rights under Article 9. Accordingly, the Court was not convinced by the Government’s argument that realising the applicant’s request could only have been possible by opening the doors of all the cells.
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Conclusion ■ violation of Article 9 (unanimously).
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Article 41 ■ EUR 5,000 to the first applicant and EUR 3,000 to the second applicant in respect of non-pecuniary damage. EUR 4,125 to the first applicant and EUR 6,004.20 to the second applicant in respect of costs and expenses.
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(See also Abdullah Yalçın v. Turkey, Application no. 2723/07, 21 April 2009)
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© Council of Europe/European Court of Human Rights
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Rule 39 ■ Urgent measures ■ Death sentence
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Art. 2 ■ Prohibition of death penalty ■ Death sentence ordered by a “court” of a self-proclaimed republic controlled by Russia
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Art. 3 ■ Detention conditions ■ Medical assistance
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Facts ■ The applicant is a Moroccan citizen who arrived in Ukraine as a student in 2019. In November 2021 he decided to undergo military training and was subsequently deployed to join the 36th Detached Marine Brigade of the Armed Forces of Ukraine in Mariupol, Donetsk Region. That brigade participated in military activity since the beginning of full-scale war in Ukraine.
On 13 April 2022, the Russian authorities announced that the personnel of the applicant’s brigade had voluntarily laid down their arms and surrendered to the Russian forces in Mariupol. The applicant was subsequently accused of several offences prescribed by the “Criminal Code of Donetsk People’s Republic (DPR)”- i.a. forcible seizure of power or retention of power, participation in an armed conflict or hostilities as a mercenary, and promotion of training in terrorist activities. On 9 June 2022 he was sentenced to death by a “DPR court”. Together with the applicant, two other foreigners, British nationals, who participated in military activities as members of Ukrainian forces, were also sentenced to death by the same “court”. On 14 June 2022 the representative of the applicant made a Rule 39 request to the ECtHR.
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Law ■ Rule 39 ■ The Court examined the request for interim measures on 16 June 2022 and indicated to the Russian Government to: “(a) ensure that the death penalty imposed on the applicant is not carried out; (b) ensure respect for the Convention rights of the applicant, notably in respect of Articles 2 (right to life) and 3 (prohibition of inhuman or degrading treatment) of the Convention, ensure the appropriate conditions of his detention, and provide him with any necessary medical assistance and medication.”
The Court also requested Russia to provide, within two weeks, information with regard to the actions and measures that were taken by the authorities to ensure respect for the Convention rights of the applicant.
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Conclusion ■ the Court indicated urgent measures to the Government of Russia with regard to the rights under Articles 2 and 3 and gave an immediate notice of them to the Committee of Ministers under Rule 39 § 2.
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Art. 3 ■ Prisoner in a wheelchair ■ Lack of adequate conditions of detention for a person with disabilities
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Art. 13 ■ No effective remedy with regard to complaints
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Facts ■ The applicant complained that her detention conditions were incompatible with her disabilities (she is diagnosed with paralysis and has to use a wheelchair) and that there was no effective remedy in that regard. She complained in particular of lack of nursing assistance and that the prison facility in which she was held was not adapted for wheelchairs (absence of wheelchair ramps, hampered access to the walking yard, sink level placed too high, no chair for wheelchair users in the toilet, rooms for visits without special equipment).
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Law ■ Article 3 and Article 13 ■ The Court observed that the applicant was kept in detention in poor conditions which did not satisfy her special needs. It then stressed that the decision to place and keep a disabled person in detention should be substantiated by the special care in securing detention conditions which correspond to the special needs resulting from their disability (see Semikhvostov v. Russia, Application no. 2689/12, § 72, 6 February 2014; Zarzycki v. Poland, Application no. 15351/03, § 102, 12 March 2013; and Farbtuhs v. Latvia, Application no. 4672/02, § 56, 2 December 2004). In the present case, the Court decided not to depart from its case law and concluded that the conditions of the applicant’s detention amounted to “inhuman and degrading treatment”. Moreover, the applicant did not have effective legal remedies at her disposal with regard to complaints under Article 3.
The Court has also found violation of Article 3 with regard to inadequate conditions of detention during transport, as the car was not equipped for transport of wheelchair users, and the toilet had no chair for wheelchair users. Additionally, lack of effective remedy to complain of the conditions of transport was in breach of Article 13.
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Conclusion ■ violation of Article 3 and Article 13.
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Art. 3 ■ Prisoner in a wheelchair ■ Lack of adequate conditions of detention for a person with disabilities
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Art. 13 ■ No effective remedy with regard to complaints
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Facts ■ The applicants, who suffered from serious medical conditions (i.a. paresis of arms and legs; encephalopathy, epilepsy, visual nerve atrophy, poor hearing; paraplegia) complained of the inadequate conditions of their detention and of the absence of effective remedy in that regard. They complained in particular i.a. of the lack of special mattress, lack of nursing assistance (as a result of which they relied on other inmates to move around, use toilet, shower etc.), the absence of ramps in the facility, the absence of rehabilitation measures for a wheelchair-bound inmate; the inability to receive a prosthetic leg in due time, etc.
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Law ■ Article 3 and Article 13 ■ The Court stressed that the applicants were kept in detention in poor conditions, which did not satisfy their special needs due to their disabilities of various kinds. The case law of the Court has already established the principle, according to which the authorities that decide to place and keep a disabled person in detention should demonstrate special care in securing detention conditions compatible with the special needs resulting from their disability (see Butrin, v. Russia, Application no. 16179/14, § 49, 22 March 2016; Semikhvostov v. Russia, Application no. 2689/12, § 72, 6 February 2014)). In the present case, the Court followed its previous reasoning and concluded that the cases at hand disclosed violation of Article 3, as the treatment of the applicants in penitentiary facilities amounted to “inhuman degrading”. Additionally, they had no effective remedy available with regard to their complaints.
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Conclusion ■ violation of Article 3 and Article 13.
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Article 41 ■ for pecuniary and non-pecuniary damage and costs and expenses EUR 15 000 (first to seventh applicants and tenth to twelfth applicants), EUR 16 000 (eighth applicant), EUR 19 500 (ninth applicant).
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Art. 3 ■ Conditions of detention ■ Prisoner diagnosed with cancer ■ Absence of necessary medical examinations and palliative care
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Art. 13 ■ No effective remedy with regard to complaints
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Facts ■ The principal allegations of the applicant concerned lack of adequate medical care in detention and no effective remedy in that regard. The applicant was diagnosed with rectal cancer and complained of lack of necessary medical examination (no biopsy or endoscopy) and palliative treatment for 4 years and 10 months.
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Law ■ Article 3 ■ The Court noted from the outset that the applicant suffered from a serious medical condition, which could not but affect his everyday functioning. This could have led to a considerable level of anxiety that he could have experienced with regard to the adequacy of the medical care provided. The adequacy of care, according to the Court’s established case law presupposes prompt and accurate diagnosis and care. Supervision should also be regular and systematic and involve a comprehensive therapeutic strategy. The Court has also referred to the equivalence of care, which nevertheless does not envisage the guarantee for the treatment of prisoners equivalent to the best health establishments outside prison facilities. Based on its well-established case law (see Blokhin v. Russia [GC], no. 47152/06, §§ 12-50, ECHR 2016, Reshetnyak v. Russia, no. 56027/10, §§ 49-101, 8 January 2013 and Koryak v. Russia, no. 24677/10, §§ 70-110, 13 November 2012), the Court has found that in the present case the applicants did not receive comprehensive and adequate medical care in detention.
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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 ■ EUR 15 000 for pecuniary and non-pecuniary damage and costs and expenses.
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Rule 39 ■ Urgent measures ■ Death sentence
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Art. 2 ■ Prohibition of death penalty ■ Death sentence ordered by a “court” of a self-proclaimed republic controlled by Russia
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Art. 3 ■ Detention conditions ■ Medical assistance
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Facts ■ The applicants are British citizens living in Ukraine They joined the Armed Forces of Ukraine (the UAF) in 2018 and were subsequently deployed to join the 36th Detached Marine Brigade of the UAF in Mariupol, the Donetsk Region. That brigade participated in military activity since the beginning of full-scale war in Ukraine. On 13 April 2022, the Russian authorities announced that the personnel of the applicant’s brigade had voluntarily laid down their arms and surrendered to the Russian forces in Mariupol. They were subsequently accused of several offences prescribed by the “Criminal Code of the DPR” and sentenced to death.
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Law ■ Rule 39 ■ The representatives of the applicants submitted a request for interim measure on 27 June 2022 to the Court after it granted urgent measures in a similar case on 16 June 2022 (see above Saadoune v. Russia and Ukraine, no. 28944/22). Similarly to the previous case mentioned, the Court requested the Russian Government to ensure that the death penalty is not enforced and the Convention rights of the applicants are respected. The Court also decided to give immediate notice of the interim measures ordered in all three cases to the Committee of Ministers of the Council of Europe in accordance with Rule 39 § 2 of the Rules of Court.
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Conclusion ■ the Court indicated urgent measures to the Government of Russia with regard to the rights under Articles 2 and 3 and gave an immediate notice of them to the Committee of Ministers under Rule 39 § 2.
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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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