|
|
|
|
|
|
9 DECEMBER 2022
|
|
|
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.
|
|
|
|
OVERVIEW OF CASES
SEPTEMBER–OCTOBER 2022
|
|
|
Prisoner statutorily disqualified from old-age pension payments while incarcerated: no violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1.
|
Failure to provide a detainee with contact lenses for three weeks: violation of Article 3.
|
No legal basis for disciplinary sanctions leading to imposition of stricter prison regime and repeated prison transfers: violation of Article 8.
|
Use of force by prison guards, in view of imminent danger posed by applicant reaching for a hammer while being interrogated and searched in a storage room: no violation of Article 3 (substantive limb); Ineffective investigation into applicant’s allegations of ill-treatment by prison guards: violation of Article 3 (procedural limb).
|
Ban on telephone calls for prisoners serving life sentences under strict regime: violation of Article 8.
|
Life sentence with no prospect of release: violation of Article 3.
|
One-off refusal, on COVID-19 grounds, of permission for a prisoner to attend church services outside prison which subsequently offered online access to religious support: no violation of Article 9.
|
Prisoner subjected to numerous strip searches: inadmissible under Article 3, violation of Article 8; monitoring of the prisoner’s telephone conversations: inadmissible under Article 8.
|
Life imprisonment with a prospect of release only after serving 30 to 40 years: violation of Article 3.
|
|
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.
|
|
|
|
REPETITIVE CASES
|
|
|
|
PRIVATE AND FAMILY LIFE ■ 4 judgments in cases against Russia
|
Restriction on family visits (including refusal of long-term family visits, physical separation and supervision during short-term family visits): violation of Article 8.
|
|
TRANSPORT ■ 9 judgments in cases against Russia
|
Inadequate detention conditions during transport of prisoners (including overcrowding, lack of fresh air and natural light, restricted access to toilet, restricted access to potable water, passive smoking): violation of Articles 3 and 13.
|
|
SURVEILLANCE ■ 6 judgments in cases against Russia
|
Permanent video surveillance of prisoners (including surveillance by opposite-sex operators, surveillance in lavatory/shower room): violation of Articles 8 and 13.
|
|
HEALTH ■ 13 judgments in cases against Ukraine and Russia
|
|
Inadequate medical care in prison (including lack of or delay of medical examination, disregard for disability, no provision of prothesis after amputation, delays in arranging hospitalisation) : violation of Articles 3 and 13.
|
|
|
|
|
|
|
|
|
|
Art 1 P1 ■ Withheld old-age pension payment, due to statutory disqualification while incarcerated, not a “possession”
|
|
Art 14 (+ Art 1 P1) ■ No discrimination against convicted prisoner statutorily disqualified from old-age pension payments while incarcerated ■ No evidence of greater impact on older-age prisoners as a group ■ Differing impact of the disqualification, based on a person’s level of income and its source, not related to personal status ■ Convicted prisoners not in relevantly similar position to persons detained for treatment of mental illness or remand prisoners
|
|
Art 13 (+ Art 14 + Art 1 P1) ■ Effective remedy ■ Supreme Court decision to uphold constitutional complaint, and not proceed with full consideration of Convention complaints, within authorities’ margin of appreciation ■ No issues arising from level of damages awarded ■ Manifestly ill-founded
|
|
|
|
|
Facts ■ The applicant, a convicted prisoner, was disqualified from receiving his State Pension (Contributory) (“SPC”) for the duration of his sentence of imprisonment. The disqualification was based on domestic legislation applicable to all persons undergoing imprisonment or detention in legal custody and covering a number of benefits, including the SPC.
|
The applicant argued before the domestic courts that the impugned legislative provision was incompatible with one or more articles of the Constitution and that the stoppage of his pension was contrary to one or more provisions under the Convention. He appealed up to the Supreme Court, which delivered two judgments, upholding the applicant’s constitutional complaint in the first and providing remedies in the second (namely, a declaration of invalidity of the provision, and damages approximating the value of the pension payments corresponding only to the duration of the appellate proceedings). It did not find it necessary to proceed with a full consideration of the Convention arguments raised by the applicant.
|
Law ■ Article 1 of Protocol No. 1 ■ The pension payments withheld from the applicant due to his statutory disqualification from receipt of the SPC, and on account of his imprisonment, could not be regarded as “possessions” within the meaning of this provision. However, they constituted a “proprietary interest” falling within the ambit of the provision and thereby engaging Article 14.
|
Conclusion ■ Inadmissible (incompatible ratione materiae).
|
Law ■ Article 14 in conjunction with Article 1 of Protocol No. 1
|
|
(a) The complaint of age-discrimination
|
There was no question of a difference in treatment based directly on age: the relevant domestic legislation had applied to many types of benefit available to persons of working age and did not specifically target the SPC. Moreover, the applicant’s claim of indirect discrimination based on age had not been substantiated. He had referred to evidence about how various age-related ailments had rendered him unable to work in prison. However, the evidence required to substantiate a complaint of indirect discrimination against a particular group – here, older prisoners – had to relate to the group as such, rather than just one member of it. The fact that some prisoners in the applicant’s age group had been performing paid work in the same prison rather spoke against the applicant’s complaint of indirect discrimination based on age.
|
|
(b) The complaint of discrimination linked to source or level of income
|
|
The applicant had complained about the more severe impact of the disqualification from the SPC benefit on prisoners who, like him, had had no other source of income, compared to those who had had additional sources of revenue that had not been stopped or reduced on account of incarceration. While prisoners in the former group had been near-destitute, those in the latter group had had means to improve the quality of their lives in prison, and this, according to the applicant, had disclosed indirect discrimination against those in his situation.
|
The applicant had argued that a person’s level of income and its source qualified as “other status”. However, his complaint concerned more specifically differing financial entitlements, i.e. under the general social welfare system and other benefit schemes linked to professional activity or private investments. The different impact that the disqualification had had on prisoners with and without other social security entitlements or other forms of income was not related to an aspect of their personal status within the meaning of Article 14. Accordingly, that aspect of the applicant’s complaint of discrimination was not cognisable under that provision.
|
|
(c) The complaint of discrimination based on status as a convicted prisoner
|
The Court recalled that the fact of being a prisoner could constitute “other status” within the meaning of Article 14. It therefore had to establish whether the comparisons put forward by the applicant were valid, i.e. whether he had been in a relevantly similar situation to (i) persons detained for treatment of mental illness; and/or (ii) remand prisoners:
|
(i) Concerning persons detained for treatment of mental illness, the Court recalled that in S.S. and Others v. the United Kingdom (dec.), it had accepted the comparison between the applicants in that case (conviction for very serious offences, given lengthy sentences then later transferred to secure psychiatric hospitals for treatment) and other psychiatric patients (convicted but sent directly to hospital). However, in the present case, the element of severe mental illness was lacking. Further, in S.S. and Others, both groups had been subject to the criminal process, whereas in the present case, the applicant had sought to establish a comparison with mental patients detained under civil law powers. The defining characteristic of persons placed in psychiatric facilities was that they were patients, not prisoners. Their physical liberty was restricted under civil law for the purpose of treatment; convicted prisoners, by contrast, were detained under criminal law mainly for a punitive purpose. The applicant was therefore not in a relevantly similar situation to persons in this group, given the significant legal and factual differences between them.
|
|
(ii) Remand prisoners were closer to the applicant’s situation, in that they were also subject to the criminal process and detained in prison pending trial, and the Court had accepted comparisons, for the purposes of Article 14, between the two categories of prisoner in certain respects. However, elements that characterised each group had to be assessed in light of the subject-matter and purpose of the impugned measure. The defining characteristic of remand prisoners was their status for the purposes of the criminal law – although detained, they were presumed innocent. In cases concerning difference in treatment of remand prisoners vis-à-vis convicted ones, the Court had placed some emphasis on the fact that the applicants had had to be presumed innocent. The difference in legal status was significant: there was neither certainty nor finality about detention on remand, in contrast to the status and situation of a convicted prisoner. The difference was also shown by what the end of detention meant for each category. For the unconvicted, they simply regained their liberty, whereas for the serving prisoner, especially a long-serving prisoner like the applicant, regaining freedom might be more of a process involving rehabilitation efforts, conditional release and social support following return to the community. In light of those considerations, the Court strongly doubted that the subject matter of the applicant’s complaint (continuity of payment of the social security benefit at issue) could bring the two groups into an analogous position so as to permit the alleged comparison
|
|
As to the purpose of the measure, the Supreme Court had found that the disqualification of convicted prisoners had originally been punitive. While the Supreme Court had engaged briefly with the Government’s explanation of the reasons for the impugned disqualification – namely, the avoidance of unjust enrichment in the social welfare system – it had not had to decide the issue. However, the prevention of double maintenance of individuals was an objective which the Commission had previously accepted (Szrabjet and Clarke v. the United Kingdom), and that public interest had found implicit support in the Supreme Court’s approach in its second judgment.
|
|
In any event, the Court had identified the above significant differences between the two groups. It further observed that remand prisoners would also have been subject to disqualification from the SPC and other benefits had it not been for an exception in their favour in later domestic legislation. That measure made the distinction between the two groups. The Government had submitted that that exception reflected the fact that persons detained pending trial were presumed innocent.
|
Remand and convicted prisoners therefore could not be regarded as being in a relevantly similar situation with respect to the continuance of the benefit at issue.
|
Conclusion ■ No violation (unanimously).
|
|
Law ■ Article 13 (in conjunction with Article 14 taken together with Article 1 of Protocol No. 1)
|
|
The applicant’s challenge had been successful and his claim for pecuniary relief had been upheld in part. The fact that the Supreme Court had found it unnecessary to proceed to a full consideration of the Convention arguments raised before it, since it had upheld the applicant’s challenge to the statutory disqualification on another ground relied upon by him, could not be regarded as an omission on its part. The margin of appreciation granted to domestic authorities in conforming with their Article 13 obligations encompassed the discretion of a domestic court, competent to determine constitutional issues alongside Convention issues, to uphold a challenge to legislation on some but not all of the grounds raised before it.
|
|
As to the level of the award of damages, in not accepting the applicant’s claim to recoup in full the unpaid benefits, the Supreme Court had extensively considered the relevant case-law and practice of the Irish courts. Treating the applicant’s pecuniary claim as an automatic consequence would, according to the Supreme Court, have had the effect of creating a new form of legislative entitlement to benefit, not approved by the legislature and moreover plainly running counter to legislative intention. Rather, the features of the case pointed to an obligation to fashion an appropriate remedy and led it to make an award approximating to the value of the pension payments corresponding to the duration of the appellate proceedings.
|
The Court also recalled that the immediate effect of the Supreme Court’s second judgment was that the applicant had been rendered eligible once more for receipt of the SPC. The applicant had complained that the interval between the two Supreme Court rulings had delayed that remedy and thus diminished its effectiveness. The domestic court could not, however, be criticised for the manner in which it had decided to manage and structure the proceedings. The remedial aspect of the case had thrown up complex issues of constitutional principle that had called for further submissions from the parties and deliberation by the court.
|
Conclusion ■ Inadmissible (manifestly ill-founded).
|
(See also Szrabjet and Clarke v. the United Kingdom, 27004/95 and 27011/95, 23 October 1997; Laduna v. Slovakia, 31827/02, 13 December 2011, Legal Summary; Varnas v. Lithuania, 42615/06, 9 July 2013, Legal Summary; S.S. and Others v. the United Kingdom (dec.), 40356/10 and 54466/10, 21 April 2015, Legal Summary, Béláné Nagy v. Hungary [GC], 53080/13, 13 December 2016, Legal Summary)
|
|
© Council of Europe/European Court of Human Rights
|
|
|
|
|
|
|
|
|
Art 3 ■ Failure to provide a remand prisoner with contact lenses ■ Security justifications not plausible
|
|
|
|
Facts ■ The applicant complained that he was deprived of his contact lenses for three weeks while in detention. The Constitutional Court of Türkiye rejected the applicant’s complaint as manifestly ill-founded.
|
The Court observed that the applicant informed the prison administration at the beginning of this detention that he wears contact lenses and needs to change them regularly. Nevertheless, the applicant was deprived of his contact lenses for a period of three weeks. His lawyer was not authorised to provide him with spare contact lenses, as he failed to present a medical prescription. The Court was not convinced by the Government’s argument that this refusal was based on security requirements and the protection of the health of prisoners, as it had a negative impact on the applicant’s health. No plausible reason was provided by the Government as to why the applicant was not provided with contact lenses or even glasses to mitigate his suffering. Accordingly, the Court concluded that the competent domestic authorities failed to take charge of the applicant’s state of health.
|
Conclusion ■ Violation of Article 3.
|
|
Article 41 ■ EUR 3,000 in respect of non-pecuniary damage
|
|
|
|
|
|
|
|
|
Art 8 ■ Private life ■ No legal basis for disciplinary sanctions leading to imposition of stricter prison regime and repeated prison transfers
|
|
|
|
Facts ■ The applicant was serving a prison sentence at the relevant time. In 2008, this Court found that the domestic court proceedings concerning his conviction for murder had violated Article 6 § 1 of the Convention (fair hearing). After publication of that judgment, the applicant was, inter alia, subjected to a number of disciplinary sanctions, leading to the imposition of a stricter prison regime. He was also transferred on three occasions to other prisons which were situated further away from his home. The applicant complained about the sanctions, some of which were quashed by the prosecutor’s office. In May 2011 the domestic court granted the applicant early and immediate release, referring to his exemplary behaviour during imprisonment. Although that decision was quashed, upon remittal the domestic court once again ordered his early release.
|
The impugned measures had affected the applicant’s daily life in prison in a very significant manner. For instance, he had no longer been allowed to benefit from temporary release or to visit family, keep money or wear civilian clothes. Article 8 was accordingly applicable and the measures had constituted an interference with his private life. The Court had to determine whether the interference had been lawful.
|
Regarding the disciplinary sanctions and the imposition of a strict prison regime, it was noted that, immediately prior to the publication of the Court’s judgment, the applicant had been commended by the prison authority on numerous occasions for his good behaviour and been placed under a less severe regime of detention. Thereafter, however, he had been placed in a disciplinary cell for periods between ten and fifteen days for breaches of prison rules and had subsequently faced an adverse change in his detention conditions after transfer to a unit with a stricter regime. The applicable domestic legislation had provided that a change of prison regime had only been possible in the event of a flagrant breach of the prison rules. The Government had not claimed that the applicant’s misconduct which had led to the imposition of a stricter regime (absence from the working place and possession of a mobile phone) had constituted flagrant breaches within the meaning of the applicable law.
|
As to the transfers between prisons, the applicant had initially served his sentence in a prison located 18 km from his home. After the Court’s judgment, however, between 2009 and 2011 he had been transferred to three different prisons, located between 72 km and 1,390 km from his home. Under domestic law, transfers were permitted only under exceptional circumstances.
|
The only available document addressing the sanctions and transfers was the decision of the domestic court in May 2011 ordering the applicant’s early release for the first time. It had described the sanctions as “groundless and incomprehensible” and underlined the exceptional nature of transfers. It had also stated that the prosecutor had annulled the sanctions as biased and baseless, and that, later, the head of one of the prisons had cancelled sanctions following an internal review, which had proved them to be unreasonable and unlawful. Although the decision had been quashed for reasons unknown, and the case had been remitted for fresh examination, the validity of the decisions of the prosecutor and head of prison had not been affected. After the remittal, the domestic court had again ordered the applicant’s release on the basis of his commendations for good behaviour, his positive attitude towards work and studies, and lack of any unfavourable comments from the administration of the fourth prison regarding his behaviour or adherence to prison rules. That decision, which had not stated that the May 2011 judgment’s findings had been incorrect, had become final.
|
The above was sufficient for the Court to conclude that the impugned disciplinary sanctions, leading to the imposition of a stricter prison regime, and decisions to transfer the applicant repeatedly to other prisons, had had no legal basis.
|
Conclusion ■ Violation of Article 8 (unanimously).
|
The applicant complained, under Article 18, that he was subjected to reprisals while in prison, in retaliation for the successful outcome of his application to the Court. The Court rejected this complaint as manifestly ill-founded: both the applicant’s and the Government’s submissions lacked sufficient details on that matter, preventing the Court from examining and deciding on the purpose of the disputed treatment.
|
Article 41 ■ EUR 4,500 in respect of non-pecuniary damage.
|
(See also Lutsenko v. Ukraine, 30663/04, 18 December 2008)
|
|
© Council of Europe/European Court of Human Rights
|
|
|
|
|
|
|
|
|
Art 3 (procedural and substantive) ■ Ineffective investigation into applicant’s allegations of ill-treatment by prison guards ■ Allegations of having been slapped, hit and kicked on the floor not proved “beyond reasonable doubt” ■ Failings in investigation not allowing Court to draw any inferences in that regard ■ Use of force by prison guards, in view of imminent danger posed by applicant reaching for a hammer, strictly necessary and not excessive in circumstances
|
|
|
|
|
Facts ■ The applicant and his cellmate were spotted by prison guards crushing a tablet in their cell. The prison guards took the applicant to a storage room for questioning and searching. The applicant complained that he was beaten by prison guards during the interrogation (“slapped, hit and kicked on the floor”). Prison guards argued they used force as the applicant was reaching for a hammer, while the applicant argues that he endeavoured to reach for the hammer “to scare off the guards, so that they would stop hitting him” (para. 11).
|
|
The applicant also complained of the failure of domestic authorities to effectively investigate the alleged ill-treatment. The internal investigation concluded that “the use of force against the applicant had been necessary to prevent harm and had not been excessive” (para. 16). The applicant’s subsequent criminal complaint was rejected on the grounds that there was no evidence that he had been ill-treated.
|
After the applicant’s death, his mother pursued his application (see para. 27-29).
|
Law ■ Article 3 (substantive aspect)
|
|
(i) Allegations of being slapped, hit, and kicked by prison guards
|
The Court accepted the Government’s explanation that the injuries sustained by the applicant (“which mostly consisted of scratches to his head, chest and limbs”, para. 45) were “the possible consequences of the applicant being elbow-locked, toppled to the floor and handcuffed, as found in the domestic investigation” (para. 44). None of the further medical examinations, including an X-ray, disclosed any “sign of injury which would indicate that the applicant had been severely beaten by three prison guards for three to four minutes, as alleged by him” (para. 45). As a result, the Court concluded that “it cannot be established with sufficient certainty that the applicant displayed traces of being slapped and hit and kicked on the floor by the guards as alleged by him, which would create a strong presumption of ill-treatment and shift the burden of proof on the Government” (para. 46). The Court highlighted the deficiencies of the internal investigation of the facts (see below, procedural aspect) and found no violation of Article 3 in its substantive aspect.
|
|
(ii) Whether the use of force against the applicant was strictly necessary
|
The Court observed that it was not disputed that the applicant tried to reach for a hammer. The Court considered that in the particular circumstances of the case, and in view of the “imminent danger posed by the applicant reaching for the hammer, it has been shown that it was strictly necessary for the prison guards to resort to physical force in order to prevent him from using the hammer and harming himself and others” (para. 56). Accordingly, that there was no violation of the substantive aspect of Article 3 of the Convention on account of the applicant being elbow locked, toppled to the floor and handcuffed.
|
Conclusion ■ No violation of Article 3 (substantive aspect).
|
|
Law ■ Article 3 (procedural aspect)
|
|
The Court observed that the only investigation into the use of force on the applicant that took place was internal and consisted in reports and oral statements submitted to the prison’s Head of the Security Division, which is under the scrutiny of the prison governor. Such investigation, argued the Court, does not meet the standards of independence, as “the prison governor was the hierarchical superior of the persons implicated in the incident” (para. 62).
|
|
The ensuing report concluded that the use of force against the applicant had been necessary to prevent harm and not excessive, was submitted to the Ministry of Justice Prison Administration and the sentence-execution judge.
|
|
Having learnt that the authorities had failed to investigate his allegations, the applicant lodged a criminal complaint. While the State Attorney’s Office and the police carried out interviews with the suspected prison guards, the applicant, his cellmate and the doctors who treated the applicant, they “did not make any effort to specifically assess whether the applicant had indeed been slapped by the prison guards before reaching for the hammer, but merely concluded that in any event, by reaching for the hammer, the applicant had provoked the prison guards’ reaction” (para. 65).
|
|
Furthermore, “no expert report was obtained in order to verify the cause of the injuries on the applicant’s face” (para. 65). Also, “although the police had interviewed the doctors in December 2015, it took another eleven months for the State Attorney’s Office to conduct further investigative measures, without any justification for such a pause” (para. 67).
|
Lastly, the Court noted that the decision rejecting the applicant’s criminal complaint merely states that there is “insufficient evidence that the prison guards had ill-treated the applicant, without considering separately what had happened before the applicant reached for the hammer and what happened thereafter”. In other words, the State Attorney’s Office “failed to examine whether the force used against the applicant had been strictly necessary and/or excessive” (para. 66). Accordingly, the Court concluded there had been a violation of Article 3 under its procedural limb.
|
Conclusion ■ Violation of Article 3 (procedural aspect).
|
|
Article 41 ■ EUR 2,500 in respect of non-pecuniary damage; EUR 3,000 in respect of costs and expenses.
|
|
|
|
|
|
|
|
|
Art 8 ■ Indiscriminate ban on telephone calls for lifers under strict regime
|
|
|
|
Facts ■ The applicants complained of the ban on telephone calls to their family and relatives that was applied to them as life prisoners under the strict imprisonment regime.
|
The Court referred to its previous judgments on the situation of life prisoners under the strict regime, and recalled it had found that “a nearly total ban on telephone calls was unacceptable and that no additional restrictions should be imposed on life-sentenced prisoners as compared to other prisoners when it concerned the possibilities for them to maintain meaningful contact with their families and other close persons” (para. 7, see Danilevich v. Russia, no. 31469/08, 2021). In the present case, the Court was unable to reach a different conclusion. Accordingly, there had been a violation of Article 8.
|
|
Conclusion ■ Violation of Article 8
|
|
|
|
|
|
|
|
|
Art 3 ■ Life imprisonment with no prospect of release ■ Need for assessment of penological grounds for continued incarceration
|
|
|
|
Facts ■ The applicants are lifers. They complained that they had no prospect of release.
|
The Court recalled that it had already found that prisoners sentenced to life sentence have no prospect of release under Ukrainian law (see Petukhov v. Ukraine (no. 2), no. 41216/13, 2019). Having regard to the materials submitted, the Court was unable to reach a different conclusion in the present case and concluded there had been a violation of Article 3.
|
|
Conclusion ■ Violation of Article 3
|
|
|
|
|
|
|
|
|
Art 9 ■ One-off refusal, on COVID-19 grounds, of permission for prisoner to attend church services outside prison which subsequently offered online access to religious support ■ Protection of health and the integrity of detainees in a closed environment ■ Unpredictable and unprecedented nature of the health crisis ■ Wide margin of appreciation • Reasonable efforts by national authorities to counterbalance the restrictions ■ Consideration by the prison authorities of the individual situation of the applicant and of the evolution of the health crisis
|
|
|
|
Facts ■ Before the start of the public health crisis the prison authorities had given the applicant prisoner permission, under the regulations in force, to attend Adventist church services outside the prison. On 8 July 2020 they denied his request to attend every Saturday for a Sabbath service, citing as grounds for their decision the measures introduced during the COVID-19 pandemic. The applicant’s challenges to the decision denying his request were unsuccessful.
|
|
Law ■ Preliminary observations
|
On 8 July 2020, when the decision in issue had been taken, the derogation announced by the authorities under Article 15 of the Convention, relating to the health crisis and the specific measures taken in connection with the declaration of a state of emergency, had ceased to have effect. Accordingly, for the purposes of its examination of the case, the Court would have regard to the provisions of Article 9 alone.
|
|
Before the start of the public health crisis the prison authorities had given the applicant permission to attend church under the regulations in force. Their denial of his request for permission to attend an Adventist church to take part in religious worship had constituted an interference with his right under Article 9. The interference had been prescribed by a statute allowing restrictions to be placed on day release arrangements for prisoners because of the COVID‑19 pandemic; its purpose had been to protect the health and safety of prisoners and anyone who might come into contact with them, and to protect public health in general. In a similar case (Fenech v. Malta) the Court had already held the prison authorities to be under a duty, in the circumstances of the COVID-19 pandemic, to take measures to prevent infection, limit the spread of the virus once it reached a prison and provide adequate medical care in the event of infection. Public health was also a recognised ground in international law for limiting certain rights.
|
The limitation had been directed at just one dimension of the applicant’s exercise of his right to freedom of religion, namely his participation in religious worship at his church outside the prison.
|
The applicant had been given permission to leave the prison before the start of the public health crisis, and the authorities had not regarded his doing so as problematic at the time. However, the limitation in question had to be assessed in the light of the ever‑changing circumstances of the health crisis. The Court noted in this regard that the applicant had made his request on 8 July 2020, during the state of alert whose governing legislation had provided for a gradual easing of the conditions previously imposed. The Bucharest County Court had confined itself to noting that church activity had been suspended, and those observations had been rather general in character to the extent that the court had not looked at the situation of the Adventist church in question. The church’s activity had been affected by the public health crisis during the relevant period, since attendance at religious services had been made subject to certain requirements, or suspended outright, for all members of the applicant’s religious community and representatives of the faith. The changing circumstances of the public health situation and its unforeseeability must have posed a number of challenges to the prison authorities in relation to the organisation and supervision of prisoners’ religious activities. Accordingly those authorities had to be afforded a wide margin of appreciation, especially as the applicant in this case had been seeking permission to leave the prison and have contact with people who were not themselves inmates or staff of the prison. Specifically, the value of the principle of social solidarity had to be considered in the particular context of the prison setting. For instance, the risk of the applicant’s being infected outside the prison and bringing the virus back into the closed prison environment must surely have carried considerable weight in the prison authorities’ assessment, at a time when the preventive measures in place had been centred on contact restrictions, isolation and quarantining, among other strategies. The authorities had been in a difficult position to respond instantaneously to the situation, let alone to each new development in the public health situation the moment it arose.
|
The prison where the applicant had been detained had introduced the use of video-conferencing for Adventist worship and had been the first to offer online access to religious support. That solution was consistent with the practices which had become widespread during the health crisis, and the recommendation by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) – that any restrictions on contact with the outside world should be compensated for by increased access to alternative means of communication – was along the same lines. In the Court’s view this was an important consideration. The applicant had refused to take part in the online activities and had failed to explain the reasons for that refusal in his submissions to the Court. While it was true that such measures could not entirely take the place of unmediated participation in religious services, the national authorities had made reasonable efforts to counterbalance the restrictions imposed during the pandemic.
|
The applicant’s complaint concerned the situation at a particular juncture. The Court had not heard any allegation from him that he had made other requests concerning the exercise of his right to respect for his freedom of religion and that those requests had been denied. The situation complained of was not, therefore, a continuing situation which would have relieved him of the obligation to pursue the legal avenues available to him under domestic law or at least to resubmit his requests in the light of the changing circumstances of the pandemic.
|
It followed from the foregoing that the prison authorities’ decision to deny the applicant’s request had not been taken without considering his individual situation and the changing circumstances of the public health crisis. Having regard to the wide margin of appreciation that was to be afforded to the national authorities in the specific, unprecedented circumstances of the crisis, the Court determined that the applicant’s right to manifest his religion had not been infringed.
|
Conclusion: no violation (unanimously).
|
|
© Council of Europe/European Court of Human Rights
|
|
|
|
|
|
|
|
|
Art 8 ■ Routine strip search of a prisoner on suspicion of drug trafficking ■ Routine monitoring of telephone conversations
|
|
|
|
|
Facts ■ The applicant was held in a closed-type prison, under a general regime. He complained that he had been routinely subjected to frisking and full body searches (over 360 strip searches in a total of 14 months of detention). The authorities argued that these searches were carried out on suspicion that the applicant was trafficking psychotropic substances. Searches were conducted by male officers, who proceeded to a visual examination of the applicant’s body without touching him. The applicant was also placed on a plastic platform keeping his feet off the cold floor.
|
|
The applicant also complained that his telephone conversations were routinely monitored.
|
The applicant’s civil action was dismissed on the grounds “that the monitoring of the applicant’s telephone conversations and strip searches had been in accordance with the law, and that the applicant had not been debased or humiliated” (para. 12). His appeal was also dismissed. The applicant did not lodge a cassation appeal (the Government’s argument that the applicant did not exhaust domestic remedies was rejected by the Court, as his “case did not call for the examination by the Supreme Court as it did not raise any important legal issue or revolve around a legal provision that would raise serious doubts or cause discrepancies in the domestic jurisprudence”, para. 19).
|
|
Law ■ Admissibility ■ Article 3
|
|
Making numerous reference to its previous case law, the Court considered that there was “no basis for finding that the strip searches, in and of themselves, and despite their frequent recurrence, included any element of debasing or humiliating treatment which attained the minimum level of severity necessary to bring Article 3 of the Convention into play” (para. 24) and declared this part of the complaint inadmissible. (See below for a discussion of the merits of these frequent strip searches under Article 8).
|
In particular, the Court observed that the applicant was not subjected to any other security measures on top of being frisked and strip searched (more than 360 times in 14 months), that his treatment was not arbitrary (the searches were carried out on suspicion that the applicant was trafficking psychotropic substances) and that the body inspection was carried out in a secluded place and performed by male officers who did not touch or insult the applicant.
|
Conclusion ■ Inadmissible.
|
|
Law ■ Admissibility ■ Article 8
|
|
The Court observed that the security regime in place in the closed-type prison in which the applicant was held included monitoring of telephone conversations, as per the applicable law. The Court considered irrelevant whether the applicant was officially informed of this measure or not as “he would certainly have become aware of it soon” after his admission (para. 27).
|
|
The Court considered the interference justified as the “prison’s population included re-offenders, offenders with a negative criminal prognosis and prisoners with addictions” (para. 27), and as the applicant himself had a record of drug addiction and was classified as a recidivist offender.
|
|
The Court also recalled that “Article 8 does not in itself guarantee a right to telephone calls and allows that means of communication, if provided, may be subject to restrictions in view of the ordinary and reasonable requirements of imprisonment” and argued that “the applicant could also communicate with his private or family circle through means other than telephone conversations” (para. 27).
|
Accordingly, the Court found “in the very special circumstances of the present case” that the interference was justified and proportionate, and declared this part of the complaint inadmissible.
|
Conclusion ■ Inadmissible.
|
|
The Court found that the frequent strip searches constituted an interference with the applicant’s private life. Though they had a basis in domestic law, were conducted “with the aim of maintaining order in prison and preventing the applicant from using illicit and harmful substances” (para. 32), they were not proportionate.
|
The Court noted that the Government did not provide “any evidence in support of their statement in respect of the applicant’s alleged hoarding of medicine, or possession of illicit medicine, during his time in the prison” (para. 36). Accordingly, although acknowledging “the need to ensure security in institutions where people are deprived of their liberty and the difficulty in running such establishments” para. 37) the Court could only conclude that the applicant was subjected to routine strip search without due justification. Furthermore, although the searches were conducted in compliance with the European Prison Rules, the Court recalled that “prisoners should never be required to be completely naked for the purpose of a search” (para. 38, see Commentary on Rule 54).
|
Conclusion ■ Violation of Article 8.
|
|
Article 41 ■ EUR 3,000 in respect of non-pecuniary damage.
|
|
|
|
|
|
|
|
|
Art 3 ■ Life imprisonment with a prospect of release only after serving 30 to 40 years ■ Life sentences cannot be regarded as reducible
|
|
|
|
Facts ■ The cases concern the applicants’ sentences of life imprisonment. The applicants were sentenced to life imprisonment and will have a possibility of release on parole once they have served a minimum term of between 30 and 40 years. They argued the domestic legal framework is in breach of Article 3.
|
|
The Court, while acknowledging that Hungarian “national law and practice therefore afford the possibility of a dedicated judicial review of the life sentences imposed on the applicants” (para. 7), observed that the applicants could be eligible for release only after having served thirty to forty years of their terms, which “is a significantly longer period than the maximum recommended time-frame for review of a life sentence, namely twenty-five years, as established on the basis of a clear support in comparative and international law” (para. 9, see Vinter and Others v. the United Kingdom ([GC], nos. 66069/09 and 2 others, 2013). As a result, the applicants’ life sentences cannot be regarded as reducible for the purposes of Article 3.
|
The Court rejected the Government’s objection that two applicants would in practice have to serve less than thirty years (twenty-six and twenty-nine years respectively) after the imposition of their life sentences in order to be considered for conditional release, as “this is so only because they have been kept in pre-trial detention before their conviction […] and this pre‑trial detention period has been deducted from the thirty-year period” (para. 11). It does not change the fact, argued the Court, “that the term to be served before they are eligible to be considered for parole was set at thirty years” (idem).
|
|
Conclusion ■ Violation of Article 3.
|
|
|
|
|
|
|
|
|
Art 3 ■ Ill-treatment during fire evacuation from prison ■ Circumstances of the incident were already examined by the Court in another judgment
|
|
|
|
Facts ■The applicant alleged being ill-treated during an emergency fire evacuation in the prison. He claimed to have submitted numerous complaints to various authorities immediately after the incident but none of them had been passed on. The applicant also stated that he was treated in connection with the injuries he sustained from the prison staff during the fire evacuation (post-traumatic encephalopathy and inflammation of the nerves of his right shoulder).
|
|
Law ■ Article 3 (substantive and procedural)
|
The Court recalled it had already examined a similar complaint submitted by sixteen prisoners who complained of ill-treatment during the same incident, and had found the applicants’ allegations of unjustified mass beating to be credible, and the domestic authorities’ failure to conduct an effective investigation in this respect established (see Starenkyy and Others v. Ukraine [Committee], no. 71848/13, 2021). In the present case, the Court found no reason to depart from these previous findings.
|
Conclusion ■ violation of Article 3 (substantive and procedural limbs).
|
|
Article 41 ■ EUR 12,000 in respect of non-pecuniary damage.
|
|
|
|
REPETITIVE CASES
|
|
|
|
PRIVATE AND FAMILY LIFE ■ Restrictions on family visits ■ 4 judgments in cases against Russia
|
|
|
|
The applicants, being held in pre-trial and post-conviction detention facilities, complained of the restrictions on family visits and telephone calls. The Court found a violation of Article 8.
|
|
|
|
|
TRANSPORT ■ Inadequate detention conditions during transport ■ 9 judgments in cases against Russia
|
|
|
|
|
The applicants complained of overcrowding, lack of personal space and poor material conditions during transportation. The applicants were held in transit cells, vans and trains during transportation with extreme lack of space, somewhere between 0.2 to 2.5 sq. m. per inmate. The Court found violation of Article 3.
|
The Court also found violation of Article 13 due to lack of available remedies with regard to complaints about poor conditions of detention during transport.
|
|
|
|
|
SURVEILLANCE ■ Permanent video surveillance of prisoners ■ 6 judgments in cases against Russia
|
|
|
|
|
|
The applicants complained of permanent video surveillance to which they were subjected in pre-trial and post-conviction detention facilities. Specific circumstances included opposite-sex operators, detention in different cells with video surveillance, video surveillance in a lavatory and/or shower room. The Court found a violation of Article 8 and Article 13.
|
|
|
|
|
|
|
HEALTH ■ Inadequate medical care ■ 13 judgments in cases against Ukraine and Russia
|
|
The applicants complained of inadequate medical care provided in detention (see details below). The Court found a violation of Article 3 and Article 13.
|
|
Avraamova v. Ukraine (no. 2718/12, delays in arranging hospitalization in civil hospital for kidney and heart diseases), Kryuk v. Ukraine (nos. 43993/19 and 2 others, lack of medical examination and treatment for posttraumatic spinal disc herniation), Suslov v. Ukraine (no. 46298/19, lack of medical examination, testing and treatment for hepatitis, diabetes, mercury poisoning), Ponkratenko v. Russia (no. 27314/20, failure to provide glasses for a prisoner left eye blindness), Mikhalev and Savinov v. Russia (nos. 45095/19 and 28947/20, lack of medical examination, testing and treatment for heart disease, hepatitis, HIV/AIDS), Gilev and Others v. Russia (nos. 19504/19 and 2 others, lack of dental treatment for absence of teeth), Kudryavtsev v. Russia (nos. 15407/19 and 20751/19, lack of medical examination, testing, treatment and diet in connection with diabetes), Kulachinskiy v. Russia (nos. 49371/18 and 30841/20), Andriyanov v. Russia (no. 9361/18, lack of medical examination, testing and treatment for HIV/AIDS), Romanenko and Smirnov v. Russia (nos. 81595/17 and 4512/20, lack of medical examination, testing and treatment for dental problems, Hepatitis C), Teplov v. Russia (no. 69176/17, lack of medical assistance, no provision of prosthesis for partial amputation of the feet), Politayev and Others v. Russia (nos. 62123/16 and 56059/17, lack of the prescribed drugs, recommended recovery treatment, or special diet for kidney disease), Vdovin v. Russia (no. 1387/21, disregard for blindness of the prisoner).
|
|
|
|
|
|
|
|
|
|
|
This roundup is funded by the European Union and the Robert Carr Fund. Views and opinions expressed are 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.
|
|
|
|
|
|
|
|
|
|
