Prisoners [ECHR]

Family Life

Prisoners continue to enjoy fundamental human rights and freedoms consistent with the deprivation of liberty involved in imprisonment. This includes the right to marry and right to maintain family life. The restrictions must be proportionate in terms of the competing interests of the state and the individual.

In Boyle and Rice v. United Kingdom court indicated: When assessing the obligations imposed on the States by Article 8 in relation to prison visits, regard must be had to the ordinary and reasonable arrangements of imprisonment and to the resultant degree of discretion which the national authorities must be allowed in regulating a prisoner’s contact with his family. There was no admissible complaint where the applicant was permitted 12 visits a year of one- hour duration.

In Moiseyev v. Russia, the applicant was sentenced to four years in a  strict-security correctional prison. He initially had no visits for nine months and was thereafter afforded two visits per month of an hour. He was separated from his wife and children by a partition and a prison warden was present. In a seven-month period, while an appeal was pending, the visits were suspended entirely.

The refusal of visits was not clearly permitted by law which had predictable application as the investigator had unlimited discretion in relation to visits. It was held that limits on frequency and duration were not in the circumstances proportionate. The prisoner was not in high security category.

In Piechowicz v. Poland, a refusal to allow contact with the applicant’s established partner of two years was held to be disproportionate in terms of prevention of crime even in circumstances where she was indicted in similar proceedings. An outright refusal for a nine-month period was similarly considered disproportionate.

A refusal to afford compassionate leave for funerals, visiting seriously ill children and a refusal to permit attendance of a funeral of a close relative, may violate Article 8 (Giszczak v. Poland).

Conjugal Visits

In Dickson v. United Kingdom, the applicant was convicted of murder with a minimum sentence of 15 years. He met the joint applicant through pen pal prison correspondence and they later married. The Secretary of State had the discretion in relation to facilitating their having a child together. They sought artificial insemination facilities. Court held that public opinion was insufficient for an automatic refusal. The welfare of a child was a relevant consideration.

Most states permitted conjugal visits. Although the court did not consider whether states were obliged to do so, it found by a majority that there had been a violation of the family life provision..

Hygienic Conditions

Vasilescu v. Belgium  mainly concerned the applicant’s condition of detention in Antwerp and Merksplas Prisons. The applicant complained in particular that his physical conditions of detention had been inhuman and degrading.
The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention regarding the physical conditions of the applicant’s detention. It noted in particular that in addition to the problem of prison overcrowding, the applicant’s allegations regarding the sanitary conditions, particularly access to running water and the toilets, were most plausible and reflected the realities described by the European Committee for the Prevention of Torture (CPT) in the various reports drawn up following its visits to Belgian prisons.

Koureas and Others v. Greece The 28 applicants, detained in Grevena Prison, complained in particular about their overall conditions of detention and of the lack of an effective remedy in that regard.
The Court stated that it was unable to find that the applicants’ overall conditions of detention in Grevena Prison had exceeded the unavoidable level of suffering inherent in detention and had amounted to degrading treatment. In the present case it rejected the complaints raised by three of the applicants for failure to exhaust domestic remedies and held that there had been no violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention in respect of the 25 other applicants. The Court noted in particular that these applicants had not described their individual situations and that it was unable to ascertain which of them had been affected by overcrowding in the cells. The Court also noted that the lack of personal space in the present case had not been coupled with inadequate physical conditions of detention.

Clasens v. Belgium concerned the deterioration in the applicant’s conditions of detention in Ittre Prison (Belgium) during a strike by prison wardens between April and June 2016. The applicant complained about the material conditions of his detention and that he had had no access to an effective remedy.
The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention, finding that the applicant’s conditions of detention during the prison wardens’ strike amounted to degrading treatment, resulting from the cumulative effect of ongoing lack of physical exercise, repeated breaches of the hygiene regulations, a lack of contact with the outside world and the uncertainty about whether his basic needs would be met. It considered that the applicant had been subjected to distress of an intensity exceeding the unavoidable level of suffering inherent in detention. The Court also held that in this case there had been a violation of Article 13 (right to an effective remedy) of the Convention taken together with Article 3, finding that the Belgian system, as it functioned at the relevant time, had not provided an effective remedy in practice – in other words, a remedy capable of affording redress for the situation of which the applicant was a victim and preventing the continuation of the alleged violations.

Petrescu v. Portugal Arrested and detained in the Lisbon police prison in order to serve a seven year prison term imposed for theft and criminal conspiracy, the applicant was held there between March 2012 and October 2014, the date of his transfer to Pinheiro da Cruz Prison, which he left in December 2016. The Court held that there had been several violations of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. In the light of the conditions in which the applicant had been held in the Lisbon police prison and in Pinheiro da Cruz Prison, it found that he had been subjected to degrading treatment for 376 non- consecutive days and to inhuman and degrading treatment for several periods, lasting 385, 36 and 18 days.

Compensation

Yengo v. France concerned the conditions of detention of a prisoner in Nouméa prison, New Caledonia. The applicant complained about those conditions and also about the lack of an effective remedy by which to complain about them to the domestic authorities.
The Court first held that the applicant could no longer claim to be a victim of Article 3 (prohibition of inhuman or degrading conditions) of the Convention, since the domestic court had awarded him some compensation for the harm sustained as a result of the detention conditions. However, it found that at the relevant time French law had not provided the applicant with any preventive remedy by which he could have promptly obtained the termination of his inhuman and degrading conditions of detention. There had therefore been a violation of Article 13 (right to an effective remedy) of the Convention.

Barbotin v. Franceconcerned the compensation awarded to the applicant by the domestic courts in respect of his conditions of detention in Caen (France) remand prison. The applicant complained of the ineffectiveness of the compensatory remedy of which he had availed himself, in view of the low amount awarded and the fact that he had had to pay the expert’s fees incurred to inspect the cells in which he had been held. The Court held that there had been a violation of Article 13 (right to an effective remedy) in conjunction with Article 3 (prohibition of inhuman or degrading treatment) of the Convention. It noted, in particular, that the applicant had benefited from an appropriate remedy affording him compensation for the damage which he had sustained. In the present case, however, the domestic court had decided to order the applicant to pay the expert’s fees on the grounds that the expert assessment ordered at first instance had been cancelled on appeal. On account of the modest amount which had been awarded to the applicant in compensation for the non-pecuniary damage caused by his conditions of detention, which had been incompatible with human dignity, he had thus found himself, after receipt of his compensatory remedy, owing the State 273.57 euros. The Court found that the outcome of the proceedings brought by the applicant had deprived the remedy of its effectiveness.

Multi-occupancy / Overcrowding

Varga and Others v. Hungary  2015  case concerned widespread overcrowding in Hungarian detention facilities. The applicants complained that their respective conditions of detention were/had been inhuman and degrading and that there was no effective remedy in Hungarian law with which they could complain about their detention conditions.

The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention finding, in particular, that the limited personal space available to all six detainees in this case, aggravated by a lack of privacy when using the lavatory, inadequate sleeping arrangements, insect infestation, poor ventilation and restrictions on showers or time spent away from their cells, had amounted to degrading treatment.

Solitary confinement

Öcalan v. Turkey (no. 2) 2014 The applicant, the founder of the PKK (Kurdistan Workers’ Party), an illegal organisation, complained in particular about the conditions of his detention (in particular his social isolation and the restrictions on his communication with members of his family and his lawyers) in the prison on the island of İmralı, where he was held in solitary confinement until 17 November 2009, when five other inmates were transferred there.

The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention as to the conditions of the applicant’s detention up to 17 November 2009 and that there had been no violation of Article 3 as regards the conditions of his detention during the period subsequent to that date. On the one hand, in view of a certain number of aspects, such as the lack of communication facilities that would have overcome the applicant’s social isolation, together with the persisting major difficulties for his visitors to gain access to the prison, the Court found that the conditions of detention imposed on the applicant up to 17 November 2009 had constituted inhuman treatment. On the other hand, having regard in particular to the arrival of other detainees at the İmralı prison and to the increased frequency of visits, it came to the opposite conclusion as regards his detention subsequent to that date.

Harakchiev and Tolumov v. Bulgaria  concerned the life imprisonment without commutation of the first applicant and the strict detention regime, involving isolation, in which he and the second applicant, another life prisoner, were held. The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention as concerned the regime and conditions of the two applicants’ detention. As concerned the strict detention regime, the Court found in particular that the cumulative effect of the conditions endured by the applicants which included isolation, inadequate ventilation, lighting, heating, hygiene, food and medical care had been inhuman and degrading. Indeed, the applicants’ isolation appeared to be the result of the automatic application of the domestic legal provisions regulating the prison regime rather than any particular security concerns relating to their behaviour.

Video surveillance

Gorlov and Other v. Russia 2019  concerned the permanent video surveillance of detainees in their cells by closed-circuit television cameras. The applicants complained, in particular, that constant surveillance of their cells, at times by female guards, had violated their right to respect for their private life.

The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention, finding that the measure in question had not been in accordance with the law. Although the Court could accept that it might be necessary to monitor certain areas of penal institutions, or certain detainees on a permanent basis, it found in particular that the existing legal framework in Russia could not be regarded as being sufficiently clear, precise and detailed to afford appropriate protection against arbitrary interference by the public authorities with the right to respect for private life.

Strip searches

S.J. (no. 2) v. Luxembourg  2013 The applicant, who was serving a prison sentence, complained that, for the purposes of a body search, he had been made to undress in an open booth in the presence of a number of guards. The Court held that there had been no violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention under either its substantive or its procedural aspect.

Noting, in particular, that the layout of the premises was not ideal, in so far as the booth in question opened onto a room where the prisoners being searched could be seen by third parties, the Court nonetheless considered that it could not be concluded from this layout alone that the body searches conducted in that area implied a degree of suffering or humiliation that went beyond what was inevitable. In addition, and with particular regard to the body search in dispute in this case, there was no evidence in the case file that there had been any wish to humiliate, and indeed the applicant had not alleged that he had been the victim of disrespectful guards or that the latter had behaved in such a way as to indicate that they were seeking to humiliate him.

Milka v. Poland  concerned the applicant’s disciplinary punishments for refusing to be strip- searched in prison.The Court declared the applicant’s complaint under Article 3 (prohibition of inhuman or degrading treatment) of the Convention inadmissible as being manifestly ill-founded, finding that in the present case there was no element of debasement or humiliation which might give rise to a violation of Article 3. It held, however, that there had been a violation of Article 8 (right to respect for private) of the Convention. In this respect, the Court noted in particular that, while strip searches might be necessary on occasions to ensure prison security or prevent disorder in prisons, they had to be conducted in an appropriate manner. In the applicant’s case, however, the Court found that it had not been shown that the interference complained of was justified by a pressing social need and that it had been proportionate in the circumstances.

Roth v. Germany  concerned the applicant’s complaint about repeated random strip searches in prison and the domestic courts’ refusal to grant him compensation for non-pecuniary damage. The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention, finding that the searches had gone beyond the inevitable element of suffering or humiliation connected with a given form of legitimate treatment, and that they had therefore diminished the applicant’s human dignity and had amounted to degrading treatment.

It noted in particular that the manner in which the repeated searches had been carried out had not entailed any other elements unnecessarily debasing or humiliating the applicant. However, owing to the absence of a legitimate purpose for these repeated and generalised searches, the feeling of arbitrariness and the feelings of inferiority and anxiety often associated with them, as well as the feeling of a serious affront to dignity indisputably prompted by the obligation to undress in front of another person and submit to inspection of the anus, had resulted in a degree of humiliation exceeding the, unavoidable and hence tolerable, level that strip-searches of prisoners inevitably involve.

Repeated Transfers

Khider v. France  2009 Detained in the context of proceedings against him for a number of offences, including armed robbery carried out as part of a gang, the applicant complained of his detention conditions and the security measures imposed on him as a “prisoner requiring special supervision”.
The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. The applicant’s conditions of detention, his classification as a high-security prisoner, his repeated transfer from prison to prison, his lengthy solitary confinement and the frequent full body searches he was subjected to all added up to inhuman and degrading treatment within the meaning of Article 3.

Payet v. France 2011 Serving a prison sentence for murder, the applicant complained about the conditions of his detention and his frequent moving between cells and prison buildings for security reasons and the disciplinary penalty to which he was subjected, which entailed placement in cells lacking natural light and proper hygienic conditions.

The Court found a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention with regard to the poor conditions of detention in the punishment wing where the applicant was placed (dirty and dilapidated premises, flooding, lack of sufficient light for reading and writing). It further held that there had been no violation of Article 3 as regards the security rotations.

Bamouhammad v. Belgium  2015 Suffering from Ganser syndrome (or “prison psychosis”), the applicant alleged that he had been subjected while in prison to inhuman and degrading treatment which had affected his mental health. He also complained about a lack of effective remedies.

The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention and a violation of Article 13 (right to an effective remedy) taken together with Article 3. It found in particular that the manner of execution of the applicant’s detention, involving continuous transfers between prisons (43 transfers over a six-year period) and repeated special measures, together with the prison authority’s delay in providing him with therapy and refusal to consider any alternative to custody despite the decline in his state of health, had subjected him to distress of an intensity exceeding the inevitable level of suffering inherent in detention.

Systematic Handcuffing

Shlykov and Others v. Russia
The four applicants, all serving sentences of life imprisonment at various prison facilities, were systematically subjected to handcuffing every time they left their cells on the grounds that they had a life sentence, had disciplinary records or had been placed under surveillance as dangerous prisoners by a prison commission.

The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention, finding that the applicants’ systematic handcuffing, in a secure environment, had been a measure which lacked sufficient justification and could thus be regarded as degrading treatment. In particular, although the Court was mindful of the difficulties States might encounter in maintaining order and discipline in penal institutions and that disobedience of detainees might quickly degenerate into violence, it noted that a life sentence could not justify routine and prolonged handcuffing that was not based on specific security concerns and the inmate’s personal circumstances and not be subject to regular review.

Ill-treatment by Cellmates

Premininy v. Russia  2011 This case concerned the alleged ill-treatment of a detainee, suspected of having broken into the online security system of a bank, by his cellmates and by prison warders, and his complaint that his application for release had not been speedily examined.The Court found, in particular, three violations of Article 3 (prohibition of inhuman or degrading treatment) of the Convention: on account of the authorities’ failure to fulfil their positive obligation to adequately secure the physical and psychological integrity and well-being of the applicant; on account of the ineffective investigation into the applicant’s allegations of systematic ill-treatment by other inmates; and on account of the authorities’ failure to investigate effectively the applicant’s complaint of ill-treatment by warders). It further held that there had been no violation of Article 3 of the Convention as regards the applicant’s allegations of ill-treatment by warders.

Stasi v. France The applicant alleged that he had been the victim of ill-treatment by other inmates during his two periods of imprisonment, in particular because of his homosexuality, and he alleged that the authorities had not taken the necessary measures to ensure his protection.
The Court held that there had been no violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. It found that, in the circumstances of the case, and taking into account the facts that had been brought to their attention, the authorities had taken all the measures that could reasonably be expected of them to protect the applicant from physical harm.

Gjini v. Serbia concerned inter-prisoner violence, in particular, the applicant’s complaint that he had been assaulted, raped and humiliated by his cell mates in prison, that the prison had failed to protect him and that the prison authorities had failed to investigate his complaints properly.
The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention owing to the authorities’ failure to protect the applicant from being ill treated by his prison cell mates. It found in particular that the applicant had made credible claims of being a victim of violence from his cellmates in prison. It should have been obvious to prison staff at the time of the events that he was being ill-treated, but they had done nothing to protect him. The Court also held that there had been a violation of Article 3 of the Convention because of the lack of an investigation into the applicant’s complaints.

Ill-treatment by Prison Officers

Tali v. Estonia concerned a detainee’s complaint about having been ill-treated by prison officers when he refused to comply with their orders. In particular, pepper spray was used against him and he was strapped to a restraint bed.

The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. As regards in particular the legitimacy of the use of pepper spray against the applicant, the Court referred to the concerns expressed by the European Committee for the Prevention of Torture (CPT) concerning the use of such agents in law enforcement.

Milić and Nikezić v. Montenegro The applicants complained that they had been ill-treated by prison guards – they submitted that the latter had beaten them with rubber batons during a search of their cell – and that the ensuing investigation into their complaints had been ineffective. According to the Montenegrin Government, the guards had had to use force against the applicants to overcome their resistance on entering their cell.

The Court held that there had been two violations of Article 3 (prohibition of inhuman or degrading treatment) of the Convention, on account of the ill-treatment to which both applicants had been subjected during a search of their cell as well as the ineffectiveness of the ensuing investigation into their complaints of ill-treatment.

The Court found in particular that, even though it had been established in the compensation and disciplinary proceedings concerning the applicants’ complaint of ill-treatment that the guards had used excessive force, the damages awarded to the applicants had not been sufficient.

Cirino and Renne v. Italy concerned the complaint by two detainees that in December 2004 they were ill-treated by prison officers of the Asti Correctional Facility. The applicants maintained in particular that the acts of violence and ill-treatment which they had suffered in the correctional facility amounted to torture and that the penalty for those responsible for the acts of ill-treatment had been inadequate. They emphasised that by failing to incorporate the offence of torture into national law, the State had failed to take the necessary steps to prevent the ill-treatment which they had suffered.

The Court held that there had been violations of Article 3 (prohibition of torture and of inhuman or degrading treatment) of the Convention, both as regards the treatment sustained by the applicants (substantive aspect) and as regards the response by the domestic authorities (procedural aspect). It found in particular that the ill-treatment inflicted on the applicants – which had been deliberate and carried out in a premeditated and organised manner while they were in the custody of prison officers – had amounted to torture.

Furthermore, in the Court’s view, the domestic courts had made a genuine effort to establish the facts and to identify the individuals responsible for the treatment inflicted on the applicants. However, those courts had concluded that, under Italian law in force at the time, there was no legal provision allowing them to classify the treatment in question as torture. They had had to turn to other provisions of the Criminal Code, which were subject to statutory limitation periods. As a result of this lacuna in the legal system, the domestic courts had been ill-equipped to ensure that treatment contrary to Article 3 perpetrated by State officials did not go unpunished.