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THIRD
SECTION
CASE OF
LADUNA v. SLOVAKIA
(Application
no. 31827/02)
JUDGMENT
STRASBOURG
13
December 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Laduna v. Slovakia,
The
European Court of Human Rights (Third Section),
sitting as a Chamber composed of:
Josep
Casadevall,
President,
Corneliu
Bîrsan,
Alvina
Gyulumyan,
Ján
Šikuta,
Luis
López Guerra,
Nona
Tsotsoria,
Mihai
Poalelungi,
judges,
and
Santiago Quesada,
Section
Registrar,
Having
deliberated in private on 15 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 31827/02)
against the Slovak Republic lodged with the Court under
Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by a
Slovak national, Mr Peter Laduna (“the applicant”), on 10
August 2002.
2. The
applicant, who had been granted legal aid, was represented by Mr I.
Syrový, a lawyer practising in Bratislava.
The Government of the Slovak Republic (“the Government”)
were represented by their Agent, Ms M.
Pirošíková.
3. The
applicant alleged, in particular, that his rights under Articles 8,
13 and 14 of the Convention and under Article 1 of Protocol No. 1 had
been breached in the context of his detention on remand and his
subsequent term of imprisonment.
4. By
a decision of 20 October 2010, the Court declared the application
partly admissible.
5. The
applicant and the Government each filed further written observations
(Rule 59 § 1) on the merits.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1973. At
present he is serving a life sentence in Leopoldov Prison.
- The
applicant was accused of several serious offences. In that context he
was detained pending trial from 1 September 2001 to 9 February 2006.
On the latter date he started serving a nine-year prison term to
which he had been sentenced for robbery. Further details are set out
in the decision of 20 October 2010 on the admissibility of the
present application.
- During
his detention on remand the applicant lodged several complaints with
the Directorate General of Prison Administration, in which he
complained about the conditions of his detention. He raised many
issues, among which were the restrictions on his visiting rights
(visits were allowed only once a month for thirty minutes and it was
only possible to speak to visitors through a partition), the right to
buy food in prison, the lack of hot water in his cell, and a lack of
contact with other prisoners. He also alleged that convicted
prisoners serving a sentence had more rights than he had as a remand
prisoner.
- The
Directorate General of Prison Administration sent replies to the
applicant on more than ten occasions. It found all of the applicant’s
complaints to be ill-founded. It also held that the conditions in the
prisons in which the applicant had been detained during the
investigation and judicial proceedings had been in conformity with
the relevant law.
- Furthermore,
the applicant has been obliged both during his detention and after
his conviction, to use half of the money he received from his family
to reimburse the debt which he owed to the State (this debt resulted
from courts’ decisions and from the statutory obligation to
contribute to his maintenance in prison), failing which he was not
allowed to buy supplementary food in the prison shop.
Thus
the applicant’s overall debt amounted to the equivalent of some
750 euros (EUR) in March 2008. In the period from December 2002
to January 2008 he had paid some EUR 360 in reimbursement of his
debt.
- On
16 January 2003 the applicant lodged a complaint with the Prosecutor
General submitting that his human rights had been violated. He
complained, inter alia, about the manner in which the State
had forced him to reimburse the debt resulting from the statutory
obligation to contribute to his maintenance in prison.
- On
30 January 2003 the Prosecutor General dismissed that complaint as no
breach of the law had been found in the applicant’s case.
- During
the whole period of his detention during the investigation and trial
the applicant could not watch television whereas convicted prisoners
had the possibility of watching television programmes collectively in
the assembly room of the relevant prison wing. Through the prison
broadcast system the prison administration let the detainees listen
to a public and a private radio station, each of which was
transmitted every other day. For almost the whole period of his
detention during trial the applicant was kept alone in his cell.
II. RELEVANT DOMESTIC LAW
A. Legal framework concerning detention on remand
1. Detention Act 1993, in force until 30 June 2006 (Law
no. 156/1993)
- Pursuant to section
2(1), a person’s detention during investigation and judicial
proceedings must respect the detained person’s right to be
presumed innocent. Any restrictions must be justified by the purpose
of the detention and by the aim of ensuring order, the safety of
others and the protection of property in places where accused
persons are detained. Subsection 2 of section 2 permits the
restriction of only those rights of detained persons of which they
cannot avail themselves in view of the fact that they are detained on
remand. Detention on remand must not diminish the human dignity of
the accused person.
- Section 10(1) provides
that an accused person detained during investigation and judicial
proceedings is entitled to receive visitors once a month for at
least thirty minutes. Where justified, the prison governor may permit
more frequent visits or another form of contact. Subsection 5 of
section 10 provides that visits to accused persons should take place
in the presence of a prison officer and without direct contact
between the accused and the visitor. Other arrangements may be
authorised by the prison director in justified cases.
- Section 12a(10) states
that an accused person is entitled to use his or her money to
purchase groceries and other items in prison, provided that he or she
has fulfilled the relevant statutory requirements. These include,
inter alia, the obligation to pay at least the same amount of his or
her debt to the prison administration or to other entitled people
when wishing to withdraw money from his or her account in prison.
When this and the other conditions are not met, the prison governor
should allow the detained person, at his or her written request, to
use money to purchase medicine and medical items which are not
provided for free of charge under the relevant law, to buy basic
personal-hygiene items, and also to pay any applicable taxes and fees
(section 12(11)).
2. Detention Act 2006, in force as from 1 July 2006
(Law no. 221/2006)
- Pursuant to section
19(1), accused persons are entitled to receive visitors every three
weeks for at least one hour.
Where an accused is detained on the ground that he or she could
influence witnesses or co-accused, or hamper the criminal
investigation into the case, he or she can receive visitors only
subject to the consent of the prosecuting authority or court dealing
with the case (section 19(2)).
Accused persons detained in prisons at the lowest security level are
allowed to have direct contact with their visitors as a general rule.
In other cases visits take place without direct contact unless the
prison governor decides otherwise, and in the presence of a prison
officer. In the situations set out in section 19(2), the prosecuting
authority or court may request that the visit take place in the
presence of one or more of their representatives (section 19(3)).
B. Legal framework concerning the service of prison
sentences
1. Serving of Prison Sentences Act 1965, in force until
31 December 2005 (Law no. 59/1965)
- Section
1(1) defines the purpose of the serving of a prison term as
preventing convicted persons from committing further offences and
preparing them on a continuous basis for an appropriate way of life.
- Section
2 lists cultural and educational work as one of the means of
attaining the purpose of the imprisonment of convicted persons.
- Section 11 provides
for the social rights of convicted persons. Subsection 1 guarantees
to convicted persons the necessary material and cultural conditions
for ensuring their appropriate physical and mental development.
- Section 12(3) provides
that a convicted person is entitled to receive visitors who are his
or her close friends and/or relatives at a time determined by the
prison governor. The frequency of the visits depends on the type of
security level to which a convicted person is subject: visits are
allowed at least once a fortnight for convicted persons at the lowest
security level; once a month for convicted persons at the medium
security level; and once in six weeks for those at the highest
security level. Visits to a convicted person subject to the medium or
highest levels of security take place without physical contact. A
prison governor may exceptionally decide otherwise.
2. Serving of Prison Sentences Act 2005, in force as
from 1 January 2006 (Law no. 475/2005)
- Section 24(1) provides
that a convicted person is entitled to receive visitors at least once
a month for two hours.
- Section 28(3) provides
that, where a convicted person has not paid a part of his or her debt
to the State in respect of prisoners’ maintenance contributions
and to other creditors registered with the prison authorities, he or
she can use his or her money only for the purchase of basic sanitary
items, objects necessary to engage in correspondence, medicine (which
cannot be provided free of charge), medical fees, and for the payment
of debts and court and administrative fees.
- Pursuant to section
34(1), subject to the approval of the prison governor, convicted
persons may use in their cells, at their own expense, their own radio
and television receivers.
3. Ministry of Justice Serving of Prison Sentences
Regulations 1994, in force until 31 December 2005 (Regulations no.
125/1994))
- Regulation 3(1)
provides that convicted persons should be treated in a way which
reduces the negative impact of imprisonment on their personality.
- Regulation 8(1) lists
sports and hobby activities, radio and television broadcasts, films
and convicted persons’ own cultural, educational or
entertainment activities among the cultural and educational
activities for persons who serve a prison term.
- Regulation 8(6)
provides that convicted persons are allowed to follow radio and
television broadcasts. The scope is to be determined by prison rules.
- The frequency and
duration of visits to convicted persons by their close friends and/or
relatives is governed by Regulations 80, 86 and 90. Visits are
allowed at least once a fortnight for convicted persons at the lowest
security level; once a month for convicted persons at the medium
security level; and once every six weeks for those at the highest
security level. As a rule, visits take place without direct
supervision by a prison officer in prisons with the lowest security
level. In other cases visits are supervised by a prison officer and
no direct contact between the convicted person and the visitor is
allowed. In all three types of prison the duration of a visit is to
be a minimum of two hours.
III. RELEVANT
INTERNATIONAL DOCUMENTS
A. The International Covenant
on Civil and Political Rights
- The
relevant part of Article 10 of the International Covenant on Civil
and Political Rights, by which Slovakia has been bound as from
28 May 1993, reads as follows:
“2. (a) Accused persons shall, save in exceptional
circumstances, be segregated from convicted persons and shall be
subject to separate treatment appropriate to their status as
unconvicted persons;” ...
- General
Comment No. 21 on Article 10 of the International Covenant on Civil
and Political Rights was adopted by the Human Rights Committee on 10
April 1992. In its relevant part it reads:
“9. Article 10, paragraph 2 (a), provides for the
segregation, save in exceptional circumstances, of accused persons
from convicted ones. Such segregation is required in order to
emphasize their status as unconvicted persons who at the same time
enjoy the right to be presumed innocent as stated in article 14,
paragraph 2.” (...)
B. The Council of Europe documents
1. European Prison Rules
- The
European Prison Rules are recommendations of the Committee of
Ministers to member States of the Council of Europe as to the minimum
standards to be applied in prisons. States are encouraged to be
guided in legislation and policies by those rules and to ensure wide
dissemination of the Rules to their judicial authorities as well as
to prison staff and inmates.
(a) The 1987 European Prison Rules
- The
1987 European Prison Rules (Recommendation No. R (87) 3 were adopted
by the Committee of Ministers of the Council of Europe on 12 February
1987. In Part V they contained a number of basic principles
concerning untried prisoners, including the following:
“91. Without prejudice to legal rules for the
protection of individual liberty of prescribing the procedure to be
observed in respect of untried prisoners, these prisoners, who are
presumed to be innocent until they are found guilty, shall be ...
treated without restrictions other than those necessary for the penal
procedure and the security of the institution.
92. 1. Untried prisoners shall be allowed to inform
their families of their detention immediately and given all
reasonable facilities for communication with family and friends and
persons with whom it is in their legitimate interest to enter into
contact.
2. They shall also be allowed to receive visits from
them ... subject only to such restrictions and supervision as are
necessary in the interests of the administration of justice and of
the security and good order of the institution.” (...)
(b) The 2006 European Prison Rules
- On
11 January 2006 the Committee of Ministers of the Council of Europe
adopted a new version of the European Prison Rules, Recommendation
Rec(2006)2. It noted that the 1987 Rules “needed to be
substantively revised and updated in order to reflect the
developments which ha[d] occurred in penal policy, sentencing
practice and the overall management of prisons in Europe”.
- The
2006 Rules contain, the following principles concerning untried
prisoners, inter alia:
“95.1. The regime for untried prisoners may not be
influenced by the possibility that they may be convicted of a
criminal offence in the future. ...
95.3. In dealing with untried prisoners prison
authorities shall be guided by the rules that apply to all prisoners
and allow untried prisoners to participate in various activities for
which these rules provide. ...
99. Unless there is a specific prohibition for a
specified period by a judicial authority in an individual case,
untried prisoners:
a. shall receive visits and be allowed to communicate
with family and other persons in the same way as convicted prisoners;
b. may receive additional visits and have additional
access to other forms of communication;” (...)
2. Reports on the CPT’s visits to Slovakia
- On
6 December 2001 the European Committee for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment (CPT) published its
report on the visit to Slovakia which had taken place from 9 to 18
October 2000. The relevan t parts read as follows:
“79. In the report on the 1995 visit (cf.
paragraphs 126 to 130 of CPT/Inf (97) 2), the CPT stressed the
importance for prisoners to be able to maintain good contact with the
outside world. In view of the situation found in 1995, the Committee
recommended that the visit entitlement of remand prisoners in
Bratislava Prison be substantially increased and invited the Slovak
authorities to explore the possibility of offering more open visiting
arrangements for such prisoners...
80. In their responses, the Slovak authorities expressed
some misgivings about the approach proposed by the CPT, principally
based on the objective of preserving the interests of justice
(preventing collusion, etc.).
It is therefore not surprising that the delegation which
carried out the 2000 visit observed little or no change in this area.
In particular, remand prisoners’ visit entitlement remained
limited to a mere 30 minutes every month..., although they could
receive from time to time an additional visit at the director’s
discretion. Further, visits for such prisoners continued to take
place in booths, with prisoner and visitor(s) separated by a
screen...
81. The CPT accepts that in certain cases it will be
justified, for security-related reasons or to protect the legitimate
interests of an investigation, to have visits take place in booths
and/or monitored. However, the CPT wishes once again to invite the
Slovak authorities to move towards more open visiting arrangements
for remand prisoners in general...
Arguments based on the need to protect the interests of
justice are totally unconvincing as a justification for the present
inadequate visit entitlement for remand prisoners. The CPT therefore
reiterates its recommendation that the visit entitlement for remand
prisoners be substantially increased (for example, to 30 minutes
every week).”
- On
2 February 2006 the CPT published its report on the visit to Slovakia
which had taken place from 22 February to 3 March 2005. The
relevant parts read as follows:
“46. A fundamental problem as regards remand
prisoners in the Slovak Republic is the total lack of out-of-cell
activities offered to such inmates.
At the time of the visit, remand prisoners were being
held for 23 hours a day in their cells in a state of enforced
idleness; their only source of distraction was reading books from the
prison library and listening to the radio and, in a limited number of
cases, watching television. No work was offered to such prisoners,
and possibilities for sports activities were few and far between, if
available at all... The deleterious effects of such a restricted
regime were exacerbated by the lengthy periods of time for which
persons could be held in remand prisons...
The CPT calls upon the Slovak authorities to take steps,
as a matter of priority, to devise and implement a comprehensive
regime of out-of-cell activities (including group association
activities) for remand prisoners. The aim should be to ensure that
all prisoners are allowed to spend a reasonable part of the day
outside their cells, engaged in purposeful activities of a varied
nature (group association activities; work, preferably with
vocational value; education; sport). The legislative framework
governing remand imprisonment should be revised accordingly...
61. The situation as regards the visiting entitlements
for remand prisoners had not changed in the last ten years. It
remained the case that adults were entitled to a mere 30-minute visit
per month... The conditions under which visits took place continued
to be closed (in booths with a screen separating inmates from their
visitors). This was exactly the situation which prevailed during the
first visit of the CPT to the Slovak Republic in 1995.
The CPT calls upon the Slovak authorities to revise the
relevant legal provisions in order to increase substantially the
visit entitlement for remand prisoners. The objective should be to
offer the equivalent of a visit every week, of at least 30 minutes
duration. Further, the Committee invites the Slovak authorities to
introduce more open arrangements for visits to remand prisoners.”
- The
Government’s response to the latter report, published on
2 February 2006, contains the following information:
“Under the new draft legislation on remand
imprisonment, the visit entitlement is to be extended from one visit
of at least 30 minutes a month to a visit of at least one hour once
in three weeks. In justified cases, the prison governor will have the
right to grant more frequent visits...
Under the methodological guidance issued by the General
Director of the CPCG (No. GR ZVJS-116-45/20-2003) in conformity with
the current legislation on the enforcement of remand imprisonment,
remand prisoners are allowed to have their own TV sets subject to
certain conditions. The methodological guidance issued by the General
Director of the CPCG (No. GR ZVJS-116-38/20-2003) provides for
certain leisure-time activities and allows the performance of certain
sports and special-interest activities, in particular to juvenile and
female remand prisoners. Remand prisons take permanent efforts to
create spatial and material conditions for special-interest
activities of remand prisoners, and for sports activities both inside
and in outdoor premises of prison establishments.
The issue of creating adequate programme of activities
for remand prisoners is addressed also in the new draft law on remand
imprisonment, which is currently considered by the National Council
of the Slovak Republic in connection with the re-codification of the
Criminal Code and of the Code of Criminal Procedure. The new draft
law on remand imprisonment aims at introducing a lighter remand
regime and proposes that remand prisoners be differentiated by
categories to enable their participation in special-interest
activities that can mitigate or reduce the negative impact of
incarceration on remand prisoners. The implementation of adequate
activity programmes proposed for all remand prisoners is conditional
on the creation of adequate spatial, material and staffing
conditions. After the new law has entered into effect, the CPCG will
gradually create material conditions for abovementioned programmes
and start with their practical implementation.”
THE LAW
I. THE SCOPE OF THE CASE
- On
20 October 2010 the Court declared admissible complaints under: (i)
Articles 8 and 14 concerning the alleged difference in treatment
between the applicant when he was in detention on remand and
convicted persons; (ii) Article 1 of Protocol No. 1 concerning the
use of his money in prison; and (iii) Article 13 concerning the lack
of an effective remedy in this respect. It declared inadmissible the
remainder of the application.
- As
regards the complaints under Articles 8 and 14 of the Convention in
particular, the issues which the Court considered included the
visiting rights of the applicant, the lack of a possibility of
watching television and having a private radio receiver, as well as
the lack of appropriate arrangements for having hot water and
preparing hot drinks in the cells of persons detained on remand. The
Court reiterates that it declared admissible that part of the
application to the extent that the alleged breaches of the
applicant’s rights stemmed from the legislation in force at the
relevant time.
- In his observations on the merits of the case the
applicant maintained that the Court should also examine whether the
facts complained of amounted to a breach of his rights under Article
3 and Article 6 §§ 1 and 2 of the
Convention.
- The
Court notes that the above decision on the admissibility of the
application determines the scope of the case currently before it.
There is therefore no call for an examination in the context of the
present application as to whether the relevant facts of the case gave
rise to a breach of other provisions of the Convention as claimed by
the applicant.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION TAKEN
ALONE AND IN CONJUNCTION WITH ARTICLE 14
- The
applicant complained that during the period of his detention on
remand his rights had been restricted to a greater extent than the
rights of convicted persons serving their prison terms. He alleged a
breach of Articles 8 and 14 of the Convention which, in so far as
relevant, provide:
Article
8
“1. Everyone has the right to respect
for his private and family life, ...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
Article
14
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
A. Arguments of the parties
1. The applicant
- The
applicant alleged, in particular, that during his detention on remand
he had been allowed to have visits only once a month and that their
duration had always been limited to the statutory minimum, namely
thirty minutes. He had not been allowed to have direct contact with
his visitors, from whom he had been separated by a partition and with
whom he could talk only through a phone. The duration of the visits
had been shorter than that to which convicted persons had been
entitled.
- While
detained on remand, the applicant could only listen to radio
programmes from two stations selected by the prison administration,
one public and one private, each of which had been available in turn
for one day centrally through the internal wire system. He had not
been able to watch television programmes at all. The applicant
maintained that, unlike him, convicted prisoners had been allowed to
watch television every day in rooms designed for that purpose and to
have a private radio receiver in their cell allowing them to choose
the broadcasts they wished to follow. Furthermore, during the period
of his detention the applicant had been unable to take part in
various sport activities, attend cultural events and work in various
hobby groups which had been available in prison to convicted
prisoners.
- In
the applicant’s view, there had been no justification for the
imposition of those types of restrictions on him as a person detained
during investigation and judicial proceedings before any verdict had
been delivered. In particular, he contended that detained persons in
his position had not been found guilty and should not therefore be
placed in a worse situation than convicted prisoners. The
restrictions imposed on him had concerned many issues that were
irrelevant to the proper conduct of the criminal proceedings and they
had been imposed on him for the whole duration of his detention on
remand, namely for a period exceeding four years.
2. The Government
- The
Government maintained that the situations referred to by the
applicant in his assertions that he had been in a worse position
compared with convicted persons had not been relevantly similar. The
aim of detention on remand during judicial proceedings and that of a
prison sentence were different. The former was aimed at ensuring the
availability of an accused person for the purpose of criminal
proceedings and their smooth conduct. The latter represented the most
severe form of punishment within the system of criminal law. Any
difference in the two regimes, which in any event had not been
substantial, resulted from the difference in the relevant law. The
applicant had not been discriminated against contrary to Article 14
of the Convention.
- The
law in force at the relevant time contained no provisions governing
the possibility for persons detained on remand to watch television
programmes either collectively or individually in their cells. In
2003 an instruction issued by the General Prison Administration
allowed for the use by persons detained on remand of their own
television sets in cells at their own expense where it was
technically feasible. The Government admitted that for technical
reasons the use of private television sets had not been possible in
the building where the applicant had been detained on remand.
At
the relevant time convicted persons had been allowed to watch
television, in accordance with Regulation no. 125/1994, in prison
assembly rooms.
- Lastly,
the Government maintained that, in any event, all the restrictions
imposed on the applicant had been standard procedure and had
exclusively served the interests of the maintenance of order and the
proper functioning of prisons. They argued that individuals detained
during investigation and judicial proceedings had to expect certain
restrictions on their rights. All the restrictions imposed on the
applicant had been in accordance with the relevant law and could not
be regarded as discriminatory.
B. The Court’s assessment
- Since
the essence of the applicant’s grievances is the allegedly
unjustified difference in treatment between himself as a person
detained on remand and convicted prisoners serving the terms to which
they had been sentenced, the Court considers it appropriate to
address them first from the standpoint of Article 14 of the
Convention in conjunction with Article 8, and then under Article 8
alone.
1. Alleged violation of Article 14 in conjunction with
Article 8
- The
Court reiterates that Article 14 of the Convention protects
individuals in similar situations from being treated differently
without justification in the enjoyment of their Convention rights and
freedoms. This provision has no independent existence, since it has
effect solely in relation to the rights and freedoms safeguarded by
the other substantive provisions of the Convention and its Protocols.
However, the application of Article 14 does not presuppose a breach
of one or more of such provisions and to this extent it is
autonomous. For Article 14 to become applicable, it suffices that the
facts of a case fall within the ambit of another substantive
provision of the Convention or its Protocols (see Sidabras and
DZiautas v. Lithuania, nos. 55480/00 and 59330/00, § 38,
ECHR 2004 VIII).
- The
Court will therefore establish whether the facts of the case fall
within the ambit of Article 8, whether there has been a difference in
the treatment of the applicant and, if so, whether such different
treatment was compatible with Article 14 of the Convention.
(a) Whether the facts of the case fall
under Article 8 of the Convention
- The
Court has held that detention, similarly to any other measure
depriving a person of his or her liberty, entails inherent
limitations on private and family life. Restrictions such as
limitations on the number of family visits and the supervision of
those visits constitute an interference with a detained person’s
rights under Article 8 but are not, of themselves, in breach of that
provision (see, among other authorities, Bogusław Krawczak
v. Poland, no. 24205/06, §§
107-108, 31 May 2011, and Moiseyev v. Russia,
no. 62936/00, §§ 207-208, 9 October 2008).
- The
fact that the applicant was unable to watch television programmes
while in detention might, in the circumstances, bear on his private
life as protected under Article 8, which includes a right to maintain
relationships with the outside world and also a right to personal
development (see Uzun v. Germany, no. 35623/05,
§ 43, 2 September 2010). Such an activity can
also be regarded as important for maintaining the mental stability of
a person who, like the applicant, has been detained on remand for a
long period of time. The Court has held that the preservation of
mental stability is an indispensable precondition to the effective
enjoyment of the right to respect for one’s private life (see,
mutatis mutandis, Dolenec v. Croatia,
no. 25282/06, § 57, 26 November 2009). The above
considerations do not imply, however, that lack of access to
television broadcasts in prison is in itself contrary to Article 8.
- The
Court thus accepts that, among the facts complained of by the
applicant and falling within the scope of the present application as
determined by the admissibility decision (see also paragraph 39
above), those concerning family visits and his alleged lack of access
to television broadcasts interfered with his right under Article 8 to
respect for his private and family life. In accordance with the
Court’s decision on the admissibility, the interference and the
alleged discriminatory treatment of the applicant in that context
will be examined exclusively to the extent that they resulted from
the laws applicable at the relevant time.
(b) Whether the applicant had an “other
status” and whether his position was analogous to convicted
prisoners
- Being
a person detained on remand may be regarded as placing the individual
in a distinct legal situation, which even though it may be imposed
involuntarily and generally for a temporary period, is inextricably
bound up with the individual’s personal circumstances and
existence. The Court is therefore satisfied, and it has not been
disputed between the parties, that by the fact of being detained on
remand the applicant fell within the notion of “other status”
within the meaning of Article 14 of the Convention (see, mutatis
mutandis, Shelley v. the United Kingdom (dec.), no.
23800/06, 4 January 2008, and Clift v. the United Kingdom,
no. 7205/07, §§ 55-63, 13 July 2010).
-
In order for an issue to arise under Article 14 there must be
a difference in the treatment of persons in analogous, or
relevantly similar, situations (see D.H. and Others v. the Czech
Republic [GC], no. 57325/00, § 175, ECHR 2007–IV).
The requirement to demonstrate an “analogous position”
does not require that the comparator groups be identical. The fact
that the applicant’s situation is not fully analogous to that
of convicted prisoners and that there are differences between the
various groups based on the purpose of their deprivation of liberty
does not preclude the application of Article 14. It must be shown
that, having regard to the particular nature of his complaint, the
applicant was in a relevantly similar situation to others treated
differently (see Clift, cited above, § 66).
- The
applicant’s complaints under examination concern the legal
provisions regulating his visiting rights, and his lack of access to
television programmes in prison. They thus relate to issues which are
of relevance to all persons detained in prisons, as they determine
the scope of the restrictions on their private and family life which
are inherent in the deprivation of liberty, regardless of the ground
on which they are based.
- The
Court therefore considers that, as regards the facts in issue, the
applicant can claim to be in a relevantly similar situation to
convicted persons.
(c) Whether the difference in treatment
was objectively justified
- A
difference in treatment is discriminatory if it has no objective and
reasonable justification, in other words, if it does not pursue a
legitimate aim or if there is not a reasonable relationship of
proportionality between the means employed and the aim sought to be
realised. The Contracting States enjoy a margin of appreciation in
assessing whether and to what extent differences in otherwise similar
situations justify a different treatment. The scope of this margin
will vary according to the circumstances, the subject-matter and the
background. The Court has accepted that, in principle, a wide margin
of appreciation applies in questions of prisoners and penal policy
(see Clift, cited above, § 73, with further references).
- As
to the facts of the present case, the Court notes that the applicant
was detained pending trial from 1 September 2001 to 9 February 2006.
During that period, the regime of his detention on remand was
governed by the Detention Act 1993. Under section 10(1) and (5), all
accused persons detained during investigation and judicial
proceedings were entitled to receive visitors once a month for at
least thirty minutes. The visits took place without direct contact
between the accused and the visitor. Other arrangements were within
the discretionary power of the prison governor (see paragraph 15
above). However, it does not appear from the documents submitted that
such arrangements had been frequently made in general or in respect
of the applicant in particular.
- During
the same period the statutory duration of visits to convicted persons
was fixed at a minimum of two hours. From 1 September 2001 to
31 December 2005 the frequency at which convicted prisoners
could receive visitors was determined according to their prison
security level. Visits to convicted persons by their close friends
and/or relatives were allowed at least once a fortnight for convicted
prisoners at the lowest security level and direct contact was allowed
between the visitors and the convicted person in such cases. Visits
to convicted prisoners at the medium-security level by their close
friends and/or relatives were allowed once a month, and once in six
weeks for those at the highest security level. In medium and
high-security level prisons, visits were supervised by a prison
officer and no direct contact between the convicted person and the
visitor was allowed. As from 1 January 2006, the Serving of
Prison Sentences Act 2005 entitled convicted persons to meet visitors
at least once a month for two hours (see paragraphs 21 and 22 above).
- Thus,
at the relevant time, the duration of visits to persons detained on
remand, such as the applicant, was considerably shorter (thirty
minutes) than that which the law allowed in respect of convicted
persons (two hours).
Moreover,
during a substantial part of the relevant period the frequency of
visits and the type of contact of convicted persons differed
according to the security level of the prison in which they were
being held. In particular, in prisons with the lowest security level
visits took place, under the Serving of Prison Sentences Act 1965 at
least once a fortnight and direct contact between convicted persons
and their visitors was allowed. The restrictions on visiting rights
of persons detained on remand were applicable in a general
manner, regardless of the reasons for their detention and the
security considerations related thereto.
- Pursuant
to section 2(1) of the Detention Act 1993, any restrictions on
detained persons’ rights must be justified by the purpose of
the detention and by the aim of ensuring order, the safety of others
and the protection of property in places where accused persons
are detained. Paragraph 2 of section 2 permits the restriction only
of those rights of detained persons of which they cannot avail
themselves in view of the fact that they are detained on remand.
- In
the Court’s view, neither the above provisions, nor the
arguments put forward by the Government, provide an objective and
reasonable justification for restricting visiting rights of persons
detained on remand - who are to be presumed innocent (see paragraph
14 above) - in the above respect and in a general manner, to a
greater extent than those of convicted persons. The arrangements in
place were criticised by the CPT in its reports on visits to Slovakia
which took place in 1995, 2000 and 2005 (see paragraphs 35 and 36
above).
- As
regards the lack of direct contact with visitors, the Court
reiterates that in a different case it has held that a person
detained on remand who had been physically separated from his
visitors throughout his detention lasting three and a half years was,
in the absence of any demonstrated need such as security
considerations, not justified under the second paragraph of Article 8
(see Moiseyev, cited above, §§ 258-259). It
further notes that, apart from an exception which was at the
discretion of the prison governor, at the relevant time the law in
force did not entitle persons detained on remand to have direct
contact with their visitors regardless of their particular situation.
- The
Court concurs with the view expressed in the report of 6 December
2001 on the CPT’s visit to Slovakia, according to which in
certain cases it may be justified, for security-related reasons or to
protect the legitimate interests of an investigation, to have
particular restrictions on a detained person’s visiting
rights (see paragraph 35 above, and also Vlasov v. Russia,
no. 78146/01, § 123, with further references). That aim can,
however, be attained by other means which do not affect all detained
persons regardless of whether they are actually required, such as the
setting up of different categories of detention, or particular
restrictions as may be required by the circumstances of an individual
case.
- The
above considerations are also in line with the relevant international
documents. Thus Article 10 § 2(a) the International Covenant on
Civil and Political Rights requires, inter alia, that accused persons
should, save in exceptional circumstances, be subject to separate
treatment appropriate to their status as not convicted persons who
enjoy the right to be presumed innocent (see paragraphs 29 and 30
above).
The
1987 European Prison Rules stated that untried prisoners, who are to
be presumed innocent until they are found guilty, should be subjected
only to such restrictions which are necessary for the penal procedure
and the security of the institution (see paragraph 32 above).
Finally,
the 2006 European Prison Rules, which were adopted shortly before the
applicant’s detention on remand ended, provide, in particular,
that unless there is a specific reason to the contrary, untried
prisoners should receive visits and be allowed to communicate with
family and other persons in the same way as convicted prisoners.
Moreover, there is a possibility of additional visits and other forms
of communication (see paragraph 34 above).
- The
Court observes that the subsequent legislation, namely the 2006
Detention Act, extended the visiting rights of remand prisoners, and
it allows for a differentiation between them with a view to ensuring
that the restrictions imposed corresponded to an objective need (see
paragraph 17 above). This cannot, however, affect the position in the
present case.
- In
view of the above, the Court concludes that the restrictions on
visits to the applicant by his family members during his detention on
remand constituted a disproportionate measure, contrary to his rights
under Article 14 in conjunction with Article 8 of the Convention.
- As
regards the lack of access to television broadcasts, the law which
governed detention on remand at the relevant time did not provide for
such a possibility. By contrast, at the time when the applicant was
detained on remand, convicted persons had the right and were able to
collectively watch television programmes in special rooms in prison
(see paragraphs 26, 27 and 47 above).
- In
the absence of any relevant arguments put forward by the Government
the Court finds no objective justification for such a difference in
treatment between persons detained on remand and convicted prisoners.
It attaches weight to the fact that being able to follow television
broadcasts was considered to be a part of the cultural and
educational activities organised for convicted persons, whereas such
activities were not provided for in the law applicable to persons
detained on remand. This was also criticised by the CPT.
- It
is true that the General Prison Administration issued instructions in
2003 allowing detained persons to have their own television sets in
their cells. This does not affect the position in the present case,
as such a possibility was open only to persons who could afford
the costs involved and, in any event, it was not technically feasible
in the prison wing where the applicant was being held.
- There
has therefore been a violation of Article 14 in conjunction with
Article 8 of the Convention.
2. Alleged violation of Article 8 of the Convention
taken alone
- The
Court considers that since it has found a breach of Article 14 of the
Convention taken in conjunction with Article 8, it is not necessary
to examine whether there has been a violation of Article 8 alone.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained that, when receiving a sum of money from his
family, he was required to use half of that amount to pay back part
of his debt to the State. Refusal to pay the amount would have led to
the suspension of his right to buy groceries and other items in the
prison shop. He relied on Article 1 of Protocol No. 1, which provides
as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
- The
applicant stated that he had been in prison for several years and had
not had any income. The only way in which he could have received the
money needed to pay for supplementary food, personal items,
correspondence, medicine and so forth, had been to ask his family
members for help. However, he was under an obligation to use half of
the money he received from his family to pay back his debt to the
State. If he had failed to reimburse a part of that debt on a monthly
basis, he would have been prevented from buying groceries and other
items in the prison shop.
- Overall,
considering the amount of money he had received from his family and
the obligation to use half of it to pay back his debt to the State,
he claimed that he had been left with amounts between EUR 7 and EUR
15 per month that he could use in the prison shop. He also claimed
that the quantity of the food provided in prison had been poor, and
that the prisoners had therefore been forced to buy supplementary
food. The restrictions set by law had not fulfilled the requirement
of proportionality, as a fair balance had not been struck between the
general interest of society and his fundamental rights. As a result,
the legislation had placed an unreasonable burden on him.
- The
Government maintained that the relevant legislation regulating the
use of prisoners’ money was compatible with the requirements of
Article 1 of Protocol No. 1. They argued that that provision did
not impair the right of States to adopt such laws as they deemed
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes and other
contributions or penalties.
- The
purpose of the relevant legislation was to ensure that prisoners paid
their debts. The applicant was entitled to use his money only if he
fulfilled the statutory requirements. More specifically, in the
previous calendar month, he had had to pay at least the same amount
of his debt to the Prison Administration or other entitled people as
he had wished to withdraw. Nevertheless, if a person did not fulfil
those requirements, the prison governor was entitled to grant leave
to that person to use his or her money to buy medicine, indispensable
sanitary items, or to pay taxes or fees.
- Even
though such a regulation interfered with the right of prisoners to
freely dispose of their money, it was not a disproportionate
interference because prisoners were provided with food, clothing and
other items and services. When using additional financial resources,
the prisoners secured above-standard conditions for themselves.
- The
Court reiterates that Article 1 of Protocol No. 1 guarantees in
substance the right of property. Any interference with that right
must comply with the principle of lawfulness and pursue a legitimate
aim by means reasonably proportionate to the aim sought to be
realised (for a recapitulation of the relevant principles see,
for example, Metalco Bt. v. Hungary, no.
34976/05, § 16, 1 February 2011, with further
references).
- In
the present case the applicant has been allowed to use money on his
account in prison to buy supplementary food and other products in the
prison shop, only if he used at least the same amount for
reimbursement of his registered debts. There has thus been an
interference with the applicant’s right under Article 1 of
Protocol No. 1 to peaceful enjoyment of his possessions.
- That
interference has had a legal basis, namely section 12a of the
Detention Act 1993 and, after the applicant’s conviction,
section 28 of the Serving of Prison Sentences Act 2005 (see
paragraphs 16 and 23 above). The reimbursement of debts undoubtedly
falls within the general interest as envisaged in Article 1 of
Protocol No. 1.
- As
to the requirement of a reasonable relationship of proportionality
between the means employed and the aim pursued, the Court has
recognised that the Contracting States enjoy a wide margin of
appreciation with regard both to choosing the means of recovery of
debts and to ascertaining whether the consequences of such recovery
are justified in the general interest for the purpose of achieving
the object of the law in question. In such cases the Court will
respect the State authorities’ judgment as to what is in the
general interest unless that judgment is manifestly without
reasonable foundation (see Benet Czech, spol. s r.o. v. the
Czech Republic, no. 31555/05, §§ 30
and 35, 21 October 2010, with further references).
85. The Court notes that the
interference in issue has limited but does not deprive the applicant
of the possibility of using the money on his account in prison to buy
supplementary food and other products in the prison shop.
It further notes that,
even if a person does not fulfil the requirement of using an
equivalent amount towards the reimbursement of a part of his or her
debt, that person is to be allowed to use his or her money to buy
medicine, indispensable sanitary items, items necessary to engage in
correspondence, or to pay taxes or fees. It does not follow from the
documents submitted that the applicant has not been allowed to use
his money for that purpose regardless whether or not he reimbursed a
part of his debt.
- In
view of the information before it, and considering the wide margin of
appreciation afforded to the Contracting States in similar cases, the
Court considers that the interference complained of was not
disproportionate to the aim pursued.
87. There
has therefore been no violation of Article 1 of Protocol No. 1.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant complained that he had no effective remedy at his disposal
as regards the complaints set out above. He relied on Article 13 of
the Convention, which provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Court notes that it declared admissible and examined the applicant’s
complaints under the substantive provisions of the Convention only to
the extent that the alleged breach stemmed from the alleged
deficiencies in the relevant law.
- However,
Article 13 cannot be interpreted as requiring a remedy against the
state of domestic law (see Iordachi and Others v. Moldova,
no. 25198/02, § 56, 10 February 2009).
- In
these circumstances, the Court finds no breach of Article 13 of the
Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 50,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government considered that claim to be excessive.
- The
Court, making an assessment on an equitable basis, considers it
appropriate to grant EUR 9,000 to the applicant in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant claimed EUR 500 in respect of his own out-of-pocket
expenses, which he incurred in the context of his attempts to obtain
redress before both the domestic authorities and the Court. He
further claimed EUR 3,900 in respect of the costs of his legal
representation in the proceedings before the Court, as well as EUR
920 for the translation of submissions and other expenses incurred by
his lawyer.
- The
Government considered that any award should correspond to the
principles established in the Court’s case-law.
- The
Court reiterates that costs and expenses will not be awarded under
Article 41 unless it is established that they were actually and
necessarily incurred and were reasonable as to quantum (see Sanoma
Uitgevers B.V. v. the Netherlands, no. 38224/03, § 109,
ECHR 2010 ...., with further references).
- Regard
being had to the information in its possession and the
above-mentioned criteria, and noting that the applicant was granted
legal aid under the Council of Europe legal-aid scheme (see paragraph
2 above), the Court considers it reasonable to award the applicant
the additional sum of EUR 600 in respect of costs and expenses,
plus any tax that may be chargeable to the applicant on that amount.
C. Default interest
- The
Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been a violation of
Article 14 in conjunction with Article 8 of the Convention;
- Holds that it is not necessary to examine
whether there has been a violation of Article 8 of the
Convention taken alone;
- Holds that there has been no violation of
Article 13 of the Convention;
- Holds that there has been no violation of
Article 1 of Protocol No. 1;
- Holds
(a) that
the respondent State is to pay the applicant,
within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, the following amounts:
(i) EUR
9,000 (nine thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
600 (six hundred euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate
equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 13 December 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judges
Gyulumyan and Tsotsoria is annexed to this judgment.
J.C.M.
S.Q.
JOINT CONCURRING OPINION OF JUDGES GYULUMYAN AND
TSOTSORIA
We
voted with the majority in finding a violation of Article 14 in
conjunction with Article 8 of the Convention in the particular
circumstances of the present case. However, with due respect, we
would like to express our separate opinion on certain points of the
judgment that, we believe, are crucial in shaping the Court’s
case-law on the rights of remand prisoners. From this point of view,
the judgment may well go beyond the legal system of the respondent
State and have implications for all the Contracting States.
In
the present case, the applicant based his complaints on Articles 8
and 14 of the Convention and alleged that as a remand prisoner, his
rights were restricted to a greater extent than those of convicted
persons (see paragraphs 38-39 and 42 of the judgment).
We
are mindful of the tendency towards greater protection of the rights
of remand prisoners, which is adequately outlined in the relevant
parts of the judgment. The most pertinent elements can be summarised
as follows:
- when determining the appropriate regime for remand prisoners, the
Government should take into consideration the fact that they enjoy
the right to be presumed innocent;
- unless there is a time- and content-specific restriction imposed by
a judicial authority in an individual case, remand prisoners
should enjoy at least the same rights as convicted prisoners;
- the restrictions imposed must be necessary in the interests of the
administration of justice or for the security of the custodial
facility.
Based
on the above-mentioned elements, the crucial question that arises is
whether remand and convicted prisoners should enjoy the same rights,
thus making Article 14 of the Convention applicable. Here we refer to
the following facts of the case: the applicant was detained on remand
for more than four years (see paragraphs 7 and 60). This unusually
long period makes the present case specific in relation to regular
cases concerning the rights of remand and convicted prisoners, as
detention on remand is normally imposed for a significantly shorter
period of time (see paragraph 55). This specific circumstance of the
case, namely the long period of detention on remand, did not go
unnoticed and was appropriately highlighted in paragraph 53 of the
judgment. Therefore, we doubt that the rights of remand and convicted
prisoners should be equal in all circumstances.
Having
said that, we had no difficulties in agreeing with the majority that
the present case fell within the ambit of Article 14 of the
Convention, as the respondent Government also accepted the argument
that the applicant, as a remand prisoner, had an “other
status” within the meaning of Article 14. However, we did have
difficulties in fully aligning ourselves with the
majority’s principal argument for the
justification of the applicability of Article 14 of the Convention to
the present case. In this regard, the majority found:
“57. The applicant’s complaints
under examination concern the legal provisions regulating his
visiting rights, and his lack of access to television programmes in
prison. They thus relate to issues which are of relevance to all
persons detained in prisons, as they determine the scope of the
restrictions on their private and family life which are inherent in
the deprivation of liberty, regardless of the ground on which they
are based.” (emphasis added)
The
paragraph cited above and the overall spirit of the judgment (see
also, for instance, paragraph 67) bring us to the conclusion that the
majority, at least implicitly, support the idea of making the status
of remand and convicted prisoners equal. We think that the
effect of the judgment as it now stands might go beyond the
circumstances of the present case, irrespective of the preconditions
for legitimate restrictions of rights; it is not certain that its
impact will be limited to the right to have family visits and access
to television, which formed the subject of the complaints in the
underlying application. We are afraid that, in the light of the
scarce case-law on the cumulative application of Articles 8 and 14 of
the Convention in the field of prison rules, the importance of the
present case has not been adequately assessed and carefully
anticipated.
We feel compelled to say that, despite these
unfortunate disagreements with the majority, we fully subscribe to
the rationale of the judgment that the rights of remand prisoners
should be further strengthened, albeit without prejudice to, inter
alia, the legitimate interests of
the criminal proceedings and the security of the institution
concerned. The margin of appreciation enjoyed by the Contracting
States in penal policy-making should likewise be respected, as
reaffirmed by the majority (see paragraph 59).
The
present judgment, as it now stands, fails to shed light on some of
the very complex issues in penal policy that are equally important
and relevant for the Contracting States. The ambiguity of the
arguments in the judgment may turn the indisputably good intentions
of the Court into something unintended.
