In the case of Lindström and Mässeli v. Finland,
The European Court of Human
Rights (Fourth Section), sitting as a Chamber composed of:
Ineta Ziemele,
President,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Vincent A. De Gaetano,
Paul Mahoney,
Faris Vehabović, judges,
and Françoise Elens-Passos, Section
Registrar,
Having deliberated in private on 10 December 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
24630/10) against the Republic of Finland lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by two Finnish nationals, Mr Mark Kristian Lindström
and Mr Jouni Kristian Mässeli (“the applicants”), on 2 May 2010.
The applicants were represented by Mr Tommi
Koivistoinen, a lawyer practising in Tampere. The Finnish Government (“the
Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry
for Foreign Affairs.
The applicants alleged, in particular, under Article 3 of the Convention that
they had been treated in an inhuman and degrading manner by the prison
authorities when they were forced, in isolation, to wear overalls which covered
them from feet to neck and were “sealed” by prison
staff with plastic strips, in order to check whether they had concealed
drugs in their body.
On 19 September 2011 the application was communicated to the Government under
Article 3 of the Convention. It was also decided to rule on the admissibility
and merits of the application at the same time (Article 29 § 1). On 3
April 2013 the application was re-communicated ex officio under Article
8 of the Convention. On 24 June 2013 the President of the
Section decided not to accept the applicants’ further claims for costs and
expenses submitted out of time (Rule 38 § 1 of the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants were born in 1976 and 1971 and live
in Åminnefors and Kotka respectively.
The applicants were serving their prison sentence
in Riihimäki Prison. The first applicant had been convicted of aggravated drug
offence, aggravated theft and firearms misdemeanour, and sentenced to an
imprisonment of two years and eight months. He started to serve his sentence in
Riihimäki Prison in early 2004. The second applicant had been convicted of
attempted manslaughter and sentenced to an imprisonment of four years and three
months. He started to serve his sentence in Riihimäki Prison approximately in
November 2003.
After an unsupervised meeting with his family,
the first applicant was put in isolation from 13 to 16 November 2004 as he was
suspected of having concealed unlawful substances inside his body. The second
applicant was isolated from 9 to 16 May 2004 on returning to the prison after
leave.
While in isolation, the applicants had to give up
their normal prison clothing and to wear overalls which covered them from feet to neck and were “sealed” by prison staff with
plastic strips. The applicants were not able to remove the overalls by
themselves. When they needed to use the toilet, they had to call the guards to
escort them there and to remove the overalls. According to the first applicant,
the first time the guards did not come quickly enough and he had to relieve
himself in the overalls.
On his second day in isolation, the second applicant
was given laxatives without any prior medical consultation but with his consent.
When they took effect, the second applicant called for a guard to take him to
the toilet but it took a long time for the guard to arrive and the applicant
had to defecate in the overalls. He claims that afterwards he had to put the
same dirty overalls back on and was not provided with the possibility to wash.
The applicants claimed that they were not
allowed to wash during the whole time in isolation. The dirty overalls apparently
caused skin irritation in the first applicant and broke the skin of the second
applicant.
In February 2005 the applicants reported the
matter to the police.
On 25 January 2007 the public prosecutor pressed
charges against the Riihimäki Prison director and two chief guards for breach
of official duty (virkavelvollisuuden rikkominen, brott mot tjänsteplikt)
because they had failed to respect the applicants’ human dignity during their
isolation. In addition, the applicants pressed charges for coercion (pakottaminen,
olaga tvång) and defamation.
On 15 June 2007 the Riihimäki District Court (käräjäoikeus,
tingsrätten), after having held an oral hearing in the presence of the
applicants and several witnesses, dismissed all charges against the accused. It
found that the use of overalls was acceptable because of the need to control
and prevent smuggling of drugs and other substances into prison. It was not intended
that a prisoner defecate in them, but defecation took place in separate,
supervised toilets. The use of overalls as such did not have any effect on how
quickly a prisoner could be taken to a toilet. The use of overalls was not
meant to humiliate the prisoners and did not restrict their privacy any more
than the isolation itself did. The use of overalls was thus not as such a
measure which would have degraded the applicants. They had not been expected,
let alone coerced, to defecate in the overalls: the first applicant had done so
of his own will as a protest against the use of overalls while the second
applicant, as a legally isolated prisoner, needed to be taken to a separate
toilet which he did not reach on time. There was no evidence that the guards
had delayed their response to the calls of the applicants. It had not been
shown that the applicants did not have the possibility to wash whenever
necessary.
By letter dated 5 July 2007 the applicants
appealed to the Kouvola Appeal Court (hovioikeus, hovrätten).
On 30 September 2008 the Kouvola Appeal Court accepted
the conclusions of the District Court and upheld its judgment. It found that
the purpose of the use of overalls was to prevent the smuggling of drugs into
prison. Concealing drugs in the body could also cause significant health risks
to the prisoner. The court found that it had not been shown that the use of
overalls had any effect on how quickly a prisoner was taken to a toilet.
Moreover, it found, by referring to the case-law of the Court, that the
suffering and humiliation caused by the use of overalls did not exceed the
inevitable suffering and humiliation caused by the legal isolation itself. The
rights of prisoners were not restricted more than what was necessary for the
purposes of isolation and the use of overalls cannot therefore be regarded as
violating human dignity.
By letter dated 1 December 2008 the applicants
appealed to the Supreme Court (korkein oikeus, högsta domstolen).
On 4 November 2009 the Supreme Court refused the
applicants leave to appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
According to Chapter 2, section 9d, of
the Act on Execution of Sentences (laki rangaistusten täytäntöönpanosta,
lagen om verkställighet av straff, Act no. 364/1999 as in force at the
relevant time), a prisoner could be isolated from other prisoners if there were
grounds to suspect that he or she might be concealing drugs or other unlawful
substances or items inside the body while in prison or when entering a prison.
Such a decision could be taken by the prison director. A prisoner could be held
in isolation until drugs or other unlawful substances or items had been
evacuated from the body or until there were no longer any grounds for the
isolation. The isolation could not, however, last for more than seven days. If
the isolation caused risks to the prisoner’s health, it had to be interrupted.
A medical doctor needed to verify whether isolation would cause any risks to
the prisoner’s health. The isolated person’s health was to remain under close medical
control. Moreover, in the relevant Government Bill HE 10/1998 vp it was stated
that isolation could also be ended if a prisoner requested an X-ray examination
or a medical examination. An isolated prisoner would in practice be placed in a
cell with a dry toilet.
According to Chapter 2, sections 7 and 8, of the
same Act, a prisoner was to have appropriate clothing, and had the right to
outdoor exercise every day. Chapter 7, section 1, of the same Act provided a
possibility for appealing but only in respect of disciplinary sanctions or if
the release on parole was postponed.
Section 7b of the Prison Service Decree (vankeinhoitoasetus,
fångvårdsförordningen, Act no. 878/1995 as in force at the material time)
provided that a decision on observation in isolation had to be given in
writing. The prisoner had to be informed about the grounds for the isolation.
During isolation, the prisoner and his or her health had to be observed by
cameras or by other means.
On 18 March 2004 the Riihimäki Prison director issued
detailed rules on the use of closed overalls for observation purposes and on
other procedures during the isolation of a prisoner suspected of concealing
unlawful substances inside the body. These rules, as in force at the relevant time,
provided the following:
- a prisoner wears closed
overalls and only underpants under them;
- sleeve ends of the
overalls are adjusted by means of plastic strips;
- opening the zipper is
prevented by means of a plastic strip;
- a prisoner is given a
Bible, AA (Alcoholics Anonymous) literature and a drinking vessel;
- smoking requisites and
toiletries are kept by staff;
- a prisoner smokes and
eats under supervision by staff;
- on request, a prisoner
is permitted to wash under supervision;
- laxatives are given to a
prisoner only before noon;
- a prisoner defecates
and urinates under supervision by staff;
- a nurse and a medical
doctor are called when necessary;
- the isolation cell is
provided with a mattress and a pillow; and
- the overalls are washed
after every use.
These Rules were revised on 23 December 2004 and
17 February 2005. In addition, they provide the following:
- a prisoner is permitted
to wash his or her hands after defecation and urination;
- a prisoner is permitted
to shower under supervision by staff every second day;
- a mattress, a pillow
and a blanket are provided on request; and
- outdoor exercise is
arranged according to the daily routine.
On 1 October 2006 the new
Prison Sentences Act (vankeuslaki, fängelselagen, Act no. 767/2005)
entered into force. Chapter 18, section 4, of the Act provides the same
regulation on observation in isolation (eristämistarkkailu,
observation i isolering) as was previously provided in section 9d of the Act on
Execution of Sentences, with some slight amendments. Chapter
18, section 4, subsections 1 and 3, of the Act read as follows:
“If there are reasonable grounds to suspect that a prisoner is concealing
inside the body unlawful substances or items meant in Chapter 9,
section 1, subsections 1 or 2 while in prison or when entering a prison,
he or she can be placed in a room or cell where he or she and the evacuation of
the unlawful substances or items can be observed round the clock with technical
means or otherwise.
...
The medical personnel shall be immediately
informed about the placement of a prisoner in observation in isolation. A medical doctor or other medical personnel shall verify as
soon as possible the health condition of the prisoner. The prisoner shall be closely
observed by technical surveillance or in some other manner.”
. On 31 December 2012 the Parliamentary
Ombudsman (eduskunnan oikeusasiamies, riksdagens
justitieombudsman) found in his statement (Dnro 2011/2/10) that the use of closed
overalls meant such a restriction to fundamental rights protected by the
Constitution that it required a clear basis in law. The legal provisions
concerning imprisonment, the travaux préparatoires or the lower level
regulations did not recognise the concept of closed overalls. They were clearly
a different type of means to the technical means of surveillance destined for
the supervision of prisoners. The use of closed overalls rather meant that prisoners
did not have to be observed continuously and therefore their use meant a
different kind of interference with the fundamental rights. Technical means of
surveillance restricted mainly a prisoner’s right to protection of his or her
privacy whereas the overalls restricted his or her free will and
self-determination. He found that Chapter 18, section 4, subsection 1, of the
Prison Sentences Act did not provide a sufficient legal basis for the use of
closed overalls.
. On
26 February 2013 a legislative motion (LA 10/2013 vp), signed by 103 Members of
Parliament, was submitted to Parliament. The motion proposed an amendment to the
Prison Sentences Act to the effect of permitting the use of closed overalls.
Following the statement of 31 December 2012 by
the Parliamentary Ombudsman, the Criminal Sanctions Agency (Rikosseuraamuslaitos,
Brottspåföljdsmyndiheten) prohibited the use of closed overalls as from
15 March 2013.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicants complained under Article 3 of the
Convention that that they had been treated in an inhuman and degrading manner. The applicants’ complaints do not concern the material
conditions of the Riihimäki prison, nor their isolation as such but rather the
use of closed overalls while in isolation. They claim that the use of
overalls, especially dirty ones, was degrading. There was no evidence that the
applicants had been involved in smuggling drugs into the prison.
Article 3 of the Convention reads as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
The Government contested that argument.
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
The applicants pointed out that the use of
overalls did have an effect on how quickly a prisoner could defecate as it was
quicker for a prisoner to undress him or herself than for a guard to undress
the prisoner. A delay of 10 minutes was already too long, especially if the
prisoner had been given laxatives. The guards had testified before the domestic
courts that the delay could be as long as 15 minutes. The first applicant
claimed that he would not have defecated in the overalls, had he been taken to
the toilet in time. The second applicant maintained that he was obliged to
defecate in the overalls twice and both times he had to continue wearing the
same, dirty overalls.
The Government noted that it had been decided to
isolate the applicants as they were suspected of having concealed unlawful
substances inside their bodies. The isolation of the first applicant lasted for
less than three days and that of the second applicant for nearly seven days. Prevention
of drugs smuggling was extremely important in order to maintain order and
ensure security in prisons. The purpose of isolation was to prevent unlawful
smuggling of substances into the prison as well as to prevent any health risks
to the detainees in case the swallowed packages broke inside their bodies. For
this reason such detainees had to be observed continuously and all defecation
had to take place under supervision. The detainees were under camera
surveillance but as it was not continuous, it had been necessary to use closed
overalls for observation purposes.
The Government noted that the closed overalls
resembled normal overalls with the difference that the legs were equipped with
integrated plimsolls, the zipper was at the back and the sleeves were adjusted
by means of plastic strips. The prisoners could not remove the overalls by
themselves or draw their hands inside the sleeves. Prisoners in isolation were
not permitted to wear their own clothes. They were also required to defecate in
a specially constructed toilet bowl which permitted the straining and checking of
excrement. The location of such toilets largely depended on the structure of
the prison: in Riihimäki prison they were located outside the cell. The use of
overalls did not have any effect on how quickly a prisoner could be taken to a
toilet. The prisoners could press a call button in the isolation cell to
contact the staff and the guards were obliged to go to such prisoners without
delay. The staff would normally reach the isolation cell in a couple of
minutes. In exceptional cases the maximum delay was approximately 10 minutes.
The Government emphasised that prisoners under
observation seldom defecated in their overalls. In fact, the District Court had
found that the first applicant had defecated in the overalls deliberately as he
had wanted to get rid of the overalls. After defecating, the first applicant
was permitted to take a shower. The first applicant had not submitted any
evidence to prove that the plastic strips had caused abrasions to his wrists or
that the overalls caused an allergic reaction.
As to the second applicant, the Government noted
that it appeared from the trial documents that he had not been forced to take
laxatives but had taken them of his own free will. The District Court found
that the second applicant had defecated in the overalls as the guards had
failed to escort him to the toilet in time. However, the overalls had been changed
every time a prisoner defecated in them. Moreover, the second applicant’s allegation
that the dirty overalls had chafed the skin of his back raw was unfounded and
not supported by any evidence. The Government further noted that the Rules in
force at the material time provided that isolated prisoners had to be given an
opportunity to wash under supervision if so requested. Therefore, the second
applicant’s allegation that he had repeatedly not been permitted to wash
himself after defecating was not credible.
The Government pointed out that closed overalls
used for observation purposes did not differ essentially from ordinary overalls
and that they did not have any impact on the normal movement and activity of
the applicants. The applicants had not presented any evidence of the alleged
abrasions. Their allegations were not convincing as they conflicted with the
documentary evidence. Moreover, the isolation periods were short and during
those periods the prisoners’ needs could be fulfilled at their request. The use
of closed overalls did not involve any intent to degrade the applicants. Their
use was only aimed at preventing the smuggling of unlawful substances into the
prison and pursued therefore a legitimate aim. The applicants had thus not been
subjected to inhuman or degrading treatment or punishment.
2. The Court’s assessment
. The
Court reiterates at the outset that Article 3 of the Convention enshrines one of the
most fundamental values of democratic society. It prohibits in absolute terms
torture or inhuman or degrading treatment or punishment, irrespective of the
circumstances and the victim’s behaviour (see, for example, Labita v. Italy [GC], no.
26772/95,
§ 119, ECHR 2000-IV).
. The
Court further reiterates that, according to its case-law, ill-treatment
must attain a minimum level of severity if it is to fall within the scope of
Article 3. The assessment of this minimum is relative; it depends on all the
circumstances of the case, such as the duration of the treatment, its physical
and mental effects and, in some cases, the sex, age and state of health of the
victim (see, among other authorities, Ireland v. the United
Kingdom, 18 January 1978, § 162, Series A no. 25).
. Treatment
has been held by the Court to be “inhuman” because, inter alia, it was
premeditated, was applied for hours at a stretch and caused either actual
bodily injury or intense physical and mental suffering, and also “degrading”
because it was such as to arouse in the victims feeling of fear, anguish and
inferiority capable of humiliating and debasing them (see, for example, Kudła v. Poland [GC],
no. 30210/96,
§ 92, ECHR 2000-XI). In order for a punishment or
treatment associated with it to be “inhuman” or “degrading”, the suffering or
humiliation involved must in any event go beyond that inevitable element of suffering or humiliation
connected with a given form of legitimate treatment or punishment (see V. v. the United Kingdom
[GC], no. 24888/94,
§ 71, ECHR 1999-IX; Valašinas
v. Lithuania, no. 44558/98,
§ 102, ECHR 2001-VIII; and Jalloh v.
Germany [GC], no. 54810/00,
§ 68, ECHR 2006-IX). The question of whether the
purpose of the treatment was to humiliate or debase the victim is a further
factor to be taken into account, but the absence of any such purpose cannot
conclusively rule out a violation of Article 3 (see, for example, Peers v. Greece, no. 28524/95,
§ 74, ECHR 2001-III; and Kalashnikov v. Russia, no. 47095/99,
§ 101, ECHR 2002-VI).
. Conditions
of detention may sometimes amount to inhuman or degrading treatment (see Peers v. Greece, cited
above, § 75). When assessing conditions of detention, account has to be taken
of the cumulative effects of those conditions, as well as the specific
allegations made by the applicant (see Dougoz
v. Greece, no. 40907/98,
§ 46, ECHR 2001-II).
. While
measures depriving a person of his liberty often involve an element of
suffering or humiliation, it cannot be said that detention in a high-security
prison facility, be it on remand or following a criminal conviction, in itself
raises an issue under Article 3 of the Convention. The Court’s task is limited to examining the personal
situation of the applicant who has been affected by the regime concerned (see Aerts
v. Belgium, 30 July 1998, §§ 34-37, Reports of Judgments and
Decisions 1998-V). In this connection the Court
emphasises that, although public order considerations may lead States to introduce high-security prisons
for particular categories of detainees, Article 3 nevertheless requires those
States to ensure that a person is detained in conditions which are compatible
with respect for his human dignity, that the manner and method of the execution
of the measure do not subject him to distress or hardship of an intensity
exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of
imprisonment, his health and well-being are adequately secured (see Kudła v. Poland [GC], cited above, §§ 92-94).
. In
this context, the Court has previously held that complete sensory isolation,
coupled with total social isolation, can destroy the personality and
constitutes a form of inhuman treatment which cannot be justified by the
requirements of security or any other reason. On the other hand, the removal
from association with other prisoners for security, disciplinary or protective
reasons does not in itself amount to inhuman treatment or degrading punishment
(see Messina v. Italy (no. 2) (dec.), no. 25498/94,
ECHR 1999-V). In assessing whether such a measure
may fall within the ambit of Article 3 in a given case, regard must be had
to the particular conditions, the stringency of the measure, its duration, the
objective pursued and its effects on the person concerned (see Van der Ven v. the Netherlands, no. 50901/99,
§ 51, ECHR 2003-II; and Lorsé and Others
v. the Netherlands, no. 52750/99, § 63, 4 February 2003).
. The
above-mentioned principles have also been applied in the context of strip and
intimate body searches. A search carried out in an appropriate manner with due
respect for human dignity and for a legitimate purpose may be compatible with
Article 3 (see, mutatis mutandis, Labita v. Italy [GC], no. 26772/95, §§ 122-127, ECHR 2000-IV; and Yankov v. Bulgaria, no.
39084/97,
§§ 114-121, 11 December 2003, where there was no
valid reason established for the shaving of the applicant prisoner’s head).
However, where the manner in which a search is carried out has debasing
elements which significantly aggravate the inevitable humiliation of the
procedure, Article 3 has been engaged: for example, where a prisoner was
obliged to strip in the presence of a female officer, and his sexual organs and
food were touched with bare hands (see Valašinas
v. Lithuania, cited above, § 117), and where a
search was conducted before four guards who derided and verbally abused the
prisoner (see Iwańczuk v. Poland, no. 25196/94,
§ 59, 15 November 2001). Similarly, where the search has
no established connection with the preservation of prison security and prevention
of crime or disorder, issues may arise (see, for example, Iwańczuk v. Poland,
cited above, §§ 58-59, where a search of the applicant, a model remand
prisoner, was conducted when he wished to exercise his right to vote; and Van der Ven v. the Netherlands, cited above, §§ 61-62, where strip-searching was systematic and long-term without
convincing security needs).
. Turning
to the circumstances of the present case, the Court observes first of all that the
applicants’ complaints concern the use of closed overalls while in
isolation. The parties do not disagree on the fact that the applicants had to
wear closed overalls during their stay in isolation which, in the first
applicant’s case, lasted for less than three days and in the second applicant’s
case for nearly seven days.
. It
is not in dispute that the closed overalls resemble normal overalls with
the difference that the legs are equipped with integrated plimsolls, the zipper
is at the back and the sleeves are adjusted by means of plastic strips. The
prisoners cannot remove the overalls by themselves or draw their hands inside
the sleeves. Otherwise they can move normally in the overalls. Prisoners may
not wear their own clothes while in isolation.
. The
Court notes that the applicants were placed in isolation and were subjected to
the use of closed overalls because they were suspected of having smuggled drugs
or other illegal substances into the prison inside their bodies (see
paragraphs 18 and 23 above). The Government indicated in their
submissions that the prevention of drugs smuggling was extremely
important in order to maintain order and ensure security in prisons as well as
to prevent any health risks to the prisoners in case the swallowed packages
broke inside their bodies. The Government further noted that, for this reason,
such prisoners had to be observed continuously and that all defecation had to
take place under supervision. Even though the prisoners were under camera
surveillance, it was not continuous and needed to be accompanied with the use of
closed overalls. Although the applicants denied having
harboured any intentions to smuggle drugs inside their bodies, the Court
considers that the existence of such an observation system can be acceptable as
such. Maintaining order and security in prisons as well as guaranteeing the prisoners’
well-being can be proper grounds for introducing the system of closed
overalls to be used while prisoners are in isolation. Other means of observation,
such as cameras or on the spot surveillance, may not appear to be sufficient.
Moreover, the Court notes that ultimately these measures were designed for the
protection of prisoners’ health and that their intention as such is not to
humiliate. As the domestic courts noted, it was not intended that
prisoners defecate in the overalls but defecation was to take place in
separate, supervised toilets.
. Even
if the practice of using isolation and closed overalls in combating drug
trafficking in prisons can have acceptable aims, the Court notes that this practice
might be assessed differently if it led, in concrete circumstances, to
situations which are contrary to Article 3 of the Convention. In the present
case the applicants claimed that they were not taken to the toilet quickly
enough and therefore they had to defecate in the overalls. They claim that they
had to use dirty overalls and were not given a possibility to wash. The
overalls had allegedly also caused the applicants to suffer skin irritation.
. The
Court notes that this kind of circumstance might be considered contrary to
Article 3 of the Convention. However, during the domestic proceedings the domestic
courts found that there was no evidence that the guards had delayed
their response to the applicants’ calls to use the toilet. Nor was it shown
that the applicants had not had an appropriate possibility to wash whenever
necessary or that they had to continue to wear dirty overalls. Moreover, the
applicants had failed to submit any evidence to prove that the plastic strips
had caused abrasions to their wrists or that the overalls caused them allergic
reactions. It is not for the Court to re-examine the
validity of the assessment carried out by the domestic authorities. Having
regard to the circumstances of the case, the Court accepts the assessment made by
the domestic authorities and finds that the applicants have not been able to
prove their allegations.
. The
Court considers
that in a situation where there were convincing security needs, the practice of
using closed overalls during the relatively short period of isolation cannot, in
itself, reach the threshold of Article 3 of the Convention. This is especially
so in the present case where the applicants have not been able to produce any
evidence to support their allegations concerning the possibly humiliating
elements of their treatment.
. Accordingly,
the Court concludes that the use of closed overalls did not reach the threshold
of Article 3 of the Convention in the present case. There has thus been no
violation of this provision.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION
The applicants complained that they had been
treated in an inhuman and degrading manner when they were forced to use closed overalls,
especially dirty ones, during isolation. This complaint was communicated ex
officio to the Government under Article 8 of the Convention.
Article 8 of the Convention reads as follows:
“1. Everyone has the right to respect for his private
and family life, his home and his correspondence.
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.”
The Government contested that argument.
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
The applicants maintained that the use of closed
overalls, isolation and camera monitoring meant that there had been an
interference with their right to respect for their private life. The use of
closed overalls, in particular, had no legal basis in the domestic law but was
only a practice adopted in a few prisons. It was based only on guidelines and
orders given by the management of individual prisons. As to the necessity, the
applicants noted that many other prisons had been able to prevent drug
trafficking in other ways, without making the prisoner wear closed overalls. The
Government had not been able to show that the use of overalls had produced good
results.
The Government acknowledged that the use of
closed overalls amounted to an interference with the applicants’ right to
respect for their private life. The interference had a basis in national law,
especially in Section 9d of the Act on Execution of Sentences and in other
orders and rules in force at the relevant time, and it pursued the legitimate
aims of public safety, prevention of disorder or crime and protection of health
and rights and freedoms of others.
As to the necessity in a democratic society, the
Government noted that it was extremely important to prevent the smuggling of
drugs and other unlawful substances into prisons. Drug trafficking had many
side effects, such as intimidation of other inmates, indebtedness and
subjugation. It was important to ensure that any substances smuggled by the
prisoner inside his or her body were evacuated from the body so that the
prisoner could not hide or dispose of them. Smuggling drugs inside the body
caused a considerable health risk for the person in question. Therefore such
prisoners had to be observed continuously and all defecation needed to take
place under supervision. Cameras were used for observation purposes but they
were not gap-free or as comprehensive as observation on the spot. The use of
closed overalls was necessary to prevent smuggling and the frequency of drugs
in prisons had been reduced. The Finnish prison services aimed at normality and
openness in all respects, for example by granting regular unsupervised family
visits. Isolation was used rarely and only then as a last resort. However, in
the present case, the isolation of the applicants and the use of closed
overalls were proportionate measures which were necessary in a democratic
society.
2. The Court’s assessment
The Court notes first of all that neither of the
parties has put in question the applicability of Article 8 of the Convention.
Both parties also agree that the use of closed overalls amounted to an
interference with the applicants’ right to respect for their private life. The
Court notes that the concept of private life also comprises of the respect for
human dignity.
The parties, however, disagree whether this
interference was in accordance with the law. The applicants argue that the interference
had no legal basis in the domestic law but was only a practice adopted in a few
prisons which was based only on guidelines and orders given by management of those
individual prisons. The Government, on the other hand, argue that the
interference had a basis in section 9d of the Act on Execution of Sentences and
in other orders and rules in force at the relevant time.
The Court notes that the
expression “in accordance with the law”, within the meaning of Article 8 § 2 requires
firstly that the impugned measure should have some basis in domestic law.
Second, the domestic law must be accessible to the person concerned. Third, the
person affected must be able, if need be with appropriate legal advice, to
foresee the consequences of the domestic law for him, and fourth, the domestic
law must be compatible with the rule of law (see, among many other authorities, Rotaru v. Romania [GC], no.
28341/95,
§ 52, ECHR 2000-V; Liberty
and Others v. the United Kingdom, no. 58243/00,
§ 59, 1 July 2008; and Kennedy v. the United Kingdom, no. 26839/05, § 151, 18 May 2010).
. The
Court reiterates that, in accordance with the case-law of the Convention
institutions, in relation to Article 8 § 2 of the Convention, the term “law” is
to be understood in its substantive sense, not its formal one. In a sphere
covered by written law, the “law” is the enactment in force as the competent
courts have interpreted it (see, inter alia, Société Colas Est and Others
v. France, no. 37971/97,
§ 43, ECHR 2002-III). In this respect, the Court notes
that its power to review compliance with domestic law is limited, it being in
the first place for the national authorities, notably the courts, to interpret
and apply that law (see, inter alia, Chappell v. the United
Kingdom, 30 March 1989, § 54, Series A no.
152-A).
As to the question of legal basis, the Court
notes that Chapter 2, section 9d, of the Act on Execution of Sentences (see
above paragraph 18), which was indicated as a legal basis by the Government, only
concerns the conditions for isolating a prisoner when he or she is suspected of
having concealed drugs inside his or her body. This provision provides, for
example, for the maximum length of isolation in such cases but it does not
contain any mention of the modalities of such isolation, including the use of
closed overalls. As the Parliamentary Ombudsman noted in his statement of
31 December 2012, the use of overalls restricted the
free will and self-determination of a prisoner. Moreover, according to him, the legal provisions concerning imprisonment, the travaux
préparatoires or the lower level regulations do not recognise the concept
of closed overalls. In fact, as the applicants pointed out, the use of
closed overalls was regulated at the time of the impugned events only by the
rules of 18 March 2004 issued by the director of Riihimäki Prison (see above paragraph
21).
. The
Court considers that in these circumstances it appears that there was no proper
legal basis for imposing the use of closed overalls on prisoners at the
relevant time. Even though some amendments were made in the Prison Sentences Act of 2005, it appears that, as pointed out
by the Parliamentary Ombudsman in his statement of
31 December 2012, even since these amendments
there is no sufficient legal basis for the use of closed overalls in prisons. The amendments made to the Act
of 2005 concerned only technical means of surveillance destined for the observation
of the prisoners. However, the use of closed overalls represents a different
kind of observation which does not seem to be covered by the wording of the
2005 Act, let alone the wording of Chapter 2, section 9d, of the Act on
Execution of Sentences which was in force at the relevant
time. There is therefore a doubt whether Chapter 2, section 9d, of the
Act on Execution of Sentences could provide such a legal basis on the strength
of which powers could be delegated to prison directors to issue rules on the
use of closed overalls.
. Even
assuming that Chapter 2, section 9d, of the Act on Execution of
Sentences provided a sufficient legal basis and that the
director of Riihimäki Prison could issue the rules
of 18 March 2004 with the strength of the delegated powers of that provision,
the Court notes that the domestic law must also fulfil
other qualitative criteria, namely that it is accessible to the person
concerned, foreseeable and compatible with the rule of law. The Court notes
that the provision in question, namely Chapter 2, section 9d, of the Act
on Execution of Sentences, was accessible to the
applicants. However, the foreseeability requirement appears to pose problems.
On the basis of the wording of Chapter 2, section 9d, of the Act on
Execution of Sentences as well as its preparatory works it
is difficult to foresee, even with the help of appropriate legal advice, that the
use of closed overalls could be imposed during isolation. As concerns the rules of 18 March 2004, their content is more clear
and foreseeable but it is doubtful whether they were made accessible to the
applicants (see Ciorap v. Moldova,
no. 12066/02, § 103, 19 June 2007). According to
their wording, the rules were only addressed to the personnel of the prison. Furthermore, as far as legal safeguards are
concerned, the Court notes that the Act on Execution of Sentences was
not drafted in a sufficiently clear manner as it remained silent on the
modalities of isolation (see Doerga v. the
Netherlands, no. 50210/99, § 52, 27 April 2004; and Wisse v. France,
no. 71611/01, § 34, 20 December 2005). Nor did it appear to provide
any possibility of appeal or other effective remedy in the case of isolation of
a prisoner.
. The
Court therefore concludes that the interference complained of was not “in
accordance with the law” as required by the second paragraph of Article 8.
Accordingly, there has been a violation of Article 8 of the Convention.
. Having
regard to the above conclusion, the Court does not consider it necessary to
review compliance with the other requirements of Article 8 § 2
in this case (see, for example, Kopp v. Switzerland, 25 March 1998, Reports
of Judgments and Decisions 1998-II, § 76, and Heino
v. Finland, no. 56720/09, § 49, 15
February 2011).
III. 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 applicants claimed 3,000 euros (EUR) each in
respect of non-pecuniary damage.
The Government considered the claim too high as
to quantum. Each applicant should be awarded reasonable compensation for
non-pecuniary damage not exceeding EUR 1,500.
The Court considers that the applicants have
suffered non-pecuniary damage. Therefore it awards each of the applicants EUR 3,000
in respect of non-pecuniary damage.
B. Costs and expenses
The applicants also claimed EUR 2,767.50 and EUR
1,389.90 respectively for the costs and expenses incurred before the Court.
The Government considered that the total amount
of compensation for costs and expenses should not exceed EUR 1,125 (inclusive
of value-added tax) for the first applicant and EUR 670 (inclusive of
value-added tax) for the second applicant. The fact that the issues at
stake were the same for both applicants and that they had been represented by
the same counsel should be taken into account by way of a reduction of the
amount of compensation.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to the
documents in its possession and the above criteria, the Court considers it
reasonable to award, for the proceedings before the Court, the sum of EUR 2,500
(inclusive of value-added tax) in respect of the first applicant and EUR 1,000
(inclusive of value-added tax) in respect of the second applicant.
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
1. Declares unanimously the application admissible;
2. Holds by five votes to two that there has
been no violation of Article 3 of the Convention;
3. Holds unanimously that there has been a violation
of Article 8 of the Convention;
4. Holds unanimously
(a) that the
respondent State is to pay the applicants, 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 3,000 (three thousand euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage to each of the
applicants;
(ii) EUR 2,500 (two thousand five hundred euros) in
respect of the first applicant and EUR 1,000 (one thousand euros) in respect of
the second applicant, plus any tax that may be chargeable to the applicants, 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;
5. Dismisses unanimously the remainder of the
applicants’ claim for just satisfaction.
Done in English, and notified in writing on 14 January 2014,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise
Elens-Passos Ineta Ziemele
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 Bianku and Vehabović is annexed to
this judgment.
I.Z.
F.E.P.
JOINT DISSENTING OPINION OF JUDGES BIANKU
AND VEHABOVIC
While we agree with the conclusion of the majority of the Chamber in
respect of Article 8, we are unable to share their view that there has been no
violation of Article 3 of the Convention.
As to the facts of the case
The reasoning in paragraphs 48 to 49 of the judgment in the
present case is based on the assessment of the domestic courts which found as
follows: “there was no evidence that the guards had intentionally delayed their
response to the applicants’ calls to use the toilet. Nor was
it shown that the applicants had not had an appropriate possibility to wash
whenever necessary. Moreover, the applicants had failed to submit any evidence
to prove that the plastic strips had caused abrasions to their wrists or that
the overalls caused them allergic reactions”. On the basis of those
conclusions, the Chamber concluded that the “practice of using closed overalls
during the relatively short period of isolation cannot, as such, be regarded as
diminishing the applicants’ human dignity or giving rise to feelings of anguish
and inferiority capable of humiliation and debasing them.”
We can accept the argument that the domestic courts are better
placed than this Court to assess the circumstances of the case and to provide
an appropriate legal response to all factual and legal questions raised by the
applicants. However, the domestic courts simply disregarded the fact that the
use of overalls is not prescribed by law while confirming the fact that the
applicants were made to wear the overalls for four and eight days respectively
in solitary confinement without any proof that they were involved in drug
trafficking in the prison.
Moreover, the Riihimäki District Court and
subsequently the Kouvola Appeal Court came to the conclusion that the
applicants had defecated in their overalls but that the prison guards had not
intended to delay their response to the applicants’ calls. In fact,
those courts conceded that the applicants had used sealed overalls; had been
unable to remove the overalls by themselves; and had had to call the guards to
escort them when they needed to use the toilet in order to remove the overalls
there. At least once the guards had arrived too late and the applicants had
defecated in their sealed overalls. It is worth mentioning
that one applicant was in isolation for four days, from 13 to 16 November 2004
inclusively, and the other from 9 to 16 May 2004. There seems to be a
widespread practice in the Riihimäki Prison of making prisoners wear overalls
and of following the same procedure of a delayed response on the part of the
prison guards to prisoners’ calls to relieve themselves, especially when the
latter are given laxatives.
As to the law
Much to our regret, we cannot but disagree with the Chamber’s
conclusion in paragraph 50, which is based on the facts established by the
Chamber that “the use of overalls did not reach the threshold of Article 3 of
the Convention in the present case.”
It is the Court’s constant practice to consider treatment to
be “inhuman” where, inter alia, it was premeditated, was applied for
hours at a stretch and caused either actual bodily injury or intense physical
or mental suffering. It has deemed treatment to be “degrading” where it was
such as to arouse in the victims feelings of fear, anguish and inferiority
capable of humiliating and debasing them (see, for example, Kudla v. Poland
(GC), no. 30210/96, § 92, ECHR 2000-XI).
It appears from the facts that both applicants were in
isolation without any contact with other prisoners and without any possibility
of undertaking regular prison activities. Moreover, they were
obliged to use sealed overalls in the absence of any legal basis for the
application of that kind of procedure to prisoners. All those
restrictions, which have no legal basis and are imposed at the authorities’
discretion, are incompatible with a prison regime in a democratic society. They
played their part in increasing the applicants’ distress and mental suffering (see,
for example, Ilascu and Others v. Moldova and Russia, No. 48787/99, 8 July
2004, § 444, ECHR 2004-VII). Whereas the legality of the measure might be
considered as having no bearing on the issue whether the specific treatment
reaches the threshold of Article 3, we think that the subjective and
incorrectly assessed effects[i],
and the lack of a proper and clear legal basis compatible with Article 3
standards, may result in situations, such as the one in the present case, where
that threshold is reached.
We disagree with the Chamber’s conclusion that the applicants
were unable to produce any evidence to support their allegations of humiliating
treatment while in isolation. The domestic courts confirmed in their decisions
that the applicants had defecated in sealed overalls but concluded that there
was no evidence that the guards had intentionally delayed their response to the
applicants’ calls to use the toilet. As the prisoners were
given laxatives and were wearing sealed overalls, the prison guards must have
been aware that the prisoners’ physical needs depended on a proper response on
their part. The lack of a proper response cannot be justified merely on the
grounds that the guards did not intentionally respond too late, especially if
the procedure in question logically required the constant presence of prison
guards for a fairly short period of time. Furthermore, lack of intention (see
paragraph 48 of the judgment) does not necessarily mean that the treatment has
not reached the threshold of Article 3 of the Convention.[ii] Our opinion is that, contrary to the conclusion reached by the
Chamber in this case, if a person is placed in isolation, even for a fairly
short period of time, and is obliged to wear overalls in which he defecates as
a result of an allegedly slow response by the prison guards, this does reach
the minimum the threshold under Article 3 of the Convention and must be
regarded as degrading treatment.
