Last Updated on April 23, 2019 by LawEuro
Overview of the Case-law of the ECHR 2016
Prohibition of torture and inhuman or degrading treatment and punishment (Article 3) [17]
Inhuman or degrading treatment
The Khlaifia and Others v. Italy[18] case concerned the arrival of the applicants, three Tunisian economic migrants, on the island of Lampedusa, their initial placement in a reception centre and subsequent confinement on board two ships moored in Palermo harbour, followed by their removal to Tunisia in accordance with a simplified procedure under an agreement between Italy and Tunisia of April 2011. The applicants complained under Articles 3, 5 and 13 of the Convention and Article 4 of Protocol No. 4.
The Grand Chamber found a violation of Article 5 §§ 1, 2 and 4 and of Article 13 in conjunction with Article 3, and no violation of the other Articles relied upon.
The judgment explores in some detail the Convention rights of immigrants against the background of the migration and humanitarian crisis that unfolded in 2011, when events related to the “Arab Spring” led to a mass influx of immigrants into certain States (here, the island of Lampedusa) leading to significant pressures on the receiving State.
As regards Article 3 of the Convention, the judgment provides a comprehensive overview of the case-law under Article 3 relative to the treatment of migrants (including conditions of their detention and, in particular, overcrowding).
In response to the Article 3 complaint, the Government argued that due account should be taken of the exceptional humanitarian emergency. On the one hand, the Grand Chamber referred to the M.S.S. v. Belgium and Greece[19] judgment, where the Court had confirmed that the absolute character of Article 3 meant that the significant migration challenges in issue could not absolve a State of its obligations under Article 3 and should not therefore be taken into account. On the other hand, the Grand Chamber went on to affirm in the present case as follows.
“While the constraints inherent in such a crisis cannot, in themselves, be used to justify a breach of Article 3, the Court is of the view that it would certainly be artificial to examine the facts of the case without considering the general context in which those facts arose. In its assessment, the Court will thus bear in mind, together with other factors, that the undeniable difficulties and inconveniences endured by the applicants stemmed to a significant extent from the situation of extreme difficulty confronting the Italian authorities at the relevant time.”
Degrading treatment
The Cazan v. Romania[20] judgment concerned ill-treatment inflicted on the applicant, a lawyer, when representing a client at police headquarters. He had gone to the police station of his own accord with a view to obtaining information about a criminal case against his client.
In the Convention proceedings, the applicant complained of a sprained finger, allegedly caused by the police, which had required several days’ medical care. The Government denied that any ill-treatment had been inflicted by State agents.
The judgment is of interest in that it applies to Article 3 of the Convention the general principles of case-law relating to the protection of a lawyer (see, as a recent example, Morice v. France[21]). The judgment refers, in particular, to Recommendation Rec(2001)10 of the Committee of Ministers of the Council of Europe on the European Code of Police Ethics, adopted on 19 September 2001. The Court emphasised the right of lawyers to exercise their professional duties without being subjected to ill-treatment. It was thus incumbent “on the police to respect [their] role, not to interfere unduly with their work, or to subject them to any form of intimidation or petty annoyance … or, therefore, to any ill-treatment”. The Court, applying the principles laid down in the Bouyid v. Belgium[22] judgment in the different context of persons taken by the police to the station for questioning or an identity check, also ruled that the burden of proof regarding the treatment of a lawyer representing a client at a police station lay with the State.
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The judgment in Yaroslav Belousov v. Russia[23] concerned the applicant’s confinement in a glass cabin during his trial.
During the first two months of hearings, the applicant, who had been charged with public-order offences, and nine other accused were confined in a very cramped glass cabin. In the ensuing three-month period, the hearings were held in a different courtroom equipped with two glass cabins, allowing the applicant and the other accused more space.
In the Convention proceedings the applicant complained, among other things, that his confinement as described amounted to degrading treatment and had impaired his effective participation in the trial, including contact with his counsel. He relied on Articles 3 and 6 of the Convention.
The Court has condemned the confinement of accused persons in metal cages during trial, having regard to its objectively degrading nature (see Svinarenko and Slyadnev v. Russia[24]). The judgment is noteworthy in that this is the first time that the Court has had to address this particular form of security arrangement in a courtroom for compliance with Article 3. It is not without interest that glass installations are used, mostly for security purposes, in courtrooms in other Contracting States. The Court observed that, generally speaking, the placement of defendants behind glass partitions or in glass cabins did not of itself involve an element of humiliation sufficient to meet the minimum level of severity, as is the case with metal cages. As to compliance with Article 3, the main question for the Court was to determine whether the overall circumstances of the applicant’s confinement attained, on the whole, the minimum level of severity to enable it to fall within the ambit of this provision. This required a factual assessment to be made. It found a breach of Article 3 with respect to the first two months during which the applicant and nine other defendants were kept for several hours, three days a week, in a glass cabin measuring 5.4 sq. m, and at all times exposed to the public. This amounted to degrading treatment. The Court reached a different conclusion as regards the subsequent period of the applicant’s confinement. It observed that the two-cabin arrangement allowed the applicant at least 1.2 sq. m of personal space, thus avoiding the inconvenience and humiliation of overcrowding. The conditions of confinement did not therefore attain the minimum level of severity prohibited by Article 3.
Inhuman or degrading punishment
The judgment in Murray v. the Netherlands[25] concerned the de facto irreducibility of a life sentence. In 1980 the applicant was convicted of murder. Given the psychiatric evidence, the risk of reoffending and the absence of a more suitable confinement solution, he was sentenced to life imprisonment. His requests for a pardon were refused. A procedure to review life sentences was introduced in 2011: his first review in 2012 was unsuccessful (owing to a continued risk of reoffending). In March 2014 he was pardoned on the ground of ill-health and released. The applicant later passed away and the application was continued by his son and sister.
He complained under Article 3 of the de facto irreducibility of his life sentence and of the lack of a regime better suited to his mental condition. Holding that his life sentence was de facto irreducible, the Grand Chamber found a violation of Article 3 and that it was not necessary to rule on his remaining Article 3 complaints.
This Grand Chamber judgment develops the Court’s case-law concerning the need for life sentences to be, notably, de facto reducible (Kafkaris v. Cyprus[26]; Vinter and Others v. the United Kingdom[27]; and, notably, Harakchiev and Tolumov v. Bulgaria[28]).
(i) The Grand Chamber found that a prisoner’s rehabilitation must be programmed and facilitated from the outset for any review of a life sentence to be considered useful and for that life sentence to be considered de facto reducible. In particular:
– The Grand Chamber’s reasoning reflects the importance attached to the rehabilitation of prisoners. Having noted rehabilitation as a legitimate penological ground for imprisonment (Vinter and Others, cited above), the Grand Chamber highlighted the increasing importance of rehabilitation in the Court’s case-law outside of the Vinter and Others context (for example, Dickson v. the United Kingdom[29]; James, Wells and Lee v. the United Kingdom[30]; and Khoroshenko v. Russia[31]). While there is no right to rehabilitation as such, prisoners should be allowed to rehabilitate themselves. A prisoner sentenced to life had to have, in particular, a real opportunity to make progress towards rehabilitation, such that he or she had hope of one day being eligible for release.
Significantly, the Grand Chamber indicated that this could be achieved by setting up and periodically reviewing an “individualised programme” that would encourage the prisoner to rehabilitate himself or herself with the aim of living a responsible life. Were the State not to provide a life prisoner with such a real opportunity to rehabilitate himself or herself, any review of his or her progress towards rehabilitation would be undermined as would, consequently, the de facto reducibility of the life sentence. The Grand Chamber found that there is, therefore, a positive obligation on the State, drawn from Article 3, to provide “prison regimes” to life prisoners which are compatible with the aim of rehabilitation and which enable them to progress towards rehabilitation.
– This “individualised programmed” approach had a particular application in the particular context of the present case. The applicant was criminally responsible for his crime but had, nevertheless, certain mental-health problems which meant that he risked reoffending. In those circumstances, the State had to assess the treatment needs of prisoners to facilitate their rehabilitation and reduce the risk of reoffending. If prisoners are amenable to treatment, they should receive that treatment (whether or not they ask for it), particularly when it amounts to, in effect, a precondition for their possible future eligibility for release.
In short, life prisoners must be detained under such conditions, and be provided with such treatment, as would give them a realistic opportunity to rehabilitate themselves in order to have a hope of release. A failure to do so could render the life sentence de facto irreducible.
(ii) As to the present case, the Grand Chamber found that the treatment of the applicant’s mental-health problems constituted, in practice, a precondition for him to have the possibility of progressing to rehabilitation and reducing the risk of reoffending. The lack of any treatment, and indeed the lack of any assessment of his treatment needs, meant therefore that neither the pardon nor later review processes were, in practice, capable of leading to a conclusion that he had made such significant progress that his continued detention would no longer serve any penological purpose. His sentence was therefore not de facto reducible and there had therefore been a violation of Article 3.
Effective investigation [32]
The judgment in Sakir v. Greece[33] concerned a physical assault on the applicant, an Afghan national, in the centre of Athens in 2009. The applicant had left his country of origin for fear of persecution on account of his political convictions and entered Greece without a residence permit. He was attacked by an armed gang in the centre of Athens and admitted to hospital with injuries inflicted by a sharp pointed object. After his discharge from hospital he was detained pending expulsion because he did not have a residence permit.
In the Convention proceedings, the applicant complained, among other things, that the Greek authorities had failed to comply with their obligation to carry out an effective investigation into the attack. The Court found a violation of the procedural aspect of Article 3 of the Convention.
The case is noteworthy because of the importance, in the Court’s analysis, of the general context within which the attack on the applicant took place. The Court took into account reports from various international non-governmental organisations (NGOs) and from Greek institutions which referred to a phenomenon of racist violence in the centre of Athens since 2009, in particular in the district where the applicant was attacked. These reports noted a recurring pattern of assaults on foreigners by groups of extremists. In the instant case, the Court found that the national authorities had been at fault as, even though the assault had taken place in that district and bore the hallmark of a racist attack, the police had failed to consider it in the light of the reports but had instead treated it as an isolated incident. There was no indication in the case file that any steps had been taken by the police or the judicial bodies to identify possible links between the incidents described in the reports and the assault on the applicant.
The criminal investigation had been inadequate in a number of respects in terms of both establishing the circumstances in which the assault had taken place and of identifying the attackers. The Court reiterated that where there is suspicion that racist attitudes induced a violent act it is particularly important for the official investigation to be pursued with vigour and impartiality, having regard to the need to reassert continuously society’s condemnation of racism and ethnic hatred and to prevent any appearance of collusion in or tolerance of unlawful acts.
Expulsion [34]
The judgment in J.K. and Others v. Sweden[35] concerned the distribution of the burden of proving a “real risk” that asylum-seekers would be ill-treated in their country of origin.
The three applicants, a mother, father and their son, were Iraqi nationals. The first applicant (the father) worked with American clients and operated out of a US armed forces base in Iraq. He and his family were the subject of serious threats and violence from al-Qaeda from 2004 to 2008: their daughter was murdered, the brother of the first applicant was kidnapped and the first applicant was the subject of several murder attempts, and was badly injured during one assault. The first applicant left Iraq in 2010, and the second and third in 2011. They applied for asylum in Sweden. Asylum was refused, after the domestic courts found that the family had not been the subject of personal threats since 2008 when the first applicant stopped working for American clients so that the threat from al-Qaeda was not so present and concrete as to justify the granting of asylum.
The applicants complained to the Court that their removal to Iraq would entail a violation of Article 3 of the Convention. The Grand Chamber found that substantial grounds had been shown for believing that the applicants would run a real risk of treatment contrary to Article 3 if returned to Iraq.
The Court’s analysis begins with a comprehensive and up-to-date outline of the Court’s case-law in expulsion cases concerning an alleged risk of ill-treatment in the country of origin including as regards: ill-treatment by private groups; the principle of ex nunc evaluation of the circumstances; the application of the principle of subsidiarity in expulsion cases; membership of a targeted group (since the first applicant belonged to a group of persons systematically targeted for their relationship with the US armed forces); and the assessment of the existence of real risk (inter alia, M.S.S. v. Belgium and Greece[36], cited above, Saadi v. Italy[37], Sufi and Elmi v. the United Kingdom[38], Hirsi Jamaa and Others v. Italy[39], and F.G. v. Sweden[40], cited above).
It is as regards the distribution – between the asylum-seeker and the immigration authorities in domestic asylum proceedings – of the burden of proving a real risk of ill-treatment in the country of origin that the case-law has been clarified. As a general rule, “an asylum-seeker cannot be seen as having discharged the burden of proof until he or she provides a substantiated account of an individual, and thus a real, risk of ill-treatment upon deportation that is capable of distinguishing his or her situation from the general perils in the country of destination”.
The Court clarified two matters in that regard, referring to relevant materials of the United Nations High Commissioner for Refugees (UNHCR)[41] and to the EU Qualification Directive[42].
In the first place, it is the “shared duty” of an asylum-seeker and the immigration authorities to ascertain and evaluate all relevant facts in asylum proceedings. On the one hand, the burden remains on asylum-seekers as regards their own personal circumstances, although the Court recognised that it was important to take into account all of the difficulties which an asylum-seeker may encounter in collecting evidence. On the other hand, the general situation in another State, including the ability of its public authorities to provide protection, had to be established proprio motu by the competent domestic immigration authorities.
Secondly, and as to the significance of established past ill-treatment contrary to Article 3 in the receiving State, the Court reviewed its case-law (R.C v. Sweden[43]; R.J. v. France[44]; and D.N.W. v. Sweden[45]) in the light of the Qualification Directive and UNHCR standards. It considered that established past ill-treatment contrary to Article 3 would provide a “strong indication” of a future, real risk of ill-treatment, although the Court conditioned that principle on the applicant having made “a generally coherent and credible account of events that is consistent with information from reliable and objective sources about the general situation in the country in issue”. In such circumstances, the burden shifted to the Government “to dispel any doubts about that risk”.
In the present case, the Court considered that such a “strong indication” of future real risk did arise and that it was for the Government to dispel any doubts about that risk. Finding the domestic asylum decisions to be lacking in that respect and noting reports evidencing the continued targeting of those who had collaborated with the occupying powers in Iraq, the Court found that the applicants faced a real risk of continued persecution on return to Iraq from which the Iraqi authorities could not protect them and concluded that their deportation would therefore give rise to a violation of Article 3 of the Convention.
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The judgment in Paposhvili v. Belgium[46], which concerned the deportation of a seriously ill foreigner, clarified the N. v. the United Kingdom[47] case-law.
The applicant, a Georgian national, faced deportation and a ban on re-entering Belgium for ten years on public-interest grounds (he had several criminal convictions). While in prison, he was diagnosed and treated for serious illnesses (chronic lymphocytic leukaemia, hepatitis C and tuberculosis). Since the domestic proceedings he brought to challenge his removal on medical grounds were unsuccessful, he complained to the Court of his proposed removal under Article 3 on the ground that the necessary medical treatment either did not exist or was not accessible in Georgia. The applicant died in June 2016.
The Grand Chamber found a violation of Article 3.
The case is important because it provides guidance as to when humanitarian considerations will or will not outweigh other interests when considering the expulsion of seriously ill individuals.
In particular, other than the imminent-death situation in D. v. the United Kingdom[48], the later N. v. the United Kingdom judgment referred to “other very exceptional cases” which could give rise to an issue under Article 3 in such contexts. The Grand Chamber has now indicated (in paragraph 183 of the Paposhvili judgment) how “other very exceptional cases” is to be understood. It refers to
“situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. The Court points out that these situations correspond to a high threshold for the application of Article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness.”
The Grand Chamber also clarified that that obligation to protect was to be fulfilled primarily through appropriate domestic procedures reflecting the following elements.
(i) The applicants should adduce evidence “capable of proving that there are substantial grounds for believing” that they would be exposed to a real risk of treatment contrary to Article 3 (F.G. v. Sweden[49], cited above), it being noted that a certain degree of speculation is inherent in the preventive purpose of Article 3 and that applicants are not required to provide clear proof of their claim.
(ii) Where such evidence is adduced, it is for the authorities of the returning State “to dispel any doubts raised by it” (ibid.). The impact of removal on the persons concerned is to be assessed by comparing his or her state of health prior to removal and how it would evolve after removal.
In this respect, the State had to consider, inter alia (a) whether the care generally available in the receiving State “is sufficient and appropriate in practice for the treatment of the applicant’s illness so as to prevent him or her being exposed to treatment contrary to Article 3” (in this connection, the Grand Chamber specified that the benchmark is not the level of care existing in the returning State); and (b) the extent to which the individual would actually have access to such care in the receiving State (the associated costs, the existence of a social and family network, and the distance to be travelled to access the required care all being relevant in this respect).
(iii) If “serious doubts” persist as to the impact of removal on the person concerned, the authorities had to obtain “individual and sufficient assurances” from the receiving State, as a precondition to removal, that appropriate treatment will be available and accessible to the person concerned (Tarakhel v. Switzerland[50]).
Since that domestic assessment had not taken place in the present case, the applicant’s removal to Georgia would have given rise to a violation of Article 3 of the Convention. It is worth noting that this is the first case, since D. v. the United Kingdom (cited above), where the proposed expulsion of a seriously ill applicant has led to a finding of a violation of Article 3 of the Convention.[51]
It is also interesting that the Grand Chamber left open the question of whether the applicant’s heirs had a legitimate interest in pursuing the application which the applicant had introduced before he died, favouring rather the continuation of the proceedings on the basis that respect for human rights so required (Article 37 § 1 of the Convention).
Detention
The case of Blokhin v. Russia[52] concerned the placement of the applicant, a minor, in a juvenile detention centre. He was suspected of having extorted money from another minor. As he was only 12 years of age at the material time, he was below the age of criminal responsibility and so was not prosecuted. He was brought before a court, which ordered his placement in a temporary detention centre for minor offenders for a period of thirty days in order to “correct his behaviour” and to prevent his committing any further acts of delinquency.
The Grand Chamber found, inter alia, a violation of Article 3 (on the ground of inadequate medical treatment).[53]
In so doing, it set down specific standards for the protection of the health of juvenile detainees, drawing inspiration from European and international standards[54] and providing, in particular, that a child should, it appears systematically, be medically assessed for suitability prior to placement in a juvenile detention centre.
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The Muršić v. Croatia[55] judgment sets down principles and standards under Article 3 of the Convention regarding minimum personal space per detainee in a multi-occupancy cell.
During the applicant’s incarceration for one year and five months, he was placed in four different cells where he had between 3 and 6.76 sq. m of personal space. During certain non-consecutive short periods, including one period of twenty-seven days, his personal space fell slightly below 3 sq. m. He complained under Article 3 essentially of the lack of personal space in prison. The Grand Chamber found a violation of that provision as regards one period of detention (twenty-seven days) during which the applicant had less than 3 sq. m of personal space.
This is the first Grand Chamber case which centrally concerns minimum personal space per detainee in a multi-occupancy setting[56]. It set down clear principles and standards for the assessment of overcrowding and, in so doing, comprehensively reviewed and clarified certain aspects of the Court’s case-law to date. The principles to be applied are as follows.
(i) The Grand Chamber confirmed the relevant minimum standard of personal space to be 3 sq. m. In so doing, it explained that, while it remained attentive to the Committee for the Prevention of Torture and Inhuman and Degrading Treatment of the Council of Europe (CPT) minimum standard (of 4 sq. m), it did not consider the CPT standard to be decisive mainly because of the different roles of the CPT (standard setting aimed at future prevention) and of the Court (judicial application of the absolute prohibition of torture and inhuman treatment in an individual case, taking account of all of the circumstances). The Court also clarified how to calculate the 3 sq. m (excluding in-cell sanitary facilities and including furniture) and confirmed that the minimum 3 sq. m of personal space applied equally to detainees on remand and prisoners.
(ii) Personal space below 3 sq. m gave rise to a “strong presumption” of a violation of Article 3, which was rebuttable should the Government demonstrate “factors capable of adequately compensating” for the lack of personal space. In so finding, the Grand Chamber resolved a divergence in its case-law by rejecting an approach suggesting that personal space of less than 3 sq. m constituted an automatic violation of Article 3 of the Convention.
(iii) This strong presumption could only be rebutted if three factors were cumulatively met:
– the reductions in personal space to under 3 sq. m were “short, occasional and minor”;
– such reductions were accompanied by sufficient freedom of movement and adequate activities outside of the cell; and
– the detainee was confined in an “appropriate detention facility” and there were no other aggravating aspects of the conditions of his or her detention.
(iv) Finally, the Grand Chamber clarified the position as regards personal space greater than 3 sq. m. Personal space between 3 and 4 sq. m would amount to “a weighty factor” in the Court’s assessment of the adequacy of detention conditions, whereas personal space of more than 4 sq. m would not give rise, of itself, to an issue under Article 3 of the Convention.
In the present case, one period of detention (twenty-seven consecutive days) in less than 3 sq. m was considered not to be “short” and “minor”, so that the presumption of a violation of Article 3 was not rebutted by the Government. However, the presumption of a violation was rebutted as regards the other shorter periods of detention in less than 3 sq. m: those periods were considered “short, occasional and minor” and the Government had demonstrated appropriate out-of-cell activities in an adequate detention facility (so the three cumulative factors had been met).
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The judgment in Cătălin Eugen Micu v. Romania[57] concerned transmissible diseases contracted in prison.
The applicant alleged, among other things, that he had caught hepatitis C while in prison and that the competent authorities had not fulfilled their obligation to provide him with appropriate medical treatment. He relied on Article 3 of the Convention.
The Court found that there had been no violation of the Convention as regards those specific complaints.
The judgment is noteworthy in that the Court examined the question of the duties of the prison authorities in relation to prisoners suffering from transmissible diseases, especially tuberculosis, hepatitis and HIV/Aids. It noted that the spread of transmissible diseases should be a major public-health concern, especially in prisons. For the Court it would be desirable if, with their consent, prisoners could benefit, within a reasonable time after being committed to prison, from free screening for hepatitis or HIV/AIDS. The existence of such a possibility in the present case would have facilitated the examination of the applicant’s allegations as to whether or not he had contracted the disease in prison. Although the disease in question was diagnosed when the applicant was under the responsibility of the prison authorities, it was not possible for the Court, in the light of the evidence, to conclude that this was the result of a failure by the State to fulfil its positive obligations.
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The judgment in Korneykova and Korneykov v. Ukraine[58] concerned the case of a pregnant mother who gave birth and breastfed her baby in prison. In addition to examining the mother’s conditions of detention and the fairness of her trial, the Court also considered the adequacy of the medical care provided for her child, who spent nearly six months in prison with her from the age of four days.
In her application to the Court the applicant complained that she had been shackled to her bed during her stay in the maternity hospital, that her conditions of detention and the food she received as a breastfeeding mother were inadequate, and that she had been held in a metal cage during the six court hearings she had attended both before and after giving birth. She also complained that her son had not received proper medical care.
The Court found a number of violations of Article 3, including on account of the inadequate medical care provided for such a young child.
The judgment thus concerned the situation of a newborn child forced, by his very young age, to accompany his mother in prison during her pre-trial detention. The Court referred to the relevant international standards. It noted that even though the child was particularly vulnerable and required close medical monitoring by a specialist there were a number of inaccuracies and contradictions in his medical file, particularly regarding the dates of his medical examinations. The Court found it established that, as his mother had alleged, the child had gone without any monitoring by a paediatrician for almost three months. That in itself was sufficient to find a violation of Article 3 of the Convention.
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The judgment in A.B. and Others v. France[59] concerned the placement of a young accompanied child in administrative detention pending removal.
The applicants, a couple and their four-year-old child, were held in administrative detention pending their removal to Armenia after their request for asylum was refused. They alleged in the Convention proceedings that the detention of their child gave rise to a breach of Article 3 of the Convention. The Court agreed with the applicants. Its judgment in this part is noteworthy for the following reasons.
The Court noted that the material conditions of the detention centre were not problematic from the point of view of Article 3, even taking into account the young age and hence vulnerability of the child (contrast Popov v. France[60]). At the same time, it could not overlook the fact that the centre was a source of anxiety for the child. It was close to a runway with the result that children wishing to play outside were exposed to excessive levels of noise. Moreover, the centre itself was stressful for the child given the overall coercive atmosphere including the presence of armed police officers and constant loudspeaker announcements. On top of this, he also had to endure the moral and psychological distress of his parents in a place of detention. It is of significance that the Court found that these considerations were not of themselves sufficient for concluding that a level of suffering had been reached amounting to a breach of Article 3 in respect of the child. For the Court, the key factor was the length of time the child was subjected to such conditions. A brief period may be tolerated, but beyond that a young child would in its view necessarily suffer from the harmful consequences of the coercive environment around it. It is interesting to note that the Court did not define the meaning of a “brief period”. It found that the eighteen-day period which the child had spent in the centre breached his rights under Article 3 (see also R.M. and Others v. France[61] where a violation was also found under Article 3 in respect of a seven-month-old baby kept in administrative detention pending removal with his parents for seven days).
The Court also found a breach of Article 5 §§ 1 and 4 with respect to the child, and of Article 8 with respect to all three applicants. On these points the reasoning follows in general the conclusions in the above-mentioned Popov judgment.
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According to the Wenner v. Germany[62] judgment, prison authorities are under a procedural obligation to seek independent medical advice on the appropriate treatment for drug-addicted prisoners.
The applicant prisoner was a long-term heroin addict. He complained in the Convention proceedings of the refusal of the prison authorities to provide him with drug-substitution treatment, which he claimed was the only adequate response to his medical condition. He suffered considerable pain and damage to his health as a result of having to undergo abstinence-oriented drug therapy. The applicant criticised the authorities’ failure to allow a doctor from outside the prison to examine the necessity of treating him with drug-substitution medication, which had proved successful when offered to him over the course of a seventeen-year period prior to his imprisonment. The applicant relied on Article 3 of the Convention.
The Court found that there had been a violation of Article 3. The judgment is noteworthy for its comprehensive review of the Convention case-law on prisoners’ health, in particular the scope of the State’s positive obligations in this area. Its task was to determine whether the respondent State had provided credible and convincing evidence proving that an adequate assessment had been made of the type of treatment appropriate to the applicant’s state of health and that the applicant subsequently received comprehensive and adequate medical care in detention. It noted, among other things, that: prior to his detention, the applicant’s heroin addiction had been treated with medically prescribed and supervised drug-substitution therapy from 1991 until 2008; the Federal Medical Association’s Guidelines for the Substitution Treatment of Opiate Addicts clarified that substitution treatment was a scientifically tested therapy for manifest opiate addiction; and drug-substitution therapy was, in principle, available outside and in prisons in Germany (as in the majority of member States of the Council of Europe), and was actually provided in practice in prisons in several Länder other than Bavaria where the applicant was detained.
It was significant for the Court that it was not only the doctors who had prescribed the applicant drug-substitution therapy prior to his detention who considered that treatment to have been necessary in the applicant’s case. An external doctor commissioned by the prison authorities, who had examined the applicant in person, had suggested that the prison medical service reconsider granting the applicant drug-substitution treatment. This view was confirmed by another external doctor. There was therefore a strong indication that drug-substitution treatment could be regarded as the required medical treatment for the applicant, a long-term drug addict without any realistic chance of overcoming his addiction and who had been receiving substitution treatment for many years. This meant that the domestic authorities were under an obligation to examine “with particular scrutiny” whether the continuation of the abstinence-oriented therapy was to be considered the appropriate medical response. For the Court, the respondent State had failed to comply with that obligation. In paragraph 77, it noted as follows.
“In these circumstances, the Court considers that in order to ensure that the applicant received the necessary medical treatment in prison the domestic authorities, and in particular the courts, were required to verify, in a timely manner and with the help of an independent doctor skilled in drug-addiction treatment, whether the applicant’s condition was still adequately treated without such therapy. However, there is no indication that the domestic authorities, with the help of expert medical advice, examined the necessity of drug-substitution treatment with regard to the criteria set by the relevant domestic legislation and medical guidelines. Despite the applicant’s previous medical treatment with drug-substitution therapy for seventeen years, no follow-up was given to the opinions expressed by external doctors … on the necessity to consider providing the applicant again with drug-substitution treatment.”
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17. See also under Article 1 above, Mozer v. the Republic of Moldova and Russia [GC], no. 11138/10, ECHR 2016; under Article 2 (Expulsion) above, F.G. v. Sweden [GC], no. 43611/11, ECHR 2016; and, under Article 8 (Private Life) below, R.B. v. Hungary, no. 64602/12, 12 April 2016.
18. Khlaifia and Others v. Italy [GC], no. 16483/12, ECHR 2016.
19. M.S.S. v. Belgium and Greece [GC], no. 30696/09, §§ 223-24, ECHR 2011.
20. Cazan v. Romania, no. 30050/12, 5 April 2016.
21. Morice v. France [GC], no. 29369/10, 23 April 2015.
22. Bouyid v. Belgium [GC], no. 23380/09, ECHR 2015.
23. Yaroslav Belousov v. Russia, nos. 2653/13 and 60980/14, 4 October 2016, see also under Article 6 (Defence rights) below.
24. Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, §§ 135-38, ECHR 2014 (extracts).
25. Murray v. the Netherlands [GC], no. 10511/10, ECHR 2016.
26. Kafkaris v. Cyprus [GC], no. 21906/04, ECHR 2008.
27. Vinter and Others v. the United Kingdom [GC], nos. 66069/09 and 2 others, ECHR 2103 (extracts).
28. Harakchiev and Tolumov v. Bulgaria, nos. 15018/11 and 61199/12, ECHR 2014 (extracts).
29. Dickson v. the United Kingdom [GC], no. 44362/04, ECHR 2007-V.
30. James, Wells and Lee v. the United Kingdom, nos. 25119/09 and 2 others, 18 September 2012.
31. Khoroshenko v. Russia [GC], no. 41418/04, ECHR 2015.
32. See also Jeronovičs v. Latvia [GC], no. 44898/10, 5 July 2016, under Article 37 below.
33. Sakir v. Greece, no. 48475/09, 24 March 2016.
34. See also F.G. v. Sweden [GC], no. 43611/11, ECHR 2016 under Article 2 (Expulsion) above.
35. J.K. and Others v. Sweden [GC], no. 59166/12, ECHR 2016.
36. M.S.S. v. Belgium and Greece [GC], no. 30696/09, ECHR 2011.
37. Saadi v. Italy [GC], no. 37201/06, ECHR 2008.
38. Sufi and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, 28 June 2011.
39. Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, ECHR 2012.
40. F.G. v. Sweden [GC], no. 43611/11, ECHR 2016.
41. The UNHCR Note on Burden and Standard of Proof in Refugee Claims and the UNHCR Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status.
42. Council Directive 2004/83/EC of 29 April 2004 as recast by Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011.
43. R.C. v. Sweden, no. 41827/07, 9 March 2010.
44. R.J. v. France, no. 10466/11, 19 September 2013.
45. D.N.W. v. Sweden, no. 29946/10, 6 December 2012.
46. Paposhvili v. Belgium [GC], no. 41738/10, ECHR 2016, see also under Article 8 (Family life) below.
47. N. v. the United Kingdom [GC], no. 26565/05, ECHR 2008.
48. D. v. the United Kingdom, 2 May 1997, Reports of Judgments and Decisions 1997-III.
49. F.G. v. Sweden [GC], no. 43611/11, § 113, ECHR 2016, see under Article 2 (Expulsion) above.
50. Tarakhel v. Switzerland [GC], no. 29217/12, ECHR 2014 (extracts).
51. See the review of the case-law at §§ 178-81 of the judgment. The case of Aswat v. the United Kingdom, (no. 17299/12, 16 April 2013) referred to in the judgment, appears to have been distinguished since the applicant in that case, who was suffering from mental-health issues, was being extradited to a maximum-security prison in the United States of America on charges of terrorist offences.
52. Blokhin v. Russia [GC], no. 47152/06, ECHR 2016.
53. See also Article 5 and Article 6 below.
54. Including the 1989 United Nations Convention on the Rights of the Child, the UN Standard Minimum Rules for the Administration of Juvenile Justice of 1985 (“the Beijing Rules”) and the 1990 UN Rules for the Protection of Juveniles Deprived of their Liberty (“the Havana Rules”), as well as the 2008 European Rules for juvenile offenders subject to sanctions or measures and the 2010 Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice.
55. Muršić v. Croatia [GC], no. 7334/13, ECHR 2016.
56. Overcrowding was only one of the issues examined by the Grand Chamber in Idalov v. Russia [GC], no. 5826/03, 22 May 2012, and in the other leading and pilot cases examined by Chambers in Orchowski v. Poland, no. 17885/04, 22 October 2009; and Norbert Sikorski v. Poland, no. 17599/05, 22 October 2009; Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, 10 January 2012; Torreggiani and Others v. Italy, nos. 43517/09 and 6 others, 8 January 2013; Neshkov and Others v. Bulgaria, nos. 36925/10 and 5 others, 27 January 2015; and Varga and Others v. Hungary, nos. 14097/12 and 5 others, 10 March 2015.
57. Cătălin Eugen Micu v. Romania, no. 55104/13, 5 January 2016.
58. Korneykova and Korneykov v. Ukraine, no. 56660/12, 24 March 2016.
59. A.B. and Others v. France, no. 11593/12, 12 July 2016.
60. Popov v. France, nos. 39472/07 and 39474/07, 19 January 2012.
61. R.M. and Others v. France, no. 33201/11, 12 July 2016.
62. Wenner v. Germany, no. 62303/13, 1 September 2016.
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