FOURTH SECTION
\nCASE OF MICHNO v. LITHUANIA
\n(Application no. 29826\/15)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n4 December 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Michno v. Lithuania,<\/strong><\/p>\n The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:<\/p>\n Paulo Pinto de Albuquerque, President, Having deliberated in private on 13 November 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 29826\/15) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by aLithuanian national, Mr Via\u010deslav Michno (\u201cthe applicant\u201d), on 15 June 2015.<\/p>\n 2.\u00a0\u00a0The applicant was granted leave to represent himself in the proceedings before the Court and to use the Lithuanian language pursuant to Rule 34 \u00a7 3 (a) of the Rules of Court. The Lithuanian Government (\u201cthe Government\u201d) were represented by their Agent, Ms K. Bubnyt\u0117-\u0160irmen\u0117.<\/p>\n 3.\u00a0\u00a0On 28 September 2017 the complaintsunder Article 3 of the Convention concerning the applicant\u2019s conditions of detention, the applicant\u2019s complaint under 13 about the absence of an effective remedy for his Article 3 complaints, and under Article 8 taken alone and in conjunction with Article 14 regarding his being unable to receive long-stay visits as a remand prisoner,were communicated to the Government and the remainder of the application was declared inadmissiblepursuant to Rule 54 \u00a7 3 of the Rules of Court.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 4.\u00a0\u00a0The applicant was born in 1962 and lives in Klaip\u0117da.<\/p>\n 5.\u00a0\u00a0On 2 July 2013 the applicant was arrested on suspicion of possession ofdrugswith intention to distribute. On 9 July 2013 the applicant was brought to \u0160iauliai Remand Prison and was held there until 31 May 2016. In judgment of 23 December 2015 the applicant was sentenced to four years imprisonment by the Klaip\u0117da District Court. Following an appeal by the applicant, the judgment became final on 25 May 2016. The applicant was then transferred to Alytus Correctional Facility and after serving his sentence was released on 30 June 2017.<\/p>\n 6.\u00a0\u00a0In April 2014 the applicant lodged a complaint with the \u0160iauliai Regional Administrative Court about his conditions of detention in \u0160iauliai Remand Prison. He complained of: overcrowding; of there being no partition wall between toilets and cells; of insufficient ventilation; of insufficient time in the open air;of insufficient time for showering; of the presence of cockroaches; of inmates smoking in the cells; of no long-stay or shortvisits; of the fact that he had not been allowed to go home; of the low energy value of the food provided;of the prohibition on receiving food from relatives and friends; and of the prohibition on having his own blanket and a music player.<\/p>\n 7.\u00a0\u00a0On 27 June 2014 the \u0160iauliai Regional Administrative Court held that for 135 days the applicant had been housed in cell no. 53, and the personal space available to him had varied between 1.87 and 3.12 sq. m.This hadbeen a clear violation of domestic norms. For eighty-seven days the applicant had been held in cell no. 50, where the personal space available to him had varied between 1.86 and 4.65 sq. m, and it had come close to a violation of domestic norms. The court further held that the presence of toilets in the applicant\u2019s cell had not corresponded to the requirements of domestic law, that the lighting hadbeen insufficient and the temperature hadbeen too low, and that the food provided had had insufficient energy value. The court noted that inmates could buy food and other necessities in the shops of the facility. The applicant\u2019s other complaints were dismissed as unsubstantiated. As regards the prohibition on having his own blanket and a music player, the court held that the use of personal blankets was not allowed in accordance with domestic norms. As for music players, inmates could use television sets, computers, computer-game devices, discs that could not be rewritten, other memory cards of up to 4GB and bedding (except for a pillow, a mattress and a blanket) that could be given to them by their spouses, partners or close relatives. As regards long-stay and shortvisits, the court held that remand prisoners did not have a right to long-stay visits but he had a right to short visits of up to two hours. The applicant asked for a long-stay visit but on 20 January 2014 the prosecutor decided not to allow him such a visit. The court also held that inmates could be allowed to go home for up to five days in the event of the death or serious illness of a spouse, partner or close relative, or in the event of a natural disaster that had caused serious pecuniary damage to the inmate, his or her spouse, partner or close relatives. However, in his request of 31 January 2014 the applicant did not indicate any of those circumstances. As a result, the applicant was awarded 1,200 Lithuanian litai (LTL \u2013 approximately 348\u00a0euros (EUR)) in compensation for inadequate material conditions of detention for 222 days during the period between 9 July 2013 and 3 April 2014.<\/p>\n 8.\u00a0\u00a0The applicant appealed, and on 11 February 2015 the Supreme Administrative Court held that it was impossible to calculate for how many days the applicant had had sufficient personal space at his disposal, and decided to hold that for 245 days the applicant had not had sufficient personal space, and that this had been a breach of Article 3 of the Convention. The court thus decided to increase the compensation to EUR\u00a01,500.<\/p>\n 9.\u00a0\u00a0In October 2014 the applicant lodged a new complaint concerning his material conditions in \u0160iauliai Remand Prison. He complained of overcrowding, low temperature, dampness, insufficient lighting, prisoners smoking in the cells, that his partner had not beenable to pay him a long\u2011stay visit and that he had not been allowed to \u201ctake holidays\u201d.It appears that the applicant had asked the prison management to allow him to receive a long-stay visit from his spouse and his sister on 28 April 2014.<\/p>\n 10.\u00a0\u00a0On 5 December 2014 the \u0160iauliai Regional Administrative Court held that during the period between 4 April and 5 October 2014 \u2013 for 176 days \u2013 the applicant had had insufficient cell space. As regards long-stay visits, the court agreed with \u0160iauliai Remand Prison and stated that the applicant had not been entitled to them under domestic law; he could have had shortvisits but, however, he had never asked for them. The court accepted the argument of the \u0160iauliai Remand Prison that remand detainees had been held in prisons or correctional facilities for short periods of time and they were not in a similar situation to convicted inmates. The court awarded the applicant EUR 869 in compensation for the material conditions of his detention.<\/p>\n 11.\u00a0\u00a0The applicant appealed, and on 21 September 2015 the Supreme Administrative Court upheld the first-instance decision in its entirety.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE AND RELEVANT INTERNATIONAL LAW<\/p>\n A.\u00a0\u00a0Domestic law and practice<\/strong><\/p>\n 12.\u00a0\u00a0For the relevant domestic law and practice and international material on conditions of detention, see Mironovas and Others v. Lithuania (nos.\u00a040828\/12 and 6\u00a0others, \u00a7\u00a7 50-69, 8 December 2015).<\/p>\n 13.\u00a0\u00a0For the relevant domestic law and practice as regards visits, see Varnas v.\u00a0Lithuania (no.\u00a042615\/06, \u00a7\u00a7 58-61, 9 July 2013) and \u010ciapas v.\u00a0Lithuania, ((dec.), no.\u00a062564\/13, \u00a7\u00a7 10-14, 4 July 2017).<\/p>\n 14.\u00a0\u00a0At the material time, Article 22 of the Law on Pre-trial Detention (Su\u0117mimo vykdymo \u012fstatymas) provided that remand detainees could have an unlimited number of visits from relatives and other people. However, the administrationof the facility allowed such visits only with the written consent of a prosecutor or a court. If consent was not given, the detainee had to be provided with a reasoned decision. Visits could not exceed two hours.<\/p>\n 15.\u00a0\u00a0In cases unrelated to that of the applicant, the Supreme Administrative Court has held that direct application of the Convention means that its provisions can be relied on directly before the courts of the Republic of Lithuania and that the Convention has priority if domestic law conflicts with it (decisions of 14 April 2008, no. A-575-164\/08 and of 18\u00a0April 2008, no.\u00a0A-248-58\/08).<\/p>\n 16.\u00a0\u00a0In a case unrelated to that of the applicant, the Supreme Administrative Court relied on the Court\u2019s interpretation in the case of Varnas (cited above) and awarded a detainee compensation of EUR 2,000 for both his conditions of detention and the lack of long-stay visitssince 2009 (decision of 19 April 2016, no. A-618-552\/2016).In another case unrelated to that of the applicant, the Supreme Administrative Court also relied on the Court\u2019s interpretation in the case of Varnas (cited above) and held that public administration authorities should apply Article 8 of the Convention. The Supreme Administrative Court acknowledged that the refusal on the basis of domestic law to grant long\u2011stay visits to remand detainees was not justified by objective and reasonable grounds in treatingremand detainees and convicted inmates differently. As a result, the Supreme Administrative Court awarded the detainee in that case compensation ofEUR 1,000 for the period between July 2013 and April 2015 (decision of 8\u00a0September 2016, no. A-850-662\/2016).<\/p>\n 17.\u00a0\u00a0In case unrelated to that of the applicant, the Supreme Administrative Court accepted the conclusions drawn by the first-instance court that remand detainees had no right to long-stay visits under domestic law and awarded no compensations (decisions of 22February 2016, nos.\u00a0A\u2011926\u2011624\/2016, A\u2011958\u2011624\/2016). The Supreme Administrative Court did not make a reference to the case of Varnas(cited above). In another case unrelated to that of the applicant, where a person was detained on remand for more than two and a half years, the Supreme Administrative Court held that long-stay visits could not be granted to remand detainees, and that it was a proportionate limitation of a detainee\u2019s rights. As a result, no compensation was awarded to the detainee (decision of 10 July 2015, no.\u00a0A\u2011342\u2011858\/2015). The Supreme Administrative Court did not make a reference to the case of Varnas(cited above).<\/p>\n B.\u00a0\u00a0International law<\/strong><\/p>\n 18.\u00a0\u00a0Rule 99 (a) of the Recommendation Rec(2006)2 of the Committee of Ministers to member States on the European Prison Rules, adopted on 11\u00a0January 2006 (European Prison Rules), provides that unless there is a specific prohibition for a specified period by a judicial authority in the individual case, untried prisoners shall receive visits and be allowed to communicate with family and other persons in the same way as convicted prisoners.<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 3OF THE CONVENTION<\/p>\n 19.\u00a0\u00a0Relying on Article 3 of the Convention, the applicant complained that the conditions of his detention had been inadequate. Article 3 provides:<\/p>\n \u201cNo one shall be subjected to torture or to inhuman or degrading treatment or punishment.\u201d<\/p>\n A.\u00a0\u00a0Periods to be taken into consideration<\/strong><\/p>\n 20.\u00a0\u00a0The Court notes at the outset that there were two sets of domestic proceedings concerning the applicant\u2019s conditions of detention because the applicant submitted two different complaints as regards the period between 9 July 2013 and 3 April 2014 and between 4 April and 5 October 2014.<\/p>\n 21.\u00a0\u00a0The Court considers that because those two periods concerned different domestic proceedings and slightly different complaints, it will examine them as separate periods for the purposes of the present application.<\/p>\n B.\u00a0\u00a0Admissibility<\/strong><\/p>\n 1.\u00a0\u00a0Period between 9 July 2013 and 3 April 2014<\/em><\/p>\n 22.\u00a0\u00a0Stressing the domestic courts\u2019 findings that the conditions of the applicant\u2019s detention during the period between 9 July 2013 and 3\u00a0April 2014 had not been compatible with Article 3 of the Convention, the Government abstained from any further submissions with regard to that period.<\/p>\n 23.\u00a0\u00a0The Court observes that although the Government have not raised an objection on the applicant\u2019s victim status, such objection is an objection which goes to the Court\u2019s jurisdiction and, as such, the Court is not estopped from raising it of its own motion (seeR.P. and Others v.\u00a0the\u00a0United Kingdom, no. 38245\/08, \u00a7 47, 9 October 2012; Buzadji v.\u00a0the\u00a0Republic of Moldova [GC], no. 23755\/07, \u00a7 70, 5 July 2016; and Satakunnan Markkinap\u00f6rssi Oy and Satamedia Oy v. Finland [GC], no.\u00a0931\/13, \u00a7 93, 27 June 2017 ).<\/p>\n 24.\u00a0\u00a0The principles governing the assessment of an applicant\u2019s victim status have been summarised in paragraphs 178-92 of the Court\u2019s judgment in the case of Scordino v. Italy (no. 1) ([GC], no. 36813\/97, ECHR 2006\u2011V). In that connection, the Court notes that a decision or measure favourable to the applicant is not, in principle, sufficient to deprive him or her of his or her status as a \u201cvictim\u201d for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and the afforded redress for the breach of the Convention. One of the characteristics of sufficient redress which may remove a litigant\u2019s victim status relates to the amount awarded as a result of using the domestic remedy. The Court indicates that an applicant\u2019s victim status may depend on the level of compensation awarded at domestic level on the basis of the facts about which he or she complains before the Court (ibid., \u00a7\u00a7 180 and 202).<\/p>\n 25.\u00a0\u00a0The Court also refers to the general principles concerning the assessment of an applicant\u2019s victim status in cases of conditions of detention, stemming from its case-law and to its earlier findings (see Mironovas and Others and Others v. Lithuania, nos. 40828\/12 and 6 others, \u00a7\u00a7 84-85 and 93-94, 8 December 2015) and the specific aspects of the victim status in conditions of detention cases against Lithuania (ibid., \u00a7\u00a7\u00a086\u201188).<\/p>\n 26.\u00a0\u00a0Turning to the facts of the present case, the Court observes that the Supreme Administrative Court in the proceedings instituted by the applicant held that the applicant had had insufficient cell space for a period of 245 days and acknowledged a breach of Article 3 of the Convention (see paragraph8 above). As the applicant is no longer incarcerated (see paragraph5 above), the Court considers that the violation of the applicant\u2019s rights has been brought to an end and, in such circumstances, monetary compensation constitutes an effective remedy (Mironovas and Others, cited above \u00a7 85).<\/p>\n 27.\u00a0\u00a0The Court notes that in the domestic proceedings the applicant was awarded EUR 1,500 in respect of non-pecuniary damage. The Court considers this amount not to be inconsistent with what it would award in similar cases (ibid., \u00a7\u00a7 95-98). It therefore finds that in respect of the period between 9 July 2013 and 3 April 2014 the applicant may no longer claim to be a victim of a violation of Article 3 of the Convention. It follows that this part of the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 \u00a7 3 (a) of the Convention and must therefore be rejected, pursuant to Article 35 \u00a7 4.<\/p>\n 2.\u00a0\u00a0Period between 4 April and 5 October 2014<\/em><\/p>\n 28.\u00a0\u00a0The Government submitted that the domestic courts had acknowledged a violation of domestic norms and awarded the applicant sufficient compensation for the period between 4 April and 5 October 2014.<\/p>\n 29.\u00a0\u00a0The Court observes that the Lithuanian courts admitted a violation of domestic legal norms setting out specific aspects pertinent to the conditions of detention (see paragraphs10 and 11 above). However, the Court considers that even though the applicant was awarded EUR 869, this amount, whilst apparently consistent with Lithuanian case-law at that time, is significantly lower than the amounts that the Court awards in similar cases (see, mutatis mutandis,Mironovas and Others, cited above, \u00a7\u00a7 99 and\u00a0156). The Court thus considers that notwithstanding the fact that the applicant was awarded compensationhe retains his victim status in respect of the 176 days of detention in unsuitable conditions suffered between 4\u00a0April and 5\u00a0October 2014.<\/p>\n 30.\u00a0\u00a0The Court furthermore notes that the applicant\u2019s complaint about his conditions of detention for the period between 4 April and 5 October 2014 is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n C.\u00a0\u00a0Merits<\/strong><\/p>\n 1.\u00a0\u00a0The parties\u2019 submissions<\/em><\/p>\n 31.\u00a0\u00a0The applicant submitted that in \u0160iauliai Remand Prison he had been detained in overcrowded cells.He also complained of other unsanitary conditions (open toilets, insufficient heating, presence of parasites) andthat the food provided had had insufficient energy value.<\/p>\n 32.\u00a0\u00a0The Government acknowledgedthat during the period between 4\u00a0April and 5 October 2014 the applicant had been afforded less than 3.6\u00a0sq.\u00a0m of personal space for sixty-six days. For the remaining 110 days the personal space had varied but, because the \u0160iauliai Remand Prison had failed to provide accurate data, the courts had interpreted the situation in the applicant\u2019s favour, meaning that in the absence of data they held that for all those 110 days the applicant had not had sufficient personal space. The Government observed that the applicant\u2019s remaining grievances concerning the material conditions of his detention had been dismissed as unsubstantiated. The Government also noted that the applicant had been able to engage in various out-of-cell activities every day, sports and cultural events had been organised once a month, and religious ceremonies had also been organised. The applicant had been able to take computer classes for up to three hours per day.<\/p>\n 2.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n 33.\u00a0\u00a0The Court refers to the principles summarised in its case-law regarding overcrowding (see Mur\u0161i\u0107 v. Croatia [GC], no. 7334\/13, \u00a7\u00a7\u00a0136\u201141, 20 October 2016).<\/p>\n 34.\u00a0\u00a0The Court notes that it has already accepted the conclusions of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (\u201cthe CPT\u201d) about the dire situation in \u0160iauliai Remand Prison (see Mironovas and Others, cited above, \u00a7 149). The CPT noted that the whole of the \u0160iauliai facility was old and run down. Prisoners were accommodated in dilapidated and damp cells, and the vast majority of remand prisoners were confined to their cells for up to twenty\u2011three hours per day, the only regular daily out-of-cell activity being one hour in the yard (ibid.).<\/p>\n 35.\u00a0\u00a0The applicant complained of the conditions of his detention in \u0160iauliai Remand Prison from 4 April until 5 October 2014. The domestic courts found that for 176 days the applicant had been held in overcrowded cells (see paragraphs 10 and 11above). In the absence of specific calculations (or a list of cells in which the applicant was detained and the number of inmates held in them every day), the Court will proceed on an assumption that the applicant had less than 3 sq. m of personal space at his disposal for 176 days, and that this created a strong presumption of a violation of Article 3 (see Mur\u0161i\u0107, cited above, \u00a7\u00a7 136-37).<\/p>\n 36.\u00a0\u00a0The Court reiterates its findings as regards \u0160iauliai Remand Prison (see paragraph34 above) and holds that it cannot accept the Government\u2019s argument that the lack of personal space could have been compensated for by the applicant\u2019s freedom to engage in certain out-of-cell activities and by the otherwise adequate conditions of his detention.<\/p>\n 37.\u00a0\u00a0Having examined all the material submitted to it, the Court concludes that the applicant\u2019s conditions of detention in \u0160iauliai Remand Prison from 4 April 2014 until 5 October 2014 amounted to degrading treatment prohibited by Article 3 of the Convention. There has accordingly been a violation of that provision.<\/p>\n II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION<\/p>\n 38.\u00a0\u00a0Relying on Article\u00a013 of the Convention, the applicant claimed that no domestic remedy had been available to him in order to obtain an improvement in the conditions of detention as he was detained in the same prison. The relevant Article provides:<\/p>\n \u201cEveryone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\u201d<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 39.\u00a0\u00a0The Court notes that this complaint is not manifestly ill\u2011founded within the meaning of Article 35 \u00a7 3 (a) of the Convention, nor is it inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 1.\u00a0\u00a0The parties\u2019 submissions<\/em><\/p>\n 40.\u00a0\u00a0The applicant stated the he had been in the same prison when he had submitted his application, and that he had not had an effective remedy and that improvement of his conditions of detention had not been possible.<\/p>\n 41.\u00a0\u00a0The Government submitted that compensation constituted an appropriate remedy. In the applicant\u2019s case, he had received compensation, and the domestic courts had taken into account the duration and the extent of the violation, the consequences for his health, the actions of the applicant, the economic conditions in Lithuania at the relevant time, similarcase\u2011law examples,the criteria of equity, fairness and reasonableness,and the principle of proportionality when awarding compensation. The Government also submitted that the new legislative measures aimed at tackling of prison overcrowding had been in force since 1 July 2012 and they had helped to decrease the prison population.<\/p>\n 2.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n 42.\u00a0\u00a0The Court has previously stated that for a person held in inhuman or degrading conditions, a remedy capable of rapidly bringing the ongoing violation to an end is of the greatest value and, indeed, indispensable in view of the special importance attached to the right under Article 3 of the Convention (see Mironovas and Others, cited above, \u00a7 85). However, the Court observes that at the time the applicant lodged his application, he was no longer detained in \u0160iauliai Remand Prison, i. e. the same facility about which he was complaining (see paragraph 5above).<\/p>\n 43.\u00a0\u00a0Accordingly, a claim for monetary compensation constituted an effective remedy for the applicant\u2019s complaints. Even though the compensation which the applicant was awarded for the period between 4\u00a0April and 5\u00a0October 2014 is not adequate in the light of the Court\u2019s standards (see paragraph29 above), it should be reiterated that the effectiveness of a remedy within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see De\u00a0Souza\u00a0Ribeiro v.\u00a0France [GC], no. 22689\/07, \u00a7\u00a079,ECHR 2012).<\/p>\n 44.\u00a0\u00a0It follows that there has been no violation of Article 13 of the Convention.<\/p>\n III.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION<\/p>\n 45.\u00a0\u00a0The applicant complained under Article 8 of the Convention that not being allowed long-stay visits from his partner and his sister had caused him intolerable mental and physical suffering. He also complained, under Article\u00a08 taken in conjunction with Article 14, that his entitlement in that connection had been restricted more than that of a convicted person serving a prison sentence. The relevant parts of Article 8 and Article\u00a014 provide as follows:<\/p>\n Article 8<\/p>\n \u201c1.\u00a0\u00a0Everyone has the right to respect for his private and family life …<\/p>\n 2.\u00a0\u00a0There 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.\u201d<\/p>\n Article 14<\/p>\n \u201cThe enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.\u201d<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 1.\u00a0\u00a0The parties\u2019 submissions<\/em><\/p>\n 46.\u00a0\u00a0The Government argued that the applicant had failed to exhaust the domestic remedies with regard to his complaint. They noted that long-stay visits could only be allowed with the written consent of a prosecutor or a court. In the applicant\u2019s case, his first request for a long-stay visit was rejected on 20 January 2014 due to the ongoing pre-trial investigation (see paragraph 7 above). It was the Government\u2019s view that the applicant should have appealed against this decision to a higher prosecutor, which he had failed to do. The Government also noted that the applicant had failed to raise the issue of discrimination before the domestic courts. As regards the applicant\u2019s second request for a long-stay visit of 28 April 2014 (see paragraph 9 above), the Government argued that the applicant had complained of being unable to receive long-stay visitsper se, and that he had not raised the issue of discrimination.<\/p>\n 47.\u00a0\u00a0The Government also submitted that after the judgment in Varnas v.\u00a0Lithuania (no. 42615\/06, 9 July 2013)the provisions of the Convention and domestic law had conflicted with each other. According to the Government, in accordance with the practice of the Supreme Administrative Court, the applicant had been able to rely on the provisions of the Convention directly before the domestic courts. In support of their submission the Government relied on several domestic case-law examples (see paragraph15 above).<\/p>\n 48.\u00a0\u00a0The Government also argued that the domestic courts had established an effective domestic compensatory remedy, specifically that the Supreme Administrative Court had taken account of differences in treatment between remand detainees and convicted people when it came to long-stay visits, and had found violations and awarded compensation (see paragraph16above). Had the applicant formulated his complaints properly, he could have received compensation as well. The Government stated that the judgment in Varnas(cited above) had been in effect for two years when the applicant had submitted his application to the Court, and thus it had been clear that new domestic remedies would be incorporated into the State\u2019s judicial system.<\/p>\n 49.\u00a0\u00a0The applicant did not comment on the admissibility issue.<\/p>\n 2.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n 50.\u00a0\u00a0The Court reiterates that applicants are only obliged to exhaust domestic remedies which are available in theory and in practice at the relevant time and which they can directly institute themselves, that is to say, remedies that are accessible, capable of providing redress in respect of their complaints and offering reasonable prospects of success (see Stoian v.\u00a0Romania, no. 33038\/04, \u00a7 100, 8 July 2014).<\/p>\n 51.\u00a0\u00a0In the present case, the Government first argued that the applicant had to appeal against the prosecutor\u2019s decision not to grant him a long-stay visit on 20\u00a0January 2014 to a higher prosecutor. The Court cannot accept this argument. The Government stated that long-stay visits could be allowed for detainees on remand with the written consent of a prosecutor or a court. The Court notes that Article 22 of the Law on Pre-trial Detention explicitly stated that visits could not exceed two hours, which meant that long-stay visits were not available for remand detainees at all (see paragraph 14above, see also \u010ciapas v. Lithuania (dec.), no. 62564\/13, \u00a7 10, 4 July 2017). Under these circumstances, the Court does not see how an appeal to a higher prosecutor would have benefited the applicant.<\/p>\n 52.\u00a0\u00a0The Government claimed that the applicant had been able to rely on Varnas(cited above)and the provisions of the Convention directly before the domestic courts. The Court notes that that judgment was adopted on 9\u00a0July 2013 and became final on 9\u00a0December 2013. The prosecutor refused to allow the applicant a long-stay visit for the first time on 20\u00a0January 2014(see paragraph 7 above). Although the date when the applicant submitted a request to the prosecutor is not indicated, it can be presumed that it was before 20\u00a0January 2014, which means that the judgment in Varnas(cited above)had been in effect for only about a month. Even if the applicant\u2019s ignorance with regard to the judgment was unfortunate, the Court cannot agree that the applicant\u2019s failure to explicitly rely on it influenced the outcome of the courts\u2019 decisions, especially taking into account that the domestic courts had not relied on Varnasthemselves.<\/p>\n 53.\u00a0\u00a0The Court is also unable to accept the Government\u2019s argument as regards the applicant\u2019s second request. Although the domestic courts did not analyse the refusal of the prison management of 28 April 2014 to grant the applicant a long-stay visit with his partner and his sister(see paragraph 9 above), they accepted the arguments submitted by the \u0160iauliai Remand Prison that domestic law did not provide for long-stay visits to remand detainees and, because such persons were only detained for short periods of time, they were not in a similar situation to convicted inmates (see paragraph 10 above). It cannot therefore be considered that the applicant failed to properly raise his complaints regarding refusal of long-stay visits and discrimination because they were nevertheless analysed in the courts\u2019 decisions(compare and contrast Kazlauskas v. Lithuania (dec.), no.\u00a013394\/13, \u00a7 33, 11 July 2017).<\/p>\n 54.\u00a0\u00a0Considering that, the applicant should not be blamed for not appealing against the prosecutor\u2019s refusal to grant him a long-stay visit, for not relying on the Convention directly before the domestic courts or for not explicitly referring to Varnas (cited above).<\/p>\n 55.\u00a0\u00a0In this context, the Court also notes that the Government cited two examples of domestic case-law where the courts had only stated what direct application of the Convention meant (see paragraph15 above). The Court accepts this general position of the Government on the direct application of the Convention. However, illustrating this position in the context of long-stay visits, the Government cited two examples of domestic case-law where claimants had obtained damages in a situation similar to the applicant\u2019s (see paragraph 16 above). These examples belong to quite recent domestic case-law, as they are both from 2016, while the present application was introduced on 15 June 2015 (see paragraph 1 above) and the applicant\u2019s claims at the domestic level were examined even before that date (see paragraphs7-8 and 10-11 above).Moreover, there are other examples from domestic case-law where the Supreme Administrative Court held that remand detainees had no right to long-stay visits and, as a result, no compensations were awarded (see paragraph17 above). The latter cases were examined when the judgment of Varnas (cited above)was already final; however, the Supreme Administrative Court did not even mention that judgment. The Court thus considers that there was no established case-law of the domestic courts on the application of the principles established in the judgment of Varnas (cited above) at the material time. In view of the above, it can be concluded from the information provided by the Government and from the case-law proving the contrary to what was stated by the Government that the remedy in question was not an effective one.<\/p>\n 56.\u00a0\u00a0As a result, the Government\u2019s objection of non-exhaustion of domestic remedies must be dismissed.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 1.\u00a0\u00a0The parties\u2019 submissions<\/em><\/p>\n 57.\u00a0\u00a0The applicant stated that he had not had long-stay visits in \u0160iauliai Remand Prison.<\/p>\n 58.\u00a0\u00a0The Government did not comment on the merits of the case.<\/p>\n
\nEgidijus K\u016bris,
\nIulia Antoanella Motoc, judges,
\nand Andrea Tamietti, Deputy Section Registrar,<\/p>\n