Mathew-sagen om langvarig isolation
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FIRST SECTION
CASE OF IORGOV v. BULGARIA
(Application no. 40653/98)
JUDGMENT
STRASBOURG
11 March 2004
FINAL
07/07/2004
I DENNE SAG VAR EN AFSONER ISOLERET I 3,5 ÅR. HAN HAVDE UNDER
ISOLATIONEN DAGLIGE GÅRDTURE AF 1 TIMES VARIGHED MED
FÆLLESSKAB MED ANDRE FANGER. ANSET SOM EN KRÆNKELSE AF ARTIKEL 3.
"...
B. The Court's assessment
68. The Court considers that the applicant's complaints fall to be examined
under Article 3 of the Convention. Article 3 provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.”
1. Relevant principles
69. As the Court has held on many occasions, 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 Labita v.
Italy [GC], no. 26772/95, § 119, ECHR 2000-IV).
70. According to the Court's case-law, ill-treatment must attain a minimum level
of severity if it is to fall within the scope of Article 3 of the Convention.
The assessment of this minimum level of severity 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. Furthermore, in considering whether treatment is “degrading”
within the meaning of Article 3, the Court will have regard to whether its
object is to humiliate and debase the person concerned and whether, as far as
the consequences are concerned, it adversely affected his or her personality in
a manner incompatible with Article 3. However, the absence of such a purpose
cannot conclusively rule out a finding of a violation of this provision (see
Peers v. Greece, no. 28524/95, §§ 67-68, 74, ECHR 2001-III; and Valašinas v.
Lithuania, no. 44558/98, § 101, ECHR 2001-VIII).
71. The Court has consistently stressed that the suffering and 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.
Measures depriving a person of his liberty may often involve such an element. In
accordance with this provision the State must ensure that a person is detained
under 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 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 Kud?a v. Poland [GC], no. 30210/96, §§
92-94, ECHR 2000-XI).
72. In addition, present-day attitudes in the Contracting States to capital
punishment are relevant for the assessment whether the acceptable threshold of
suffering or degradation has been exceeded (see Soering v. the United Kingdom,
judgment of 7 July 1989, Series A no. 161, p. 41, § 104). The fear and
uncertainty as to the future generated by a sentence of death, in circumstances
where there exists a real possibility that the sentence will be enforced, must
give rise to a significant degree of human anguish. Having regard to the
rejection by the Contracting States of capital punishment, which is no longer
seen as having any legitimate place in democratic society (forty-three states
have abolished it and the remaining member State, Russia, has introduced a
moratorium), the imposition of the capital punishment in certain circumstances,
such as after an unfair trial, must be considered, in itself, to a amount to a
form of inhuman treatment (see Öcalan v. Turkey, no. 46221/99, §§ 195-98 and
203-07, 12 March 2003).
73. In all circumstances, where the death penalty is imposed, the personal
circumstances of the condemned person, the conditions of detention awaiting
execution and the length of detention prior to execution are examples of factors
capable of bringing the treatment or punishment received by the condemned person
within the proscription under Article 3 (ibid.). 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 and Kalashnikov v. Russia, no. 47095/99, § 95,
ECHR 2001-?I).
2. Application of those principles to the present case
74. The Court observes that the Convention came into force in respect of
Bulgaria on 7 September 1992 and that, therefore, part of the period of the
applicant's detention falls outside the Court's competence ratione temporis.
However, in assessing the effect on the applicant of the conditions of
detention, the Court may also have regard to the overall period during which he
was detained and to the conditions of detention to which he was subjected,
including prior to 7 September 1992 (see Poltoratskiy v. Ukraine, no. 38812/97,
§ 134, ECHR 2003-V).
75. In his submissions, the applicant stressed that he suffered immensely at the
thought of his possible execution and that it was inhuman to keep him in such
uncertainty for many years.
76. The Court notes that the applicant was convicted and sentenced to death by a
judgment of 9 May 1990, at a moment when executions were no longer carried out
in Bulgaria. By the time his conviction and sentence were upheld on appeal on 24
October 1990 (before that his sentence was not enforceable), a Parliamentary
moratorium on executions was in place. The moratorium remained in force
unaltered until the abolition of the death penalty in Bulgaria in 1998 (see
paragraphs 9-19 above).
77. Furthermore, in the light of the available information about the abolition
of the death penalty in Bulgaria and the safeguards that existed during the
relevant period, the Court considers that the applicant's situation was not
comparable to that of persons on “death row” in countries practising executions,
a situation analysed in the Court's Soering judgment (cited above) and in a
number of cases decided by other fora (see paragraphs 52-62 above).
78. In particular, nothing comparable to the genuine “death row phenomenon” –
which in some cases involved the bringing of the condemned person to the “death
chamber” and returning him to his cell upon a last minute stay of a execution (see
Soering, cited above, pp. 23-25, §§ 52-56 and p. 28, § 68) – happened or could
have happened in the applicant's case.
79. The applicant's position was, furthermore, different from that of the
applicants in six cases against Ukraine which concerned persons sentenced to
death at a time when executions continued in Ukraine in violation of its
international commitments. To the contrary, not a single violation of the
moratorium on executions occurred in Bulgaria. The Court accepts that initially
the applicant must have been in a state of some uncertainty, fear and anxiety as
to his future. However, it considers that the feelings of fear and anxiety must
have diminished as time went on and as the moratorium continued in force (see
Poltoratskiy, cited above, § 135; Aliev v. Ukraine, no. 41220/98, § 134, 29
April 2003; Kuznetsov v. Ukraine, no. 39042/97, § 115, 29 April 2003; Khokhlich
v. Ukraine, no. 41707/98, § 167, 29 April 2003; Nazarenko v. Ukraine, no.
39483/98, § 129, 29 April 2003; and Dankievich v. Ukraine, no. 40679/98, § 126,
29 April 2003).
80. Turning to the conditions of the applicant's detention, the Court notes that
the cells in which the applicant was detained throughout the relevant period
measured 6 or 8 sq. m. Between 1995 and 1998 he was the sole occupant of a cell
of that size, an accommodation standard which appears acceptable (see paragraphs
33-36 above).
81. The Court observes that between 1990 and 1995 the applicant shared a cell
with two or three detainees (see paragraphs 34 and 35 above).
82. His complaint, however, is that between June 1995 and the end of 1998 he was
alone in a cell and was subjected to a regime of detention which was very
restrictive and involved very little human contact. During that period he spent
almost twenty-three hours per day alone in his cell. He was not allowed to join
other categories of prisoners for meals in the refectory or for other activities.
Food was served in the cell. The applicant had the right to no more than two
visits per month. For the applicant, human contacts were practically limited to
conversations with fellow prisoners during the one-hour daily walk and
occasional dealings with prison staff (see paragraphs 40-43 above).
83. The Court notes that the prohibition of contacts with other prisoners for
security, disciplinary or protective reasons does not in itself amount to
inhuman treatment or punishment (see, among others, Messina v. Italy (dec.), no.
25498/94, ECHR 1999-V). As stated by the CPT, however, all forms of solitary
confinement without appropriate mental and physical stimulation are likely, in
the long term, to have damaging effects, resulting in deterioration of mental
faculties and social abilities (see paragraph 49 above).
84. The Court notes that although the damaging effects of the impoverished
regime to which the applicant was subjected were known, that regime was
maintained for many years. The relevant law and regulations on the detention
regime of persons sentenced to death were not amended. The adjustments
introduced through internal unpublished instructions apparently did not clarify
all aspects of the detention regime and did not establish clear and foreseeable
rules (see paragraphs 29-32 above). Furthermore, it is significant that the
Government have not invoked any particular security reasons requiring the
applicant's isolation and have not mentioned why it was not possible to revise
the regime of prisoners in the applicant's situation so as to provide them with
adequate possibilities for human contact and sensible occupation.
85. As regards the quality of the health care provided to the applicant, the
Court notes that his health was regularly monitored and in most cases the
necessary treatment was provided. However, the evidence about the treatment of
the applicant's swollen salivary gland, although not conclusive, suggests that
there had been an unwarranted delay in providing adequate medical assistance. It
must be stressed in this respect that the applicant's alleged rude behaviour
towards medical staff and, indeed, any violation of prison rules and discipline
by a detainee, can in no circumstances warrant a refusal to provide medical
assistance (see paragraphs 44-46 and 50 above).
86. In sum, the Court considers that the stringent custodial regime to which the
applicant was subjected after 1995 and the material conditions in which he was
detained must have caused him suffering exceeding the unavoidable level inherent
in detention. The Court thus concludes that the minimum threshold of severity
under Article 3 of the Convention has been reached and that the applicant has
been subjected to inhuman and degrading treatment.
87. There has, accordingly, been a breach of that provision. ...."
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FORMER FIRST SECTION
CASE OF VAN DER VEN v. THE NETHERLANDS
(Application no. 50901/99)
JUDGMENT
STRASBOURG
4 February 2003
FINAL
04/05/2003
I DEN FORELIGGENDE SAG BLEV EN INDSAT PÅ EN SÆRLIG SIKRET AFDELING HVER UGE
KROPSVISITERET. HAN SKULLE KLÆDE SIG HELT NØGEN, MEDENS HAN BLEV SET PÅ AF
FÆNGSELSPERSONALE. DOMSTOLEN FANDT, AT KROPSVISITATIONERNE
VED EN KONKRET VURDERING VAR OVERFLØDIGE OG DERFOR EN KRÆNKELSE AF ARTIKEL 3.
(pkt. 61 og 62)
RESTRIKTIV SÆR-AFDELING I FÆNGSEL IKKE KRÆNKELSE AF ARTIKEL 8. RETTEN LAGDE VÆGT
PÅ, AT HAN HAVDE SAMVÆR MED ANDRE INDSATTE OG UGENTLIGE BESØG AF FAMILIE. (pkt.
71)
In the case of Van der Ven v. the Netherlands,
"....B. The Court’s assessment
1. General principles
46. 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).
47. 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, judgment of
18 January 1978, Series A no. 25, p. 65, § 162).
48. 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, Kud?a 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). The question 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).
49. Conditions of detention may sometimes amount to inhuman or degrading
treatment (see Peers, 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).
50. 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, judgment of 30 July 1998, Reports of
Judgments and Decisions 1998-V, pp. 1958-59, §§ 34-37). 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 Kud?a, cited above, §§ 92-94).
51. 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
Dhoest v. Belgium, no. 10448/83, Commission’s report of 14 May 1987, Decisions
and Reports (DR) 55, pp. 20-21, §§ 117-18, and McFeeley and Others v. the United
Kingdom, no. 8317/78, Commission decision of 15 May 1980, DR 20, p. 44).
2. Application to the present case
52. Turning to the circumstances of the present case, the Court observes first
of all that the applicant’s complaints about the conditions of his detention do
not concern the material conditions within the EBI but rather the regime to
which he was subjected. To this extent the case may be compared to a series of
applications lodged against Italy where the applicants alleged that the special
prison regime to which they were subjected pursuant to section 41 bis of the
Prison Administration Act resulted in conditions which violated Article 3 of the
Convention (see, for instance, Messina (no. 2) (decision cited above);
Indelicato v. Italy (dec.), no. 31143/96, 6 July 2000; Ganci v. Italy (dec.),
no. 41576/98, 20 September 2001; and Bonura v. Italy (dec.), no. 57360/00, 30
May 2002).
53. The Court notes that paragraphs 62 to 66 of the CPT report quoted above (paragraph
32) contain a detailed description, drawn up following a visit to the facility,
of the conditions obtaining in the EBI. Since neither party has argued that this
description is factually incorrect, the Court accepts that it adequately
reflects the situation in the EBI. However, the question whether or not the
applicant was subjected to inhuman or degrading treatment within the meaning of
Article 3 of the Convention depends on an assessment of the extent to which he
was personally affected (see paragraph 50 above).
54. It is not in dispute that, throughout his detention in the EBI, the
applicant was subjected to very stringent security measures. The Court further
considers that the applicant’s social contacts were strictly limited, taking
into account the fact that he was prevented from having contact with more than
three fellow inmates at a time, that direct contact with prison staff was
limited, and that, apart from once a month in the case of visits from members of
his immediate family, he could only meet visitors behind a glass partition.
However, as in the cases against Italy referred to in paragraph 52 above, the
Court is unable to find that the applicant was subjected either to sensory
isolation or to total social isolation. As a matter of fact, the Italian special
regime was significantly more restrictive both as regards association with other
prisoners and as regards frequency of visits: association with other prisoners
was entirely prohibited and only family members were allowed to visit, once a
month and for one hour (see Messina v. Italy (no. 2), no. 25498/94, § 13, ECHR
2000-X).
55. The applicant was placed in the EBI because he was considered extremely
likely to attempt to escape from detention facilities with a less strict regime
and, if he were to escape, he was deemed to pose an unacceptable risk to society
in terms of committing further serious violent crimes (see paragraph 27 above).
At a later stage, the risk of the applicant’s escaping was held to be less high;
however, in the event of an escape he was still considered to pose an
unacceptable risk to society in view of the nature of the offences of which he
stood accused and of the effects on society and public opinion (see paragraph 19
above). Although the applicant denied that he harboured any such intentions, it
is not for the Court to examine the validity of the assessment carried out by
the domestic authorities. Having regard to the very serious offences of which
the applicant stood accused and was subsequently convicted (see paragraph 10
above), the Court accepts the assessment made by the domestic authorities.
56. In support of his claim that the EBI regime had such serious damaging
effects on his mental health as to bring it within the scope of Article 3 of the
Convention, the applicant submitted a number of reports drawn up by Mr V. of the
Psychological Department of the Penitentiary Selection Centre (see paragraphs
22-24 above). Several of these reports indeed confirm that for much of his stay
in the EBI the applicant was having a hard time and that he had difficulties
coping with the constraints of the EBI. Depressive symptoms were observed. At
the same time, the Court observes the fact that the applicant was missing his
family and the strain caused by the criminal proceedings against him were also
named as contributing factors.
57. The Court does not diverge from the view expressed by the CPT that the
situation in the EBI is problematic and gives cause for concern. This must be
even more so if detainees are subjected to the EBI regime for protracted periods
of time.
58. The applicant also submitted that, if not inhuman, the treatment to which he
had been subjected was at the very least degrading. In this connection the Court
observes that, pursuant to the EBI house rules, the applicant was strip-searched
prior to and following an “open” visit as well as after visits to the clinic,
the dentist’s surgery or the hairdresser’s. In addition to this, for a period of
three and a half years he was also obliged to submit to a strip-search,
including an anal inspection, at the time of the weekly cell inspection (see
paragraph 31 above), even if in the week preceding that inspection he had had no
contact with the outside world (see paragraph 65 of the CPT report) and despite
the fact that he would already have been strip-searched had he received an
“open” visit or visited the clinic, dentist or hairdresser’s. Thus, this weekly
strip-search was carried out as a matter of routine and was not based on any
concrete security need or the applicant’s behaviour.
The strip-search as practised in the EBI obliged the applicant to undress in the
presence of prison staff and to have his rectum inspected, which required him to
adopt embarrassing positions.
59. For the applicant, this was one of the features of the regime which was
hardest to endure, but the Government maintained that the strip-searches were
necessary and justified.
60. The Court has previously found that strip-searches may be necessary on
occasion to ensure prison security or to prevent disorder or crime (see
Valašinas v. Lithuania, no. 44558/98, § 117, ECHR 2001-VIII; Iwan'czuk v. Poland,
no. 25196/94, § 59, 15 November 2001; and McFeeley and Others, cited above, §§
60-61). In Valašinas and Iwan'czuk one occasion of strip-search was at issue,
whereas in McFeeley and Others so-called “close body” searches, including anal
inspections, were carried out at intervals of seven to ten days, before and
after visits and before prisoners were transferred to a new wing of the Maze
Prison in Northern Ireland, where dangerous objects had in the past been found
concealed in the recta of protesting prisoners.
61. In the present case, the Court is struck by the fact that the applicant was
subjected to the weekly strip-search in addition to all the other strict
security measures within the EBI. In view of the fact that the domestic
authorities, through the reports drawn up by the Psychological Department of
their Penitentiary Selection Centre, were well aware that the applicant was
experiencing serious difficulties coping with the regime, and bearing in mind
that at no time during the applicant’s stay in the EBI did it appear that
anything untoward was found in the course of a strip-search, the Court is of the
view that the systematic strip-searching of the applicant required more
justification than has been put forward by the Government in the present case.
62. The Court considers that in a situation where the applicant was already
subjected to a great number of surveillance measures, and in the absence of
convincing security needs, the practice of weekly strip-searches that was
applied to the applicant for a period of approximately three and a half years
diminished his human dignity and must have given rise to feelings of anguish and
inferiority capable of humiliating and debasing him. The applicant himself
confirmed that this was indeed the case in a meeting with a psychiatrist, during
which he also stated that he would, for instance, forgo visiting the
hairdresser’s so as not to have to undergo a strip-search (see paragraph 25
above).
63. Accordingly, the Court concludes that the combination of routine
strip-searching and the other stringent security measures in the EBI amounted to
inhuman or degrading treatment in breach of Article 3 of the Convention. There
has thus been a violation of this provision. ..."
ARTIKEL 8-SAGEN
"... 69. In the present case, the applicant was subjected to a regime which
involved further restrictions on his private and family life than a regular
Netherlands prison regime. Thus, his cell was inspected on a daily basis, his
correspondence was read, his telephone conversations and conversations with
visitors were monitored, he was allowed to associate with only a limited number
of fellow prisoners and he was separated from his visitors by a glass partition
except for the possibility of one “open” visit per month by members of his
immediate family, whose hands he was allowed to shake at the beginning and end
of the visit. As there was thus an interference with the applicant’s right to
respect for his private and family life within the meaning of Article 8 § 1 of
the Convention, the question arises whether this interference was justified
under the terms of paragraph 2 of that provision, that is whether it can be
regarded as being “in accordance with the law” for the purposes of one or more
of the legitimate aims referred to in that paragraph and whether it can be
regarded as being “necessary in a democratic society”.
70. The Court notes that the restrictions complained of were based on the 1999
Prisons Act, the Prisons Order and the EBI house rules, and accordingly finds no
indication that the restrictions were not “in accordance with the law”. It also
accepts that they pursued the legitimate aim of the prevention of disorder or
crime within the meaning of Article 8 § 2 of the Convention.
71. The Court observes that the applicant was placed in the EBI because the
authorities thought it likely that he might attempt to escape. As noted above (paragraph
55), it is not for the Court to assess the accuracy of this contention, but it
does accept that the authorities were entitled to consider that an escape by the
applicant would have posed a serious risk to society. To this extent, the
present case is thus different from the cases against Italy to which reference
is made above (paragraph 52): in those cases, the particular security features
of the special regime had been designed to cut all links between the prisoners
concerned and the criminal environment to which they had belonged. In the
present case, the security measures were established in order to prevent escapes.
The Court considers that the particular features of the Italian special regime
and those of the EBI regime effectively illustrate this difference. Thus, in the
Italian special regime more emphasis was placed on restricting contact with
other prisoners and with family members than in the EBI regime, whereas in the
EBI, security is concentrated on those occasions when, and places where, the
prisoner concerned might obtain or keep objects which could be used in an
attempted escape, or might obtain or exchange information relating to such an
attempt. Within these constraints, the applicant was able to receive visitors
for one hour every week and to have contact, and take part in group activities,
with other EBI inmates, albeit in limited numbers.
72. In the circumstances of the present case the Court finds that the
restrictions on the applicant’s right to respect for his private and family life
did not go beyond what was necessary in a democratic society to attain the
legitimate aims intended.
Accordingly, there has been no violation of Article 8 of the Convention. ..."
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CASE OF MATHEW v. THE NETHERLANDS
(Application no. 24919/03)
JUDGMENT
STRASBOURG
29 September 2005
FINAL
15/02/2006
------------------------------------
KOMMENTARER
Ifølge pkt. 60 overfaldt klageren den 29. november 2001 inspektøren, som kom
alvorligt til skade (se punktet). Han fik ved denne lejlighed pålagt et særligt
restriktivt regime, som blandt andet indebar, at han skulle opholde sig i "the
committal cell", efter at han havde udstået et par ugers straf i "the punishment
cell". Ifølge pkt. 72 blev han løsladt (benådet) den 30. april 2004. Som det
fremgår blev den pågældende holdt mere eller mindre i isolation i de ca. 2 år og
4 måneder, hvor han var indsat i fængslet (i øvrigt som varetægtsfange). Da han
blev idømt straf for overfaldet på inspektøren, blev straffen nedsat med 1,5 år
under henvisning til hans dårligee afsoningsforhold. Han skulle have haft 5 år
men blev idømt 3,5 års fængsel (punkt 103).. Den lange tid i isolation på 2 år
og 4 måneder var et brud på artikel 3 (pkt. 217). Det skal bemærkes, at den
pågældende i begyndelsen af afsoningen havde overfaldet inspektøren som nævnt
umiddelbart ovenfor.
------------------------------------------
"......
2. The Government’s version of events
(a) The arrest and detention of the applicant
53. On 19 August 2001 the applicant was arrested by order of the public
prosecutor on charges of violence against a former employee. He was placed in
police custody and subsequently in detention on remand. He was placed in the
remand unit of the KIA, where he remained until he was released on 4 October
2001.
54. On 9 October 2001 the applicant was rearrested, this time for inflicting
grievous bodily harm using weapons, and again placed in the remand unit of the
KIA.
55. On 15 October 2001 the applicant was taken to hospital by KIA personnel for
the treatment of stomach complaints. The applicant absconded from hospital the
following day. Later that day, accompanied by his lawyer, he returned to the KIA
and gave himself up; he was given fourteen days’ solitary confinement for
absconding.
56. The Government submitted a report by a prison guard stating that on 25
October 2001 the applicant had refused to return to solitary confinement after
outdoor exercise – “for the umpteenth time” (voor de zoveelste keer), in the
words of the report – and had been accompanied back to his cell by several
guards.
57. Another report by a prison guard, dated 12 November 2001, described the
applicant refusing to return to his cell and threatening violent retribution.
58. On 16 November 2001 the applicant and some fellow inmates refused to return
to their cells for locking in. The prisoners broke down a partition to use parts
of it as weapons. This led the acting prison governor, Mr Vocking, to place the
applicant in solitary confinement for seven days. The applicant was also denied
telephone calls and outdoor exercise until further notice.
59. On 26 November 2001, upon being refused outdoor exercise, the applicant
threatened the prison guards.
60. The incident in which the acting prison governor, Mr Vocking, was badly
injured took place on 29 November 2001. The Government stated that the applicant
had deliberately broken Mr Vocking’s eye socket, cheekbone and skull and caused
him severe concussion by punching him and kicking him in the head. The
Government pointed to the applicant’s conviction by the Aruba Court of First
Instance and the Joint Court of Justice and the rejection of the applicant’s
appeal on points of law by the Supreme Court on 1 June 2004 (see below).
61. As a result of this violent altercation the applicant was given thirty-five
days’ solitary confinement. On 4 January 2002, after the end of this term, a
special regime was ordered by the interim prison governor, Mr Maduro, which was
intended to last for the remainder of the applicant’s detention in the KIA. The
ten-point order, which was submitted by both parties, is quoted in extenso above
(see paragraph 15).
62. On 5 March 2002 the applicant’s special regime was changed: the applicant
would no longer be required to wear fetters as well as handcuffs when leaving
his cell unless he endangered prison staff by using his feet. On 1 August 2002
an order was given granting the applicant two hours of outdoor exercise every
day.
63. The applicant’s conduct did not, however, change for the better. He
continued to threaten prison staff and transgress the rules. The Government
submitted reports which described the applicant removing his handcuffs during
outdoor exercise, hiding a mobile telephone in his cell and damaging the padlock
on the door of his cell beyond repair.
64. On 2 August 2002 the applicant was asked to leave his cell so that the roof
could be repaired. The applicant having stated that he could not walk, prison
guards offered to carry him out on a stretcher. The applicant, however, refused,
saying that he was suffering from headaches and pain in his back and wanted to
see a doctor. The applicant had been seen three days earlier, on 30 July 2002,
by the prison doctor, Dr Ernesto Rodriguez; Dr Rodriguez had given him an
injection and prescribed medicine. The applicant had also been seen on 1 August
2002 by the prison nurse, Ms Bowina H. Vos. After the applicant’s refusal to be
moved work on the roof of the cell was halted.
65. A report by a prison guard dated 12 March 2003 stated that on 6 January 2003
at 1.30 a.m. the applicant had been seen doing push-ups, apparently untroubled
by his physical condition.
66. Violent behaviour was reported in the first half of 2003. One official
report, by Prison Guard First Class Anthony Williams, related the following
events alleged to have taken place on 13 February 2003:
“On taking over from Prison Guard Semerel, the reporting officer was told that
Prisoner Mathew, who was in a wheelchair, unhandcuffed, near the inner guard
post, had been brought back and had to be locked up again. Around 3.10 p.m.
reporting officer ordered Mathew to go to his cell with the help of two outdoor
workers (fellow inmates). Mathew refused and informed the reporting officer that
he needed to speak with the governor or a supervisor, otherwise he would not
return to his cell. The reporting officer telephoned Prison Guard First Class
J.M.A. Grovell and notified him of the situation. Grovell then informed the
reporting officer that he would send reinforcements to get Mathew back into his
cell. The reporting officer was joined by prison officers G. Weller and W. Beyde
and again ordered Mathew to go to his cell otherwise he would be carried there.
Mathew replied that he would not go to his cell and did not want the two
designated, bona fide outdoor workers (fellow inmates) to touch the wheelchair.
Knowing Mathew, the reporting officer took out his handcuffs in order to put
them on Mathew so as to be prepared for the worst. Unfortunately the reporting
officer only succeeded in handcuffing Mathew’s right hand since Mathew began to
put up fierce resistance and even ripped off a piece of the metal armrest on the
wheelchair, which he brandished in the air, with the clear intention of using it
as a weapon. At one point Mathew bit the reporting officer’s right hand very
hard, and the reporting officer responded by elbowing Mathew in the back of his
head, but Mathew continued his fierce resistance, waving his hands and feet in
the direction of the reporting officer and his colleagues O. Weller and W. Beyde.
Beyde finally managed to pull the piece of metal out of Mathew’s right hand.
With the help of Weller and Beyde, Mathew was held firmly and carried in the
direction of the committal cell. Mathew continued to offer fierce resistance by
waving his hands and feet, and tried to throw the reporting officer and his two
colleagues down the stairs. The reporting officer received a hard blow from the
back of Mathew’s head, resulting in a cut to the reporting officer’s lower lip.
While going down the stairs leading to the observation section, Mathew seized
the opportunity to fasten the still open handcuff to the rail to prevent his
being carried any further. By constantly moving his whole body, Mathew sustained
injuries to the back of his head on the metal rail. W. Beyde pulled out his
handcuffs in order to secure both of Mathew’s hands, and the prisoner was then
carried to his cell and locked up. As a result of Mathew’s fierce resistance,
the reporting officer sustained a broken finger among other injuries. Thus drawn
up by the reporting officer under oath of office for forwarding to whomsoever it
is deemed necessary.”
67. Apparently on 1 July 2003 an incident took place, recorded in the following
terms in an official report by Prison Guard First Class S.E. Vos:
“Prisoner Mathew was told three times by Prison Guard First Class L. Pemberton
that he had to be transferred to the committal cell. Mathew got out of bed,
remained standing (without a walking frame), persistently refused to go to the
committal cell, became insolent and began to attack the officers by kicking and
punching them. The undersigned tried to grab the prisoner’s hands, but Mathew
punched the undersigned in the face. The reporting officer, with the help of
Prison Guard Pemberton, resorted to force in order to handcuff Mathew so that he
could be moved; this was not easy since Mathew offered fierce resistance. With
great difficulty, the reporting officer and Prison Guard Pemberton managed to
handcuff Mathew. He was then put on a stretcher so that he could be taken to the
committal cell. On the way, Mathew became aggressive and insolent again and
deliberately fell off the stretcher several times, with the clear intention of
hindering his transfer. Once on the ground, Mathew began to threaten the
reporting officer and officers present with death or murder. Mathew was put back
on the stretcher. While being carried, Mathew spoke to the reporting officer and
those present in English: ‘ALL OF YOU GET FUCKED WHEN I COME OUT, I HAVE SIX
MORE MONTHS TO DO, DON’T WORRY.’ Upon reaching the committal cell, the handcuffs
were removed and the prisoner was locked in the cell. As a result of the blows
the reporting officer received from Mathew, the reporting officer had to go to
the St. Nicolaas outpatient department to receive medical attention. Knowing
Mathew, and in view of his past deeds, the reporting officer feels threatened
and fears that Mathew will put his words into action. The reporting officer has
therefore notified the criminal investigation authorities.”
The Government suggested that this might in fact have been the incident referred
to in the statement by one of the applicant’s fellow prisoners dated 30 June
2003 (see paragraph 36 above).
68. By way of disciplinary punishment, the applicant was for each of these
incidents denied private visits and use of the telephone for twenty-eight days,
in lieu of the fourteen days’ solitary confinement he would otherwise have
received. These disciplinary measures were enforced consecutively between 23
June and 18 August 2003.
69. The Government denied all knowledge of any incident on 5 July 2003 (see
paragraph 41 above).
70. In the course of 2003 a further attempt was made to detain the applicant in
a normal (multi-person) cell, but the problems were such that he had to be
returned to the committal cell.
71. The Government stated that since the applicant had refused to keep his cell
clean, a job normally left to the occupants themselves, the prison authorities
had paid another inmate to do it for him.
72. On 27 April 2004 the Government informed the Court that the Governor of
Aruba had decided to grant the applicant early release on the occasion of the
Queen’s official birthday on 30 April 2004. The applicant was released on that
date.
...."
Reglerne, han blev underkastet efter at have overfaldet inspektøren, var som
følger:
".....
15. On 4 January 2002 the interim prison governor, Mr F.A. Maduro, who had by
that time replaced Mr Vocking, ordered that the applicant be subjected to a
special detention regime: he was to spend the remainder of his detention in the
committal cell (gijzelaarscel), a solitary confinement cell located next to the
punishment cell. In addition, the special regime applicable to the applicant was
to comprise the following ten points:
“1. Under no circumstances may [the applicant] leave his cell without handcuffs
and fetters;
2. Prisoner Mathew shall be taken out of his cell and locked back in again by no
fewer than two members of staff;
3. Outdoor exercise (luchten) shall take place in the space located behind the
multi-purpose area for one hour a day, to be decided by the head of department
of the internal service or, in his absence, the C.M.K. team leader;
4. Telephone calls shall be made from telephone no. 120, which shall be brought
to Prisoner Mathew’s cell;
5. Visits by, among others, counsel, probation officers (reclassering), social
workers, the medical service and spiritual counsellors, shall take place in his
cell where possible;
6. However, a suitable area shall be made available to the above persons;
7. The KIA reserves the right to revoke point 6 should problems arise (mocht het
spaak lopen);
8. Visits by relatives (relatiebezoek) and church services shall take place as
normal, in the multi-purpose area;
9. Items from the canteen shall be brought to Prisoner Mathew in his cell;
10. The prisoner shall also be allowed mail, books and, for example, magazine
subscriptions (leesmappen) which are being circulated, once they have been
censored.” ..."
".....3. Criminal proceedings
101. On 14 June 2002 the Aruba Court of First Instance delivered its judgment in
the criminal case against the applicant. It convicted the applicant on two
charges of inflicting grievous bodily harm and sentenced him to six years’
imprisonment. The applicant appealed.
102. On 14 April 2003 the Joint Court of Justice gave judgment on the
applicant’s appeal against his conviction and sentence. It quashed the
first-instance judgment of 14 June 2002. In a fresh decision, it held that the
applicant’s conditions of detention on remand did not constitute grounds for
declaring the prosecution inadmissible. It went on to find the applicant guilty
of, firstly, having on 19 August 2001, together with another person, inflicted
grievous bodily harm on one M. (kicking and beating resulting in fracture of the
nose and the zygoma) and, secondly, having on 29 November 2001, acting alone,
inflicted grievous bodily harm on Mr Vocking (punching and kicking resulting in
the fracture of an eye socket, the sinus, the cheekbones and the cranium, as
well as severe concussion). The Joint Court of Justice’s reasoning included the
following passages:
“In determining the sentence the Joint Court of Justice will further consider
the circumstances in which the suspect has been, and still is being, detained.
The following is apparent in relation to the suspect’s conditions of detention.
On 16 November 2001 the suspect was placed in a punishment cell. He had already
been placed in a punishment cell at an earlier stage for various reasons,
including an escape. His stay in the punishment cell was twice extended for 7
days, until 30 November 2001, first for failing to follow an order given by a
staff member and subsequently for disturbing the order, peace and security of
the institution. The second extension related to the action of a number of
detainees who refused to return to their cells after outdoor exercise. On 29
November 2001, the date [of the attack on Mr Vocking], the prisoner’s solitary
confinement was extended for another 7 days for threatening and spitting on a
prison guard. Afterwards, his solitary confinement was extended until 4 January
2002 for [the attack on Mr Vocking], with the result that the suspect has spent
a total of 49 days in the punishment cell. By letter of 4 January 2002 the KIA
authorities let it be known that the suspect was to spend the remainder of his
detention in the committal cell, subject to restrictive measures including not
being allowed to leave the cell without handcuffs and fetters. This measure was
amended on 5 March 2002 by being limited to the use of handcuffs.
As regards the committal cell, it appears that the roof is made of corrugated
plastic sheeting and was defective during at least part of the detention period.
During [the suspect’s] stay in the committal cell he has had no television,
activities, work or sport. Moreover, outdoor exercise no longer takes place on a
regular basis since the suspect has indicated that he is unable to walk.
The Joint Court of Justice considers that the applicant has established that
during his period of detention on remand – which has lasted until today – he has
been kept under an exceptionally severe regime. The [suspect’s] continuous
placement in a punishment cell, which began shortly after [his] detention,
suggests that the interaction between the suspect and the staff of the KIA has
resulted in a downward spiral, in the sense that an incident was followed by
punishment, which in turn was followed by a reaction from the suspect, and so on.
All this culminated in the attack on Mr Vocking. It is understandable in itself
that after such an act the KIA should not have wished, after having imposed an
extended stay in the punishment cell, to place the suspect under the normal
detention regime again. However, this does not alter the fact that prolonged
detention in the punishment cell and the committal cell in restrictive
conditions approaches the limits of what is acceptable, assuming that these have
not already been exceeded. The Joint Court of Justice also considers it
plausible that the conditions of detention have negatively influenced the
suspect’s health.
The above leads the Joint Court of Justice to impose a considerably lower
sentence than would be justified by the crimes.
The suspect has also argued that he has been ill-treated in detention. However,
an investigation of [that allegation] falls outside the scope of the present
proceedings.
As a result of the conditions which the suspect has set for his cooperation in
drawing up psychiatric reports and a probation report [reclasseringsrapport], no
such reports are available. The Joint Court of Justice can therefore consider
the suspect’s person and personal circumstances only to the extent that these
are known from the case file and the hearing.”
103. The Joint Court of Justice indicated that it would normally have been
minded, in view of the crimes committed, to sentence the applicant to five years’
imprisonment, but that the sentence would be reduced to three years and six
months in view of the conditions of his detention.
104. The applicant appealed on points of law (cassatie) to the Supreme Court (Hoge
Raad) against this judgment. The appeal was dismissed with summary reasoning on
1 June 2004. ...."
"......4. Conditions of detention
(a) The detention regime
197. The detention regime ordered by the interim prison governor on 4 January
2002 (see paragraph 15 above) required the applicant to spend the remainder of
his detention in a situation amounting to solitary confinement. This involved
far greater hardship than ordinary detention on remand.
198. It is apparent that the applicant was stubbornly uncooperative and much
inclined to acts of violence against property and individuals. On the
information available, the Court accepts that the KIA authorities found him
impossible to control except in conditions of strict confinement.
199. The Court reiterates that conditions of detention may sometimes amount to
inhuman or degrading treatment (see Dougoz v. Greece, no. 40907/98, § 46, ECHR
2001-II). It agrees with the CPT that even for difficult and dangerous prisoners,
periods of solitary confinement should be as short as possible (see paragraph
128 above). It has found in the past 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. However, the prohibition of contact with other prisoners
for security, disciplinary or protective reasons does not in itself amount to
inhuman treatment or punishment (see, among other authorities, Öcalan v. Turkey
[GC], no. 46221/99, § 191, ECHR 2005-...).
200. The Government compared the case with Messina v. Italy (No. 2) (dec.), no.
25498/94, ECHR 1999-V. It is true that, like the applicant in Messina, the
present applicant was not subjected to sensory or total social isolation but
rather to relative social isolation, and that the period to be considered here
was rather shorter.
201. The present case is, however, distinguishable from Messina. In that case
the applicant was charged with, or had already been convicted of, very serious
offences linked to organised crime, and the impugned measure was ordered to
prevent the applicant from re-establishing contact with criminal organisations.
The Court accepted that such a reason could justify the decision complained
about; indeed, it is difficult to see what alternative course of action would
have been practicable. The Court also took into consideration the state of
health of the applicant in Messina, who did not claim to have suffered any
physically or psychologically damaging effects, and the effective action taken
by the authorities to lessen the impact of the regime.
202. The present applicant, by contrast, was subjected to the impugned regime
not because he might involve himself with organised crime outside the prison but
because he could not adapt to an ordinary prison setting. Attempts by the
authorities to remove its harmful effects were not effective.
203. Plainly the Aruban authorities were aware that the applicant was not a
person fit to be detained in the KIA in normal conditions and that the special
regime designed for him was causing him unusual distress. The letter of the
Supervisory Board of 26 March 2002, the decisions of the Joint Court of Justice
of 15 July and 2 September 2003 and the Joint Court’s judgment of 14 April 2003
demonstrate that. While some attempts were made, most conspicuously by the Joint
Court of Justice, to alleviate the applicant’s situation to some extent, the
Court considers that the respondent Party could and should have done more.
204. The Court accepts that accommodation suitable for prisoners of the
applicant’s unfortunate disposition did not exist on Aruba at the relevant time;
it is only now being built. However, it is not Aruba but the Kingdom of the
Netherlands which is the Party responsible under the Convention for ensuring
compliance with its standards. Judicial orders given in one of the three
countries of the Kingdom – the Realm in Europe, the Netherlands Antilles and
Aruba – can be executed throughout the Kingdom (Article 40 of the Charter for
the Kingdom of the Netherlands – see paragraph 126 above). The Court is
concerned to find that, despite a request to that effect from the applicant, no
attempt appears to have been made to find a place of detention appropriate to
the applicant in one of the other two countries of the Kingdom (see paragraph
115 above).
205. The Court accordingly finds that the applicant was subjected to distress
and hardship of an intensity considerably exceeding the unavoidable level of
suffering inherent in detention and amounting to “inhuman treatment”.
(b) The committal cell
i. Cleanliness
206. The applicant submitted that, during the time he had been detained there,
the committal cell had been allowed to become filthy and unsanitary; he had been
unable to clean it himself and the measures taken by the Government in that
regard had been insufficient.
207. The Government expressed doubts as to the applicant’s inability to keep the
cell clean himself and argued that in any case the prison authorities had
provided him with assistance.
208. The Court has already considered the information available on the
applicant’s physical condition and cannot find it established that the applicant
was unable throughout the nearly two and a half years of his detention to do any
cleaning himself. It notes in addition that the applicant did not deny that
another prisoner had in fact been appointed, at the prison’s expense, to clean
the committal cell periodically. In these circumstances the Court declines to
impute responsibility for the uncleanliness of the committal cell to the
respondent Party.
ii. Situation and state of repair of the committal cell
209. As the Government stated and the applicant did not deny, the committal cell
was relatively spacious. Its furnishings were basic but adequate.
210. From the time when the applicant was first detained there until some time
between August and October 2002, there was a large opening in the roof of the
cell through which the rain penetrated.
211. The committal cell was located on the second and top floor of the KIA
prison building. Its situation exposed its occupant to the heat of the sun. Iced
water was provided; there was, however, no air conditioning or other cooling
system.
212. There were no lifts; access and egress were via two flights of stairs.
213. The Court has had occasion to find Article 3 violated by the poor state of
repair of a cell in which a prisoner was held for long periods and by the lack
of opportunity for outdoor exercise (see Poltoratskiy v. Ukraine, no. 38812/97,
§ 146, ECHR 2003-V).
214. The Court finds it unacceptable that anyone should be detained in
conditions involving a lack of adequate protection against precipitation and
extreme temperatures.
215. On the evidence available, the Court finds it established that it was
painful for the applicant to negotiate the two flights of stairs in order to go
to the exercise area for outdoor exercise and fresh air. It is understandable in
these circumstances that the applicant preferred many times to forgo outdoor
exercise rather than suffer the pain. Some arrangement should have been made
whereby this could have been avoided. It must be accepted that accommodation
suitable for the applicant situated on the same level as the exercise area or
accessible by a lift did not exist in the KIA at the relevant time. However, in
the Court’s opinion the competent authorities ought to have considered the
possibility of detaining the applicant in a place more appropriate to his
physical condition, in one of the other two countries of the Kingdom if
necessary.
216. The Court cannot find it established that there was a positive intention of
humiliating or debasing the applicant. However, as already noted (see paragraph
175 above), the absence of any such purpose cannot conclusively rule out a
finding of a violation of Article 3. In the present case the Court considers
that the conditions of detention which the applicant had to endure must have
caused him both mental and physical suffering, diminishing his human dignity and
amounting to “inhuman treatment”.
(c) Conclusion
217. There has been a violation of Article 3 of the Convention in that the
applicant was kept in solitary confinement for an excessive and unnecessarily
protracted period, that he was kept for at least seven months in a cell that
failed to offer adequate protection against the elements, and that he was kept
in a location from which he could gain access to outdoor exercise and fresh air
only at the expense of unnecessary and avoidable physical suffering. No
violation of Article 3 has been established as regards the state of cleanliness
of the cell in which the applicant was detained. ..."
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