European Court of Human Rights
You are here:
BAILII >>
Databases >>
European Court of Human Rights >>
ONOUFRIOU v. CYPRUS - 24407/04 [2010] ECHR 23 (7 January 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/23.html
Cite as:
[2010] ECHR 23
[
New search]
[
Contents list]
[
Printable RTF version]
[
Help]
FIRST
SECTION
CASE OF ONOUFRIOU v. CYPRUS
(Application
no. 24407/04)
JUDGMENT
STRASBOURG
7
January 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Onoufriou v. Cyprus,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Anatoly Kovler,
Elisabeth Steiner,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni, judges,
Michael Fotiou, ad hoc judge,
and
Søren Nielsen,
Section Registrar,
Having
deliberated in private on 10 December 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 24407/04) against the Republic
of Cyprus lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Cypriot national, Mr Andreas Onoufriou (“the
applicant”), on 14 April 2004.
The
applicant was represented before the Court by Georgios E. Konnaris &
Co., a firm of lawyers based in Limassol. The Cypriot Government
(“the Government”) were represented by their Agent,
Mr P. Clerides, Attorney-General of the Republic of Cyprus.
The
applicant complained, in particular, of the conditions of his
solitary confinement, including restrictions on his contact with his
family, and the monitoring of his correspondence.
On
22 May 2006 the President of the First Section decided to give notice
of the application to the Government. It was also decided to examine
the merits of the application at the same time as its admissibility
(Article 29 § 3).
Mr
George Nicolaou, the judge elected in respect of Cyprus, withdrew
from sitting in the Chamber (Rule 28). The Government accordingly
appointed Mr Michael Fotiou to sit as an ad hoc judge (Article
27 § 2 of the Convention and Rule 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1951 and is currently detained in Nicosia
Central Prison. He is serving concurrent eighteen-year sentences
pursuant to his conviction for two counts of
attempted murder.
On
5 September 2003 the applicant was permitted to leave detention on
twenty-four hour leave granted by the prison director. He did not
return to the prison when his leave expired. Following a search to
trace his whereabouts, he was arrested on 21 September 2003. At
the time of his arrest he was in possession of a gun and cartridges
and was wearing a bullet-proof vest and a woman’s wig. He was
transferred to the maximum security wing of the prison and placed in
solitary confinement. He was thus confined until 7 November 2003,
that is, for a total of 47 days.
A. The conditions of the applicant’s detention in solitary
confinement
The
parties’ submissions concerning the conditions of the
applicant’s detention during the period of his solitary
confinement differed.
1. The Government’s description of the conditions of
confinement
The
Government agreed that the applicant had been detained in the
prison’s maximum security wing but maintained that he was
detained in a normal cell. The dimensions of the cell were 2.8 metres
by 2.1 metres, that is, 5.88 square metres. It was furnished with a
bed, a cupboard and a table. The cell had two windows: an exterior
one (0.8m by 0.6m) and a smaller one above the cell door (0.4m by
0.4m). The cell was opened about three times a day for a total of
about an hour. This time was used for personal hygiene purposes and
taking meals. It was the applicant’s responsibility to clean
his cell and he was provided with all the necessary equipment. He had
regular direct contact with prison personnel. Moreover, newspapers
had been provided in the wing and he had access to books from the
prison library. There was a television set in the wing corridor to
which the applicant could listen and he would have been provided with
a radio if he had requested one.
During
the applicant’s confinement he had spent considerable time
outside prison when attending court hearings on 2, 10, 13, 16, 22 and
29 October and 4 and 6 November 2003. He was seen on
four occasions by the prison doctor (7, 18, 20 and 31 October 2003).
He was also visited by a welfare officer on 14 October 2003 and was
seen by the prison psychologist on 3 and 30 October 2003.
Although
the applicant was allowed to send letters to his family and friends
twice a week, he did not attempt to send any such letters. He did not
ask to make or receive telephone calls. Visits from family members
while the applicant was in solitary confinement were not permitted
but during the applicant’s visits to the court, he could meet
with his family and friends, and was in fact supplied with food, soft
drinks and clothes by his family which he was allowed to take back to
prison. On one occasion, a mobile telephone given to the applicant by
a family member was confiscated upon his return to prison after a
hearing.
2. The applicant’s description of the conditions of
confinement
The
applicant disputed the Government’s description of the
conditions of his confinement. He alleged that following his return
to prison on 21 September 2003 he was confined in a cold, damp cell
of a maximum of five square meters without food, water or suitable
clothing. The cell had no external window and the window of the cell
door was considerably smaller than the Government had indicated. The
applicant was excessively restricted in his ability to use the toilet
or have a shower: for the first four days of his solitary confinement
he was forced to use an empty water bottle to urinate and nylon bags
for other needs. These were provided to him by a prison officer
through the small window in the cell door. Due to the cold, his arm
and shoulder had frozen and he suffered from pain but the doctor was
not allowed by the prison authorities to provide him with
painkillers. He was nevertheless given an anti-inflammatory gel by
the doctor using her own funds. Relying on the prison logbook
submitted to the Court by the Government, the applicant stated that
he had not been allowed to go to the toilet prior to 24 September
2003 or to have food or the opportunity to shower before 25 September
2003, although he was given bottled water and an apple from time to
time through his small cell window by a prison officer. He had no
access to newspapers, books or television. Further, he was not
regularly seen by a doctor and he was not allowed regularly to exit
his cell for half an hour in the morning and half an hour in the
afternoon, as required by the relevant regulations.
While in solitary confinement, the applicant was not permitted to
have visits from his family or to make telephone calls. As for the
Government’s allegations that he had not asked to make
telephone calls, the applicant replied it was not the practice of the
prison authorities to give formal decisions refusing requests to make
telephone calls in writing, there were no telephone booths in the
maximum security block and, in general, prisoners were not allowed to
receive calls from outside the prison. He had no contact with his
family in the prison during the period of his solitary confinement
and no contact was possible during his court visits. In particular,
when he attended hearings at the district court in Limassol, he was
kept at the Limassol central police station’s cells. It was
only after the period of his solitary confinement that he could see
his family and friends at the court’s hearings.
The
applicant also alleged that the maximum security wing was used to
threaten or punish prisoners given the conditions of detention there
and, in particular, the fact that another prisoner would beat up
prisoners without any attempt by the authorities to protect them. The
applicant alleged that he had been ill-treated in this manner on two
occasions but did not provide further details.
3. The prison logbook
According
to the entries in the prison logbook which was submitted to the Court
by the Government, the applicant was returned to prison on
21 September 2003. On 24 September 2003, the logbook
records that the applicant left his cell to use the toilet after
special notification had been given to the security direction
(“φρουραρχείο”).
The following day, the entry in the logbook records that he met with
the prison director and was given food.
Although
the logbook records that on some days the applicant used the toilet
on several occasions, on others it indicates that he only used the
toilet once. On 4 October 2003, there is no record of the
applicant leaving his cell to use the toilet. Access to shower
facilities appears to have been sporadic: at times he showered every
couple of days but on other occasions, according to the logbook, he
did not leave his cell to shower for two weeks. Similarly, the prison
logbook records that on some days the applicant was given two or
three meals whereas on others, it would appear that he received only
one. On 4 October 2003, there is no entry recording any meal given to
the applicant.
The
logbook indicates that the applicant saw a prison psychologist four
times: on 23 and 26 September and on 3 and 31 October 2003. He saw
the prison doctor on 7 and 20 October 2003. He met with the welfare
officer on 14 October 2003. On 31 October 2003, he refused to attend
a scheduled visit to see a surgeon at the General Hospital
The
logbook records that the applicant attended court on seven occasions:
on 10 October 2003 for about six hours; on 13 October 2003 for about
five hours; On 16 October 2003 for about six hours; on 22 October
2003 for about eight hours; on 27 October 2003, for about one and a
half hours; on 29 October 2003 for about seven and a half hours; and
on 4 November 2003, for about two hours.
According
to the logbook, on 1 November 2003, the applicant met a member of the
Prisons Board. On 5 November 2003, he was taken to meet with the
Prisons Board and was away from his cell for 20 minutes.
There
are two entries in the logbook recording other relevant events. On 17
October 2003, he was taken to a conference room, where he remained
for one hour and twenty minutes. On 4 November 2003, he was
accompanied by a prison officer to visit a Mr A.T. and was away for
about half an hour.
Although
the applicant was in solitary confinement until 7 November 2003,
only entries from the logbook up to 5 November 2003 have been
submitted by the Government.
B. Criminal and Disciplinary Proceedings
On
the date of the applicant’s arrest following his failure to
return to prison, a police investigation began into alleged offences
committed while the applicant was at liberty. According to the
Government, this was concluded on 11 November 2003 with the filing of
charges against the applicant for the commission of various offences.
The applicant maintained that he was charged on 10 October 2003.
In
parallel, on 5 November 2003, the applicant was charged with several
disciplinary offences concerning the breach of the terms of his
leave. However, the disciplinary proceedings were not pursued.
On
19 July 2005 the Limassol Assize Court convicted the applicant of
escaping from custody and of other offences associated with his
escape. The prison director stated in his evidence before the court
that the applicant was placed in solitary confinement in order to
protect him from other prisoners who were hostile towards him because
of restrictions imposed in the prison affecting everyone as a result
of the applicant’s escape. The court noted in its judgment that
the applicant had entered a plea of not guilty in respect of the
disciplinary offences but that the proceedings were not pursued, no
witnesses were heard and no sentence was imposed. Given that there
had been no trial, no verdict and no imposition of a sentence in the
disciplinary proceedings, the court concluded that the applicant’s
confinement could not be treated as a disciplinary sentence.
The
applicant lodged an appeal against his conviction before the Supreme
Court.
On
11 December 2007 the Supreme Court allowed the applicant’s
appeal against his conviction of the offence of escaping from custody
given that, at the relevant time, he had been on temporary release
and had merely failed to return to prison at the expiry of his
release period.
C. Ombudsman’s report of 21 November 2003 (no.
1355/2003)
The
applicant, in a letter to the office of the Commissioner of
Administration (“the Ombudsman”) dated 6 October 2003,
complained about his detention for an excessive period of time in the
maximum security wing, alleging in particular that during this period
he was not able to have visits or contact with his family by
telephone or correspondence and that he was only allowed to leave his
cell in order to go to the toilet, have a bath or pick up his food
tray. He subsequently complained that his letter addressed to the
Ombudsman dated 6 October 2003 was delivered late, after having been
sent by the prison director to the Director General of the Ministry
of Justice.
According
to the Ombudsman’s report of 21 November 2003 the applicant had
been confined to a cell in the security wing for 47 days. Having
been contacted by the Ombudsman, the prison authorities stated that
the applicant had been put in solitary confinement for his own
protection given the possibility of retaliation by other prisoners
due to the restrictive measures imposed on them as a result of the
applicant’s failure to return from home leave. The prison
authorities confirmed that the applicant was not permitted any
visits, telephone conversations or letters and that moreover, he was
not allowed to exit his cell except in order to wash himself, to go
to the toilet and to get his food. It was further noted that although
the Senior Prison Inspector had given instructions on 31 October 2003
that the applicant be returned to normal detention, the applicant was
kept confined to his cell until 7 November 2003 as the instructions
had not been registered in the records of the wing but had merely
been noted on a piece of paper which had been misplaced.
As
regards the applicant’s letter to the Ombudsman dated 6 October
2003, the report noted that a copy of that letter, as well as copies
of three other letters addressed to recipients other than the prison
authorities, had been sent by the prison director to the Director
General of the Ministry of Justice in order to seek instructions as
to whether the particular letters should be sent to the intended
recipients. The Ombudsman received the letter addressed to her on 5
November 2003.
The
Ombudsman in her report observed that it did not appear from the file
that the confinement of the applicant had been of a disciplinary
nature. She also noted that had the applicant’s confinement
been a preventive measure or a measure for the protection of the
applicant, as claimed by the prison authorities, then under
regulation 151(5) of the Prison (General) Regulations 1997 (“Prison
Regulations” – see further “Relevant domestic law
and practice”, below) the written approval of the prison
director would have been required. No such approval had been given.
The Ombudsman therefore considered that the applicant’s
confinement was a punitive measure.
Moreover,
the Ombudsman was not convinced that the denial of the applicant’s
right to receive visits, correspondence and telephone contact, for
example with his eight year old son, had aimed to protect the
applicant from his fellow inmates. She further observed the
following:
“It is noted that although in theory the total
seclusion of a person in combination with his total social isolation
is not acceptable, in practice the European Court of Human Rights and
the European Commission have tolerated this type of total confinement
in exceptional circumstances. However, this was done in cases
concerning particularly dangerous terrorists who had been detained
pending their trial and who had been allowed to go into the prison
yard at some specific time in the day.”
The
Ombudsman concluded that the applicant’s confinement for a
total period of 47 days with no right to exit his cell for one hour a
day as provided for in the Prison Regulations, in combination with
the denial of the applicant’s right to have contact with family
and friends, was in breach of the Prison Regulations and constituted
a violation of the applicant’s rights under Articles 3 and 8 of
the Convention.
As regards the applicant’s complaint concerning
the monitoring of the letter he sent to her, the Ombudsman emphasised
the importance of allowing prisoners direct and uninhibited access to
her office. In this connection she referred, inter alia, to
the European Prison Rules and a report by the Council of Europe’s
Committee for the prevention of torture (see further “International
materials”, below), as well as the case of Silver and others
v. the United Kingdom, (no. 5947/72; 6205/73; 7052/75;
7061/75; 7107/75; 7113/75; 7136/75, Commission’s report of 11
October 1980, Decisions and Reports (DR) 9, p. 56).
D. Ombudsman’s report of 15 March 2004 (no.
143/2004)
On
1 January 2004 the applicant submitted an additional complaint to the
Ombudsman against the prison authorities. He complained that the
prison authorities had, on 20 December 2003, refused to allow him to
give his father, who had visited him in prison, a letter addressed to
the Ombudsman requesting her to send him copies of past
correspondence between them. The applicant claimed that he did not
want the contents of his letters to the Ombudsman to be monitored by
the prison personnel and that for this reason he had decided to send
the letter through his father. He had complained on 30 December 2003
to the prison director.
The
Ombudsman, in a report dated 15 March 2004, repeated that
prisoners should be allowed unrestricted access to her office. She
found that there had been unjustified difficulties and unnecessary
obstacles in the direct and unhampered communication of the applicant
with her office that had negatively affected the exercise of his
rights. She noted that on 3 February 2004, at a meeting held in the
Ministry of Justice, it was decided that a designated letter box
would be placed in the central prisons to allow prisoners, freely and
without procedural or substantive restrictions, to submit complaints
to the Ombudsman concerning their conditions of detention.
E. Refusal of pardon
By
letter of 22 May 2004 the applicant informed the Court that in May
2004, on the basis of a recommendation by the Attorney-General of
Cyprus, fifty-four prisoners were granted an official pardon by the
President and were consequently released. The applicant was not among
the fifty-four.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The Cypriot Constitution provides, in so far as
relevant, as follows:
Article 8
“No person shall be subjected to torture or to
inhuman or degrading punishment or treatment.”
Article 15
“1. Every person has the right to respect for his
private and family life.
2. There shall be no interference with the exercise of
this right except such as is in accordance with the law and is
necessary only in the interests of the security of the Republic or
the constitutional order or the public safety or the public order or
the public health or the public morals or for the protection of the
rights and liberties guaranteed by this Constitution to any person.”
Article 17
“1. Every person has the right to respect for, and
to the secrecy of, his correspondence and other communication if such
other communication is made through means not prohibited by law.
2. There shall be no interference with the exercise of
this right except in accordance with the law and only in cases of
convicted and unconvicted prisoners and business correspondence and
communication of bankrupts during the bankruptcy administration.”
Article
146
“1. The Supreme Constitutional Court shall have
exclusive jurisdiction to adjudicate finally on a recourse made to it
on a complaint that a decision, an act or omission of any organ,
authority or person, exercising any executive or administrative
authority is contrary to any of the provisions of this Constitution
or of any law or is made in excess or in abuse of powers vested in
such organ or authority or person.
2. Such a recourse may be made by a person whose any
existing legitimate interest, which he has either as a person or by
virtue of being a member of a Community, is adversely and directly
affected by such decision or act or omission.
3. Such a recourse shall be made within seventy-five
days of the date when the decision or act was published or, if not
published and in the case of an omission, when it came to the
knowledge of the person making the recourse.
4. Upon such a recourse the Court may, by its decision-
(a) confirm, either in whole or in part, such decision
or act or omission; or
(b) declare, either in whole or in part, such decision
or act to be null and void and of no effect whatsoever, or
(c) declare that such omission, either in whole or in
part, ought not to have been made and that whatever has been omitted
should have been performed.
...
6. Any person aggrieved by any decision or act declared
to be void under paragraph 4 of this Article or by any omission
declared there under that it ought not to have been made shall be
entitled, if his claim is not met to his satisfaction by the organ,
authority or person concerned, to institute legal proceedings in a
court for the recovery of damages or for being granted other remedy
and to recover just and equitable damages to be assessed by the court
or to be granted such other just and equitable remedy as such court
is empowered to grant.”
Regulations
114 and 116 of the Prison Regulations deal with the contact rights of
prisoners (correspondence, telephone calls and visits). In so far as
relevant, they provide as follows:
Regulation 114
“1. A prisoner who has been sentenced to
imprisonment can send letters to his family members, associates and
friends twice a week, provided he submits these letters beforehand
for examination by the competent officer in accordance with the
provisions of the present regulations.
It is provided that the director can allow a prisoner to
send more letters, if in his judgment this will help him to
maintain beneficial contacts with the outside world.
2. There is no restriction on the number of letters a
prisoner can receive in prison.
3. The prisoner can, if a direct need is shown, request
permission from the director to contact by telephone, or to ask the
competent prison officer to contact on his behalf, his lawyer or
members of his family as well as professional or other associates for
the settlement of personal, family and other matters in abeyance or
differences ...”
Regulation 116
“1. Every prisoner is allowed to have visits by
members of his family, relatives or friends up to six times a month
...”
Regulation
115 of the Prison Regulations deals with the monitoring of the
correspondence of prisoners. The relevant provisions provide as
follows:
Regulation 115 (2)
“The content of telephone calls or letters is
monitored in cases where in the director’s view such control is
necessary for security reasons or for preventing the commission of a
new offence or for any other justifiable reason.”
Regulation 115 (5)
“The privilege of correspondence or telephone
contact can be suspended following an order by the director in the
case of a disciplinary offence by the prisoner.”
Regulation 115 (6)
“Letters addressed by prisoners to any official
authority of the Republic or to politicians or to the mass media are
always sent through the director.”
Regulation 115 (7)
“In the event that the director ascertains that
their content does not come within the competence of the authority or
person it is addressed to, or that in the letters improper or abusive
language is used, or malicious allegations or unsubstantiated
accusations are included against anyone or an attempt is made to
distort facts or information concerning the security and in general
the functioning of the prisons is revealed, the director can, in the
interests of public security or public order or public morals or the
protection of the reputation or rights of others or to prevent the
revelation of confidential information or to preserve the authority
and impartiality of the judiciary, prohibit the sending of these
letters. The director informs the prisoner of his decision.
It is provided that prisoners can contact the Prisons
Board by means of letters without any monitoring of their content by
the prison authorities.”
The Prison Regulations concerning solitary confinement
provide, in so far as relevant, as follows:
Regulation 151(1)
“The prison director can, when he deems it
appropriate, order the confinement or isolation of a prisoner for
such period as he considers necessary for the purposes of
(a) preservation of discipline and order;
(b) protection of the interests of the prisoner himself
or of other prisoners;
(c) confinement or isolation of violent prisoners, who
by their behaviour cause problems and intimidate other prisoners;
(d) discipline ...”.
Regulation 151(5)
“The extension of the confinement of the prisoner
in a special cell or isolated space (apart from the wing in which he
resides for preventive and not disciplinary reasons) for over
twenty-four hours requires the written approval of the director ...
Prisoners under confinement or isolation have a right to exit the
place of confinement or isolation for half an hour in the morning and
half an hour in the afternoon.”
Regulation 155
“A prisoner who is to be accused of a disciplinary
offence may be confined to his individual cell or a special cell,
according to the situation and the seriousness of the offence, until
the examination of the facts of the case is completed. The period of
confinement of the prisoner must not exceed four days, unless the
director approves the extension of the period of confinement of the
prisoner for another two days.”
Regulation 156
“In the event that a prisoner is to be accused of
a disciplinary offence, the accusation should be set out as soon as
possible and the trial of the case should begin at the latest two
months from the date of the commission of the offence and should be
concluded as quickly as possible.”
Regulation 158(1)
“A prisoner shall not be punished before having
acquired knowledge of the offence of which he is accused and without
having been given the possibility to defend himself.”
III. INTERNATIONAL MATERIALS
A. Extracts from the report of the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (“CPT”), Strasbourg, 5 April 2008
41. The
CPT produced a report to the Government of Cyprus
following its visit to Cyprus from 8 to 17
December 2004. As regards allegations of ill-treatment at the hands
of other prisoners, the report noted as follows:
“59. The CPT is also concerned by several
allegations received by the delegation that prison staff threatened
inmates with transfer to Block 4 (the maximum security unit) and used
one or more prisoners accommodated in Block 4 as a means of
maintaining control over other inmates.
In this connection, one prisoner interviewed by the
delegation claimed that, on 17 October 2004, he had been
severely beaten by fellow inmates and subsequently placed in Block 4.
A criminal investigation had apparently only been initiated after the
prisoner concerned succeeded in bringing the matter to the attention
of the Minister of Justice and Public Order, who transmitted the case
to the competent authority.
A similar case was brought to the delegation’s
attention by an official report of the Office of the Commissioner for
Administration. It would appear that, on 18 July 2003, one of the
alleged perpetrators (I.C.) of the above-mentioned assault had
severely beaten another inmate; the latter had required hospital
treatment as a result. The Commissioner for Administration found that
the case had not been investigated thoroughly by the establishment’s
management and added that ‘the inexcusable delay in
investigating such a serious incident gives good reason to suspect
preferential treatment vis-à-vis I.C.’.
60. It would be entirely unacceptable for prison staff
to threaten prisoners in the above-mentioned manner as a means of
control, let alone place prisoners at risk of assault from fellow
inmates. The CPT wishes to emphasise that the duty of care which is
owed by the prison authorities to prisoners in their charge includes
the responsibility to protect them from other prisoners who
might wish to cause them harm. In particular, prison staff must be
alert to signs of trouble and be both resolved and properly trained
to intervene when necessary.
The CPT recommends that the Cypriot authorities take the
necessary steps with a view to preventing inter-prisoner violence, in
the light of the above remarks.
61. The diligent examination
by prison management of all information which may come to its
attention regarding possible ill-treatment of prisoners by staff or
inter-prisoner violence (whether or not that information takes the
form of a formal complaint) and, if necessary, the instigation of
proceedings, is also essential. Indeed, the lack of an appropriate
response by prison management can foster a climate in which those
minded to ill-treat prisoners can quickly come to believe – and
with very good reason – that they can do so with impunity.
The delegation gained the impression that the management of Nicosia
Central Prisons was reluctant to adopt a proactive approach in this
respect ...”
The
report also commented on measures of confinement in use in Cypriot
prisons. It observed the following:
“62. The CPT must also express concern about the
potential duration of measures involving the segregation of prisoners
for disciplinary reasons (confinement to a special isolation cell for
a period of up to sixty days and confinement to their own cell for up
to ninety days), and the fact that inmates undergoing segregation for
disciplinary reasons were deprived of outdoor exercise throughout
their sanction (cf. paragraph 91).
...
86. ... The disciplinary penalties include confinement
to a special isolation cell for up to 60 days, with simultaneous loss
of contact with the outside world (correspondence, visits and
telephone calls), or confinement to a personal cell for up to 90
days.
The CPT has serious
reservations as to the maximum possible periods of disciplinary
confinement; it considers that they should be substantially reduced
...
The CPT also wishes to stress that a disciplinary
punishment should never involve a total prohibition on contact with
the outside world. Further, under no circumstances should visits
between a prisoner and his/her family be withdrawn for a prolonged
period ...
...
88. The CPT also pays particular attention to any
prisoner held, for whatever reason, under conditions akin to solitary
confinement.
Under the terms of Section 151 of the Prisons
Regulations, the director can order the confinement or isolation of a
prisoner for such a period as he deems necessary for the purpose of:
maintenance of order; protection of the interests of the prisoner
himself or of other prisoners; violent behaviour; discipline. In this
respect, the observations made by the delegation identified important
lacunae as regards the guarantees which should surround such a
measure. Indeed, no provision is made for those guarantees within the
Prisons Regulations themselves.
89. The CPT wishes to stress that the principle of
proportionality requires that a balance be struck between the
requirements of the case and the application of a solitary
confinement-type regime, which is a step that can have very harmful
consequences for the person concerned. In particular, all forms of
solitary confinement should be as short as possible. Further, they
should be surrounded by certain guarantees. A prisoner in isolation
or confinement or in respect of whom such a measure is extended,
should be informed in writing of the reasons therefor (it being
understood that there might be reasonable justification for
withholding specific details related to security from the prisoner)
and should be given an opportunity to express his views on the matter
and have the right to appeal to an authority outside the prison
establishment concerned against the imposition or extension of the
measure. Further, the application of the measure should be fully
re-examined at regular intervals (at least every three months). In
addition, all such measures should be properly entered in a specific
register.
...
The CPT recommends that the Cypriot authorities review
the provisions of the Prisons Regulations relating to isolation and
confinement, in the light of the above principles. It also recommends
that a special register be kept of all isolation/confinement
measures, recording the identity of the prisoner, the reasons for the
measure, the date and time of the commencement and end of the
measure, the deciding authority and the precise place(s) where the
prisoner concerned has been accommodated.
90. Further, although the application of
isolation/confinement for a prolonged period can be necessary in
exceptional cases for reasons related to good order and safety, the
CPT considers that the application of such a measure for disciplinary
purposes is unacceptable; the use of isolation/confinement for such
purposes should be governed exclusively by Sections 153 to 162 of the
Prisons Regulations.
The CPT recommends that the Cypriot authorities amend
the Prisons Regulations accordingly.”
As
regards the conditions of the cells and the possibility of outdoor
exercise for prisoners confined to their cells, the report found as
follows:
“91. Material conditions in the cells used for
administrative separation or disciplinary purposes (16 cells in Block
8) were adequate.
However, from the information received by the delegation
during the visit, it emerged that prisoners in isolation or confined
to their cells do not benefit from outdoor exercise, sometimes
for extended periods. In particular, from an official investigation
by the Office of the Commissioner for Administration, it emerged that
one prisoner had been placed in confinement in Block 4 for 47 days
without benefiting from outdoor exercise. Such a situation is
unacceptable.
The CPT recommends that the Cypriot authorities
immediately take the necessary steps to ensure that all prisoners
placed in an isolation cell or confined to their cells, for whatever
reason, benefit from at least one hour of outdoor exercise each day.”
In
respect of contact with family and friends, the report noted:
“92. The CPT wishes once again to underline the
importance for prisoners of being able to maintain good contact with
the outside world. Above all, they must be given the opportunity to
safeguard their relationships with their family and friends, and
especially with their spouse or partner and their children. The
continuation of such relations can be of critical importance for all
concerned, particularly in the context of prisoners’ social
rehabilitation. The guiding principle should be to promote contact
with the outside world; any restrictions on such contacts should be
based exclusively on security concerns of an appreciable nature or
considerations linked to available resources.
93. Under the terms of the Prisons Regulations, in
principle all prisoners (both remand and sentenced) have the right to
receive up to six one-hour visits every month. In addition, a
certain degree of flexibility is possible, for example, when the
visitors concerned are family members living abroad. The CPT welcomes
these arrangements. ...
95. Telephones have been installed within the
prisons, one in each block for use by prisoners from 08.00 a.m. to
2.30 p.m. This is in principle a very positive development. However,
apart from in Block 4, which was only accommodating approximately ten
prisoners, access to the telephone was rarely straightforward given
the number of prisoners involved.”
Finally,
as regards communication of complaints to the Ombudsman, the report
stated:
“98. During the
visit carried out in December 2004, the delegation observed that, in
response to the recommendation made by the CPT in its report on the
2000 visit, locked boxes had been installed, in which prisoners could
put complaints for the attention of the Commissioner for
Administration.”
B. Extracts from
Recommendation (Rec(2006)2) of the Committee of Ministers to Member
States on the European Prison Rules, adopted on 11 January 2006
(“European Prison Rules”)
“53.1 Special high security or safety measures
shall only be applied in exceptional circumstances.
53.2 There shall be clear procedures to be
followed when such measures are to be applied to any prisoner.
53.3 The nature of any such measures, their
duration and the grounds on which they may be applied shall be
determined by national law.
53.4 The application of the measures in each
case shall be approved by the competent authority for a specified
period of time.
53.5 Any decision to extend the approved
period of time shall be subject to a new approval by the competent
authority.
53.6 Such measures shall be applied to
individuals and not to groups of prisoners.
53.7 Any prisoner subjected to such measures
shall have a right of complaint in the terms set out in Rule 70.
...
70.1 Prisoners, individually or as a group,
shall have ample opportunity to make requests or complaints to the
director of the prison or to any other competent authority.
...
70.3 If a request is denied or a complaint is
rejected, reasons shall be provided to the prisoner and the prisoner
shall have the right to appeal to an independent authority ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3
The
applicant complained under Article 3 of the Convention about the
conditions of his solitary confinement for a period of 47 days.
Article 3 provides as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
1. The parties’ submissions
The
Government contended that the application should be declared
inadmissible under Article 35 § 1 of the Convention for
non-exhaustion of domestic remedies. Citing the judgment of the Court
in Azinas v. Cyprus [GC], no. 56679/00, § 39,
ECHR 2004 III, they argued that the applicant could have filed a
recourse to the Supreme Court under Article 146 of the Cypriot
Constitution challenging the legality of the order for his solitary
confinement and the conditions thereof, including the prohibition on
family visits and the monitoring of his correspondence. They
submitted that in the context of such proceedings, the applicant
could have argued that the confinement and conditions violated his
rights under Articles 3 and 8 of the Convention, and the
corresponding articles of the Cypriot Constitution. Moreover, he
could have applied for the suspension of his confinement and the
restrictions on family visits pending the final outcome of the
recourse.
The
Government further submitted that the applicant had failed to
complain to the Prisons Board. They noted that the Prisons Board was
expressly included by law among the authorities to which a prisoner
could address, in writing and immediately, any complaint concerning
an illegal act against him or a violation of his rights in any way.
The Government highlighted that the Prisons Board was an independent
body appointed by the Council of Ministers. It was, at the relevant
time, composed of twelve members drawn from both the public and
private sectors, including representatives of non-governmental
organisations and the Cyprus Bar Association. Its chairman was the
Director-General of the Ministry of Justice. The Prisons Board had
the power to hear and investigate complaints submitted to it by
prisoners, including complaints as to their treatment, and to
investigate prisoners’ living conditions. For this purpose, its
members were afforded the right of free entry at all times to all
areas of the prison, of free communication with prisoners outside the
presence of prison officers, of inspection of prison records and of
the conduct of any investigation in the prison which they considered
necessary. Under the Prison Regulations, letters could be addressed
to the Prisons Board without any monitoring of their content by the
prison authorities. If the Prisons Board found any shortcomings
concerning the treatment of prisoners, it could communicate the
matter to the relevant Minister and the prison director.
The
applicant disputed that the remedies to which the Government referred
were “effective” and that he was therefore required to
exhaust them under Article 35 of the Convention. As regards Article
146 of the Constitution, the applicant highlighted that this would
only provide a remedy to an existing problem or a decision confirming
that there had been a violation by the relevant authority. There
would be no investigation and no further proceedings against the
party guilty of the violation. The applicant further averred that in
order to file a recourse with the Supreme Court, supporting evidence
would have been required to prove that he had been isolated in
conditions in breach of Articles 3 and 8 and that his correspondence
had been monitored. He contended that his isolation precluded him
from obtaining such proof and that, in the circumstances, an
Ombudsman’s investigation was necessary to collate the
necessary proof. However, because of the monitoring of his
correspondence, the Ombudsman only received his complaint on 5
November 2003 and her report dated 21 November 2003 was only brought
to his attention some days later. He concluded that his failure to
take proceedings before the Supreme Court was due to: the prison
director, who deliberately made it difficult for him to collect the
necessary papers for his application; the 75-day time limit for
filing a recourse; his isolation which prevented him from submitting
his application; and the refusal of lawyers to represent him.
In
respect of the possibility of a complaint to the Prisons Board, the
applicant pointed out that this was not a judicial remedy. In any
case, he alleged that he had made a complaint to the Prisons Board.
He contended that he was permitted just five minutes before the
Prisons Board in which to explain his complaint and heard nothing
further from them. Accordingly, to the extent that the remedy could
be considered effective, he had sought to exhaust it.
2. The Court’s assessment
The
Court must consider whether a recourse lodged with the Supreme Court
and a complaint to the Prisons Board constituted effective remedies
in respect of the applicant’s complaints and whether he was
therefore required to exhaust such remedies before lodging an
application with the Court.
The
Court reiterates that, under Article 35 of the Convention, normal
recourse should be had by an applicant to remedies which are
available and sufficient to afford redress in respect of the breaches
alleged (see Apostol v. Georgia, no. 40765/02, § 35,
ECHR 2006 ...; and Barszcz v. Poland, no. 71152/01,
§ 41, 30 May 2006).
In
assessing whether a proposed remedy affords sufficient redress, the
Convention provides for a distribution of the burden of proof and it
is initially incumbent on the Government claiming non-exhaustion to
convince the Court that the remedy relied upon was an effective one
available in theory and in practice at the relevant time. This
requires that the proposed remedy be accessible, be capable of
providing redress in respect of the applicant’s complaints and
offer reasonable prospects of success (see, among other authorities,
Apostol, cited above, § 35; Sejdovic v. Italy
[GC], no. 56581/00, § 46, ECHR 2006-...; and Selmouni v.
France [GC], no. 25803/94, § 76, ECHR 1999 V).
Only after this burden of proof has been discharged does it fall to
the applicant to prove that there existed special circumstances
absolving him from the requirement (see Merit v. Ukraine,
no. 66561/01, § 57, 30 March 2004).
As
to the possibility of a recourse under Article 146 of the
Constitution, the Court notes that in order for a recourse to be
lodged with the Supreme Court, an individual must demonstrate that
there was an administrative or executive decision, act or omission
open to challenge. In the present case, it is not clear that the
decision of the prison director to place the applicant in solitary
confinement and restrict his visitation rights or the decision to
monitor the applicant’s correspondence would constitute acts
enabling the Supreme Court to exercise its revisional jurisdiction.
In this regard, the Court observes that in the context of a separate
application lodged with the Court (no. 42432/07 Andreas Onoufriou
v. Cyprus), the applicant provided details of an attempt to
challenge a decision of the prison director to restrict his
visitation rights. In that case, the Supreme Court concluded that
the relevant decision did not constitute an “administrative
act” enabling the exercise of its revisional jurisdiction.
Finally, the Court highlights that the Government have not referred
to any decisions or judgments of the Supreme Court in which any
decision of the nature in issue in the present case has been
successfully challenged by way of an Article 146 recourse (see
Apostol, cited above, § 38). In the circumstances, the
Court is not persuaded that Article 146 of the Constitution offered
an effective remedy for the applicant in respect of his present
complaints.
The
Government also proposed the possibility of a complaint to the
Prisons Board. However, the applicant alleges that he did seek to
complain to the Prisons Board and was granted a brief audience before
them but heard nothing further. The Court observes that the prison
diary submitted by the respondent Government records meetings between
the applicant and the Prisons Board on 1 and 5 November 2003. It
further observes that the Government have not disputed that the
applicant sought to make a complaint to the Prisons Board.
Accordingly, the Court concludes that the applicant did attempt to
lodge his complaints with the Prisons Board but for reasons which are
unexplained, the Prisons Board did not take any further action to
investigate the complaints and report its findings to the applicant.
In any event, in circumstances such as those arising in the present
application, there is an obligation to conduct an ex officio
investigation as soon as Article 3 is raised in substance (see
Selmouni, cited above, §§ 79 to 80). To the extent
that a complaint to the Prisons Board could be considered an
effective remedy, the Court considers that the applicant has done
what was required of him in order to exhaust that remedy.
The
Government’s objections as to non-exhaustion must therefore be
dismissed. Furthermore, having regard to the parties’
submissions, the Court considers that the complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. No other grounds for declaring it inadmissible have been
established. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
a. The Government
The
Government observed that, in assessing whether solitary confinement
complied with Article 3, the Court must have regard to the particular
conditions, the stringency of the measure, its duration, the
objective pursued and its effects on the person concerned. They
contended that in the present case, the measure was not sufficiently
severe to fall within the scope of Article 3. They argued that there
was no sensory isolation brought about by a substantial reduction in
stimulation of the sensory organs. Nor was there any medical evidence
to suggest that the applicant had suffered mental or physical
deterioration as a result of his confinement or that the physical
conditions entailed distress and hardship beyond that which was
necessarily incidental to such confinement.
As
regards the physical conditions of detention, the Government argued
that the cell was sufficiently large and that the applicant had
regular access to toilet facilities and food. They emphasised that
the applicant’s complaint to the Ombudsman was not directed at
the physical conditions of his cell. Accordingly, the Ombudsman did
not investigate or make any findings concerning this matter.
The
Government further argued that the applicant had daily contact with
prison personnel and unrestricted access to newspapers and books. He
was seen on several occasions by the prison doctor in the prison
medical facility, he was visited by a welfare officer and was seen by
the prison psychologist. There was no evidence that he was prevented
from sending letters to friends and family, or that letters from
friends and family members were withheld from him during his
confinement. Although the applicant did not make or receive any
telephone calls, there was no evidence that he had ever applied to
make any telephone calls or that anyone had called him and was not
permitted to speak to him. Furthermore, during the applicant’s
visits to court, he was able to communicate with his family.
As
for the legal basis of the applicant’s confinement, the
Government argued that the applicant’s confinement was not
ordered by way of punishment for a disciplinary offence following his
escape from prison, nor was it ordered pending investigation of such
a disciplinary offence or solely as a precautionary measure for the
applicant’s own protection. Instead, they contended that he was
confined under regulation 151(1)(a), (b) and (d), which permitted
confinement for such time as the director considered necessary in the
circumstances to preserve discipline and order, to protect the
prisoner himself or other prisoners and to discipline the prisoner.
Relying
on case-law of the Convention organs, the Government argued that the
segregation of a prisoner from the prison community does not of
itself constitute a form of inhuman treatment. In particular,
confinement to prevent the risk of disturbance in the prison, to
prevent the commission of criminal acts or to protect the prisoner
from other inmates had been found not to be a form of inhuman
treatment (referring to, inter alia, (see G. Ensslin and
Others v. Germany, no. 7572/76, Commission decision of 8 July
1978, Decisions and Reports (DR) 14, p. 91); (see X. v. the
United Kingdom, no. 8158/78, Commission decision of 10 July 1980,
DR 21, p. 95); Rohde v. Denmark, no. 69332/01, §§ 92
to 97, 21 July 2005; and Ramirez Sanchez v. France [GC], no.
59450/00, §§ 120, 123, 129, 132, 136, 145 and 150, ECHR
2006 IX). In the present case, the decision to confine the
applicant was not arbitrary and was based on relevant regulations in
force which had been published in the Official Gazette. There were
pressing and valid reasons for the confinement until such time as the
investigations into possible offences committed by the applicant
while he was at liberty had been identified and appropriate charges
had been filed against him.
The
Government invited the Court to hold that there was no violation of
Article 3.
b. The applicant
The
applicant contended that the physical conditions of his confinement
were such as to attain the minimum level of severity required for
Article 3 to apply. He pointed to the lack of food, adequate clothing
and access to toilet and shower facilities during his period of
confinement. He also emphasised the absence of contact with the
outside world, and in particular his inability to communicate with
his family. He concluded that there had been a breach of Article 3 in
his case.
The
applicant disputed the Government’s explanation concerning the
legal basis of his confinement and explained that it was the prison
authorities themselves who had declared that his confinement was only
a precautionary measure necessary for his own protection, as had been
subsequently confirmed by the Ombudsman. The applicant was never
provided with written authorisation for his confinement. He
maintained that he had been informed that the reason for his
confinement was that he had violated his home leave, and he referred
to the indictment served on him in November 2003, the first count of
which consisted of an allegation of a violation of the conditions of
his home leave. Moreover he claimed that given the presence of at
least nine other prisoners in the block where he was detained the
Government could not realistically maintain that he was kept in that
particular block to protect him.
The
applicant further claimed that no other prisoner had been subjected
to solitary confinement for breaching his home leave conditions. He
claimed that he had been discriminated against by the Government and
the prison authorities because of the nature of his conviction.
2. The Court’s assessment
a. General principles
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).
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. 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 individual in question 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 any such purpose cannot conclusively rule
out a finding of a violation of Article 3 (see Peers v. Greece,
no. 28524/95, § 74, ECHR 2001-III; and Valašinas
v. Lithuania, no. 44558/98, § 101, ECHR 2001 VIII).
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 (see Enea v. Italy [GC], no.
74912/01, § 56, 17 September 2009). Measures depriving a
person of his liberty may often involve an element of suffering or
humiliation. However, 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 Kudła v. Poland [GC], no.
30210/96, §§ 92 to 94, ECHR 2000 XI; and Cenbauer
v. Croatia, no. 73786/01, § 44, ECHR 2006 III).
Further, 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 (Dougoz v. Greece,
no. 40907/98, § 46, ECHR 2001-II). It is also relevant to
recall that the authorities are under an obligation to protect the
health of persons deprived of liberty (see Hurtado v. Switzerland,
judgment of 28 January 1994, Series A no. 280-A, opinion of the
Commission, pp. 15-16, § 79; and Enea, cited above, §
58). The lack of appropriate and timely medical care may amount to
treatment contrary to Article 3 (see İlhan v. Turkey
[GC], no. 22277/93, § 87, ECHR 2000-VII).
The
Court has previously indicated 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 (see Öcalan
v. Turkey [GC], no. 46221/99, § 191, ECHR 2005 IV; and
Ilaşcu and Others v. Moldova and Russia [GC], no.
48787/99, § 243, ECHR 2004 VII). While prolonged removal
from association with others is undesirable, whether such a measure
falls within the ambit of Article 3 of the Convention depends on the
particular conditions, the stringency of the measure, its duration,
the objective pursued and its effects on the person concerned (see
inter alia, X v. the United Kingdom, cited above;
and Rohde, cited above, § 93).
Finally,
in order to avoid any risk of arbitrariness resulting from a decision
to place a prisoner in solitary confinement, the decision must be
accompanied by procedural safeguards guaranteeing the prisoner’s
welfare and the proportionality of the measure. First, solitary
confinement measures should be ordered only exceptionally and after
every precaution has been taken, as specified in paragraph 53.1 of
the European Prison Rules. Second, the decision imposing solitary
confinement must be based on genuine grounds both ab initio as
well as when its duration is extended. Third, the authorities’
decisions should make it possible to establish that they have carried
out an assessment of the situation that takes into account the
prisoner’s circumstances, situation and behaviour and must
provide substantive reasons in their support. The statement of
reasons should be increasingly detailed and compelling as time goes
by. Finally, a system of regular monitoring of the prisoner’s
physical and mental condition should also be put in place in order to
ensure that the solitary confinement measures remain appropriate in
the circumstances (see Ramirez Sanchez, cited above, §
139).
b. Application of the general principles to the facts
of the case
The
Court notes at the outset that the applicant was not informed at any
stage officially and in writing of the reasons for his solitary
confinement or of its expected duration. No formal record of the
decision authorising the solitary confinement or any extension has
been provided; indeed, the Government have not made any submissions
regarding the manner in which the decision was made. The
justification for the confinement provided for by the prison
authorities following the Ombudsman’s investigation was that
the applicant was placed in solitary confinement in order to ensure
his own protection. However, the Court does not consider that this
reason can justify the applicant’s detention in solitary
confinement (see, mutatis mutandis, Lelièvre v.
Belgium, no. 11287/03, § 104, 8 November
2007). Moreover, the Court is not convinced by the Government’s
subsequent explanation of the reasons for the applicant being placed
in solitary confinement – namely, for the preservation of
discipline and order, the protection of the interests of the
applicant himself and of other prisoners and discipline – given
that this explanation was first advanced in their observations to the
Court. Accordingly, the Court concludes that the applicant was
detained in solitary confinement for reasons which are unclear and
which were never explained to him. The Court observes in this regard
that a solitary confinement measure is one of the most serious
measures which can be imposed within a prison. Despite the gravity of
the measure, there is no evidence that the authorities assessed all
the relevant factors in the applicant’s case before placing him
in solitary confinement (see Ramishvili and
Kokhreidze, cited above, §
83). It is also of significance that although instructions were given
on 31 October 2003 to release the applicant from solitary
confinement, the instructions were misplaced and as a consequence the
applicant spent a further seven days in solitary confinement after
his release had been ordered.
The
Court recalls the recommendations contained in the report of the CPT
following its visit to Cyprus in 2004. The CPT considered that any
person placed in solitary confinement should be informed in writing
of the reasons for his confinement. He should be given an opportunity
to express his views and there should be a possibility to appeal to
authorities outside the prison should he wish to challenge the
decision to place him in solitary confinement or to extend the
duration of such confinement. Further, the confinement should be
re-examined at regular intervals and should cease when no longer
merited. The European Prison Rules also refer to the need for clear
procedures when applying solitary confinement measures.
It
is clear that the applicant’s detention in solitary confinement
was not attended by any of the procedural safeguards required in
order to protect against the arbitrary application of excessively
restrictive conditions of detention, regardless of the duration of
the confinement. The Court refers to the CPT’s conclusion
following the visit to Cyprus that there was a lacuna in the Prison
Regulations as regards the guarantees to be afforded to those placed
in solitary confinement. In the present case, the Court emphasises
the lack of an adequate justification for the applicant’s
detention in solitary confinement, the uncertainty concerning its
duration, the failure to put in place a reliable system to record
solitary confinement measures and to ensure that the applicant was
not confined beyond the authorised period, the absence of any
evidence that the authorities carried out an assessment of the
relevant factors before ordering his confinement and the lack of any
possibility to challenge the nature of his detention or its
conditions.
As
regards the physical conditions of the applicant’s detention,
the Court takes note of the parties’ different accounts and
considers the prison logbook submitted by the respondent Government
to be of particular assistance in clarifying both the physical
conditions of the applicant’s confinement and the other
restrictions applied during the 47-day period.
In
the Court’s view, the prison logbook confirms the applicant’s
account that he was subjected to a very restrictive regime of
detention for 47 days. It is clear from the entries in the logbook
that the applicant’s cell had neither sanitary facilities nor
running water. Accordingly, the applicant was required to ask the
prison guards to allow him to go to the toilet. The Court’s
examination of the prison logbook shows that on a number of occasions
the applicant only used the toilet once in the course of the day,
which would appear to confirm his assertion that during certain
periods of his detention he had to use water bottles and nylon bags
for his needs. The Court considers that such a practice was
humiliating (see Cenbauer, cited above, § 48).
As
to the physical conditions of the cell, the Government submitted that
it measured 5.88m2; the applicant contended that it was
less than 5m2. He also alleged that it was cold and damp.
The Court observes that where there is a dispute between the parties
as to the relevant facts, it will have regard to the parties’
submissions and to any relevant findings of the CPT in order to
assess the extent to which the applicant’s complaints are
credible (Cenbauer, cited above, § 45). In its report on
Cyprus, the CPT did not comment on the physical conditions of cells
in Nicosia Central Prison, except to say that material conditions in
cells used for administrative separation or disciplinary purposes in
block 8 were adequate. The Ombudsman, in her report on the
applicant’s complaints, did not consider the physical
conditions of the applicant’s detention. However, the Court
notes that the applicant sustained an injury to his shoulder, which
he alleges was a result of the cold and damp of the cell. The
Government do not dispute the allegation. In the circumstances, the
Court considers that the applicant’s injury would appear to
support his contention that the cell was cold and damp.
As
to whether the applicant was given appropriate medical care while in
confinement, the Court observes that the prison logbook records two
visits from the doctor. It further notes that the applicant refused
to attend a scheduled appointment with the surgeon on 31 October
2003. The Court accordingly does not consider that the standard of
care and attention showed to the applicant’s health by the
prison authorities was deficient during the time spent in solitary
confinement.
However,
the Court recalls that the CPT commented with concern on the
significant duration of solitary confinement measures in Cyprus. It
also criticised the lack of opportunity for detainees to leave their
cells and to benefit from outdoor exercise, highlighting the
applicant’s case which it concluded was unacceptable. It is
clear from the prison logbook that the time spent by the applicant
outside his cell was limited. Although, according to the prison
logbook, he visited court on seven occasions, for the remainder of
his solitary confinement he rarely left his cell. Most days, the cell
was opened only for a brief period to allow him to use the shower or
toilet or to collect his food. In this regard, the Court notes that
in Cenbauer v. Croatia (cited above, § 49) it considered
that the period of the applicant’s confinement to his cell,
between 7p.m. and 7a.m. and for several hours during the day, was
“substantial”. Furthermore, it is also clear from the
prison logbook that human contact was mostly limited to the
applicant’s dealings with prison staff and his visits to court.
The CPT, in its report on Cyprus, condemned the absolute prohibition
on contact with the outside world attendant on solitary confinement
in Cyprus, insisting that restrictions on visits should be based only
on security concerns of an appreciable nature or on the availability
of resources.
Finally,
the Court has previously indicated that the obligation on prison
authorities to ensure the health and well-being of detainees implied
an obligation to provide appropriate nourishment (Kadiķis
(no. 2), cited above, § 55). It notes that, according to the
prison logbook, the applicant was served food at irregular intervals,
sometimes receiving only one full meal per day.
Accordingly,
the Court concludes that the stringent custodial regime to which the
applicant was subjected during his period in solitary confinement,
including the prohibition on visits and the material conditions in
which he was detained, caused him suffering clearly exceeding the
unavoidable level inherent in detention. His exposure to these
conditions for a period of 47 days amounted to degrading treatment
contrary to Article 3 of the Convention.
There
has accordingly been a violation of that provision.
II. ALLEGED VIOLATION OF ARTICLE 8
The
applicant complained under Article 8 of the Convention about the
restrictions on contact with his family during the period of his
confinement and about the prison authorities’ monitoring of his
correspondence. Article 8 provides as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. Admissibility
The
Government maintained that the applicant had not exhausted domestic
remedies in respect of his Article 8 complaints (see §§ 47
to 48 above). Having regard to its findings above (see §§
54 to 56), the Court rejects this objection. Furthermore, having
regard to the parties’ other submissions, the Court considers
that the complaint is not manifestly ill-founded within the meaning
of Article 35 § 3 of the Convention. No other grounds for
declaring it inadmissible have been established. It must therefore be
declared admissible.
B. Merits
1. Restrictions on contact with family
a. The parties’ submissions
i. The Government
The
Government submitted that although the prohibition on family visits
constituted an interference with the applicant’s exercise of
his right to respect for his family life, such interference did not
violate Article 8 of the Convention.
They
argued that the domestic law, which formed the basis of the
interference, was the Prison Regulations, which had the force of law
and were published in the Republic’s Gazette. Under regulation
151(1), it was reasonably foreseeable that confinement could entail
restrictions on visits. The interference was therefore in accordance
with the law.
The
Government also alleged that the applicant’s father had, on the
applicant’s instructions, assisted him in removing
incriminating evidence in relation to the crime for which he was
serving a sentence at the time of his failure to return from home
leave. Accordingly, they argued that the interference pursued the
legitimate aim of ensuring public safety and the prevention of crime
and disorder.
Finally,
the Government insisted that the measure was necessary and
proportionate. They pointed out that the restrictions had been
imposed at a time when a police investigation was being carried out
into the applicant’s involvement in criminal acts committed
during the time he was at large. Until the completion of the
investigation, the exact nature and extent of criminal activities and
persons involved could not be known. Although during his confinement
the applicant had received no visits, his communication with his
friends and family had not been materially disrupted. The applicant
had on eight occasions during the 47 days of confinement spent
considerable time outside prison when he attended court hearings. The
Government maintained that the applicant had contact with his family
and friends on all of these occasions, when he was allowed to move
around within the court building and was supplied by his family with
refreshments, clothes and other materials. Accordingly, the measure
had not hindered the applicant’s effective contact with family
members. The Government relied on Messina v. Italy (no. 2),
no. 25498/94, §§ 59 to 74, ECHR 2000 X.
Further,
the Government maintained that during the period of his confinement
the applicant was entitled to send letters of a private nature twice
a week. However, he had not attempted to send or receive any letters
to his family during this period. Prisoners were also allowed to make
telephone calls to members of their family, subject to obtaining the
prison director’s permission and following a written
application to this effect, under regulation 115 (1) and (2) of the
Prison Regulations. Such telephone calls could be made from telephone
booths installed in designated areas of the prisons. However, the
applicant did not make or receive any telephone calls during the
relevant period and there was no evidence of any request being made
to this effect. Hence, his complaints in this respect were of a
general nature, not referring to any specific instances of such
restrictive measures being applied to him.
ii. The applicant
The applicant insisted that during his solitary confinement, he was
prohibited from making and receiving telephone calls. As to the
Government’s objection that no evidence had been provided that
he submitted any request to make a telephone call, the applicant
replied that prisoners did not receive receipts for applications to
make calls. He further alleged that prisoners were not allowed to
receive calls from outside the prison. He disputed that there was any
possibility that the authorities would have allowed him to send any
letters or make or receive any telephone calls from his family during
his confinement given that he was merely allowed to exit his cell for
the purposes of using the toilet and the shower facilities.
As
for visits, the applicant denied that his father had been involved in
any criminal activities and that this constituted sufficient grounds
for refusing visitation rights. He contested the Government’s
allegations that he had contact with his family during his court
visits and stated that contact only resumed after he was transferred
to normal conditions of detention.
b. The Court’s assessment
The
Court reiterates that any detention which is lawful for the purposes
of Article 5 of the Convention entails by its nature a limitation on
private and family life. However, it is an essential part of a
prisoner’s right to respect for family life that the prison
authorities assist him as far as possible to create and sustain ties
with people outside prison and to maintain contact with his close
family (see Messina (no. 2), cited above, § 61;
McCotter v. the United Kingdom, no. 18632/91, Commission
decision of 9 December 1992, DR 25, p. 265).
The
Court observes, and the Government do not dispute, that for 47 days,
the applicant was subject to a particularly stringent prison regime
which involved an absolute prohibition on visits from friends and
family. In light of the restrictions imposed by his detention in
solitary confinement and following examination of the relevant Prison
Regulations, the Court further considers it unlikely that any request
by the applicant for telephone communication with his family would
have been granted. The Court concludes that there was an interference
with the exercise of the applicant’s right to respect for his
family life guaranteed by Article 8 § 1 of the Convention. Such
interference can only be justified if it was in accordance with the
law, pursued one or more of the legitimate aims contemplated in
paragraph 2 of Article 8 and could be regarded as a measure which was
“necessary in a democratic society”.
A
measure will be in accordance with the law if it satisfies three
conditions. First, it must have some basis in domestic law. Second,
the law must be adequately accessible: the citizen must be able to
have an indication that is adequate, in the circumstances, of the
legal rules applicable to a given case. Finally, a norm cannot be
regarded as a “law” unless it is formulated with
sufficient precision to enable the citizen to regulate his conduct:
he must be able – if need be with appropriate advice – to
foresee, to a degree that is reasonable in the circumstances, the
consequences which a given action may entail (see Sunday Times v.
the United Kingdom (no. 1), 26 April 1979, §§ 47
and 49, Series A no. 30).
Further,
a law which confers a discretion must indicate the scope of that
discretion. However, the Court has already recognised the
impossibility of attaining absolute certainty in the framing of laws
and the risk that the search for certainty may entail excessive
rigidity. Many laws are inevitably couched in terms which, to a
greater or lesser extent, are vague and whose interpretation and
application are questions of practice (see Sunday Times (no. 1),
cited above, § 49; and Silver and Others, cited above, §
88).
95. The
Government have alleged that the prohibition on family visits was in
accordance with the law as it was reasonably foreseeable from the
terms of regulation 151(1) of the Prison Regulations that visits
would not be permitted. The Court notes that this provision gives the
prison director the power to “order the confinement or
isolation of a prisoner for such period as he considers necessary”,
for one of more of the purposes outlined in that regulation. The
regulation provides no detail of what is meant by the phrase
“confinement or isolation” or the degree of confinement
or isolation envisaged. It makes no express reference to the
curtailment of the general right granted by regulation 116 to visits
from family and friends up to six times per month. It provides no
guidance as to how a prison director might decide whether complete
suspension of visitation rights is merited in a particular case, and
what factors might be relevant to that decision. It is of
significance in this respect that the applicant was given no formal
notification that his visitation rights had been suspended, nor was
he advised at the time of the reasons for the suspension. In the
circumstances, it is not clear why and under what authority the
applicant’s visitation rights were suspended.
Unlike
the Government, the Court does not consider that the Prison
Regulations stipulate an absolute prohibition on visits for those in
solitary confinement. In short, the Prison Regulations do not
indicate with reasonable clarity the scope and manner of the exercise
of any discretion conferred on the relevant authorities to restrict
visitation rights (see Domenichini v. Italy, 15 November 1996,
§§ 32 to 33, Reports of Judgments and Decisions
1996 V; Messina (no. 2), cited above, § 81; and
Kornakovs v. Latvia, no. 61005/00, §§ 159 to
160, 15 June 2006)
97. The
Court concludes that the suspension of visitation rights in the
applicant’s case was not in accordance with the law. There has
accordingly been a violation of Article 8 § 1 of the Convention.
2. Monitoring of correspondence
a. The parties’ submissions
i. The Government
The
Government identified four letters written by the applicant which had
been sent to the Director General of the Ministry of Justice for
inspection before being forwarded to their intended recipients. Three
of the letters were addressed to the Ombudsman and one to the
Attorney General. However, they contended that there was no violation
of Article 8 § 1.
First,
they submitted that the monitoring was in accordance with the law.
Regulations 115(6) and (7) provided for certain correspondence to be
sent through the director of the prison, who had the power to prevent
letters being sent in specified circumstances.
They
emphasised that the purpose of monitoring letters to public
authorities was to ensure that officials did not receive large
volumes of letters outside their areas of competence and that the
language used was not improper or insulting. Accordingly, they argued
that the measure had a legitimate aim.
The
Government also contended that the measure was necessary and
proportionate (relying on Boyle and Rice v. the United Kingdom,
27 April 1988, §§ 68 to 76, Series A no. 131; and
Silver and Others, cited above, §§ 86 to 90 and 97
to 98). In the applicant’s case, the letters were transmitted
by the prison director to the Director General of the Ministry of
Justice to ensure that the letters were suitable to be dispatched to
their recipients. The Government referred to Silver and Others
(cited above, § 104), in which the Court stated that where
prison authorities were in doubt as to the exercise of their right to
stop correspondence, they must be able to seek instructions from a
higher authority. In the applicant’s case, the letters were not
stopped: they were subsequently forwarded to the Ombudsman and
Attorney-General, the parties to whom they were addressed. The delay
of approximately three to four weeks in the delivery of the
applicant’s correspondence was compatible with the requirements
of Article 8. In this regard, the Government referred to the Court’s
finding in Silver and Others (cited above, § 104) where
the Court found a delay of three weeks to allow instructions to be
sought on a prisoner’s correspondence to be compatible with the
requirements of Article 8.
Finally,
the Government relied on the fact that from February 2004 onwards a
box was placed in the prison in which prisoners could put their
letters addressed to the Ombudsman which would be picked up by the
Ombudsman directly.
ii. The applicant
The
applicant disputed the Government’s observations and stated
that there was a practice of censorship of prisoners’
correspondence, the purpose of which was to prevent complaints about
the prison administration and conditions of detention reaching the
office of the Ombudsman and other high-ranking officials. He
complained that his letters had been stopped and that he was never
informed of this fact. He did not provide any details of the letters
allegedly involved. He submitted that because of the monitoring of
his correspondence by the prison authorities, his letter addressed to
the Ombudsman dated 6 October 2003 arrived at her office only on 5
November 2003. On 20 December 2003 he tried to give a letter
addressed to the Ombudsman to his father during the latter’s
visit to the prison. However, the authorities prohibited him from
handing this letter over to his father. When the applicant reminded
the authorities of the Ombudsman’s report of 21 November
2003 concerning the monitoring of his correspondence, the officer in
charge replied that he did not care about the Ombudsman’s
reports. The applicant argued that the recent introduction of post
boxes for correspondence to the Ombudsman demonstrated that his
complaint had merit and that there was a problem with the previous
practice.
The
applicant also alleged that the prison administration had opened his
letters to and from the Court and that a letter to the Court was sent
to the Director General of the Ministry of Justice for inspection.
iii. The Court’s assessment
The
Court observes that it has not been alleged that the applicant’s
letters were censored. The issue in the present case concerns the
fact that some of the applicant’s letters were screened and
their delivery delayed by a referral to the Director General of the
Ministry of Justice for further inspection. The applicant also
alleges that unidentified letters were stopped.
The
Government acknowledged that three letters written by the applicant
to the Ombudsman and one to the Attorney General were sent to the
Ministry of Justice and thus delayed. They did not contest the
allegation that one letter to the Court was also sent to the Ministry
of Justice for inspection. Accordingly, the Court will proceed on the
basis that some of the applicant’s letters to the Ombudsman and
at least one of his letters to the Attorney General and the Court
were monitored by the prison authorities, such monitoring consisting
of the screening, opening and reading of the letters by the prison
authorities followed on a number of occasions by their referral to
the Ministry of Justice for further inspection of their contents.
Although monitoring could, under the terms of regulation 115(7),
result in the prohibition of the sending of particular letters, in
the absence of further details from the applicant, there is no
evidence that any letters written by him were stopped by the prison
authorities. All letters inspected ultimately reached their intended
recipients, with a maximum delay of about a month.
The
Court finds that the above monitoring of the applicant’s
correspondence did constitute an interference with his right to
respect for his correspondence under Article 8 of the Convention (see
Silver and Others, cited above, § 84 and Kornakovs,
cited above, § 158). This interference can only be justified if
it was in accordance with the law, pursued a legitimate aim and was
necessary in a democratic society in order to achieve that aim.
The
condition that a measure be in accordance with the law requires in
particular that it have some basis in domestic law. The applicant
does not dispute the Government’s assertion that the Prison
Regulations had the force of law. Accordingly, the Court sees no
reason to disagree with the Government and finds that the Prison
Regulations can be considered “law” for the purposes of
Article 8 § 2. However, although the Prison Regulations permit
the monitoring of correspondence addressed to official authorities of
the Republic, correspondence with the Court does not fall within the
categories listed in regulation 115(7) of the Prison Regulations.
Accordingly, the monitoring of the applicant’s letter to the
Court had no basis in domestic law.
As
outlined above (§§ 93 to 94) the expression “in
accordance with law” does not merely require that the measure
have some basis in domestic law but also relates to the quality of
the domestic law. The Court observes that Article 17 of the
Cyprus Constitution guarantees respect for the secrecy of
correspondence except in cases of, inter alia, convicted
prisoners and in accordance with the law. No reference is made in
Article 17 to the need for any interference to be necessary in a
democratic society. The Court has previously considered the quality
of the law to be deficient and thus found a violation of Article 8 §
1 where the domestic system provided for automatic screening of
prisoners’ correspondence, on the basis that such an approach
did not draw any distinction between the different categories of
persons with whom the prisoners could correspond and that the
relevant provisions did not lay down any principles governing the
exercise of the screening. In particular, they failed to specify the
manner and the time-frame within which it should be effected. As
screening was automatic, the authorities were not obliged to give a
reasoned decision specifying grounds on which it had been effected
(see, inter alia, Niedbała v. Poland, no.
27915/95, § 81, 4 July 2000; and Sałapa v. Poland,
no. 35489/97, § 97, 19 December 2002. See also Petrov v.
Bulgaria, no. 15197/02, § 44, 22 May 2008, where the Court
considered these issues in its examination of the necessity of the
measure).
In
the present case, the Court notes that the law provided for the
intercepting, opening and reading of prisoners’ correspondence
to identified categories of addressees only. However, the Court would
make two observations in this regard. First, in respect of the
defined categories, the monitoring was automatic and there was no
procedure for the applicant to challenge the application of the
monitoring procedure to those categories of recipients. Second,
although the categories of “politicians” and “mass
media” are relatively well-defined and restricted, the same
cannot be said of the category of “official authority of the
Republic”, which would appear to cover a variety of bodies and
institutions, including at the relevant time the Ombudsman.
As
regards the manner and time-frame of the monitoring exercise, the
regulation sets out the basic right of the prison authorities to
conduct the monitoring and the reasons for which a letter can be
prohibited. However, it provides no time-limits to ensure that
monitoring does not result in excessive delays, nor does it envisage
the direct participation or involvement of prisoners at any stage in
the monitoring process. Regulation 115(7) simply provides that a
prisoner will be informed of a decision to prohibit the sending of a
letter.
Finally,
regulation 115(7) does not require prison authorities to provide
reasons for any decision to subject a prisoner’s letter to
closer scrutiny, and in particular to send it for further inspection
to the Ministry of Justice. In the present case, the prison
authorities did not explain to the applicant at the time of the
interference with his correspondence why these letters were sent for
further inspection before being forwarded to their intended
recipients. The applicant did not receive a reasoned decision
specifying the grounds on which the referral had been made. Before
this Court, the Government argued that the measure was intended to
protect the rights of the applicant, the Ombudsman and other State
authorities. They contended that the inspection and consequent delay
was necessary in order to ensure that officials did not receive
excessive number of letters from prisoners on subjects over which
they had no competence, which were insulting or which were improper.
However, the Court notes that the Government do not explain why it
was considered that the applicant’s letters potentially fell
within the categories outlined in regulation 115(7), such that their
further inspection by the Ministry of Justice was thought necessary.
The Court considers it relevant, in assessing the appropriateness of
the prison authorities’ approach, that all of the letters
concerned were eventually sent to the addressees.
In
the circumstances the Court is not satisfied that the law indicated
with reasonable clarity the scope and manner of exercise of the
discretion conferred on the prison authorities in respect of
screening prisoners’ correspondence (see, inter alia,
Labita, cited above, §§ 176 and 180 to 184; and
Enea, cited above, § 141 and 143). In reaching this
conclusion, the Court emphasises that where measures interfering with
prisoners’ correspondence are taken, it is essential that
reasons be given for the interference, such that the applicant and/or
his advisers can satisfy themselves that the law has been correctly
applied to him and that decisions taken in his case are not
unreasonable or arbitrary. The Court further emphasises the
Ombudsman’s role as a guardian of human rights and fundamental
freedoms, and the importance of respect for the confidentiality of
correspondence of prisoners with the Ombudsman since it could –
and in this case did – concern allegations against the prison
authorities (see, mutatis mutandis, Campbell v. the United
Kingdom, 25 March 1992, § 62, Series A no. 233). It follows
that the general reasons advanced by the Government for the
interference with letters to the Ombudsman in the present case are
especially inadequate.
In
conclusion, the monitoring of the applicant’s correspondence
was not in accordance with the law and there has therefore been a
breach of Article 8 in this respect.
III. ALLEGED VIOLATION OF ARTICLE 13
The Court has also examined ex
officio the availability of an effective remedy in the
national system in relation to the applicant’s complaints under
Articles 3 and 8 of the Convention and concerning issues arising from
the application of legislation concerning complaints about the
conditions of detention of prisoners and control of their
correspondence. The Court has had regard to Article 13 of the
Convention, which, insofar as relevant, reads:
“Everyone
whose rights and freedoms as set forth in [the] Convention are
violated shall have an effective remedy before a national authority
notwithstanding that the violation has been committed by persons
acting in an official capacity.”
A. Admissibility
Having
regard to the parties’ submissions, the Court considers that
the complaint is not manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention. It is not inadmissible on
any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
The
applicant denied that he had access to any effective remedies in
Cyprus and relied on his submissions regarding the Government’s
preliminary objection (§§ 49 to 50, above). He contested
that the recourse to the Supreme Court under Article 146 of the
Constitution was effective. He further alleged that he did complain
to the Prisons Board, but did not hear anything further from them.
Accordingly, he disputed that a complaint to the Prisons Board could
be considered effective for the purposes of Article 13.
The
Government referred to their submissions on exhaustion of domestic
remedies (§§ 47 to 48 above). They maintained that it was
open to the applicant to challenge the legality of the order to place
him in solitary confinement under Article 146 of the Constitution.
Had he done so, he would have been able to raise all of his
Convention complaints before the Supreme Court. Accordingly, Article
146 offered the applicant an effective remedy in respect of his
Convention complaints. The applicant could also have complained to
the Prisons Board, which could have heard and investigated his
complaints and communicated its findings to the Minister of Justice
and the director of the prison.
2. The Court’s assessment
As
the Court has held on many occasions, Article 13 of the Convention
guarantees the availability at national level of a remedy to enforce
the substance of the Convention rights and freedoms in whatever form
they may be secured in the domestic legal order. The effect of
Article 13 is thus to require the provision of a domestic remedy
to deal with the substance of an “arguable complaint”
under the Convention and to grant appropriate relief (see, for
example, Kudła v. Poland, cited above, § 157;
and Ramirez Sanchez v. France, cited above, § 157).
The
scope of the Contracting States’ obligations under Article 13
varies depending on the nature of the applicant’s complaint.
However, the remedy must be “effective” in practice as
well as in law (see İlhan v. Turkey [GC], no. 22277/93, §
97, ECHR 2000-VII).
The
“effectiveness” of a “remedy” within the
meaning of Article 13 does not depend on the certainty of a
favourable outcome for the applicant. Nor does the “authority”
referred to in that provision necessarily have to be a judicial
authority; but if it is not, its powers and the guarantees which it
affords are relevant in determining whether the remedy before it is
effective. Also, even if a single remedy does not by itself entirely
satisfy the requirements of Article 13, the aggregate of remedies
provided for under domestic law may do so (see, among other
authorities, Silver and Others v. the United Kingdom,
cited above, § 113; and Chahal v. the United Kingdom,
15 November 1996, § 145, Reports of Judgments and Decisions
1996 V).
The
Court must determine whether it was possible under Cypriot law for
the applicant to raise his complaints under the Convention about the
decisions to place him in solitary confinement, the conditions of his
confinement and the monitoring of his correspondence, including any
procedural irregularities, and whether the remedies were “effective”
in the sense that they could have prevented the alleged violation
occurring or continuing or could have afforded the applicant
appropriate redress for any violation that had already occurred
The
Court refers to its previous finding (§ 54 above) to the effect
that the possibility of lodging a recourse under Article 146 of the
Constitution did not constitute an effective remedy which the
applicant was required to exhaust in the present case. It also refers
to its finding (§ 55 above) regarding the attempts of the
applicant to lodge a complaint with the Prison Board. Although a
remedy, in order to be considered “effective”, is not
required to lead to a favourable outcome for the applicant, it is
necessary that the authorities take the positive measures required in
the circumstances to ensure that the applicant’s complaints are
properly dealt with and that the remedy is effective in practice (see
Selmouni v. France, cited above, §§ 79 to 80). The
Court also takes note of the recommendations of the CPT, which
strongly advocated an appeal to an outside authority when solitary
confinement is ordered. It observes that no such appeal was possible
in the applicant’s case.
It
follows from the above and from the Court’s findings in respect
of the Government’s objection as to the exhaustion of domestic
remedies that there has been a violation of Article 13 of the
Convention in the present case.
IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
The
applicant also complained under Article 14 of the Convention about
the exercise of the Attorney-General’s power to recommend to
the President the granting of a pardon to certain prisoners. He
argued that because of the Attorney-General’s selection
process, not all prisoners were given equal consideration.
In
the light of all the material in its possession, and in so far as the
matters complained of were within its competence, the Court finds no
appearance of a violation of the rights and freedoms set out in the
Convention or its Protocols arising from this complaint. The
complaint must therefore be declared inadmissible pursuant to Article
35 §§ 3 and 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
127. Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaints under Articles 3, 8 and
13 admissible and the remainder of the application inadmissible;
Holds that there has been a violation of Article
3 of the Convention;
Holds that there has been a violation of Article
8 of the Convention in respect of the suspension of family visits and
the monitoring of the applicant’s correspondence;
Holds that there has been a violation of Article
13 of the Convention.
Holds that there is no call to award just
satisfaction.
Done in English, and notified in writing on 7 January 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President