CASE OF LADUNA v. SLOVAKIA
(Application no. 31827/02)
13 December 2011
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 Laduna v. Slovakia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Luis López Guerra,
Mihai Poalelungi, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 15 November 2011,
Delivers the following judgment, which was adopted on that date:
2. The applicant, who had been granted legal aid, was represented by Mr I. Syrový, a lawyer practising in Bratislava. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.
3. The applicant alleged, in particular, that his rights under Articles 8, 13 and 14 of the Convention and under Article 1 of Protocol No. 1 had been breached in the context of his detention on remand and his subsequent term of imprisonment.
4. By a decision of 20 October 2010, the Court declared the application partly admissible.
5. The applicant and the Government each filed further written observations (Rule 59 § 1) on the merits.
I. THE CIRCUMSTANCES OF THE CASE
Thus the applicant’s overall debt amounted to the equivalent of some 750 euros (EUR) in March 2008. In the period from December 2002 to January 2008 he had paid some EUR 360 in reimbursement of his debt.
II. RELEVANT DOMESTIC LAW
A. Legal framework concerning detention on remand
1. Detention Act 1993, in force until 30 June 2006 (Law no. 156/1993)
2. Detention Act 2006, in force as from 1 July 2006 (Law no. 221/2006)
Where an accused is detained on the ground that he or she could influence witnesses or co-accused, or hamper the criminal investigation into the case, he or she can receive visitors only subject to the consent of the prosecuting authority or court dealing with the case (section 19(2)).
Accused persons detained in prisons at the lowest security level are allowed to have direct contact with their visitors as a general rule. In other cases visits take place without direct contact unless the prison governor decides otherwise, and in the presence of a prison officer. In the situations set out in section 19(2), the prosecuting authority or court may request that the visit take place in the presence of one or more of their representatives (section 19(3)).
B. Legal framework concerning the service of prison sentences
2. Serving of Prison Sentences Act 2005, in force as from 1 January 2006 (Law no. 475/2005)
III. RELEVANT INTERNATIONAL DOCUMENTS
A. The International Covenant on Civil and Political Rights
“2. (a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons;” ...
“9. Article 10, paragraph 2 (a), provides for the segregation, save in exceptional circumstances, of accused persons from convicted ones. Such segregation is required in order to emphasize their status as unconvicted persons who at the same time enjoy the right to be presumed innocent as stated in article 14, paragraph 2.” (...)
B. The Council of Europe documents
1. European Prison Rules
(a) The 1987 European Prison Rules
“91. Without prejudice to legal rules for the protection of individual liberty of prescribing the procedure to be observed in respect of untried prisoners, these prisoners, who are presumed to be innocent until they are found guilty, shall be ... treated without restrictions other than those necessary for the penal procedure and the security of the institution.
92. 1. Untried prisoners shall be allowed to inform their families of their detention immediately and given all reasonable facilities for communication with family and friends and persons with whom it is in their legitimate interest to enter into contact.
2. They shall also be allowed to receive visits from them ... subject only to such restrictions and supervision as are necessary in the interests of the administration of justice and of the security and good order of the institution.” (...)
(b) The 2006 European Prison Rules
“95.1. The regime for untried prisoners may not be influenced by the possibility that they may be convicted of a criminal offence in the future. ...
95.3. In dealing with untried prisoners prison authorities shall be guided by the rules that apply to all prisoners and allow untried prisoners to participate in various activities for which these rules provide. ...
99. Unless there is a specific prohibition for a specified period by a judicial authority in an individual case, untried prisoners:
a. shall receive visits and be allowed to communicate with family and other persons in the same way as convicted prisoners;
b. may receive additional visits and have additional access to other forms of communication;” (...)
2. Reports on the CPT’s visits to Slovakia
“79. In the report on the 1995 visit (cf. paragraphs 126 to 130 of CPT/Inf (97) 2), the CPT stressed the importance for prisoners to be able to maintain good contact with the outside world. In view of the situation found in 1995, the Committee recommended that the visit entitlement of remand prisoners in Bratislava Prison be substantially increased and invited the Slovak authorities to explore the possibility of offering more open visiting arrangements for such prisoners...
80. In their responses, the Slovak authorities expressed some misgivings about the approach proposed by the CPT, principally based on the objective of preserving the interests of justice (preventing collusion, etc.).
It is therefore not surprising that the delegation which carried out the 2000 visit observed little or no change in this area. In particular, remand prisoners’ visit entitlement remained limited to a mere 30 minutes every month..., although they could receive from time to time an additional visit at the director’s discretion. Further, visits for such prisoners continued to take place in booths, with prisoner and visitor(s) separated by a screen...
81. The CPT accepts that in certain cases it will be justified, for security-related reasons or to protect the legitimate interests of an investigation, to have visits take place in booths and/or monitored. However, the CPT wishes once again to invite the Slovak authorities to move towards more open visiting arrangements for remand prisoners in general...
Arguments based on the need to protect the interests of justice are totally unconvincing as a justification for the present inadequate visit entitlement for remand prisoners. The CPT therefore reiterates its recommendation that the visit entitlement for remand prisoners be substantially increased (for example, to 30 minutes every week).”
“46. A fundamental problem as regards remand prisoners in the Slovak Republic is the total lack of out-of-cell activities offered to such inmates.
At the time of the visit, remand prisoners were being held for 23 hours a day in their cells in a state of enforced idleness; their only source of distraction was reading books from the prison library and listening to the radio and, in a limited number of cases, watching television. No work was offered to such prisoners, and possibilities for sports activities were few and far between, if available at all... The deleterious effects of such a restricted regime were exacerbated by the lengthy periods of time for which persons could be held in remand prisons...
The CPT calls upon the Slovak authorities to take steps, as a matter of priority, to devise and implement a comprehensive regime of out-of-cell activities (including group association activities) for remand prisoners. The aim should be to ensure that all prisoners are allowed to spend a reasonable part of the day outside their cells, engaged in purposeful activities of a varied nature (group association activities; work, preferably with vocational value; education; sport). The legislative framework governing remand imprisonment should be revised accordingly...
61. The situation as regards the visiting entitlements for remand prisoners had not changed in the last ten years. It remained the case that adults were entitled to a mere 30-minute visit per month... The conditions under which visits took place continued to be closed (in booths with a screen separating inmates from their visitors). This was exactly the situation which prevailed during the first visit of the CPT to the Slovak Republic in 1995.
The CPT calls upon the Slovak authorities to revise the relevant legal provisions in order to increase substantially the visit entitlement for remand prisoners. The objective should be to offer the equivalent of a visit every week, of at least 30 minutes duration. Further, the Committee invites the Slovak authorities to introduce more open arrangements for visits to remand prisoners.”
“Under the new draft legislation on remand imprisonment, the visit entitlement is to be extended from one visit of at least 30 minutes a month to a visit of at least one hour once in three weeks. In justified cases, the prison governor will have the right to grant more frequent visits...
Under the methodological guidance issued by the General Director of the CPCG (No. GR ZVJS-116-45/20-2003) in conformity with the current legislation on the enforcement of remand imprisonment, remand prisoners are allowed to have their own TV sets subject to certain conditions. The methodological guidance issued by the General Director of the CPCG (No. GR ZVJS-116-38/20-2003) provides for certain leisure-time activities and allows the performance of certain sports and special-interest activities, in particular to juvenile and female remand prisoners. Remand prisons take permanent efforts to create spatial and material conditions for special-interest activities of remand prisoners, and for sports activities both inside and in outdoor premises of prison establishments.
The issue of creating adequate programme of activities for remand prisoners is addressed also in the new draft law on remand imprisonment, which is currently considered by the National Council of the Slovak Republic in connection with the re-codification of the Criminal Code and of the Code of Criminal Procedure. The new draft law on remand imprisonment aims at introducing a lighter remand regime and proposes that remand prisoners be differentiated by categories to enable their participation in special-interest activities that can mitigate or reduce the negative impact of incarceration on remand prisoners. The implementation of adequate activity programmes proposed for all remand prisoners is conditional on the creation of adequate spatial, material and staffing conditions. After the new law has entered into effect, the CPCG will gradually create material conditions for abovementioned programmes and start with their practical implementation.”
I. THE SCOPE OF THE CASE
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14
“1. Everyone has the right to respect for his private and family life, ...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
A. Arguments of the parties
1. The applicant
2. The Government
At the relevant time convicted persons had been allowed to watch television, in accordance with Regulation no. 125/1994, in prison assembly rooms.
B. The Court’s assessment
1. Alleged violation of Article 14 in conjunction with Article 8
(a) Whether the facts of the case fall under Article 8 of the Convention
(b) Whether the applicant had an “other status” and whether his position was analogous to convicted prisoners
(c) Whether the difference in treatment was objectively justified
Moreover, during a substantial part of the relevant period the frequency of visits and the type of contact of convicted persons differed according to the security level of the prison in which they were being held. In particular, in prisons with the lowest security level visits took place, under the Serving of Prison Sentences Act 1965 at least once a fortnight and direct contact between convicted persons and their visitors was allowed. The restrictions on visiting rights of persons detained on remand were applicable in a general manner, regardless of the reasons for their detention and the security considerations related thereto.
The 1987 European Prison Rules stated that untried prisoners, who are to be presumed innocent until they are found guilty, should be subjected only to such restrictions which are necessary for the penal procedure and the security of the institution (see paragraph 32 above).
Finally, the 2006 European Prison Rules, which were adopted shortly before the applicant’s detention on remand ended, provide, in particular, that unless there is a specific reason to the contrary, untried prisoners should receive visits and be allowed to communicate with family and other persons in the same way as convicted prisoners. Moreover, there is a possibility of additional visits and other forms of communication (see paragraph 34 above).
2. Alleged violation of Article 8 of the Convention taken alone
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
85. The Court notes that the interference in issue has limited but does not deprive the applicant of the possibility of using the money on his account in prison to buy supplementary food and other products in the prison shop.
It further notes that, even if a person does not fulfil the requirement of using an equivalent amount towards the reimbursement of a part of his or her debt, that person is to be allowed to use his or her money to buy medicine, indispensable sanitary items, items necessary to engage in correspondence, or to pay taxes or fees. It does not follow from the documents submitted that the applicant has not been allowed to use his money for that purpose regardless whether or not he reimbursed a part of his debt.
87. There has therefore been no violation of Article 1 of Protocol No. 1.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
“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.”
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:
(i) EUR 9,000 (nine thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 600 (six hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 13 December 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Gyulumyan and Tsotsoria is annexed to this judgment.
JOINT CONCURRING OPINION OF JUDGES GYULUMYAN AND TSOTSORIA
We voted with the majority in finding a violation of Article 14 in conjunction with Article 8 of the Convention in the particular circumstances of the present case. However, with due respect, we would like to express our separate opinion on certain points of the judgment that, we believe, are crucial in shaping the Court’s case-law on the rights of remand prisoners. From this point of view, the judgment may well go beyond the legal system of the respondent State and have implications for all the Contracting States.
In the present case, the applicant based his complaints on Articles 8 and 14 of the Convention and alleged that as a remand prisoner, his rights were restricted to a greater extent than those of convicted persons (see paragraphs 38-39 and 42 of the judgment).
We are mindful of the tendency towards greater protection of the rights of remand prisoners, which is adequately outlined in the relevant parts of the judgment. The most pertinent elements can be summarised as follows:
- when determining the appropriate regime for remand prisoners, the Government should take into consideration the fact that they enjoy the right to be presumed innocent;
- unless there is a time- and content-specific restriction imposed by a judicial authority in an individual case, remand prisoners should enjoy at least the same rights as convicted prisoners;
- the restrictions imposed must be necessary in the interests of the administration of justice or for the security of the custodial facility.
Based on the above-mentioned elements, the crucial question that arises is whether remand and convicted prisoners should enjoy the same rights, thus making Article 14 of the Convention applicable. Here we refer to the following facts of the case: the applicant was detained on remand for more than four years (see paragraphs 7 and 60). This unusually long period makes the present case specific in relation to regular cases concerning the rights of remand and convicted prisoners, as detention on remand is normally imposed for a significantly shorter period of time (see paragraph 55). This specific circumstance of the case, namely the long period of detention on remand, did not go unnoticed and was appropriately highlighted in paragraph 53 of the judgment. Therefore, we doubt that the rights of remand and convicted prisoners should be equal in all circumstances.
Having said that, we had no difficulties in agreeing with the majority that the present case fell within the ambit of Article 14 of the Convention, as the respondent Government also accepted the argument that the applicant, as a remand prisoner, had an “other status” within the meaning of Article 14. However, we did have difficulties in fully aligning ourselves with the
majority’s principal argument for the justification of the applicability of Article 14 of the Convention to the present case. In this regard, the majority found:
“57. The applicant’s complaints under examination concern the legal provisions regulating his visiting rights, and his lack of access to television programmes in prison. They thus relate to issues which are of relevance to all persons detained in prisons, as they determine the scope of the restrictions on their private and family life which are inherent in the deprivation of liberty, regardless of the ground on which they are based.” (emphasis added)
The paragraph cited above and the overall spirit of the judgment (see also, for instance, paragraph 67) bring us to the conclusion that the majority, at least implicitly, support the idea of making the status of remand and convicted prisoners equal. We think that the effect of the judgment as it now stands might go beyond the circumstances of the present case, irrespective of the preconditions for legitimate restrictions of rights; it is not certain that its impact will be limited to the right to have family visits and access to television, which formed the subject of the complaints in the underlying application. We are afraid that, in the light of the scarce case-law on the cumulative application of Articles 8 and 14 of the Convention in the field of prison rules, the importance of the present case has not been adequately assessed and carefully anticipated.
We feel compelled to say that, despite these unfortunate disagreements with the majority, we fully subscribe to the rationale of the judgment that the rights of remand prisoners should be further strengthened, albeit without prejudice to, inter alia, the legitimate interests of the criminal proceedings and the security of the institution concerned. The margin of appreciation enjoyed by the Contracting States in penal policy-making should likewise be respected, as reaffirmed by the majority (see paragraph 59).
The present judgment, as it now stands, fails to shed light on some of the very complex issues in penal policy that are equally important and relevant for the Contracting States. The ambiguity of the arguments in the judgment may turn the indisputably good intentions of the Court into something unintended.