CASE OF LINDSTRÖM AND MÄSSELI v. FINLAND
(Application no. 24630/10)
14 January 2014
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 Lindström and Mässeli v. Finland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Vincent A. De Gaetano,
Faris Vehabović, judges,
and Françoise Elens-Passos, Section Registrar,
Having deliberated in private on 10 December 2013,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
II. RELEVANT DOMESTIC LAW AND PRACTICE
- a prisoner wears closed overalls and only underpants under them;
- sleeve ends of the overalls are adjusted by means of plastic strips;
- opening the zipper is prevented by means of a plastic strip;
- a prisoner is given a Bible, AA (Alcoholics Anonymous) literature and a drinking vessel;
- smoking requisites and toiletries are kept by staff;
- a prisoner smokes and eats under supervision by staff;
- on request, a prisoner is permitted to wash under supervision;
- laxatives are given to a prisoner only before noon;
- a prisoner defecates and urinates under supervision by staff;
- a nurse and a medical doctor are called when necessary;
- the isolation cell is provided with a mattress and a pillow; and
- the overalls are washed after every use.
- a prisoner is permitted to wash his or her hands after defecation and urination;
- a prisoner is permitted to shower under supervision by staff every second day;
- a mattress, a pillow and a blanket are provided on request; and
- outdoor exercise is arranged according to the daily routine.
“If there are reasonable grounds to suspect that a prisoner is concealing inside the body unlawful substances or items meant in Chapter 9, section 1, subsections 1 or 2 while in prison or when entering a prison, he or she can be placed in a room or cell where he or she and the evacuation of the unlawful substances or items can be observed round the clock with technical means or otherwise.
The medical personnel shall be immediately informed about the placement of a prisoner in observation in isolation. A medical doctor or other medical personnel shall verify as soon as possible the health condition of the prisoner. The prisoner shall be closely observed by technical surveillance or in some other manner.”
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
1. The parties’ submissions
2. The Court’s assessment
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
“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.”
1. The parties’ submissions
2. The Court’s assessment
III. 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
1. Declares unanimously the application admissible;
2. Holds by five votes to two that there has been no violation of Article 3 of the Convention;
3. Holds unanimously that there has been a violation of Article 8 of the Convention;
4. Holds unanimously
(a) that the respondent State is to pay the applicants, 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 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to each of the applicants;
(ii) EUR 2,500 (two thousand five hundred euros) in respect of the first applicant and EUR 1,000 (one thousand euros) in respect of the second applicant, plus any tax that may be chargeable to the applicants, 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;
5. Dismisses unanimously the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 14 January 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Elens-Passos Ineta Ziemele
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Bianku and Vehabović is annexed to this judgment.
JOINT DISSENTING OPINION OF JUDGES BIANKU AND VEHABOVIC
While we agree with the conclusion of the majority of the Chamber in respect of Article 8, we are unable to share their view that there has been no violation of Article 3 of the Convention.
As to the facts of the case
The reasoning in paragraphs 48 to 49 of the judgment in the present case is based on the assessment of the domestic courts which found as follows: “there was no evidence that the guards had intentionally delayed their response to the applicants’ calls to use the toilet. Nor was it shown that the applicants had not had an appropriate possibility to wash whenever necessary. Moreover, the applicants had failed to submit any evidence to prove that the plastic strips had caused abrasions to their wrists or that the overalls caused them allergic reactions”. On the basis of those conclusions, the Chamber concluded that the “practice of using closed overalls during the relatively short period of isolation cannot, as such, be regarded as diminishing the applicants’ human dignity or giving rise to feelings of anguish and inferiority capable of humiliation and debasing them.”
We can accept the argument that the domestic courts are better placed than this Court to assess the circumstances of the case and to provide an appropriate legal response to all factual and legal questions raised by the applicants. However, the domestic courts simply disregarded the fact that the use of overalls is not prescribed by law while confirming the fact that the applicants were made to wear the overalls for four and eight days respectively in solitary confinement without any proof that they were involved in drug trafficking in the prison.
Moreover, the Riihimäki District Court and subsequently the Kouvola Appeal Court came to the conclusion that the applicants had defecated in their overalls but that the prison guards had not intended to delay their response to the applicants’ calls. In fact, those courts conceded that the applicants had used sealed overalls; had been unable to remove the overalls by themselves; and had had to call the guards to escort them when they needed to use the toilet in order to remove the overalls there. At least once the guards had arrived too late and the applicants had defecated in their sealed overalls. It is worth mentioning that one applicant was in isolation for four days, from 13 to 16 November 2004 inclusively, and the other from 9 to 16 May 2004. There seems to be a widespread practice in the Riihimäki Prison of making prisoners wear overalls and of following the same procedure of a delayed response on the part of the prison guards to prisoners’ calls to relieve themselves, especially when the latter are given laxatives.
As to the law
Much to our regret, we cannot but disagree with the Chamber’s conclusion in paragraph 50, which is based on the facts established by the Chamber that “the use of overalls did not reach the threshold of Article 3 of the Convention in the present case.”
It is the Court’s constant practice to consider treatment to be “inhuman” where, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering. It has deemed treatment to be “degrading” where it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see, for example, Kudla v. Poland (GC), no. 30210/96, § 92, ECHR 2000-XI).
It appears from the facts that both applicants were in isolation without any contact with other prisoners and without any possibility of undertaking regular prison activities. Moreover, they were obliged to use sealed overalls in the absence of any legal basis for the application of that kind of procedure to prisoners. All those restrictions, which have no legal basis and are imposed at the authorities’ discretion, are incompatible with a prison regime in a democratic society. They played their part in increasing the applicants’ distress and mental suffering (see, for example, Ilascu and Others v. Moldova and Russia, No. 48787/99, 8 July 2004, § 444, ECHR 2004-VII). Whereas the legality of the measure might be considered as having no bearing on the issue whether the specific treatment reaches the threshold of Article 3, we think that the subjective and incorrectly assessed effects[i], and the lack of a proper and clear legal basis compatible with Article 3 standards, may result in situations, such as the one in the present case, where that threshold is reached.
We disagree with the Chamber’s conclusion that the applicants were unable to produce any evidence to support their allegations of humiliating treatment while in isolation. The domestic courts confirmed in their decisions that the applicants had defecated in sealed overalls but concluded that there was no evidence that the guards had intentionally delayed their response to the applicants’ calls to use the toilet. As the prisoners were given laxatives and were wearing sealed overalls, the prison guards must have been aware that the prisoners’ physical needs depended on a proper response on their part. The lack of a proper response cannot be justified merely on the grounds that the guards did not intentionally respond too late, especially if the procedure in question logically required the constant presence of prison guards for a fairly short period of time. Furthermore, lack of intention (see paragraph 48 of the judgment) does not necessarily mean that the treatment has not reached the threshold of Article 3 of the Convention.[ii] Our opinion is that, contrary to the conclusion reached by the Chamber in this case, if a person is placed in isolation, even for a fairly short period of time, and is obliged to wear overalls in which he defecates as a result of an allegedly slow response by the prison guards, this does reach the minimum the threshold under Article 3 of the Convention and must be regarded as degrading treatment.