European Court of Human Rights

 

 

 

THIRD SECTION

CASE OF KALDA v. ESTONIA

(Application no. 35245/19)

 

 

 

 

JUDGMENT

STRASBOURG

1 March 2022

 

 

 

 

This judgment is final but it may be subject to editorial revision.

 

In the case of Kalda v. Estonia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Darian Pavli, President,
          Peeter Roosma,
          Mikhail Lobov, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 35245/19) against the Republic of Estonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 26 June 2019 by an Estonian national, Mr Romeo Kalda, born in 1974 and detained in Viru Prison (“the applicant”), who had been granted legal aid and was represented before the Court by Mr J. Valdma, a lawyer practising in Tallinn;

the decision to give notice of the application to the Estonian Government (“the Government”), represented by their Agent, Ms M. Kuurberg, Representative of Estonia to the European Court of Human Rights;

the parties’ observations;

Having deliberated in private on 1 February 2022,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  Although the Viru Prison management granted requests by the applicant to have short-term meetings with his wife, it dismissed specific requests for such meetings to be held without a glass partition separating them. As grounds for refusing to grant a meeting without a glass partition, the prison initially referred to a statutory obligation arising from section 31(2) of the Internal Prison Rules (vangla sisekorraeeskiri) to use such a partition, but later cited prison security requirements. It noted that the applicant had been sentenced to life imprisonment and had repeatedly committed offences against the person (including while in prison). Moreover, an internal prison risk assessment report had noted a risk of his escaping and a “loss of trust” (usalduse kaotus) as security risks, and the applicant was generally considered highly dangerous. The Tartu Administrative Court dismissed an appeal against the prison’s decision, finding that the Internal Prison Rules did not enable the prison management to exercise discretion when deciding on the applicant’s requests to meet his wife without a glass partition. The Tartu Court of Appeal upheld the first-instance court’s judgment and noted additionally that the applicant had not substantiated how the use of a glass partition had violated his rights. It added, referring to the prison’s risk assessment report, that the restriction at issue had in any event been justified, given the danger that the applicant posed. The Supreme Court refused to examine an appeal on points of law lodged by the applicant.

2.  The applicant complained of a violation of Article 8 of the Convention on account of the refusal to allow him to have short-term meetings with his wife without a glass partition, noting that he had been allowed to have long-term meetings with his wife without such a physical barrier.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

3.  The Court cannot uphold the Government’s objection that the applicant has not suffered a significant disadvantage. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

4.  The general principles concerning prisoners’ right to respect for their family life and restrictions to prisoners’ visiting rights have been summarised in Khoroshenko v. Russia ([GC], no. 41418/04, §§ 106 and 116-26, ECHR 2015).

5.  There is no dispute that the impugned measure constituted an interference with the applicant’s “family life”, that it was “in accordance with the law” and that it pursued the legitimate aims of preventing disorder and crime and protecting the health and rights of others. The application of various measures, such as the physical separation of a detainee from his visitors by a glass partition, may be, in certain circumstances, justified by security considerations (see Khoroshenko, cited above, § 125; Resin v. Russia, no. 9348/14, § 31, 18 December 2018; and Andrey Smirnov v. Russia, no. 43149/10, § 53, 13 February 2018).

6.  The Government, referring to domestic case-law in cases other than the applicant’s, argued that section 31 of the Internal Prison Rules allowed prisons some discretion when deciding whether to authorise a short-term meeting without the use of a glass partition. However, in the instant case the domestic courts concluded that the prison did not have such a choice with regard to the type of meetings that the applicant had requested. Although the Tartu Court of Appeal found that the restriction at issue would have been justified in any event, owing to the danger which the applicant posed, it did not explain which exact risks emanating from the applicant were relevant in the context of his requests to meet his wife. While the Tartu Court of Appeal referred to the prison’s risk assessment report, the Court observes that in the report the prison noted, in general terms, the applicant’s criminal record, the severity of his sentence, the risk of his escaping and a “loss of trust”. At no stage was it explained how these risks - which the Court does not question as such - played a role in the decision to refuse the applicant’s requests to have physical contact with his wife during short-term visits. The domestic courts did not respond to the applicant’s argument that he had been able to receive unsupervised long-term visits from his wife during the period in question. The fact that such meetings had taken place was confirmed by the Government. Lastly, although the Government contended that visits without a glass partition had entailed a risk that forbidden items could be smuggled into the prison, it is to be noted that neither the prison management nor the domestic courts mentioned such a risk. Moreover, while the Government made a general reference to the risk of smuggling, they did not substantiate in any manner how either the applicant or his wife presented any particular or personal risk in that respect. The Court notes that under section 27 of the Imprisonment Act, short-term visits in any event take place under the supervision of prison officers, who have the right to end the meeting if they perceive that it raises security risks, and that under section 37 of the Internal Prison Rules, both the prisoner and the visitor are to be searched before and after the meeting.

7.  Against that background, the Court concludes that, even if the domestic regulations allowed the prison some discretion when deciding whether or not to authorise a short-term meeting without the use of a glass partition, in the instant case the domestic authorities did not sufficiently substantiate in a context-specific manner why the security risks relied on justified the restriction at issue. While the Court does not put in question the right of the authorities to impose restrictions when justified by the existence of genuine and continuing danger, it nevertheless considers that in the present case, the authorities failed to strike a fair balance between the aims relied on and the applicant’s rights. The fact that the applicant was at the same time allowed to have long-term meetings with his wife, make telephone calls and correspond through written letters does not alter that finding.

8.  There has accordingly been a violation of Article 8 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

9.  The applicant claimed 6,000 euros (EUR) in respect of non-pecuniary damage.

10.  The Government submitted that, should a violation be found, the finding of a violation would, in itself, constitute sufficient just satisfaction.

11.  The Court, ruling on an equitable basis, awards the applicant EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

12.  The Court further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

2.      Holds that there has been a violation of Article 8 of the Convention;

3.      Holds

(a)  that the respondent State is to pay the applicant, within three months,

EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 1 March 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

          Olga Chernishova                                                   Darian Pavli
          Deputy Registrar                                                      President