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CRIMINAL JUSTICE RESPONSES TO PRISON OVERCROWDING IN EASTERN PARTNERSHIP COUNTRIES

CRIMINAL JUSTICE RESPONSES TO PRISON OVERCROWDING IN EASTERN PARTNERSHIP COUNTRIES. 22-23 June, 2016 Kyiv. Prison Overcrowding a nd the ECHR Case Law. Dmytro Yagunov PhD, MSSc in Criminal justice, the CoE national expert, attorney at law. ARTICLE 3 PROHIBITION OF TORTURE.

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CRIMINAL JUSTICE RESPONSES TO PRISON OVERCROWDING IN EASTERN PARTNERSHIP COUNTRIES

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  1. CRIMINAL JUSTICE RESPONSES TO PRISON OVERCROWDING IN EASTERN PARTNERSHIP COUNTRIES 22-23 June, 2016 Kyiv

  2. Prison Overcrowdingandthe ECHR Case Law Dmytro Yagunov PhD, MSSc in Criminal justice, the CoE national expert, attorney at law

  3. ARTICLE 3PROHIBITION OF TORTURE • No one shall be subjected to torture or to inhuman or degrading treatment or punishment • Article 3 enshrines one of the most fundamental values of a democratic society • It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct

  4. Prison Overcrowdingas a Form of Torture • The lack of personal space afforded to a person in detention in and of itself raises an issue under Article 3 of the Convention, regard being had, particularly, to the heavy restrictions on freedom of movement and outside exercise

  5. Prison Overcrowdingas a Form of Torture • Visloguzov v. Ukraine, § 46 • Iglin v. Ukraine, § 52 • Mamedova v. Russia, § 61 • Khudoyorov v. Russia, § 104 • Labzov v. Russia, § 44 • Novoselov v. Russia, п. 41 • Mayzit v. Russia, § 39 • Kalashnikov v. Russia, § 97 • Peers v. Greece, § 69 • Lind v. Russia, § 60 • Neshkov and Others v. Bulgaria, § 231

  6. Varga and Others v. Hungary, § 73 • The extreme lack of space in a prison cell weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were “degrading” from the point of view of Article 3

  7. Visloguzov v. Ukraine, § 60 • Detention in overcrowded conditions, which lasted for 3 months 22 days, was further aggravated by inadequate ventilation and the lack of bunks which meant that he and the other detainees had to take it in turns to sleep

  8. Davydov and Others v. Ukraine, § 299 • Each inmate had some 3.5square metres of personal space available to him, which is less than the minimum standard recommended by the CPT for Ukraine • 1 – 2,5 square metres for a single prisoner should be considered as a serious preoccupation

  9. Neshkov and Others v. Bulgaria, § 231 • If if inmates have at their disposal less than 3 square metres of living space, overcrowding must be considered so severe as to lead in itself, regardless of other factors, to a breach of Article 3 of the Convention • The insufficiency of space may also be aggravated by the lack of enough individual sleeping places

  10. Neshkov and Others v. Bulgaria, § 231 • Furniture and fixtures in the cell • In the assessment of the amount of available space, account must be taken of the space occupied by furniture and fixtures in the cell

  11. Imprisonment of elderly persons • Haidn v. Germany, § 106 • Under certain circumstances, the detention of an elderly person over a lengthy period might raise an issue under Article 3 • Nonetheless, regard is to be had to the particular circumstances of each specific case 

  12. Transportation of Prisoners • Khudoyorov v. Russia, §§ 118-120 • Starokadomskiy v. Russia, §§ 53-60 • Idalov v. Russia [GC], § 106

  13. Yakovenko v. Ukraine, § 108 • As regards the transport of prisoners, the CPT has considered individual compartments measuring 0.4, 0.5 or even 0.8 square metres to be unsuitable for transporting a person, no matter how short the duration • CPT/Inf (2004) 36 [Azerbaijan], § 152 • CPT/Inf (2004) 12 [Luxembourg], § 19 • CPT/Inf (2002) 23 [Ukraine], § 129 • CPT/Inf (2001) 22 [Lithuania], § 118 • CPT/Inf (98) 13 [Poland], § 68

  14. Yakovenko v. Ukraine, § 108 • In the present case the applicant alleged that the prison vans measuring 6 square metres usually carried thirty detainees • The Government stated that there had never been more than 20 or 21 persons in a van • Therefore, even assuming in the Government's favour that there were 0.3 square metres per inmate in the van, this is obviously below the level permissible under the CPT standards

  15. Yakovenko v. Ukraine, § 108 • Rail transport • Having regard to the permissible space per inmate under the domestic standards for short-term railway journeys of 0.3 square metres it appears that if in a carriage designed for 104 persons70 inmates are accommodated the resulting space per inmate is 0.4 square metres, which, as indicated above is unsuitable for transporting a person on journeys of any length

  16. USE OF METAL CAGES IN COURTS Piruzyan v. Armenia (26 June 2012, appl. no. 33376/07)

  17. Piruzyan v. Armenia • Position of the State • The authorities had had no intention of subjecting the applicant to treatment incompatible with Article 3 • His placement in a metal cage had been an appropriate safety measure in view of the fact that he had three previous convictions and of the particular circumstances of the case and the applicant’s personality

  18. Piruzyan v. Armenia • The Court’s opinion • It has previously found a violation of Article 3 in a case in which the applicant was placed in a metal cage during court hearings • Ashot Harutyunyan v. Armenia • The circumstances of the present case are similar

  19. Piruzyan v. Armenia • There was no specific procedure to follow for a defendant who wished to be released from the metal cage • The case materials indicate that the applicant addressed the court at least twice requesting that he be released from the cage and alleging that his placement there amounted to inhuman and degrading treatment • No response was made to the applicant’s requests to release him from the cage

  20. Piruzyan v. Armenia • Imposition of such a stringent and humiliating measure on the applicant during the proceedings before the court, which was not justified by any real security risk, amounted to degrading treatment • There has accordingly been a violation of Article 3 of the Convention

  21. ARTICLE 5RIGHT TO LIBERTY • Everyone has the right to liberty and security of person • No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law…

  22. The Article 5 of the Convention guarantees the fundamental right to liberty and security • That right is of primary importance in a “democratic society” within the meaning of the Convention • De Wilde, Ooms and Versyp v. Belgium, § 65 • Winterwerp v. the Netherlands, § 37

  23. Any detention must be lawful • The words “in accordance with a procedure prescribed by law” essentially refer to domestic law and lay down an obligation to comply with its substantive and procedural provisions • It also require that any measure depriving the individual of his liberty must be compatible with the purpose of Article 5, namely to protect the individual from arbitrariness • Asatryan v. Armenia, § 40; • Winterwerp v. the Netherlands, § 39; Lukanov v. Bulgaria, § 41; Benham v. the United Kingdom, § 41;Assanidze v. Georgia [GC], § 17

  24. However, the “lawfulness” of detention under domestic law is the primary but not always a decisive element • The Court must in addition be satisfied that detention during the period under consideration was compatible with the purpose of Article 5 § 1, which is to prevent persons from being deprived of their liberty in an arbitrary fashion • The Court must moreover ascertain whether domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein • Erkalo v. the Netherlands, § 52

  25. The list of exceptions to the right to liberty secured in Article 5 § 1 is an exhaustive one and only a narrow interpretation of those exceptions is consistent with the aim and purpose of that provision • Asatryan v. Armenia,§ 40; • Quinn v. France, § 42 • K.-F. v. Germany, §§ 70 • Labita v. Italy [GC], § 170 • Nikolov v. Bulgaria, § 80

  26. A person must be released immediately when authorised detention is expired • Even a delay of 45 minutes was found to be in breach of Article 5 § 1 (c) • K.-F. v. Germany, § 72

  27. Where deprivation of liberty is concerned it is particularly important that the general principle of legal certainty be satisfied • It is essential that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of “lawfulness” set by the Convention, a standard which requires that all law be sufficiently precise to allow the person – 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 • Steel and Others v. the United Kingdom, § 54

  28. Article 5 • Everyone arrested or detained in … shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial • Release may be conditioned by guarantees to appear for trial

  29. The persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua nonfor the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices • The Court must then establish whether the other grounds given by the judicial authorities were “relevant” and “sufficient” to continue to justify the deprivation of liberty • Kudła v. Poland [GC], §§ 110-111 • Ječius v. Lithuania, § 93

  30. Letellier v. France

  31. Four acceptable risks for detaining a person before judgment • the accused would fail to appear for trial(Stögmüller v. Austria, § 15) • the accused, if released, would take action to prejudice the administration of justice(Wemhoff v. Germany, § 14) • the accused, if released, would commit further offences(Matznetter v. Austria, § 9) • the accused, if released, would cause public disorder(Letellier v. France, § 51)

  32. Danger of absconding • Trzaska v. Poland, § 65 • The danger of the accused’s hindering the proper conduct of the proceedings cannot be relied upon in abstracto; it has to be supported by factual evidence

  33. Danger of absconding • Becciev v. Moldova, §58; Yağcı and Sargın v. Turkey, § 52; Neumeister v. Austria, § 10 • The danger of an accused’s absconding cannot be gauged solely on the basis of the severity of the sentence risked • The risk of absconding has to be assessed in light of the factors relating to the person’s character, his morals, home, occupation, assets, family ties and all kinds of links with the country in which he is prosecuted

  34. Absence of a fixed residence • Sulaoja v. Estonia, § 64 • The absence of a fixed residence does not give rise to a danger of absonding • Nor can it be concluded from the lack of a job or a family that a person is inclined to commit new offences

  35. Guarantees of appearance before the court • Letellier v. France, § 46; Kolakovic v. Malta, § 68; Wemhoff v. Germany, § 15 • When the only remaining reason for continued detention is the fear that the accused will abscond and thereby subsequently avoid appearing for trial, he must be released if he is in a position to provide adequate guarantees to ensure that he will so appear

  36. Alternatives to imprisonment • Jabłoński v. Poland, § 83 • Under Article 5 § 3 the court, when deciding whether a person should be released or detained, is obliged to consider alternative measures of ensuring his appearance at trial • That Article lays down not only the right to “trial within a reasonable time or release pending trial” but also provides that “release may be conditioned by guarantees to appear for trial” • Until conviction he must be presumed innocent, and the purpose of Article 5 § 3 is essentially to require his provisional release once his continuing detention ceases to be reasonable

  37. Severity of the sentence • Neumeister v. Austria, § 10 • Becciev v. Moldova, § 58 • Expectation of heavy sentence and the weight of evidence may be relevant but is not as such decisive and the possibility of obtaining guarantees may have to be used to offset any risk

  38. Behaviour of a co-accused • Mamedova v. Russia, § 76 • Behaviour of a co-accused cannot be a decisive factor for the assessment of the risk of the detainee’s absconding • Such assessment should be based on personal circumstances of the detainee

  39. Pressure on the witnesses • Letellier v. France, §§ 38-39 • A genuine risk of pressure on the witnesses may have existed initially, but takes the view that it diminished and indeed disappeared with the passing of time

  40. Bails and detention • Piruzyan v. Armenia, §§ 104-105 • Caballero v. the United Kingdom [GC], § 21 • S.B.C. v. the United Kingdom, §§ 23-24 • The Court found a violation of Article 5 § 3 in a number of cases in which an application for bail was refused automatically by virtue of the law

  41. Automatic prolongation of detention • Tase v. Romania, § 40 • A person charged with an offence must always be released pending trial unless the State can show that there are “relevant and sufficient” reasons to justify the continued detention • Quasi-automatic prolongation of detention contravenes the guarantees set forth in Article 5 § 3

  42. Article 5 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful

  43. Toth v. Austria, § 84: Rutten v. the Netherlands, § 53 • The Court reiterates that Article 5 § 4 does not compel the Contracting States to set up a second level of jurisdiction for the examination of the lawfulness of detention and for hearing applications for release • Nevertheless, a State which institutes such a system must in principle accord detainees the same guarantees on appeal as at first instance

  44. Lamy v. Belgium, 29; Nikolova v. Bulgaria [GC], § 58; Garcia Alva v. Germany, § 39 • Article 5 § 4 requires that a court examining an appeal against detention provide guarantees of a judicial procedure. • The proceedings must be adversarial and must always ensure “equality of arms” between the parties, the prosecutor and the detained person. • Equality of arms is not ensured if counsel is denied access to those documents in the investigation file which are essential in order effectively to challenge the lawfulness of his client’s detention

  45. Shishanov v. Moldova Application 11353/06Judgment 15.9.2015

  46. Shishanov v. Moldova • The applicant, who was sentenced to a term of 25 years’ imprisonment for a variety of serious offences, was held in several detention facilities • His complaints concerned, among other things, overcrowding, inappropriate living and hygiene conditions and the allegedly inadequate quality and quantity of the food • In February 2014 the applicant was transferred to a detention facility in the Russian Federation

  47. Shishanov v. Moldova • In the present case the civil action for damages against the State suggested by the Government was a purely compensatory remedy that was not capable of improving the applicant’s conditions of detention • The Government had not proved that the domestic case-law consisting in ordering the administrative authorities to pay financial compensation for poor conditions of detention had constituted, at the material time, an established, consistent and therefore foreseeable practice on the part of the civil courts • Accordingly, the Court was not convinced that a civil action for damages, although accessible, had been effective in practice

  48. Shishanov v. Moldova • Although the respondent State had taken steps to improve detention conditions, it was required to make an adequate and effective mechanism available to individuals enabling the competent domestic authority to examine the substance of complaints relating to poor conditions of detention and to provide appropriate and sufficient redress • “Preventive” remedies and those of a “compensatory” nature had to co-exist and complement each other • Hence, where an applicant was detained in conditions contrary to Article 3, the most appropriate form of redress was the prompt cessation of the violation of the right not to be subjected to inhuman and degrading treatment • Furthermore, any person who had been subjected to detention which infringed his or her dignity should be able to obtain compensation for the violation found

  49. Preventive remedies • The best option would be the creation of a special authority responsible for supervising detention facilities. In order for this remedy to be effective, the authority in question would have to • (i) be independent of the authorities in charge of the prison system • (ii) guarantee effective participation by prisoners during the examination of their complaints • (iii) examine prisoners’ complaints swiftly and diligently, (iv) have available a wide array of legal instruments with which to remedy the problems underlying those complaints • (v) be able to give binding and enforceable decisions

  50. Preventive remedies • Another option would be to introduce a preventive remedy before a judicial authority by creating a new mechanism or adapting the existing system of application to the investigating judge • In the present case the application to the investigating judge had been ineffective in practice, mainly because the judge had not ordered the administrative authorities to take any specific measures and because the authorities had afforded only partial redress for the shortcomings identified by the judge • Hence, the competent judicial body should have the power to order the prison authorities to take specific remedial action capable of improving the situation not just of the complainant but also of other prisoners • The State should also define the precise arrangements for implementing the measures ordered by the judge

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