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THIRD
SECTION
CASE OF
EPNERS-GEFNERS v. LATVIA
(Application
no. 37862/02)
JUDGMENT
(Merits)
STRASBOURG
29 May 2012
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 Epners-Gefners v. Latvia,
The
European Court of Human Rights (Chamber), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Corneliu Bîrsan,
Alvina
Gyulumyan,
Ineta Ziemele,
Luis López
Guerra,
Nona Tsotsoria,
Kristina Pardalos,
judges,
and Santiago Quesada, Section Registrar,
Having
deliberated in private on 10 May 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 37862/02) against the Republic
of Latvia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Latvian national, Mr Aivars Epners-Gefners
(“the applicant”), on 2 October 2002.
- The
applicant, who had been granted legal aid, was represented by Ms I.
Ļeņova, a lawyer practising in Rīga. The Latvian
Government (“the Government”) were represented by their
Agent, Mrs I. Reine.
- The applicant alleged that he had not received
appropriate dental treatment and had not been able to receive
long-term family visits in detention.
- On 29 November 2006 the application was communicated to
the Government. On 17 June 2009 the Government submitted a unilateral
declaration with a view to having the application struck out of the
Court’s list of cases as concerns the applicant’s
complaint under Article 5 § 3 of the Convention, admitting that
the length of his pre-trial detention had violated that Article. By a
decision of 25 May 2010 the Court accepted the Government’s
unilateral declaration and struck the application out of its list of
cases in so far as it related to that complaint, in accordance with
Article 37 § 1 (c) of the Convention. As for the remaining
complaints mentioned in paragraph 3 above, the Court declared them
admissible and joined the Government’s preliminary objection in
so far as the scope of domestic law was concerned to the merits of
the case. The remainder of the application was declared inadmissible.
- The
applicant and the Government each filed further written observations
(Rule 59 § 1) on the merits.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1964 and lives in Liepāja.
A. Proceedings against the applicant
- On
1 October 1999 the applicant was arrested on suspicion of aggravated
robbery.
- On
11 April 2002 the Kurzeme Regional Court (Kurzemes apgabaltiesa)
convicted the applicant of aggravated robbery and sentenced him to
six years and one month’s imprisonment.
- On
5 June 2002, on the applicant’s appeal, the Criminal Chamber of
the Supreme Court (Augstākās tiesas Krimināllietu
lietu palāta) upheld in substance the judgment of the
first-instance court.
- On
20 September 2002 the Senate of the Supreme Court (Augstākās
tiesas Senāts) dismissed the applicant’s appeal on
points of law in a preparatory meeting (rīcības sēde).
- On
23 August 2004 the Jelgava Court (Jelgavas tiesa) decided to
apply a pre-release scheme to the applicant and ordered his release
before the end of his sentence.
B. Family visits during the applicant’s detention
- On
18 May 2000 the applicant’s wife gave birth to their son.
- On
16 November 2000 and 20 November 2001 the applicant received two
short-term visits from his wife. He also received four short-term
visits from his aunt during his pre-trial detention.
- The
applicant was able to receive long-term visits while serving his
sentence, starting from 5 October 2002. Until his release on
23 August 2004 the applicant received six long-term visits from
his wife; each of these visits lasted for about sixteen hours.
C. Dental treatment during the applicant’s
detention
- According
to the Government, the applicant first complained about his dental
care on 29 June 2000. A prison doctor prescribed pain relieving
medication (Ibuprofen) and advised him to consult a dentist.
- On
16 August 2000 the applicant complained of toothache to the prison
doctor, who prescribed other pain relieving medication (Analgin) and
advised him to consult a dentist.
- On 18 August 2000 the applicant saw a dentist, who
discovered that he had dental caries in one tooth. During his
examination, the dentist noted that the applicant had two missing
teeth and the remains of twenty-one damaged teeth. All in all, he had
eight just healthy teeth. The applicant refused the recommended
treatment.
- On
10 August 2001 the applicant again complained of toothache to the
prison doctor, who prescribed pain relieving medication (Analgin).
- On
19 September 2001 the applicant was examined by a psychiatrist, who
considered that the applicant’s complaints of headaches were
related to his dental cavity problems. The doctor advised him to
consult a dentist.
- On 25 October 2001 the applicant saw the dentist, who
diagnosed him as suffering from periodontal disease (loose teeth).
Subsequently, four teeth were extracted.
- On
26 November 2001 the applicant lodged a complaint with the General
Inspectorate (Ģenerālinspektora birojs), which at the
material time was the institution in charge of organising the
execution of criminal sentences and the probation system and was
supervised by the Ministry of Justice. His complaint was that he had
not been receiving appropriate dental care and that he needed dental
prosthetics. The applicant’s complaint was transferred to the
Prisons Administration (Ieslodzījuma vietu pārvalde) for
examination.
- On
11 December 2001 the Prisons Administration informed the applicant
that, following his requests, a dentist had made several extractions.
This service had been free of charge. It had been established that
the applicant had eight teeth left. It was presumed that he had not
taken appropriate care of his teeth prior to his detention. The
applicant was informed that dental prosthetics could be provided only
at his own expense and that the Ministry of Finance did not allocate
any funds to the Prisons Administration or prisons for this purpose.
- On
27 December 2001 the applicant submitted a complaint to the Chancery
of the President of Latvia (Latvijas Valsts prezidenta kanceleja)
about his dental care. The applicant’s complaint was
transferred to the Ministry of Justice and from there to the General
Inspectorate for examination, which transferred the complaint to the
Prisons Administration.
- On
12 February 2002 the Prisons Administration informed the applicant
that he had already received an answer on 11 December 2001 as regards
his complaint of 26 November 2001. It reiterated that dental
prosthetics could not be provided free of charge in prisons.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Instructions on remand prisons
1. Instruction of the Minister of the Interior
- Until 14 May 2001 the detention of persons in remand
prisons was governed by an instruction, which had been approved by
the Minister of the Interior on 30 April 1994.
- Rule
26 of that instruction provided that detainees placed in remand
prisons were allowed to receive short-term visits upon approval from
the authority conducting the criminal proceedings (that is, either
from the investigating authorities or the court, depending on the
stage reached in the proceedings).
- Rule
32 of that instruction stipulated that detainees placed in remand
prisons could receive one short-term visit (up to one hour) per month
from family members and other persons only with written permission
from the person or body dealing with the particular criminal case.
- In
2001 the Ministry of Justice took over the supervision of
penitentiary institutions from the Ministry of the Interior.
2. Transitional instruction of the Minister of Justice
- On 9 May
2001 the Minister of Justice issued an order enacting a transitional
instruction on the detention of persons in remand prisons. The
instruction entered into force on 14 May 2001.
- Rule 25 of the transitional instruction provided that
detainees could receive one short-term visit per month with written
permission from the authority dealing with the particular criminal
case.
3. Subsequent regulation by normative acts
- The
transitional instruction of the Minister of Justice remained
applicable until 1 May 2003, when Cabinet Regulation no. 211
(2003) took effect. Subsequently, Cabinet Regulation no. 288 (2006)
replaced it as of 20 April 2006. Finally, the Law on Custody
Procedure (Apcietinājumā turēšanas kārtības
likums) took effect on 18 July 2006.
B. Case-law concerning the nature of instructions
- On 19 December 2001 the Constitutional Court
(Satversmes tiesa) delivered its judgment in case
no. 2001-05-03 on the compliance of the internal regulations on
remand prisons (issued under the authority of the transitional
instruction of the Minister of Justice) with the Constitution
(Satversme). The Constitutional Court found, among other
things, that the transitional instruction as well as the internal
regulations on remand prisons had not been made public and that they
were internal normative acts (iekšējie normatīvie
akti). As a result, it concluded that some of the rules contained
in the internal regulations on remand prisons were unconstitutional,
but not those concerning short-term visits.
C. Case-law concerning visits while in a remand prison
- On 23 April 2009 the Constitutional Court delivered
its judgment in case no. 2008-42-01 on whether the restriction
of the duration of short-term visits to one hour for detainees, which
emanated from the Law on Custody Procedure (in effect since 18 July
2006), was in compliance with the Constitution.
- Having examined the Court’s case-law, the
practice of several member States of the Council of Europe, and the
European Prison Rules, the Constitutional Court found, on the one
hand, that there was no obligation for States to ensure long-term
visits for detainees and that the restriction to receive such visits
was compatible with the Constitution, namely, with the right to
private and family life contained therein. On the other hand, the
Constitutional Court held that the blanket one-hour restriction on
monthly short-term visits was not proportionate and thus not
compatible with the Constitution. The restriction was abrogated as of
1 December 2009 and, since 11 August 2011, the relevant
provision reads: “detainees have the right to receive visits
lasting at least one hour from their relatives or other persons at
least once a month”.
D. Medical assistance in custody
- Cabinet Regulation no. 358 (1999), in force at the
material time and effective until 28
March 2007, provided as follows:
“2. Convicted persons shall receive the minimum
standard of health care free of charge up to the amount established
by the Cabinet of Ministers. In addition, the Prisons Administration,
within its budgetary means, shall provide the convicted persons with:
2.1. primary, secondary and tertiary (in part) medical
care;
2.2. emergency dental care;
2.3. examination of health conditions;
2.4. preventive and anti-epidemic measures;
2.5. medication and injections prescribed by a doctor of
the institution;
2.6.
medical accessories.
3. Detained persons shall receive
medical care in accordance with Article 2 of these regulations,
excluding planned in-patient treatment.... Detained persons shall be
sent to receive in-patient treatment only in acute circumstances.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained of the domestic authorities’ refusal to
provide him with dental prosthetics, as well as a lack of proper
dental treatment in that regard.
- The
Court will examine this complaint under Article 3 of the Convention,
which provides as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Parties’ submissions
- The
applicant submitted that prior to detention his dental health had
been satisfactory. Conversely, while in detention his teeth had
started to crumble; the only treatment that had been offered was
extraction. The applicant considered that it had not been sufficient
or appropriate treatment for his medical condition. In October 2001,
however, extraction had been the only possible treatment.
- The
Government disagreed. They submitted that at the time of the
applicant’s detention his teeth had been in a catastrophic
condition (see paragraph 17 above). They maintained that the
applicant’s dental problems had not begun in detention.
- In
their view, the fact that the applicant had not received dental
prosthetics free of charge did not contravene Article 3 of the
Convention. They noted that the Convention did not guarantee a right
to receive medical care which would exceed the standard level of
healthcare available to the population generally. The Government
pointed out that dental prosthetics for the general population had
not been provided free of charge at the material time in Latvia. The
applicable Cabinet Regulation (see paragraph 35 above) provided for
free emergency dental care to detainees; it did not include dental
prosthetics.
- Lastly,
the Government argued that in the circumstances of the present case
it could not be considered that dental prosthetics were so crucial to
the applicant’s well-being that to deny him them would attain
the minimum level of severity required for Article 3 of the
Convention to apply.
B. Court’s assessment
- According
to the Court’s well-established case-law, ill-treatment must
attain a minimum level of severity if it is to fall within the scope
of Article 3 of the Convention. The assessment of this minimum
level of severity is relative; it depends on all the circumstances of
the case (see, among many others, Farbtuhs v. Latvia,
no. 4672/02, § 49, 2 December 2004, and
Bazjaks v. Latvia, no. 71572/01, § 105, 19 October
2010).
- The
Court further recalls that Article 3 of the Convention imposes an
obligation on the State to protect the physical well-being of persons
deprived of their liberty by, among other things, providing them with
the requisite medical assistance (see Farbtuhs v. Latvia,
cited above, § 51).
- First
of all, the Court notes that there is no indication in the
applicant’s medical documents that his condition was of such a
nature as to require constant medical supervision, in
the absence of which he would face major health risks. Indeed, he had
dental problems and these were addressed by the prison’s
medical staff whenever he complained about them. The applicant did
not show any interest in addressing these problems himself as he did
not follow through the recommendations to consult a dentist on
several occasions. Furthermore, when he saw the dentist for the first
time in 2000, the applicant expressly refused any treatment (see
paragraph 17 above). Nor did he have any further complaints in that
regard for over one year. The Court is thus unable to conclude that
the national authorities did not ensure proper
medical supervision of the applicant’s condition.
Secondly, the Court points out that the applicant himself admitted
that in October 2001 extraction had been the only option. It was only
after those extractions that he applied to the domestic authorities
with a request for free-of-charge dental prosthetics.
- Lastly,
with regard to the possibility of obtaining dental prosthetics, it is
important to note that the doctors who saw the applicant in the
present case never recommended that he have dental prosthetics of any
kind (see, on the contrary, V.D. v. Romania, no. 7078/02,
§§ 21 and 97, 16 February 2010). Thus
it cannot be said that dental prosthetics were a necessary treatment
for the applicant’s condition. Furthermore, according to the
Government’s submissions, which were not contested by the
applicant, dental prosthetics were not available free of charge to
the population generally in Latvia (see, on the contrary V.D.
v. Romania, cited above, §§ 95 to 97).
Nor is there any medical evidence that he had been starved or
otherwise unable to receive sufficient sustenance while in custody
(see mutatis mutandis Stojanović v. Serbia,
no. 34425/04, § 80, 19 May 2009). Accordingly, the
applicant’s suffering did not reach the minimum threshold of
severity required under Article 3 of the Convention.
- It
follows that there has been no violation of that provision.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that he had not been able to have long-term
family visits while being held in custody, in particular, from his
wife and newborn son, for more than two years.
- The
Court will examine this complaint under Article 8 of the Convention,
which reads 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. Preliminary considerations
- In
their observations on the merits of the case, the Government
reiterated the preliminary objection that they had raised at the
admissibility stage of the proceedings and maintained that this
complaint was manifestly ill-founded on the ground that the applicant
had failed to show his wish to exercise the right to family life.
Furthermore, they argued that the applicant had failed to use
domestic remedies on the same ground (that he had failed to show his
wish to exercise the right to family life). Had he expressed the wish
to exercise the right to family life at the domestic level, he could
have subsequently lodged a complaint with the Constitutional Court
about the compliance of the applicable instructions with the
provisions of superior force, a remedy which had been available since
1 July 2001.
- The
applicant considered that his complaint should be examined on the
merits.
- The
Court reiterates that, in accordance with Rule 55 of the Rules of
Court, any plea of inadmissibility must, in so far as its character
and the circumstances permit, be raised by the respondent Contracting
Party in its written or oral observations on the admissibility of the
application (see Moisejevs v. Latvia, no. 64846/01,
§ 86, 15 June 2006). The Court notes that the Chamber
rejected the Government’s preliminary objection at the
admissibility stage (see Epners-Gefners (dec.), no. 37862/02,
§ 52, 25 May 2010).
- It
is true that the Government may be dispensed from the obligation to
raise their preliminary objections at the admissibility stage in
exceptional circumstances (see, for example, Assanidze v. Georgia
[GC], no. 71503/01, §§ 126 et seq., ECHR 2004 II),
however the Court sees no exceptional circumstances in the present
case. Thus, the Court concludes that the Government is estopped from
raising a new preliminary objection.
B. Parties’ submissions
- The
applicant’s main concern under Article 8 was that the domestic
law did not provide for a right to receive long-term family visits
while he was being held in custody, in particular, from his wife and
newborn son. He further alleged that on an unspecified date a
short-term visit by his wife and son had been denied for lack of
suitable premises for a child.
- The
Government argued that Article 8 of the Convention did not guarantee
a right to receive long-term visits for detainees. They relied on,
most notably, the cases of Messina v. Italy (no. 2)
(no. 25498/94, ECHR 2000 X), Klamecki v. Poland (no. 2)
(no. 31583/96, 3 April 2003), and Aliev v. Ukraine (no.
41220/98, 29 April 2003) to argue that such a right could not
be derived from the Court’s case-law.
- They
further submitted that there was no common practice among the Council
of Europe member States as regards the right to receive long-term
visits for detainees. They noted that several member States did not
provide for such a right in their domestic law given the temporary
nature of detention. Other member States had laid down rules
concerning the general or minimum number, frequency, length and
manner of such visits.
- As
concerns Latvia, the Government submitted that the domestic law did
not allow detainees to receive long-term visits for the reason that
detention, unlike imprisonment, was a more temporary situation, which
should not continue for prolonged periods of time and which was aimed
at preventing manipulation of evidence in pending criminal
proceedings and ensuring an impartial investigation and an objective
decision-making process. They further relied on the Constitutional
Court’s ruling (see paragraph 33 above), in which that
court accepted that the restrictions on visiting rights emanating
from subsequent legislation were in pursuance of a legitimate aim,
namely, the protection of public safety.
- The
Government maintained that the applicant had not, in practice, been
prevented from exercising his right to family life. Even though
long-term visits had not been allowed, the applicant had been
entitled to receive short-term visits. According to the Government,
that right was never denied or restricted by the State authorities,
yet it was never effectively exercised by the present applicant. In
this regard they noted that he had never asked for more short-term
visits than the two he had received from his wife. Nor had he
demonstrated a wish to receive longer or more frequent visits than
those provided by law. Thus he could not claim to have been denied
the right to family life, including long-term visits.
- The
Government relied on the Court’s case-law in cases against
Latvia to argue that the circumstances of the present case were
different from cases where the Court found a violation of Article 8
of the Convention (Lavents v. Latvia, no. 58442/00,
28 November 2002; Moisejevs, cited above; and Kornakovs
v. Latvia, no. 61005/00, 15 June 2006), and were instead
comparable to those where no violation was found (see Nazarenko
v. Latvia, no. 76843/01, 1 February 2007, and Čistiakov
v. Latvia, no. 67275/01, 8 February 2007).
- Lastly,
as concerns the applicant’s allegation of having been denied
short-term visits, the Government pointed out that the scope of the
present case, as determined by the admissibility decision, did not
include the alleged restrictions on short-term family visits. In any
event, the applicant had previously never raised this issue and the
Government had not been given an opportunity to comment on it.
C. Court’s assessment
- The
Court notes at the outset that in his observations on the merits of
the case the applicant claimed that he had not been able to receive
short-term visits from his wife and son during his pre-trial
detention, a complaint that he had not raised before. As it has
decided in previous cases, the Court need not rule on complaints
raised after communication of an application to the Government (see
RuZa v. Latvia (dec.), no. 33798/05, § 30, 11 May
2010 and the case-law cited therein). Moreover, the Court’s
decision on the admissibility of the present application determines
the scope of the case currently before it; under Article 8 of the
Convention it is limited to the question of long-term visits (see
paragraphs 3 and 4 above).
- The
Court reiterates that detention, like any other measure depriving a
person of his liberty, entails inherent limitations on his private
and family life. However, it is an essential part of a prisoner’s
right to respect for family life that the authorities enable him or,
if need be, assist him in maintaining contact with his close
family (see Messina v. Italy (no. 2),
no. 25498/94, § 61, ECHR 2000 X; Lavents, cited
above, § 139; Estrikh v. Latvia,
no. 73819/01, § 166, 18 January 2007; and Nazarenko v.
Latvia, no. 76843/01, § 25, 1 February 2007). This
principle applies a fortiori to detainees not yet convicted,
who must be considered innocent by virtue of Article 6 § 2 of
the Convention, unless and to the extent that the requirements of the
investigation require a different approach (see Nazarenko,
cited above, § 25).
- In
the instant case, the applicant’s complaint under Article 8 of
the Convention relates to the State’s failure to ensure
long-term family visits for the applicant in a remand prison. The
Court notes in this regard that, according to the applicable
instructions at the time, detainees could only receive short-term
visits (see paragraphs 25 to 30 above) while convicted prisoners
could receive long-term visits. The Court, like the Commission
previously (see X. v. the Federal Republic of Germany,
no. 3603/68, Commission decision of 4 February 1970; G.S. and R.S.
v. the United Kingdom, no. 17142/90, Commission decision of
10 July 1991; and E.L.H. and P.B.H. v. the United Kingdom,
nos. 32094/96 and 32568/96, Commission decision of 22 October
1997), has noted with approval the reform movements in several
European countries to improve prison conditions by facilitating
long-term (also called “conjugal”) visits. However, the
Court has stressed that the refusal of such visits may be regarded as
justified for the prevention of disorder and crime within the meaning
of Article 8 § 2 of the Convention (see Aliev v. Ukraine,
no. 41220/98, § 188, 29 April 2003, and Nazarenko,
cited above, § 26). The Court has recently confirmed that the
Convention does not require the Contracting States to make provision
for such visits. Accordingly, this is an area in which the
Contracting States could enjoy a wide margin of appreciation in
determining the steps to be taken to ensure compliance with the
Convention with due regard to the needs and resources of the
community and of individuals (see Dickson v. the United Kingdom
[GC], no. 44362/04, § 81, ECHR 2007 V).
- The
Court observes that previously examined cases against Latvia
concerning family visits mostly related to refusals to allow even
short-term visits in detention (see Lavents, cited above, §
139; Moisejevs, cited above, § 153; and Kornakovs,
cited above, § 134). Another case concerned an applicant who
could not prove that any family visits had been refused in the period
under consideration and his complaint in that regard was therefore
rejected on the ground that there had been no interference with his
family life (see Čistiakov, cited above, § 33). Only
two cases decided so far have concerned the restrictions on receiving
long-term family visits in a remand prison (see Estrikh, cited
above, and Nazarenko, cited above). The Court observes that in
these cases the applicants had started off by actively requesting
permission to receive short-term visits; in Estrikh they were
constantly refused (see Estrikh, cited above, §§ 21,
23-24) and in Nazarenko they were granted (see Nazarenko,
cited above, § 14). The refusals in the Estrikh case,
coupled with the fact that the applicant was not entitled to receive
long-term visits, were sufficient to consider that there had been an
interference with the applicant’s family life. In Nazarenko
an express request by the applicant to receive a long-term family
visit was first refused, but four months later it was allowed on
account of the change in his status. Therefore, in view of the
relatively brief waiting period and the fact that no short-term
visits had been refused in the meantime, the Court concluded that no
issues under Article 8 of the Convention had arisen.
- Turning
to the circumstances of the present case, the Court observes that in
contrast to the above-mentioned cases, the current applicant was
neither denied any short-term visits (contrast with Estrikh)
nor did he apply for long-term visits while in a remand prison
(contrast with Nazarenko). He did not complain to the domestic
authorities but brought up this issue for the first time before the
Court. In view of such circumstances and leaving aside the question
of domestic remedies, especially in view of the Constitutional
Court’s subsequent intervention on this issue (see paragraphs 33
and 34 above), the Court has to establish whether the facts, as
presented to it, constitute an interference with the applicant’s
family life within the meaning of Article 8 of the Convention.
- First
of all, the applicant received two short-term visits from his wife
over a period of three years. No other visits were ever refused and
for that reason the domestic authorities cannot be held responsible
for the long periods of time between those visits. Nor can it be said
that the domestic authorities imposed unreasonable restrictions on
the number of family visits the applicant could receive as he did not
seek to exercise his right to receive one family visit per month.
Secondly, the Court observes that the applicant did not bring his
family situation, in particular, the birth of his child, to the
attention of the domestic authorities. The Court therefore comes to
the conclusion that there has been no “interference by a public
authority” within the meaning of Article 8 § 2 of the
Convention with the applicant’s right to respect for his family
life guaranteed by Article 8 § 1.
- Accordingly,
there has been no violation of Article 8 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been no violation of
Article 3 of the Convention;
- Holds that there has been no violation of
Article 8 of the Convention.
Done in English, and notified in writing on 29 May 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
