In the case of D.F. v. Latvia,
The European Court of Human
Rights (Fourth Section), sitting as a Chamber composed of:
David Thór Björgvinsson,
President,
Ineta Ziemele,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Vincent A. De Gaetano, judges,
and Françoise Elens-Passos, Section
Registrar,
Having deliberated in private on 8 October 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no. 11160/07)
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 D.F. (“the applicant”), on 20 February
2007. The President of the Chamber decided of his own motion to grant the applicant anonymity
pursuant Rule 47 § 3 of the Rules of Court.
The applicant, who had been granted legal aid,
was represented by Ms B. Didrihsone, a lawyer practising in Rīga.
The Latvian Government (“the Government”) were
represented by their Agents, Mrs I. Reine and subsequently by Mrs K.
Līce.
The applicant alleged in particular that by
delaying his transfer to Matīsa Prison the domestic authorities had failed
to ensure his safety and well-being, and that he had had no effective remedy
before a national authority in that respect.
On 24 November 2010 the application was
communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1963 and is currently
serving a prison sentence in Riga.
A. The applicant’s detention and requests for his safety
to be ensured
The applicant alleges that for an extended period
of time in the 1990s he was a police informant on criminal matters in Balvi. It
appears that that collaboration was officially documented by the police and the
applicant was paid for his services. Over time, the criminal community in Balvi
became aware of his role as an informant, and as a result he was assaulted and
threatened with murder on several occasions. The applicant then moved to
Rēzekne.
On 6 October 2005 the applicant was arrested
on charges of rape of his partner’s minor daughter and of indecent assault on the
partner’s minor son.
The applicant was transferred to Daugavpils
Prison on 25 October 2005, and stayed there until 26 October 2006,
when he was transferred elsewhere (see paragraph 20 below). During this
period he was taken to Riga Central Prison on four occasions. He spent a total
of approximately fifty-five days in Riga and more than 300 days in Daugavpils.
The Government submitted, and the applicant did
not deny, that when he had arrived at Daugavpils Prison he had had the standard
entry interview with a member of the security staff of the prison. It appears
that during the interview the applicant gave the names of several inmates of
the prison with whom he had had conflicts in the past, and the administration
of the prison undertook to keep him isolated from those individuals throughout his
stay in Daugavpils. On the other hand, according to the Government, the
applicant did not inform the administration of the prison about his previous
collaboration with the police, and did not ask to be kept isolated from any other
prisoners. The Government submitted that on 21 February 2006 the applicant
requested the governor of Daugavpils Prison to transfer him to a unit in which
prisoners were involved in housekeeping activities (kitchen duties and laundry work)
and hence often came into contact with other prisoners.
On 17 January 2006 the prosecutor charged with
investigating the criminal charges against the applicant invited the applicant
to submit his final motions concerning the criminal case. According to the
applicant, on that day he requested the prosecutor to arrange for his transfer
to Matīsa Prison, which has a section designated for holding detainees who
have worked for law-enforcement institutions or collaborated with those
institutions (see paragraph 37 below). The applicant alleged that
the prosecutor agreed to order his transfer to Matīsa Prison in exchange
for a plea bargain. The applicant submitted that he felt pressured to accept
that arrangement, and the plea bargain was signed on 20 January 2006. The
applicant’s defence counsel was present when the plea bargain was signed. The
Government questioned the reliability of the applicant’s version of the events,
underlining that under national law the prosecutor did not have any authority
to order the applicant’s placement in a particular prison; the institution
competent to do so was the Prisons Administration (Ieslodzījuma vietu
pārvalde).
The applicant alleged, and the Government did
not in substance dispute, that on 24 March 2006 a note was added to his case
file that he was to be held in isolation from other detainees. The parties
differ as to the precise nature and effects of such a requirement - according
to the Government the applicant’s case file did not contain anything in writing
to the effect that he should be held in isolation prior to 1 November 2008,
thus, for example, the administration of Daugavpils Prison could not have known
about it. The Government submitted to the Court a copy of a document from
11 April 2006, signed by the Rēzekne chief of police, concerning the
transportation of three detainees from Rēzekne to Daugavpils, on which the
word “isolation” appears next to the applicant’s name.
On 13 April 2006 the Prisons Administration
refused to order the applicant’s transfer to Matīsa Prison. It firstly noted
that according to the applicable domestic rules (see paragraph 37 below)
only “a certain category of prisoners” served their sentences in Matīsa
Prison. The applicant was informed that the Prisons Administration had no
information concerning his alleged links with law-enforcement institutions. The
Prisons Administration further indicated that a decision to transfer the applicant
could only be made after his conviction had become final (it became final on
1 February 2007: see paragraph 27 below).
The applicant alleged that while in Daugavpils Prison
he had been subjected to repeated physical violence by other prisoners. The
applicant indicated that he had lost several teeth as a result of beatings he
had received. In his submission, the violence against him was a direct
consequence of his earlier collaboration with the police, which had become known
in the prison, which held numerous inmates from Balvi. The applicant indicated
that the fact that he had been charged with sexual offences against minors also
made him the target of abuse by other prisoners.
The applicant furthermore noted that the
administration of Daugavpils Prison had frequently moved him from one cell to
another, thus exposing him to an even larger number of other prisoners. When he
complained about this the applicant received a response from the Prisons
Administration on 19 June 2007, in which it was indicated that the placement of
detainees in cells was at the discretion of the authorities of each individual
prison and that in the applicant’s case the administration of Daugavpils Prison
had made its decisions “taking into account the available space in cells,
psychological factors, and the level of education and state of health of
prisoners”.
On 12 June 2006 the applicant wrote to the
Prosecutor General and submitted rather detailed information about his
collaboration with the criminal police in Balvi, such as the alias given to him
by the police and the fact that he had been paid for his services. He
underlined that because of the nature of the charges against him and because of
his former collaboration with the police he was constantly in danger of
retribution by other prisoners. The applicant’s letter was forwarded to the
Prisons Administration, which dismissed his request to be transferred to
Matīsa Prison on 27 June 2006.
On 21 July 2006 the applicant once again
wrote to the Prosecutor General. In his letter he essentially repeated the
claims made in his previous letter, but also explicitly referred to the
“isolation request” in his case file, which he stated had been respected whenever
he had been transported outside Daugavpils. He also gave details of several instances
of ill-treatment of other inmates of Daugavpils Prison. The applicant’s letter
was forwarded to the Prisons Administration, which requested additional
information from Daugavpils Prison. The head of security of Daugavpils Prison
denied the existence of any threats to the applicant and submitted statements
from two of the inmates named by the applicant, denying that the incidents
recounted by the applicant had ever taken place. In the light of this
information, on 25 August 2006 the Prisons Administration rejected the
applicant’s request for transfer to Matīsa Prison.
A similar request of 24 July 2006,
addressed to the Prisons Administration, was rejected on 7 August 2006.
On 14 August 2006 the applicant wrote to
the Supreme Court (where his criminal case was pending at that time: see
paragraph 26 below) and explained that that court was the only avenue
through which he could still hope to obtain a transfer to Matīsa Prison.
On 17 August 2006 he received a reply from a judge of the Supreme Court informing
him that the Prisons Administration was the body which was competent to decide
questions of transfer of prisoners.
On 27 August 2006 the applicant asked the
Prosecutor General to initiate criminal proceedings against Balvi Criminal
Police for their failure to acknowledge his collaboration with the police. On
22 September 2006 the Specialised Prosecutor’s Office (Specializētā
vairāku nozaru prokuratūra) requested information from the
Security Police about the progress made with regard to the applicant’s request
from May 2006 in which he had asked the police to confirm his collaboration.
On 5 October 2006 the applicant received a
response from the criminal police, informing him that his collaboration had
been confirmed and that the State Police on 5 October 2006 had requested the
Prisons Administration to transfer him to Matīsa Prison. The director of
the Prisons Administration ordered the transfer on 13 October 2006 and on
26 October 2006 the applicant was transferred to Riga.
Upon a request from the Government Agent, on
11 March 2011 the Ministry of Justice provided information concerning, inter
alia, the applicant’s complaints submitted to the ministry. The ministry
reported that it had received, either directly from the applicant himself or
via prosecutors, numerous complaints which had principally related to unfair
conviction, employment issues in prisons, and similar matters. The applicant
had on one occasion (on 13 August 2007) complained about “the actions of
the Prisons Administration in transferring him between cells”. The Ministry of
Justice had provided the applicant with a response, a copy of which has not
been made available to the Court.
B. Medical records
According to a summary of the applicant’s
medical records submitted by the Government, in November and December 2006 and
in January 2007 the roots of five of his teeth were extracted in Daugavpils
Prison. On two occasions (on 31 January 2006 and 9 December 2010) the
applicant was diagnosed with chronic periodontitis.
In a response given to the applicant on
28 August 2007 the Prisons Administration noted that there was nothing in
the applicant’s case file that would indicate that the applicant had lost his
teeth during altercations with other inmates of Daugavpils Prison.
According to information obtained by the
applicant from the medical department of Matīsa Prison, in 2007 he had
visited the dentist there on no fewer than seven occasions. The reason for and
the nature of these visits was not given.
C. Criminal proceedings
By a judgment of 22 March 2006 the Latgale
Regional Court convicted the applicant of the offences with which he was charged
and sentenced him to a prison term of thirteen years and one month. In deciding
to convict the applicant, the first-instance court relied on statements from
the two victims. The court also heard statements from two other witnesses and
took into account statements from the applicant’s partner and her mother. It
also relied on two reports from expert psychologists. The applicant’s statements
were summarised in the judgment and were followed by a note that he had
retracted his confession before the hearing. The applicant alleged that he had tried
to submit to the court a written statement of his reasons for confessing
(namely, that he had wished to be transferred to Matīsa Prison). However,
given the choice of either having his statement read out at the hearing and
admitted in evidence or not having it admitted in evidence, he had chosen the
latter, since he had not wanted to disclose his previous collaboration with the
police in a public forum.
On 5 December 2006 the Supreme Court rejected
the applicant’s appeal against the judgment of the first-instance court by agreeing
with the lower court’s reasoning. With regard to the applicant’s confession,
the appeal court noted that he had given conflicting accounts as to why it had
been written. Specifically, on one occasion he had explained that it had been
done to ensure his transfer to another prison, while in a letter to the
president of the first-instance court he had explained that he had confessed
because his psychological state had been such that he did not care what happened.
Taking into account the differing explanations, the appeal court chose not to
believe them.
The Senate of the Supreme Court on 1 February
2007 refused to accept an appeal by the applicant on points of law, since it
was held that he had failed to substantiate his appeal with any indication of significant
violation of substantive or procedural law.
On 16 July 2007 the applicant asked the Senate
of the Supreme Court to reopen the proceedings in his case because of violations
of procedural law and the Convention which had allegedly been committed during
the original proceedings. That request was refused on 10 August 2007, since
requests for reopening of proceedings could only be submitted by a prosecutor
or by an attorney acting on behalf of a convicted person. No State-provided
legal aid was available for applications for reopening of proceedings.
The applicant eventually secured legal
representation, and on 14 March 2008 the Senate considered his request for
reopening of the proceedings, and rejected it on the merits.
II. RELEVANT DOMESTIC LAW AND PRACTICE AND
COUNCIL OF EUROPE MATERIALS
A. The relevant documents of the Council of Europe
The European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment (hereinafter “the
CPT”) has developed standards relating to the treatment of persons deprived of
their liberty. The following are its standards concerning violence between
prisoners (document no. CPT/Inf/E (2002) 1, Rev. 2009, paragraph 27):
“The duty of care which is owed by custodial staff to those in
their charge includes the responsibility to protect them from other inmates who
wish to cause them harm. In fact, violent incidents among prisoners are a
regular occurrence in all prison systems; they involve a wide range of
phenomena, from subtle forms of harassment to unconcealed intimidation and
serious physical attacks.
Tackling the phenomenon of inter-prisoner violence requires
that prison staff be placed in a position, including in terms of staffing
levels, to exercise their authority and their supervisory tasks in an
appropriate manner. Prison staff must be alert to signs of trouble and be both
resolved and properly trained to intervene when necessary. The existence of
positive relations between staff and prisoners, based on the notions of secure
custody and care, is a decisive factor in this context; this will depend in
large measure on staff possessing appropriate interpersonal communication
skills. Further, management must be prepared fully to support staff in the exercise
of their authority. Specific security measures adapted to the particular
characteristics of the situation encountered (including effective search
procedures) may well be required; however, such measures can never be more than
an adjunct to the above-mentioned basic imperatives. In addition, the prison
system needs to address the issue of the appropriate classification and
distribution of prisoners.
Prisoners suspected or convicted of sexual offences are at a
particularly high risk of being assaulted by other prisoners. Preventing such
acts will always pose a difficult challenge. The solution that is often adopted
is to separate such prisoners from the rest of the prison population. However,
the prisoners concerned may pay a heavy price for their - relative - security,
in terms of much more limited activities programmes than those available under
the normal prison regime. Another approach is to disperse prisoners suspected
or convicted of sexual offences throughout the prison concerned. If such an approach
is to succeed, the necessary environment for the proper integration of such
prisoners into ordinary cell blocks must be guaranteed; in particular, the
prison staff must be sincerely committed to dealing firmly with any signs of
hostility or persecution. A third approach can consist of transferring
prisoners to another establishment, accompanied by measures aimed at concealing
the nature of their offence. Each of these policies has its advantages and
disadvantages, and the CPT does not seek to promote a given approach as opposed
to another. Indeed, the decision on which policy to apply will mainly depend on
the particular circumstances of each case.”
In its report on its visit to Latvia in 2002,
the CPT expressed serious concern about the frequent occurrence of violence
between prisoners in Daugavpils Prison (paragraph 69). In this regard, it
reiterated that the prison authorities had a duty to take proactive measures to
prevent such violence (paragraph 71).
Similar concerns were expressed in the wake of
the CPT’s 2004 visit to Latvia. The report once again expressed concern about
the frequency and severity of allegations of violence between prisoners in
Daugavpils Prison (paragraph 43). The Latvian authorities were repeatedly
called upon “to take special precautions to protect ... vulnerable prisoners
from all forms of abuse” and “to develop strategies with a view to addressing
the problem of inter-prisoner violence”.
While the CPT did not visit Daugavgrīva
Prison during its 2011 visit to Latvia, its report on this visit called the
Latvian authorities “to develop a comprehensive strategy with a view to
addressing the problem of inter-prisoner violence” (paragraph 55).
In their response to the CPT’s report on the
2011 visit the Government outlined several safeguards for preventing
inter-prisoner violence, indicating that the security departments of prisons “in some cases request the [Prisons Administration] to displace the
prisoner to another prison due to security reasons”. In deciding on the
placement of prisoners in particular prisons, the responsible authorities take
into account, among other things, the nature of criminal offences committed by
him and “the psychological compatibility of prisoners”.
The relevant part of Recommendation
Rec (2005)9 of the Committee of Ministers of the Council of Europe to member states
on the protection of witnesses and collaborators with justice provides as
follows.
“II. General Principles
... 2. While respecting the rights of the
defence, the protection of witnesses, collaborators of justice and people close
to them should be organised, where necessary, before, during and after the
trial.
3. Acts of intimidation of witnesses,
collaborators of justice and people close to them should, where necessary, be
made punishable either as separate criminal offences or as part of the offence
of using illegal threats”.
B. Relevant domestic law
1. Placement of detainees
At the time of the applicant’s arrest the
placement of individuals who had been detained but not convicted was governed
by Regulation of the Cabinet of Ministers no. 211 (2003), entitled “The
rules of internal order in remand prisons” (Ministru kabineta noteikumi
Nr. 211 “Izmeklēšanas cietumu iekšējās kārtības
noteikumi”), which remained in force until 1 April 2006. Paragraph 19
provided that detained persons were to be placed in cells, and decisions on
when and whether to move them were to be based on internal security, the offence
on which the detention was based, personal characteristics and psychological
factors.
From 20 April 2006 the placement of detainees
was governed by the Law on Detention Procedure (Apcietinājumā
turēšanas kārtības likums), section 11(4) and (5), which
provided that detained persons were to be held separately from those who had
been convicted, and that employees and former employees of certain institutions,
of which an exhaustive list was provided (the Prisons Administration and others),
as well as their spouses and immediate family, were to be placed separately
from other detainees.
On 18 July 2006 the Law on Detention Procedure
was amended. In the version in force until 26 October 2006 (when the
applicant was moved to Matīsa Prison) a new section, 11(6), was added,
which provided that first-time detainees were to be held separately from
others. The same paragraph also provided that “detainees are placed in cells
taking into account internal security as well as (as far as possible) [their]
personal characteristics and psychological factors”.
The Prisons Administration Order no. 114 of
6 August 2004 “On placement of convicted persons in institutions of deprivation
of liberty” (Ieslodzījuma vietu pārvaldes 2004. gada
6. augusta rīkojums Nr. 114 “Par notiesāto izvietošanas
kārtību brīvības atņemšanas iestādēs”)
provided that among the categories of convicted persons who could be placed in
Matīsa Prison after their conviction had become final were the following:
convicted persons in need of special isolation pursuant to the Law on Operational
Activities (paragraph 3.7) and, in particular cases, pursuant to a decision of
the security division of the Prisons Administration, first-time convicts whose
crimes were not related to physical violence or distribution of narcotic
substances.
2. Administrative Procedure Law
. The Administrative Procedure Law (Administratīvā
procesa likums) took effect on 1 February
2004. It provides, among other things, for the right to challenge
administrative acts (administratīvais akts) and actions of public authorities (faktiskā
rīcība) before the administrative courts.
41. At the relevant time section
1(3) of the Administrative Procedure Law defined an administrative act as
“a decision ... [that] significantly
interferes with the human rights of a person specially subordinated [īpaši
pakļauta] to a public authority. [A]n internal decision of a public
authority that only concerns that authority itself [or] a specially subordinated
person is not an administrative act. Neither are criminal procedural decisions
administrative acts”.
. Under section 92 of the Administrative
Procedure Law everyone has the right to receive appropriate compensation for
pecuniary and non-pecuniary damage caused by an administrative act. Under
section 93 of the same Law, a claim for compensation can be submitted
either together with an application to the administrative courts to have an
administrative act declared unlawful, or to the public authority concerned
following a judgment adopted in such proceedings.
43. In addition, chapter 22 of the
Administrative Procedure Law provides for the possibility of interim measures
being applied. As in force at the time relevant for the present case,
section 195 of that Law provided for the possibility of interim measures being
applied if there was “a reason to consider that the implementation of the court
decision might become difficult or impossible”. At the time section
197 did not set down a time-limit for examining requests for the
application of interim measures.
3. Case-law of the
administrative courts
On 7 November 2007 the Senate of the
Supreme Court adopted a decision (no. SKA-576/2007), in
paragraph 19 of which it was explicitly stated that
“a refusal by the Prisons Administration to transfer the
petitioner to [another] prison ... is not ... an administrative act. It is an
internal decision of a public authority ... As an internal decision it is not
amenable to a review in administrative proceedings, unless it significantly interferes with the human rights of a person specially
subordinated to a public authority”.
On 19 December 2010 the Senate was once
again called to examine whether a decision of the Prisons Administration to
refuse to transfer a prisoner to a different prison could be reviewed in the administrative
courts (decision no. SKA-267/2010). The Senate, in paragraph 7
of that decision, held that if a refusal to transfer a prisoner significantly
interfered with his human rights it would be an administrative act.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE
CONVENTION
The applicant complained that he had been unable
to obtain a transfer to Matīsa Prison, to which he had been entitled by
law, and that as a result he had been subjected to violence, humiliation and
physical and mental suffering in Daugavpils Prison. He also complained that he
had had no effective remedy before a national authority in that respect. He
relied upon Articles 3 and 13 of the Convention. The Court, however, finds
it appropriate to examine these complaints under Article 3 alone. This
Article reads as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
The Court will examine two aspects of the
applicant’s complaints. First, his allegation that he was ill-treated by other
prisoners in Daugavpils Prison, and second the alleged violation of
Article 3, which was due to the delay in ordering his transfer to
Matīsa Prison and the alleged unavailability of an effective remedy in
that regard.
A. Ill-treatment in Daugavpils
Admissibility
The Government argued that the applicant’s claim
was inadmissible because he had not exhausted the domestic remedies; specifically,
he had not complained about the alleged ill-treatment to prosecutors.
Alternatively, the Government submitted that the applicant’s complaint was
manifestly ill-founded, in that he had failed to submit coherent and detailed
proof of his ill-treatment to any domestic authorities or to the Court.
The applicant maintained that he had been
assaulted by other prisoners.
The Court does not need to examine whether the
applicant has complained about his alleged ill-treatment to any domestic
authorities or whether a complaint to prosecutors could indeed be considered an
effective domestic remedy, since this complaint is in any case manifestly
ill-founded.
Referring to the case-law in the area of burden
and standard of proof in Article 3 cases (summarised in, for example, Igars
v. Latvia (dec.), no. 11682/03, §§ 64-67, 5 February 2013),
the Court notes that the applicant has failed to submit any particulars of his
alleged ill-treatment (such as when, where, by whom and how he was ill-treated)
as well as failing to submit any proof that he had suffered any injuries (see,
in contrast, J.L. v. Latvia, no. 23893/06, §§ 71-75, 17 April 2012). This is in stark contrast with, for example,
the detailed accounts of ill-treatment of other inmates of Daugavpils Prison
that the applicant presented to the Prosecutor General (see paragraph 16
above). The Court takes into account that the applicant would have had an
opportunity to complain about the alleged ill-treatment. For example, he could
have done so during his interview with a prosecutor on 17 January 2006
(see paragraph 10 above). The applicant did not allege that he had
submitted any such complaints, and it does not appear from the materials in the
case file that he had. Accordingly, and in contrast with the above-mentioned
case of J.L v. Latvia, the Court does not have in its possession any
direct information about any injuries allegedly sustained by the applicant, nor
is it aware of any facts from which such inferences could be drawn.
As regards the dental treatment received by the
applicant (see paragraph 22 above), the Court finds that nothing in the
case file (including the applicant’s submissions) casts any reasonable doubt on
the Prisons Administration’s conclusion (see paragraph 23 above) that it
was the applicant’s chronic periodontitis, and not any acts of violence, that
was the cause of the loss of the applicant’s teeth.
It follows that this complaint is manifestly
ill-founded and must be rejected in accordance with
Article 35 §§ 3 (a) and 4 of the Convention.
B. Failure to ensure the applicant’s safety
1. Application of Articles 34 and
37 § 1 (b) of the Convention
The Government argued that the applicant could
not or could no longer claim to be a victim of a violation of Article 3 of
the Convention, or, alternatively, that the matter had been successfully
resolved at the national level.
With regard to the alleged loss of victim status
the Government stressed that the present application had been lodged with the
Court only on 20 February 2007, which was almost four months after the
applicant’s transfer to Matīsa Prison. The Government referred to the
Court’s decision in Pančenko v. Latvia ((dec.),
no. 40772/98, 28 October 1999).
The applicant did not submit any observations in
this respect.
The Court notes that it has had occasion to
clarify the scope of the ruling in the above-cited Pančenko case,
and has explained that the regularisation of a person’s situation is of itself
a sufficient remedy only in exceptional cases, such as those relating to the deportation or extradition of non-nationals (see, for
example, Kurić and Others v. Slovenia [GC], no. 26828/06, § 261, ECHR 2012 (extracts), and Gebremedhin [Gaberamadhien] v. France
(dec.), no. 25389/05, § 36, 10 October 2006). In the context of almost all other cases the Court has held
the traditional view that an applicant’s “victim” status may also depend on the
level of compensation awarded at the domestic level, where appropriate, or at
least on the possibility of seeking and obtaining compensation for the damage
sustained, having regard to the facts about which he or she complains before
the Court (see Kurić, cited above, § 262, with further references).
. In
the circumstances of the case and even assuming that the applicant’s transfer
to Matīsa Prison is an implicit admission of the need to change the
applicant’s situation, the Government have not submitted any explanation as
concerns the compensation for the suffering that the applicant claims to have
experienced during the period during which his safety had not (yet) been
guaranteed. Therefore the Government’s argument about the loss of victim status
cannot be upheld in the present case.
. In
the alternative, the Government invited the Court to strike the case out of its
list of cases in accordance with Article 37 § 1 (b) of the
Convention. The Government relied in this connection on the fact that on
26 October 2006, that is before the applicant lodged his application with
the Court, he had been transferred to Matīsa Prison, and therefore the
situation complained of had ceased to exist and the matter giving rise to the
applicant’s Article 3 complaint had thereby been resolved.
. The
applicant did not submit any observations in this regard.
. The
Court notes that it has already examined a similar argument raised by the
Government in another case (Melnītis v. Latvia,
no. 30779/05,
§§ 31-38, 28 February 2012). As in Melnītis,
the Court agrees with the Government that the situation that the applicant
complained about no longer pertains. However, taking into account its
conclusion concerning the applicant’s victim status (see paragraph 58
above), the Court is unable to agree with the Government that the applicant’s
situation has been resolved.
. The
Court therefore rejects the Government’s request that it strike the application
out of its list of case in application of
Article 37 § 1 (b) of the Convention.
2. Admissibility
a. The parties’ submissions
The Government claimed that the applicant had
failed to exhaust domestic remedies. In particular, he could have complained
about the refusal of the Prisons Administration to transfer him to Matīsa
Prison, either to the Ministry of Justice or to the administrative courts.
As regards the former alternative the Government
explained that the Prisons Administration is subordinate to the Ministry of
Justice and that that ministry has a right to review decisions taken by the
Prisons Administration or to order that a decision be issued in the event of an
unjustified failure to act.
In order to substantiate the alternative argument
that the administrative courts would have been capable of adequately remedying
the shortcomings complained of by the applicant, the Government referred to
several rulings of the Senate of the Supreme Court.
They cited a decision of 7 March 2008
(no. SKA-310/2008), in which the Senate disagreed with the reasons
given by the Administrative Regional Court for its refusal to accept a
complaint for adjudication which had been submitted to the first-instance court
on 11 July 2007, about a decision of the Prisons Administration to
transfer the petitioner to another prison in which he would fear for his
safety. In its decision the Senate held that in principle such decisions were amenable
to review in the administrative courts as administrative acts if the
petitioners were able to prove that the decisions in question had significantly interfered with their fundamental rights, which
would be the case if a petitioner were able to prove that a decision on
transfer could affect or had affected his life or health. The Senate then
refused to accept the complaint for examination because it found that the facts
of the specific case did not disclose a possibility of an interference with the
petitioner’s life or health.
The Government further relied on a decision of
the Senate, adopted on 23 May 2006 (no. SKA-300/2006), in which
the Senate had held that actions (faktiskā rīcība) of
prison authorities which significantly interfered with prisoners’ fundamental
rights were in principle amenable for review in the administrative courts.
In the light of these decisions, and taking into
account that the Administrative Procedure Law provided for the possibility of
claiming compensation for pecuniary and non-pecuniary damage (see
paragraph 42 above), that the administrative courts have a duty to carry
out an objective investigation, and that they can rely on reports drawn up by
national and international human rights organisations, the Government argued
that a recourse to the administrative courts was an effective remedy.
The applicant argued that he had duly addressed
his grievances to the Ministry of Justice. In this regard he referred to a
letter sent by the said ministry to the Government Agent on 11 March 2011,
which stated that the proper avenue for appealing against a refusal to transfer
a prisoner to another prison, which was an internal decision of a public
authority and which furthermore did not significantly interfere with a
subordinated person’s human rights, was a complaint to the Ministry of Justice.
The same letter also noted that the Ministry of Justice had examined two
complaints from the applicant (of 13 and 16 August 2007; see also
paragraph 21 above).
In addition, the applicant referred to a letter
he had received from a Supreme Court judge on 17 August 2006, in which he
had been informed that the proper authority for deciding on issues connected
with the placement of prisoners was the Prisons Administration (see
paragraph 18 above). Thus, the applicant considered that he had not been
given any information about the possibility of making a complaint to the administrative
courts.
b. The Court’s assessment
The
Court has often held that in the area of the exhaustion of domestic remedies
there is a distribution of the burden of proof. It is incumbent on the
Government claiming non-exhaustion to satisfy the Court that the remedy is an
effective one available in theory and practice at the relevant time, that is to
say that it is accessible, capable of providing redress in respect of the
applicant’s complaints, and offers reasonable prospects of success. However,
once this requirement has been met it falls to the applicant to establish that
the remedy advanced by the Government has in fact been used, or is for some
reason inadequate and ineffective in the particular circumstances of the case,
or that there exist special circumstances absolving him or her from the
requirement (see Melnītis, cited above, § 46, with further
references).
. The
Court notes the applicant’s argument that he had never been informed of the
possibility of an appeal to the administrative courts against the Prisons
Administration’s refusal to have him transferred. It does indeed appear that a
Supreme Court judge indicated in a letter to the applicant that it was the
Prisons Administration which retained the ultimate authority in questions of transfer
of prisoners. In addition, it appears that even as late as 2011 the Ministry of
Justice (the institution which in Latvia is responsible for, among other
things, ensuring the functioning of the court system) was of the opinion that
complaints about refusal of prison transfers fell outside the scope of
administrative court review (see paragraph 69 above).
. However,
even assuming that in theory the administrative courts were accessible to the
applicant, the Court notes that the case-law of those courts discloses the
existence of significant uncertainty as to the approach to be taken in
examining questions of prison transfers. At the outset it does not appear that
the Government has argued or that the domestic courts have ever held that
decisions concerning prison transfers are actions of public authorities.
Therefore the Senate decision in case no. SKA-300/2006 is of
no obvious relevance to the examination of the present case. On the other hand,
it appears that the opinion of the administrative courts,
at least at the relevant time, has been inconsistent as to whether an order to
transfer a prisoner to another prison (or a refusal to order such a transfer)
constitutes an administrative act, an internal decision of a public authority
or even a criminal procedural decision. The second uncertainty relates to the
question of whether an internal decision of a public authority or a criminal
procedural decision, should they be found to interfere significantly with an
individual’s human rights, would be amenable to a review in the administrative
courts. Lastly, as the Court has already held in the above-cited Melnītis
case (§ 51), it remains uncertain which complaints would satisfy the “significant
interference” test as developed by the administrative courts to be accepted for
review (also see paragraphs 44 and 45 above), and whether that test is
similar or equal to that of the “minimum level of severity” as developed by the
Court in relation to Article 3 of the Convention.
. The
Court is of the opinion that, at least at the material time, the case-law of
the administrative courts concerning prison transfers was so unclear that the
applicant, even if he had been given full and unrestricted access to all the
relevant rulings of the administrative courts, could not reasonably have been
expected to predict that a complaint against the Prisons Administration’s
refusal to order his transfer to Matīsa Prison might be accepted for examination
and might eventually lead to an award of compensation. The Court therefore
concludes that an appeal to the administrative courts at the material time and
in the specific situation of the applicant was not a remedy that was accessible
to him.
. As
regards the Government’s assertion that the applicant ought to have complained
to the Ministry of Justice, the Court notes that the applicant did submit
several complaints to the Ministry of Justice, including one that apparently concerned
his transfer between cells in an unspecified prison (see paragraph 21
above). Since the Court has not been provided with a copy of the response
apparently given by that ministry, it cannot but hold that the Government have
failed to shed any more light on the effectiveness or otherwise of a complaint
to the Ministry of Justice.
The Court therefore concludes that the
Government’s objection of non-exhaustion of domestic remedies is to be
dismissed. It furthermore considers, in the light of the parties’ submissions,
that the applicant’s complaint raises serious issues of fact and law under the
Convention, the determination of which requires an examination of the merits.
The Court concludes therefore that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. No other ground for
declaring it inadmissible has been established.
3. Merits
a. The parties’ submissions
At the outset the Government conceded that
individuals suspected or convicted of sexual offences and individuals with a
history of collaboration with law-enforcement authorities were at a heightened risk
of inter-prisoner violence. For that reason in most cases prisoners belonging
to one of those categories were detained separately from the general prison
population, although on occasion efforts were made to integrate them with
regular prisoners. It was only in some cases, where the circumstances of the
specific case required it, that it was necessary to transfer such prisoners to
another prison in order to conceal their previous collaboration with the police
or the nature of the offences they were suspected or convicted of.
The Government considered the applicant’s
“insistent request” to be transferred to Matīsa Prison unjustified. The
Government argued that a transfer to Matīsa Prison was not the only means of
securing a potentially vulnerable prisoner’s safety, and that a transfer to
Matīsa Prison in any case would not be an absolute guarantee of safety. In
the specific case of the applicant the Government suggested that his isolation
from the inmates of Daugavpils Prison who were aware of his former collaboration
with the Balvi police could have been ensured by transferring him to any prison
located “sufficiently far away” from Balvi and Daugavpils.
In any case, there had been no “objective
reasons” for the applicant’s transfer to Matīsa Prison, since the
administration of Daugavpils Prison had not been informed either of the
applicant’s previous collaboration with the police or of the danger of
inter-prisoner violence with respect to him. The Government furthermore
considered that the applicant’s request to be transferred to a unit involved in
housekeeping activities (see paragraph 9 above) attested to the fact that
he did not fear being in contact with other prisoners.
The applicant argued that his safety had not
been guaranteed in Daugavpils Prison. He pointed out that in order to minimise
the risk of being subjected to violence he had refused to take outdoor exercise
for more than seven months.
b. The Court’s assessment
At the outset the Court notes that the parties
are in agreement that prisoners suspected or convicted of sexual offences and
prisoners who have previously collaborated with law-enforcement authorities are
at a particular risk of inter-prisoner violence in Latvian prisons. The link
between charges of sexual offences and the risk of inter-prisoner violence has
also been confirmed by the CPT (see paragraph 30 above). In such
circumstances it is clear that every day the applicant had to spend with the
general prison population only served to increase the risk of violence against
him, as knowledge of the nature of the charges against him and his past ties
with the police spread to more and more prisoners. The Court also cannot
disregard the fact that the CPT has repeatedly expressed particular concern
about inter-prisoner violence in Daugavpils Prison (see paragraphs 31 and 32
above) and in Latvian prisons more generally (see paragraph 33 above).
Therefore the Court is of the opinion that there might be some merit to the
Government’s suggestion that transferring the applicant to Matīsa Prison
was not the only possible way to deal with his situation in so far as the
threat of violence caused by the nature of the criminal charges against him is
concerned. The Court has more difficulty in accepting the Government’s assertion
that transferring the applicant to any other prison than Matīsa would have
been an effective way to eliminate threats arising from his previous
collaboration with the police. The Latvian Government is clearly aware of
problems faced by detainees who have worked for law-enforcement authorities,
and by their relatives. The solution chosen by the Government has been to place
such prisoners in a special wing of Matīsa Prison (see paragraphs 37
and 39 above).
However, the Court cannot but observe that the
domestic authorities not only refused what the Government have characterised as
the applicant’s “insistent request[s]” to be transferred to Matīsa Prison,
but they appear to have considered that the applicant’s grievances did not
require any kind of response, including, as has been suggested by the
Government, transferring him to another prison. The Court will now examine whether
the authorities were right to come to that conclusion.
In its case-law the Court has consistently held
that the obligation on the High Contracting Parties under Article 1 of the
Convention to secure to everyone within their jurisdiction the rights and
freedoms defined in the Convention, taken together with Article 3, requires
States to take measures designed to ensure that individuals within their
jurisdiction are not subjected to torture or to inhuman or degrading treatment
or punishment, including such ill-treatment administered by private individuals
(see Kovaļkovs v. Latvia (dec.), no. 35021/05, § 47,
31 January 2012, with further
references). These measures should provide effective protection, in
particular, of vulnerable persons in custody under the exclusive control of the
authorities, and should also include reasonable steps to prevent ill-treatment
of which the authorities had or ought to have had knowledge (see Đurđević v. Croatia,
no. 52442/09, § 102, 19
July 2011, with further references).
The extent of this obligation of protection
depends on the particular circumstances of each case (see Stasi v. France,
no. 25001/07, § 79,
20 October 2011). The Court, in its case-law with regard to the
protection of vulnerable prisoners, has clarified that the national authorities
have an obligation to take all steps reasonably expected to prevent real and
immediate risks to prisoners’ physical integrity, of which the authorities had
or ought to have had knowledge (see, among many other examples, Pantea
v. Romania, no. 33343/96, § 190, ECHR 2003-VI (extracts),
and Premininy v. Russia, no. 44973/04, § 84, 10 February 2011). The CPT has already indicated (see
paragraph 30 above) that prison authorities ought to take specific
security measures to deal with the phenomenon of inter-prisoner violence. This
obligation is all the more true in cases when prisoners run a particularly
heightened risk of ill-treatment by their fellow inmates, such as is the case
with sexual offenders and police collaborators.
With regard to the minimum severity of treatment
required to trigger the authorities’ responsibility to protect an individual,
the Court’s approach has evolved. Initially, the Court held that “the mere
feeling of stress of a detained person” (see I.T. v. Romania (dec.),
no. 40155/02, 24 November 2005) and “the mere fear of reprisals from
the [applicant’s] cellmates” (see Golubev v. Russia (dec.),
no. 26260/02, 9 November 2006) were not of themselves sufficient
to bring the situation within the scope of Article 3. When the fear of
reprisals was combined with additional elements, the Court has found, for
example, that “the cumulative effect of overcrowding and the intentional
placement of a person in a cell with persons who may present a danger to him
may in principle raise an issue under Article 3 of the Convention” (see Gorea
v. Moldova no. 21984/05, § 47, 17 July 2007). In two more recent cases (Rodić and Others v. Bosnia and Herzegovina,
no. 22893/05, 27 May 2008, and Alexandru Marius Radu v. Romania,
no. 34022/05, 21 July 2009) the
Court has held that “the hardship the applicants
endured, in particular the constant mental anxiety caused by the threat of
physical violence and the anticipation of such ... must have exceeded the
unavoidable level inherent in detention”. Therefore, a breach of Article 3 of
the Convention was found.
. Turning
to the present case, the Court notes that the State authorities were aware that
the applicant belonged to a category of prisoners at a heightened risk of
inter-prisoner violence. The prison authorities were clearly aware of the
nature of the charges against the applicant and the risk associated with such
charges. In addition, there was information within the State apparatus about
the applicant’s past collaboration with the police (see paragraphs 6 and
20 above) but such information was not systematically passed on between the
relevant authorities. Furthermore, and unlike in another recent case against
Latvia where the Court had occasion to apply the principles outlined above (see
Aleksejeva v. Latvia, no. 21780/07, §§ 38-39, 3 July 2012), the Government themselves have admitted that the applicant
had repeatedly requested to be transferred elsewhere because of threats to his
life and health in Daugavpils Prison.
87. While the
Government have submitted general information concerning how prisoners in
situations comparable to that of the applicant are treated in Latvian prisons,
the Court lacks information on any specific steps taken by the administration
of Daugavpils Prison to address the applicant’s vulnerability. The applicant
asserted, and the Government did not dispute, that he had frequently been moved
between different cells (see paragraph 14 above). The Government have not
submitted any convincing justification for these frequent transfers. Moving a
prisoner away from a cell in which he has been exposed to threats would
certainly be an appropriate and, at least in the short term, adequate measure.
On the other hand, the Court finds that if such transfers take place frequently
and on a regular basis without any clearly identified purpose, that appears to
be an approach that is at odds with the policy outlined by the Government of protecting
vulnerable prisoners from the general prison population. In any case, any
transfers of vulnerable prisoners should form part of a carefully designed
strategy for dealing with inter-prisoner violence (see the recommendations of
the CPT in paragraph 30 above), the existence and the details of which the
Government have not explained.
The Court will now turn to the applicant’s
complaint about the absence of specific safety measures (see paragraph 84
above) that would have allowed him to obtain a transfer to Matīsa Prison. The
applicant in particular criticised the length of time it had taken for his previous
collaboration with the police to be officially acknowledged and for his
transfer to Matīsa Prison to be ordered.
The Government submitted that the existing
system for ensuring police informers’ safety was sufficient to correspond to
the requirements of the Convention. According to the Government, individuals who
felt that their safety was compromised in prison because of their previous collaboration
with law-enforcement authorities could request the police or the Prosecutor
General to confirm that this collaboration had taken place, after which the appropriate
authorities would ensure the prisoner’s isolation by, for example, transferring
them to Matīsa Prison.
The Government argued that despite a certain
delay by the police in processing the applicant’s request of May 2006, the
system had worked in his case too, and his transfer had been requested on
5 October 2006 (see paragraphs 19 and 20 above).
The Court considers that, in order for a
domestic preventive mechanism to be effective, it should allow the authorities
concerned to respond as a matter of particular urgency, in a manner proportionate
to the perceived risk faced by the person concerned.
As has been made clear by the applicant’s
example, a request to the law-enforcement agencies to confirm that there had been
previous collaboration with the police can turn into a lengthy and heavily
bureaucratic procedure. The lack of sufficient
coordination among investigators, prosecutors and penal institutions to prevent
possible ill-treatment of detainees who, owing to a record of informing in
respect of criminal offences, have become particularly vulnerable and liable to
be attacked violently in prison, contributed to that to a significant extent.
The Court has previously identified and criticised the absence of a systematic approach
to dealing with the difficulties faced by police informers in Latvian prisons
(see J.L. v. Latvia, cited above, § 87).
The Court has examined the possibility of
requesting the administrative courts to order interim measures. In addition to
the problems identified above (see paragraphs 72 to 74), it notes that at
the relevant time chapter 22 of the Administrative Procedure Law did not
impose any time-limits on the courts dealing with requests for interim measures
(see paragraph 43 above). Thus, even assuming that such a request might
have been declared admissible, the timing of its examination would have been
left entirely to the courts’ discretion.
Hence, the Court is unable to conclude that the
legal regulation that was in force at the time when the applicant was seeking to
be transferred to Matīsa Prison was effective, either in law or in
practice.
Taking into account the protracted fear and
anguish of the imminent risk of ill-treatment experienced by the applicant
during the period of more than one year he spent in Daugavpils Prison, and the
unavailability of a domestic remedy that would have enabled that situation to
be resolved, the Court comes to the conclusion that there has been a violation
of Article 3 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicant submitted various other
complaints under Articles 6, 13 and 14 of the Convention. However, in the
light of all the material in its possession, and in so far as the matters
complained of are within its competence, the Court finds that they do not
disclose any appearance of a violation of the rights and freedoms set out in
the Convention or its Protocols. It follows that this part of the application
is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a)
and 4 of the Convention.
III. APPLICATION OF
ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“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.”
A. Damage
The applicant claimed 50,000 Latvian lati
(approximately 71,360 euros (EUR)) in compensation for non-pecuniary
damage.
The Government considered the applicant’s claim
excessive.
The Court, ruling on an equitable basis, awards
the applicant EUR 8,000 in respect of non-pecuniary damage.
B. Costs and expenses
The applicant did not submit any claims in
respect of costs and expenses.
C. Default interest
The Court 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 complaint concerning the
delay in ordering the applicant’s transfer to Matīsa Prison and the
alleged unavailability of an effective remedy in that regard admissible and the
remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 3 of the Convention;
3. Holds
(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, EUR 8,000
(eight 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 29 October 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise
Elens-Passos David Thór Björgvinsson
Registrar President
