PENARANDA SOTO v. MALTA - 16680/14 (Judgment : No violation of Prohibition of torture - Degrading treatment) (Substantive aspect)) [2017] ECHR 1168 (19 December 2017)

In the case of Peňaranda Soto v. Malta,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

          Ganna Yudkivska, President,
          Vincent A. De Gaetano,
          Paulo Pinto de Albuquerque,
          Faris Vehabović,
          Carlo Ranzoni,
          Marko Bošnjak,
          Péter Paczolay, judges,
and Marialena Tsirli, Section Registrar,

Having deliberated in private on 7 November 2017,

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

PROCEDURE

1. The case originated in an application (no. 16680/14) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Costa Rican national, Mr Luis Fernando Peňaranda Soto (“the applicant”), on 1 April 2014.

2. The applicant was represented by Dr K.F. Dingli, a lawyer practising in Valletta. The Maltese Government (“the Government”) were represented by their Agent, Dr Peter Grech, Attorney General.

3. The applicant alleged that the conditions in the detention facility - namely the Corradino Correctional Facility, Paola − (alone or in combination with other conditions) amounted to inhuman and degrading treatment, and that he had been denied access to the medical treatment needed while in prison, in contravention of Article 3 of the Convention.

4. On 14 March 2016 the application was communicated to the Government.

5. In his observations the applicant requested that the Court visit the facility. In reply the Government did not object to the Court visiting the premises. The Court considered this request and, having examined the evidential material before it, decided that the case did not require it to undertake a fact-finding mission.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1977 and at the time that he lodged the application with the Court was serving a sentence of eight years’ imprisonment in the Corradino Correctional Facility, Malta. He had been detained since 19 February 2010.

7. The sentence was imposed on him by the Criminal Court on 14 March 2012 for drug related offences. The Criminal Court also ordered him to pay a fine of 23,500 euros (EUR) as well as EUR 1,462.94 in fees payable to the experts, which were to be converted into a further term of imprisonment if not paid. On 13 April 2012 the aforementioned sums were converted into 490 days’ imprisonment. Following an amnesty and payment of the fee for the experts, the applicant was released on 14 April 2016 and flown back to Costa Rica after being given the requisite vaccinations.

8. On 12 July 2013, between 2 p.m. and 3 p.m., the applicant was assaulted by another inmate, causing the former to allegedly lose consciousness and sustaining fractures to his facial and leg bones. The Government admitted that the applicant had sustained injuries to his leg and face but argued that there was no evidence that he had lost consciousness at any time.

9. According to the applicant, disciplinary measures were taken by the prison Chief Security officer, who ordered that he be placed in solitary confinement. Thus, despite his condition, the applicant had had to pack his belongings and walk to the solitary confinement unit. At an unspecified time the prison officer brought the applicant a pair of crutches to assist him walking. According to the Government, disciplinary measures were taken against another inmate involved in the incident but not against the applicant, who had been transferred (from Division 2) to Division 6, a more secure division, immediately after the incident. They also submitted that the applicant had not been placed in solitary confinement.

10. The applicant alleged that he did not receive any medical treatment for one or two hours after the incident had taken place. Thereafter he had been kept in solitary confinement without assistance from the prison medical staff. The applicant explained that he had subsequently been seen by a doctor, who had referred him to the hospital, where he underwent surgery. He stated that a plaster cast had been put around his leg and that he had been informed that he might need to undergo surgery if his eyesight was damaged as a result of the injury of his facial bone. Regarding the period of solitary confinement, the applicant claimed that he had been held on the second floor of the building and had not been allowed to see anyone or to use the communal areas.

11. According to the applicant, the cell did not have adequate ventilation, the heat was unbearable and there was no cold water to drink since he did not have access to the ground floor. Consequently he had to drink warm water and an occasional bottle of cold water (when his friend managed to obtain one). The applicant claimed that he had specifically needed to drink water since he was taking antibiotics.

12. The heat and lack of ventilation caused the applicant, who is an asthma sufferer, to struggle with his breathing. He also complained that he had had to go to the clinic for treatment of his injuries himself since the nurses refused to visit his cell because of the unbearable heat. He had therefore had to use the staircase whilst still walking with crutches.

13. The applicant stated that he had been kept in the isolation unit for twenty-two days, and after five days had become suicidal. Subsequently he had been transferred to a unit that had fewer restrictions. The applicant complained that he had been placed in the same unit as his aggressor, putting his physical integrity at risk since he could have been attacked again.

14. The applicant submitted that upon his release from solitary confinement, he had spent most of his time in his cell. On an unspecified date he had asked to see a psychologist urgently, but was not able to speak to one for twenty-seven days. The psychologist referred the applicant to a psychiatrist, who eventually prescribed medication. However, the applicant had refused to take the medication and claimed that the psychiatrist had refused to help him. Later, he had refused to consult the prison psychiatrist because he no longer trusted the prison staff and did not want to be sent to a psychiatric hospital since the facilities there were allegedly worse than those in the prison.

15. According to the Government the applicant was admitted to the medical infirmary of the prison at 4.15 p.m. on 12 July 2013 and a referral to the emergency department of the state hospital was made at 5 p.m. The referral note issued by the doctor indicated that the applicant had swelling in the face, a bruise on one loin, and severe swelling with limited movement in his right ankle. At an unspecified time on the same day he was provided with a pair of crutches by the prison medical infirmary. On the same day he was also admitted to hospital and returned to cell 8 in Division 6 on 14 July 2013. The case summary drawn up on 14 July - before his discharge - and submitted to the Court showed that all the medical investigations had been concluded and the results received prior to his discharge from hospital. According to the case summary the ankle x-ray revealed a fracture and there was subluxation of the right foot; there was a head injury, specifically a fracture of the orbit and of the maxillary sinus; there were no signs of injury or fluid collection in the internal organs; an ophthalmic review had been carried out and the patient had been discharged from that department as well as from the orthopaedic ward where he had undergone tests and treatment for his bone injuries. The summary also showed that the applicant had to use crutches and to avoid bearing weight for the two weeks leading up to his outpatient appointment, after which he still would not be able to bear weight fully. It ordered a change of dressing to be undertaken within three days and prescribed appropriate medicines. Records also showed that a nurse had visited Division 6 to attend to the applicant on 15 July - the note in the register reads as follows: “Nurse C. and S. came to Division 6 at about 11.35 am to visit Fernando Soto in his cell”. Other notes show that a nurse went to Division 6 on subsequent days to give inmates medication, without indicating their names. Another note also showed that a certain Ms M. (whose role is unidentified) visited the applicant on 16 July.

16. The Government submitted that the applicant had been held in Division 6 for his own safety. The Chief Security officer had ordered that the applicant should not meet the other inmate involved in the argument and that the applicant’s cell be opened for seven hours a day until further instructions. The applicant was initially placed in cell 8 (on the upper floor of Division 6), which was about six metres away from the guard room, thus making it possible to observe the applicant’s cell, which was to be left open. The Government submitted that, by order of a manager, on 21 July 2013 the applicant had been allowed to mingle with all other inmates without restriction. The applicant had then been transferred to cell 13 on a lower floor as soon as it was deemed safe for him, specifically on 26 July 2013. On 7 August 2013 he had been transferred to Division 5, which was also a secure division although it had fewer restrictions. The applicant was finally transferred to Division 3 on 22 October 2013. According to the Government, the applicant had never been kept in solitary confinement, nor had the inmate involved in the argument with the applicant been accommodated in any of the above-mentioned Divisions while the applicant was there, except for a short stay in Division 6.

17. According to the Government the first request for psychological services made by the applicant had been in April 2014. According to the documents submitted, thereafter he was seen monthly by the psychologist until April 2015 and later three or four times per month until his release in 2016 (from November 2015 onwards he had been seen by a counselling trainee). Moreover, in April 2015 the applicant had been referred for psychiatric services by the psychologist. The Government submitted that although the applicant had a past history of being suicidal, there was no record that he had attempted suicide during the period he was detained in Division 6. The report prepared by the senior psychologist in prison (dated 27 April 2015) noted that the applicant attended his sessions regularly and was making progress. It noted that he felt guilty for not having made amends with his mother before her death (a few months earlier) and that he had deliberately provoked a fight. The report described the applicant as being “edgy and hyper-vigilant but not psychotic”, his sleep was not problematic, his appetite was normal and he was cooperative. He had been diagnosed with post-traumatic stress disorder, but no other affective disorder was evident. He was put on medication for depression and further follow-ups with the psychologist. He was seen again in a follow-up session with the psychiatrist on 4 May 2015, but on 1 June 2015 he refused a psychiatric review.

18. In a letter dated 10 July 2014, the applicant alleged that he had not received rehabilitative treatment for his fractures since the prison officials had unilaterally decided to cancel the treatment. According to the Government, on 14 July 2013, prior to being discharged from hospital, the applicant had been seen by a physiotherapist and found fit for discharge. The applicant had also been given three appointments (between July and August 2013) with the ENT department of the hospital in connection with his facial injuries. On 20 July 2013, the applicant had been referred by the prison medical officer to the emergency department of the hospital because of a recurrent swelling of his right ankle. The applicant had at the time already been taking antibiotics and his stitches were intact. On 21 July, 31 July, 28 August, and 30 October 2013, x-rays were taken of the applicant’s right ankle by the orthopaedic department of the hospital. The applicant was also referred to the ophthalmology department on 5 August 2013. Further referrals to hospital were made by the prison medical doctor, but the Government claimed they were unrelated to the injuries suffered as a result of the incident on 12 July 2013. One such referral was made on 13 June 2014. An outpatient service appointment record given to the applicant listed appointments scheduled for 18 November 2014 and 6 February 2014 at the medical outpatients’ clinic, which the applicant also attended. It is recorded that the applicant refused to attend an appointment scheduled for 12 June 2015.

19. In a subsequent letter dated 11 May 2015 (at a time when he was held in Division 3) the applicant explained that his cell window was positioned at a height of two metres and was therefore very difficult to open. It was also small and had three different bands of metal shutters, which hampered the entry of natural light. He claimed that his cell had lacked good ventilation - although there were two vents, one of them had been blocked. He alleged that the parts of the ceiling were falling apart and that white and yellow dust caused him to experience breathing problems, since he was an asthma sufferer. The applicant also alleged that the water was not drinkable and that he had therefore had to buy water with the little money that he earned. He claimed that foreign inmates were treated differently from the Maltese inmates since the former had to wait longer to have their petitions decided.

20. The Government submitted that at the time when this letter was written, the applicant was accommodated in cell 154 in Division 3.

21. The Government submitted that inmates were responsible for the upkeep of their cells. For this purpose, the materials needed to carry out basic repair work in the cells were provided free of charge. If an inmate required assistance for more specialised work, the Trade Section personnel would carry out the work necessary to keep the cell in good condition. The Government submitted pictures dated 2016 showing that the ceiling in cell 154 was in good condition and that the current resident was carrying out some works and removing paint from the ceiling, exposing the stone underneath.

22. The Government submitted that all the cells were equipped with running water which was fit for human consumption. According to certification dated 2015 that has been submitted to the Court, water in the prison (no specific location was indicated in the reports) had been certified by the Public Health Laboratory as being fit for consumption, although the mains supply and the other Divisions (including no. 3) had been recorded as having a chloride content which exceeded the recommended parameter value indicated in the relevant law. The Government submitted that the water was tested and certified approximately every six months. In addition to the availability of running potable tap water, the inmates were allowed to purchase bottled water from the residents’ tuck-shop.

23. In 2013, the applicant received EUR 27.95 every four weeks in so-called “Gratuity” money and EUR 46.90 every four weeks for work carried out assembling dolls. Between January 2013 and April 2016 the applicant received EUR 3,526.95 in total. A six-pack of water at the tuck-shop cost EUR 2.24 or an individual bottle EUR 0.38. Government submitted that all inmates received equal treatment irrespective of the State of their origin.

24. In a letter dated 5 August 2015, the applicant alleged that the prison authorities had refused to forward his letters to the Court in order to dissuade him from pursuing his case before it. He was therefore corresponding with the Court through another address.

25. From the records of the correspondence sent by the applicant held at the prison authorities and submitted by the Government, it is apparent that the applicant sent registered letters to the Court on 12 February, 1 April and 3 June 2014 and an unregistered letter on 6 May 2015. No further requests were made by the applicant to send any communication to the Court, although letters were sent by the applicant to other addresses on 3 September, 22 September and 7 October 2015, and on 4 February and 6 March 2016.

II. RELEVANT DOMESTIC LAW

26. The relevant domestic law pertaining to this case can be found in Story and Others v. Malta (nos. 56854/13, 57005/13 and 57043/13, §§ 49-58, 29 October 2015).

III. INTERNATIONAL LAW AND PRACTICE

27. In October 2016 the Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) published a report on its most recent visit to Malta from 3 to 10 September 2015. In so far as relevant, in connection with the conditions of detention in the Corradino Correctional Facility, it reads as follows:

“56. The delegation noted that some renovations had been undertaken in CCF (for example, of Divisions IV and VII). Further, two of the previously most problematic divisions (Divisions VI and XV) had been closed down.

Nevertheless, the remaining divisions provided generally poor living conditions for the inmates, and this was particularly the case in Divisions II, III and XIII. While most cells were sufficient for single occupancy (measuring some 9m²), the dormitory rooms at CCF (for example in Division XIII) were cramped, with nine inmates held in approximately 30m² (i.e. significantly less than the minimum standard of 4m² of living space per prisoner in a multiple-occupancy cell recommended by the CPT).

Many of the cells were excessively hot (over 30 degrees Celsius at the time of the visit) with poorly functioning ventilation. Further, some of the cells were in a bad state of repair, with mould or ingrained dirt evident on the walls and around the windows. Many of the washrooms were dirty, some showers lacked shower-heads and there were problems with drainage, which reportedly caused water to leak into the nearby cells (especially on the ground floor of Division XIII). The in-cell toilets were unscreened, had mal-functioning flushes, and the water was cut off intermittently.

This was particularly problematic given an outbreak of diarrhoea among the prisoners during the delegation’s visit (...).

Prisoners did not believe that in-cell water from the sinks was safe to drink and the staff concurred with them. Many prisoners, especially those inmates who only lived off the basic €27 monthly allowance, complained to the delegation about the lack of ready access to safe drinking water and the need to buy bottled water.

The divisions had individual or shared exercise yards, which consisted merely of a stretch of bare tarmac. They were not equipped with any means of rest (let alone any sports or recreational equipment) or any shelter to protect prisoners from sun or rain. The yards were extremely hot, and at the time of the visit, the delegation noted that not a single prisoner made use of them during the day.

By letter dated 4 November 2015, the Maltese authorities informed the Committee that renovations of Divisions II and III were envisaged and would be completed by the end of 2017.

Further, the authorities planned to connect each division to the main water supply and to install two taps in each division to enable inmates to access drinking water.

58. The CPT welcomes these initiatives. Nevertheless, the CPT recommends that the Maltese authorities take the necessary steps to improve the living conditions at CCF and, in particular, to:

 reduce the occupancy levels in multi-occupancy dormitories to ensure that each prisoner has at least 4m² of living space;

 undertake a systematic refurbishment of the cells and sanitary facilities in Division XIII;

 expedite the planned refurbishment works of Divisions II and III;

 provide, until such time as ready access to potable water is assured, inmates with an appropriate amount of free drinking water; and

 equip the exercise yards with a shelter to protect inmates from inclement weather and a means of rest and, preferably, provide sports/recreational equipment.

b. regime and activities

59. As regards the regime of activities on offer, the aim should be for all inmates to spend a large part of the day engaged in purposeful activities of a varied nature. At the time of the visit, the activities on offer included access to the gym and football ground, educational courses on music, information technology and languages, technical courses on stone masonry and carpentry and lifeskills programmes including on positive parenting and first aid. Work was also on offer to prisoners, mainly in the form of toy doll construction. The CPT’s delegation welcomed the fact that more than 80% of all the inmates had access to some kind of work or education; the situation in this respect had improved since the 2011 visit.

....

6. Health-care services

a. medical care

65. The CPT’s delegation noted that all newly-arrived prisoners in general were given, as soon as possible, and no later than 24 hours after their admission, a comprehensive medical examination by a health-care professional.

In respect of health-care staffing at CCF, there were three General Practitioners (GPs) on contract with the prison, who provided a clinic onsite from Mondays to Fridays, from 4 p.m. until 8 p.m. Two of these GPs also provided on-call services overnight and at weekends. Five or six nurses were on duty every day, from 7 a.m. to 8.30 p.m., and one nurse attended to the administration of methadone between 7 a.m. and midday every day, including weekends. A psychiatric clinic was held on Mondays and Fridays with the services of two consultant psychiatrists, who were supported by a staff-grade psychiatrist. Now, inmate patients wishing to see the psychiatrist had to be first referred by the GP. A dentist visited CCF every Tuesday and Wednesday (and a dental hygienist visited on Thursdays) and examined 12 to 15 patients every week. There was also a pharmacist, who attended CCF from Mondays to Fridays between 11 a.m. and 3 p.m.

67. The CPT’s delegation had some serious concerns about the co-ordination of health-care services and the guarantee of medical confidentiality at CCF. At the time of the visit, two experienced (and committed) prison officers were responsible for co-ordinating the activities of the health-care service. They were also responsible for ensuring the security as part of their ordinary role as prison officers and the administration of hospital appointments. In the delegation’s view, the management was over-relying on prison officers to co-ordinate and manage health-care services at CCF. Further, these officers had ready access to the medical records and indeed were responsible for the filing of correspondence. In this respect, medical confidentiality was not guaranteed.

The CPT recommends that the Maltese authorities take steps to:

 ensure that medical confidentiality is strictly guaranteed and that prison officers do not have access to medical records; and

 review the co-ordination of health-care by prison officers at CCF and, in this respect, it invites the authorities to consider the possibility of recruiting a fulltime health-care staff member to oversee co-ordination and management of the health-care services provided at CCF.

68. The delegation was also concerned about the management of medicines and the procedure and manner in which medicines were distributed to inmates at CCF. Staff interviewed by the delegation also raised several concerns in this respect.

For instance, psychiatric medicines were mixed together and dissolved in a cup of water, every morning, and issued to inmates either once, twice or three times later that same day. Such an arrangement takes no account of the pharmaco-kinetics of the individual drug, its bioavailability or any potential interactions with other psychiatric drugs. The pharmacist explained that sometimes such a mixture might be green in colour and at other times the same drugs are pink in colour. This concern was also raised by some inmates in subsequent interviews with the delegation.

69. The delegation also observed that medicines were removed by nursing staff from their original packets and put into open containers, whose labels did not include any expiry date. The containers were simply topped up by the nursing staff as stocks dwindled, with the result that the expiry dates of individual tablets within these containers were not known at the time that they were administered. If a particular stock ran low, then it was likely that tablets taken from the bottom of the container would have passed their expiry date. Moreover, in making up the medicines for inmates, the nursing staff took a number of pills from the open containers and placed them in a tub which had the inmate’s name on the lid only. In essence, this meant that if the wrong lid was put on the wrong tub, an inmate would get the incorrect medication.

70. (...) In addition, while prescriptions were annotated by doctors, there was often no review date of prescriptions with the result that it was unclear, in many cases, how long the medicines should be continued to be administered. Overall, the current administration of medication at CCF, and particularly the administration of psychotropic medication, was unsafe.

The CPT recommends that the authorities review the current practices around the management of medicines at CCF in light of the above remarks, and ensure that unsafe practices around the administration of psychotropic medication cease.

71. By letter dated 4 November 2015, the Maltese authorities informed the Committee that a review of the health-care system at CCF was being undertaken, in order to terminate the current contractual system. The employment of full-time medical staff was also under consideration. The CPT welcomes the review and would like to receive a copy of the review report and recommendations.

b. self-harm and suicide prevention

72. The delegation observed that there was no strategy in place regarding the management of those thought to be at risk of self-harm. For instance, there were no clear guidelines available to health-care staff on how to address incidences of food refusal.

73. The CPT’s delegation noted that cases of self-harm and attempted suicide were not systematically recorded at CCF and there was no specific self-harm or trauma register. One of the reasons for this, according to staff interviewed, was that ordinarily at-risk prisoners were transferred from CCF to the Forensic Unit at Mount Carmel Hospital, where they usually remained for a few days. While the fact of the transfer was recorded, only in very few of these cases was any reference made to the risk of self-harm/ suicide attempts. It was more common to simply find the word “confused” written in the records. Moreover, there were no hand-over or follow-up procedures concerning those prisoners who returned to CCF from the psychiatric forensic units in Mount Carmel Hospital. Thus, appropriate handover and follow-up procedures should be established at CCF for returning prisoners from the psychiatric forensic units at Mount Carmel.

74. As regards suicide prevention policies, it is clear that CCF needs to put in place procedures for the identification of prisoners who may be at risk of suicide or self-harm and draw up a protocol for the management of prisoners identified as presenting a risk. To begin with, medical screening on arrival, and the reception process as a whole, has an important role to play in suicide prevention; performed properly, it should assist in identifying those at risk and relieve some of the anxiety experienced by all newly-arrived prisoners. The screening process should include a suicide risk assessment using an identified screening tool.

Moreover, it is essential that the prevention of suicide, including the identification of those at risk, should not rest with the health-care service alone. All prison staff coming into contact with inmates - and, as a priority, staff who work in the reception and admissions units - should be trained in recognising indications of suicidal risk. The sharing of information concerning suicidal tendencies with prison staff can be considered as an ethical necessity in light of the possible consequences that inaction may entail. In this connection, it should be noted that the periods immediately following admission to prison as well as before and after trial and, in some cases, the pre-release period, are associated with an increased risk of suicide.

Upon identification of prisoners potentially at risk, steps should be taken to ensure a proper flow of information within the establishment. All persons identified as presenting a suicide risk should as a first step benefit from appropriate support and association. Further, if required, such persons should be subject to special precautions (placement in a ligature-free room and provision of suicide-proof clothing) and, where there is a high risk of suicide, the prisoner should be under constant observation by a member of staff who should engage in a dialogue with the prisoner. The need for enhanced contacts (i.e. family visits and telephone calls) should be individually assessed.

The CPT recommends that the Maltese authorities ensure that a comprehensive suicide prevention and management approach is introduced at CCF, taking into account the above remarks.

(...)

7. Other issues

(...)

b. disciplinary procedures, segregation and solitary confinement

80. It is in the interests of both inmates and prison staff that clear disciplinary procedures be both formally established and applied in practice; any grey zones in this area involve the risk of unofficial (and uncontrolled) systems developing. Disciplinary procedures should provide prisoners with a right to be heard on the subject of the offences that they allegedly had committed, and to appeal to a higher authority against any sanctions imposed.

Further, if other procedures exist - alongside the formal disciplinary procedure - under which an inmate may be involuntarily separated from other inmates for discipline-related/security reasons (e.g. in the interests of good order within an establishment), these procedures should also be accompanied by effective safeguards.

81. As regards the disciplinary procedures at CCF, according to the law an inmate found guilty of a disciplinary offence may undergo the following punishments: caution; forfeiture or postponement for any period of any of the privileges; exclusion from associated work for a period not exceeding fifty-six days; cellular confinement not exceeding thirty days; or forfeiture of not more than one hundred and twenty days of remission.

(...)

87. The CPT’s delegation noted that ‘problematic ‘prisoners placed on Divisions V and XIII were subjected to a particularly restrictive regime compared with other prisoners. On both divisions, the inmates had little to do and were locked in the divisions for long periods of the day, save for a couple of hours when they were allowed to exercise in the divisions’ exercise yards. The vast majority of these inmates (including all those on Division XIII) had no access to education, activities, work or regular religious worship; all those interviewed by the delegation complained about the lack of any purposeful activities. Moreover, on Division V, some inmates had even resorted to hunger strikes in order to be allowed to attend the prison church. The restrictive regimes on Divisions V and XIII applied to all inmates, regardless of their classification, and included some life-sentenced prisoners.

By letter dated 4 November 2015, the Maltese authorities informed the Committee that a limited education service would be introduced on Division V and that work opportunities in maintenance would be offered to a greater number of inmates on Division V. The CPT welcomes these initiatives. It would like to receive confirmation from the authorities when these measures have been introduced.

The CPT recommends that inmates on Division XIII be provided with access to a full range of education services, work opportunities, access to a place of worship and sports and recreational activities. It also encourages the authorities to further expand the opportunities available to prisoners on Division V.

Further, it would like to receive information on the number of inmates in Division V who attend education and are involved in work, and for how many hours per day such activities are performed.

88. Removal from association and placement on Division V was part of the formal discipline and good order procedure of CCF. In contrast, the placement procedure and the safeguards surrounding placement on Division XIII, which resulted in a restrictive regime for the inmate concerned, were opaque and little understood by the inmates. Inmates did not know why they had been placed on such a division, or for how long they would be accommodated there. Inmates were also unaware of any avenues to appeal or challenge the placement decision. Moreover, some inmates were placed there immediately upon arrival due to the lack of a formal induction procedure or area at CCF as well as due to the lack of other available accommodation on any other division. In the delegation’s view, placement on Division XIII was treated by the staff as an informal punishment, and was perceived as such by the inmates.

Similar concerns about the existence of an informal punishment system on the so-called “high-security unit” of Division VI had been raised by the CPT in 2011.

At the time of the 2015 visit, staff acknowledged that the same type of inmate, who had previously been placed on Division VI, was now being placed on Division XIII. Further, the delegation noted that the Prison Regulations had still not been amended to provide a remedy against the placement decision entailing segregation from the mainstream prison population.

89. In the CPT’s view, placement on a restricted regime or in special security conditions should be based on an individualised assessment of the actual risks, and the prisoner concerned should as far as possible be kept fully informed of the reasons for the measure in writing. In addition, the prisoners concerned should be entitled to appeal the decision on placement, or its renewal, to an independent authority.

The CPT recommends that the Maltese authorities amend the Prison Regulations to ensure that, in particular:

 placement on a restricted regime or in special security conditions should be based on an individualised assessment of the actual risks;

 the prisoner concerned should as far as possible be kept fully informed of the reasons for the measure in writing; and

 the prisoner concerned should be entitled to appeal the decision on placement, or its renewal, to an independent authority.

90. As regards solitary and cellular confinement for discipline purposes, section 68 of the Prison Regulations stipulates that ‘the Director may order a violent prisoner to be confined temporarily in an appropriate cell [and] if the Director keeps such order in force for more than forty-eight hours he shall consult the Medical Officer and shall inform the Chairman of the Board’.

In CCF, solitary confinement on account of violence was resorted to in one of three adjoining cells, built in 2000 and designated as single rooms used for medical and disciplinary isolation purposes, situated next to the Infirmary. Each of the three cells had a bed plinth with a mattress and a toilet annexe. The cells had access to natural light and adequate ventilation and each had a call-bell. From examination of the relevant registers and interviews with prisoners and staff, it was clear that these cells were only occasionally used.

Of the nine placements from January 2015 until the date of the CPT delegation’s visit, seven had been for medical observation reasons and two for disciplinary purposes. The disciplinary cases had both involved the same person and each had lasted less than 48 hours. The seven medical cases had lasted seven, four, seven, five, two, one and three days respectively.

As regards the sanction of cellular confinement for up to a period of 30 days, the CPT understands that this measure means that the inmate is kept in his or her cell. Therefore, in most cases in CCF (given that most of the prisoners have single-cell accommodation) this measure means being placed in effective solitary confinement for 30 days.

The CPT recalls that solitary confinement as a disciplinary sanction should not last for a period of more than 14 days consecutively. Thus, it recommends that the Prison Regulations be amended to reflect this.”

28. In their earlier report, published on 4 July 2013, the CPT had already commented on Division 6, recommending that occupancy levels be reduced and access to natural light and artificial lighting be improved. It was also recommended that Divisions 2 and 3 be renovated as a priority (see Story and Others, cited above, § 61). That report had also stated:

“15. Material conditions were quite simply appalling in Division 6, where most of the cells, intended to be used for single occupancy only, were accommodating two inmates. There was hardly any access to natural light, and access to both artificial lighting and ventilation were poor. The cells were only equipped with one bed and another mattress, placed on the floor (and a blanket for each inmate), and an unpartitioned floor toilet. In addition, the toilet flush did not work in some of the cells.

(...)

17. In Divisions 2 and 3, material conditions were also far below any acceptable standard. Cells were in a very poor state of repair and had only very limited access to natural light. Another major problem was the high level of humidity in many cells, caused by water leaking from the ceiling. In this regard, cell no. 51 in Division 2 (which also had no window) and cell no. 114 in Division 3 were particularly affected. The latter cell was extremely dilapidated and so humid (with water running down the walls) that the prisoner could not keep any personal belongings in his cell. Moreover, in many cells, the toilet flush was not functioning, and, in particular in Division 3, most of the shower facilities (including the sinks) were broken.

18. Division 5 and the so-called “New Infirmary” were found in the same dilapidated conditions as in 2008. In addition, many cells were very small and access to natural light very limited.

(...)

22. The criteria for placement of prisoners in the so-called “high-security unit” (Division 6) appeared to be particularly unclear. ... Also in other cases it was not uncommon for prisoners to be transferred to Division 6 by verbal order of the Director without an individual risk assessment. Moreover, the current legislation does not provide for a legal remedy against the segregation of prisoners from the mainstream prison population (“removal from association”).

In the CPT’s view, placement in special security conditions should be based on an individualised assessment of the actual risks, and the prisoner concerned should as far as possible be kept fully informed of the reasons for the measure in writing. In addition, the prisoners concerned should be entitled to appeal the decision on placement, or its renewal, to an independent authority.

The CPT recommends that the Maltese authorities amend the relevant regulations and take appropriate measures, in the light of the above remarks.”

THE LAW

I. PRELIMINARY ISSUE

29. In their first round of observations (dated 12 July 2016), relying on Abdi Ahmed and Others v. Malta ((dec.), no. 43985/13, 16 September 2014), the Government submitted that the application should be struck out as the applicant had failed to transmit the information that he had been released from prison, showing that he was no longer interested in pursuing the application.

30. On 1 September 2016 the applicant submitted his observations in reply. The submissions as well as the claims for just satisfaction were submitted to the Court by the applicant’s legal representative and, as evidenced by a copy of an email annexed to them, the applicant himself had instructed his representative in this regard. The applicant’s legal representative further enquired as to the progress of the application in a letter dated 17 August 2017.

31. The Court notes that in Abdi Ahmed and Others, relied on by the Government in connection with complaints, inter alia, of removal under Article 3 of the Convention, the applicants’ representatives had been specifically asked to supply information on the applicants’ asylum proceedings following the application of a Rule 39 measure to stop an alleged “pushback”. However, they had been unable to do so in respect of the three applicants, in respect of whom the Court concluded that they had become untraceable, or in any event that there had been severance of contact between the mentioned three applicants and their representatives. In the light of those facts the Court found that those three applicants did not intend to pursue their applications. Also bearing in mind that their complaints were identical to the ones brought by the other ninety-nine applicants, the Court considered that there were no special circumstances regarding respect for human rights as defined in the Convention or its Protocols which required the continuation of the examination of the application in respect of those three applicants, and proceeded to strike out their applications (ibid, §§ 40-45).

32. In the present case the circumstances are entirely different, there is no doubt that the applicant is still in contact with his legal representative, despite his release from detention, and that he still wishes to pursue his application, as is evidenced by his submissions in reply and his recent letter enquiring as to the stage reached in the proceedings.

33. Accordingly, the Court rejects the Government’s request to strike the application out of its list of cases under Article 37 § 1 of the Convention, and continues the examination of the case.

34. In so far as the applicant’s failure to inform the Court that he had been released could be considered as an objection on the grounds of abuse of petition the Court reiterates that any conduct of an applicant that is manifestly contrary to the purpose of the right of individual application as provided for in the Convention and impedes the proper functioning of the Court or the proper conduct of the proceedings before it constitutes an abuse of the right of application (see Miroļubovs and Others v. Latvia, no. 798/05, §§ 62 and 65, 15 September 2009). However, the rejection of an application on grounds of abuse of the right of application is an exceptional measure (see Miroļubovs and Others, cited above, § 62) and has so far been applied only in a limited number of cases. In particular, the Court has rejected applications as abusive under Article 35 § 3 of the Convention if they were knowingly based on untrue facts or misleading information (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014; Pirtskhalaishvili v. Georgia (dec.), no. 44328/05, 29 April 2010; Khvichia v. Georgia (dec.), no. 26446/06, 23 June 2009; Keretchashvili v. Georgia (dec.), no. 5667/02, 2 May 2006; and Řehák v. Czech Republic (dec.), no. 67208/01, 18 May 2004), or if they manifestly lacked any real purpose (see Jovanović v. Serbia (dec.), no. 40348/08, 7 March 2014), or if they contained offensive language (see, for example, Řehák, cited above) or if the principle of confidentiality of friendly-settlement proceedings had been breached (see, for example, Popov v. Moldova (no. 1), no. 74153/01, § 48, 18 January 2005).

35. In the present case, the application was lodged on 1 April 2014 and the applicant, at the time unrepresented, maintained regular contact with the Court. The application was communicated in March 2016 and the applicant was released on 14 April 2016 after having served his sentence and having benefited from full remission. While it is true that the applicant did not immediately inform the Court of his release, the Court observes that his release occurred during the period of time allowed to the Government to make observations. Indeed the letter sent by the Court’s Registry on 22 March 2016 informed the applicant that the Government had been asked to submit their observations by 12 July 2016 and that such observations would then be sent to him in order that he may submit his reply and claims for just satisfaction. That information was followed by an instruction in bold stating “Please do not send any submissions before being asked to do so by the Court”. That being so, the Court considers that the applicant cannot be blamed for not having informed it of his release before the Government did so in their observations of 12 July 2016.

36. There is therefore no reason to question the applicant’s behaviour and any objection to this effect must be dismissed.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

37. The applicant complained that the prison officers had not taken enough measures to protect his life, particularly in connection with the failure to provide medical assistance after he had been injured by another inmate. He complained further that he had been put in solitary confinement after that incident had taken place and that he had been placed in the same unit as his aggressor. The applicant also complained about the conditions of his detention. He relied on Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Admissibility

1. Non-exhaustion

38. The Government submitted that the applicant had not made a request to change cell. Furthermore, the applicant had failed to institute constitutional redress proceedings. In this respect the Government argued that - although this remedy had previously been rejected by the Court on the grounds that it lacked speed - they insisted that had a request for urgency been lodged it would have been granted if the domestic court had considered the request well founded. They therefore invited the Court to review its findings. They also submitted that legal aid would be available for such proceedings.

39. The applicant submitted that he had not undertaken the remedies because he had been advised that they were ineffective. He had also repeatedly been told by the prison authorities that he had no right to do so.

40. The Court refers to its general principles and the assessment of the relevant remedies it made in Story and Others (cited above, §§ 72-86) concerning complaints regarding the lack of medical treatment and conditions of detention and finds no reason to alter the conclusions reached in that case. In particular it observes that - although the Government requested that the Court review its conclusion concerning constitutional redress proceedings, the only shortcoming of which was the length of the proceedings - the Government did not submit any relevant domestic case-law that would call into doubt the conclusion reached at § 85 of that judgment.

41. The same must be held concerning the applicant’s complaint under Article 3 that the authorities had not taken all appropriate steps to prevent any real and immediate risks to the applicant’s physical integrity by placing him in a unit with other inmates who had attacked him.

42. The Government’s objection is therefore dismissed.

2. Six-month rule

43. The Court points out that it is not open to it to set aside the application of the six-month rule solely because the respondent Government in question have not made a preliminary objection to that effect, since the said criterion, reflecting as it does the wish of the Contracting Parties to prevent past events being called into question after an indefinite lapse of time, serves the interests not only of respondent Governments, but also of legal certainty as a value in itself. It marks out the temporal limits of the supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible (see Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000-I, and G.O. v Russia, no. 39249/03, § 77, 18 October 2011).

44. The Court reiterates that, pursuant to Article 35 § 1 of the Convention, it may only deal with a matter within a period of six months from the final decision in the process of exhaustion of domestic remedies. If no remedies are available or if they are judged to be ineffective, the six-month period in principle runs from the date of the act complained of (see Hazar and Others v. Turkey (dec.), nos. 62566/00 et seq., 10 January 2002).

(a) Conditions of detention

45. The Court is mindful of the fact that - if there is no effective domestic remedy to be exhausted - a complaint about conditions of detention must be lodged within six months of the end of the situation complained of. The Court’s approach to the application of the six-month rule to complaints concerning the conditions of an applicant’s detention may be summarised in the following manner: the period of an applicant’s detention should be regarded as a “continuing situation” as long as the detention has been effected in the same type of detention facility in substantially similar conditions. The applicant’s release or transfer to a different type of detention regime, both within and outside the facility, would put an end to the “continuing situation” (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 78, 10 January 2012).

46. It appears from the submissions and material available that the conditions in Division 6 were more severe than those in the other Divisions, it being a high-security division. However, from the Government’s submissions it appears that Division 5 was also a secure division, although it had less strict restrictions. It can therefore be said that - unlike Division 3, which is a regular division - Divisions 5 and 6 are both high-security divisions in the same establishment, and can thus be considered as being the “same type of detention facility in substantially similar conditions” and the situation can therefore be regarded as a “continuing” one. It follows that, given that the applicant lodged his application on 1 April 2014, the complaint - in so far as it concerns the period of detention in Divisions 5 and 6, which came to an end on 22 October 2013 - is in conformity with the application of the six-month rule, as is the period subsequently spent in Division 3.

(b) Medical treatment

47. The Court notes that the applicant’s complaint goes beyond that concerning the alleged lack of immediate treatment following the incident of 12 July 2013, and includes alleged failures in connection with the rehabilitative treatment subsequent to that incident as well as the circumstances of his psychiatric treatment, which was administered during 2014 and 2015. This complaint is therefore also compliant with the six-month rule.

48. The applicant complained that he had been put in solitary confinement after the aforementioned incident took place and had been placed in the same unit as his aggressor. In his submissions the applicant clarified that this complaint concerned the period spent in Division 6.

49. The Government submitted that the applicant had not been kept in solitary confinement and that when the applicant was housed in Division 5 and subsequently Division 3 his aggressor had not been housed in the same division. The Government admitted that the two had been housed together when in Division 6, but they were on two different floors separated by a locked gate, and there was an order that they should not meet.

50. The Court notes that the question of solitary confinement, if it occurred, is to be assessed in conjunction with the complaint regarding conditions of detention mentioned above.

51. As to the complaint concerning the protection of his physical integrity, it is clear from the parties’ submissions following communication that this complaint concerned solely the period in Division 6. Unlike the situation surrounding the above-mentioned complaints, this is not one constituting a continuing situation which went beyond the period of detention in Division 6. In the absence of a remedy, the six-month period runs from the act complained of, which in this case came to an end on 7 August 2013 when the applicant was moved to Division 5. It follows that this complaint, which was introduced on 1 April 2014, was lodged outside the six-month time-limit and must be declared inadmissible for non-compliance with the six-month rule set out in Article 35 § 1 of the Convention, and must therefore be rejected pursuant to Article 35 § 4.

3. Conclusion

52. The Court therefore declares inadmissible the complaint concerning the lack of protection of the applicant’s physical integrity. It notes that the remaining parts of the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. The parties’ observations

(a) The applicant

53. Further to his complaints as presented in the Facts section, the applicant pointed to the fact that two months after he had left Division 6, the “European Commission” had ordered it to be closed as it did not meet the requisite human rights standards. The applicant stated that it did not even have electricity and was eventually closed and vacated. That being so, he questioned how the Government could consider it as being the most secure Division. He furthermore questioned the orders issued in his regard since when he had made enquiries with his supervisor in the prison, she had known nothing about them. He thus considered the orders arbitrary and based on the fact that he was a foreigner.

54. The applicant reiterated that he had not been given any crutches at first and that he had been made to walk out of the Division “jumping as an animal”. He felt that the authorities did not care about him or his condition, and that it was only after a lot of insistence that he had been provided with crutches.

55. The applicant acknowledged that nurses had visited Division 6, but insisted that this was only to distribute medicines. He pointed out that certain parts of the document submitted by the Government had been covered up, which showed that they were withholding information. In this connection he asserted that he had never been visited by a nurse in his cell, despite what was shown in the records. The applicant submitted that there had been misunderstandings with the doctors concerning his psychological problems, chiefly because the doctor could not speak Spanish, which was the only language spoken by the applicant at the time. He contended that he had told the doctor about all his problems, including his lack of sleep. It was therefore surprising to see that the contrary had been noted down, as was the fact that the Government had not kept a record of his attempt to commit suicide. The applicant submitted that he had suffered psychological problems ever since his experiences in Division 6 and was unable to socialise to this day.

56. The applicant submitted that he had never refused any appointments for rehabilitative treatment but had simply not been made aware of them.

57. The applicant submitted that the treatment suffered had taken a heavy toll on him, especially since his prison sentence had been extended as a result of his having been unable to pay the fine and the court expenses.

(b) The Government

58. The Government referred to the Court’s case-law and the prison regulations. They submitted that the applicant had not been placed in complete sensory and social isolation and that on 21 July 2013 he had been placed in cell 8 in Division 6 for protective purposes - specifically, in order for him to avoid contact with the inmate with whom he had had an argument. This had lasted thirteen days until he was moved to cell 13, and eleven days later to Division 5, which had fewer restrictions despite being a secure division.

59. The Government submitted that cells 8 and 13 in Division 6 (which had been operational in 2013 and had a fully functional electricity system) were single occupancy cells, measuring 365 cm x 265 cm and were equipped with a bed, washbasin and toilet. The cells also had a window and a vent as well as an aperture in the cell door which was always left open from the outside by the prison staff and served the purpose of ventilation. The window measured 50 cm x 80 cm and for security reasons was positioned at a height of 210 cm. It could be opened and closed by the occupant of the cell by standing on the bed, stool or chair, or by using a special tool made available on request by the prison authorities. The metal bars were installed for security reasons and did not prevent natural light from entering the cell.

60. According to the Government, while held in cells 8 and 13 the applicant had been visited by the nurses on a daily basis and had been taken to the medical infirmary when necessary. Following the applicant’s observations the Government submitted new, non-redacted documentation showing that a visit to the applicant’s cell had taken place on 15 July 2013 at 11.35 am.

61. The Government submitted that the cold tap water that was available in the cells was fit for human consumption. In the cells, only cold water is provided for security reasons: there had been instances of hot water being thrown over prison guards after the opening of a cell door. Each Division is provided with a hot water facility for hot drinks. Moreover, inmates are allowed to take thermos flasks filled with hot water into the cell at night-time so that they have the hot water necessary for the preparation of hot drinks during the night. In so far as drinkable water is concerned. Moreover, the applicant was allowed to purchase water from the residents’ tuck-shop using the money that he received as “Gratuity” or the money which he earned in return for work (see paragraph 23 above). The applicant could also have asked the officer in charge of the division to refrigerate a bottle of water for him.

62. In reply to the applicant, the Government submitted that all inmates received equal treatment irrespective of their State of origin. They stated that the Chief Security officer was in charge of all security measures for all the Divisions and was responsible for issuing orders to ensure the safety of inmates. In their view, decisions were taken on the basis of ensuring the well-being and safety of the inmates and were free from prejudice. In the present case there was nothing to indicate the contrary.

63. As regards Division 3, the Government submitted that - like Divisions 5 and 6 - the cells in Division 3 were individual cells (365 cm x 265 cm) equipped with a bed, a washbasin with running water, a wall-mounted water tap with running water, and a toilet. The Division could hold sixty people at any one time - a number that was never exceeded. They noted that the applicant had not claimed that the overall floor area of the cell did not allow him to move freely between the furniture items. As regards the windows, the situation was the same as that described in paragraph 59 above. The Government submitted that artificial lighting supplemented the available natural light and that inmates were allowed to use two other lamps besides the ceiling lamp. In order to alleviate the heat stress, inmates in Division 3 were allowed the use of two fans. Moreover, the applicant had only been confined to his cell for a limited number of hours.

64. The applicant was also allowed to use electric fans in order to alleviate the heat during the summer months. In so far as the winter months are concerned, heaters are not installed in the cells for security reasons, but an exception is made if a medical condition requires the use of such heaters. In the other cases, blankets are provided and if the applicants require more, they can request additional ones from the prison authorities.

65. Furthermore, Division 3 is equipped with a multiple-cubicle shower-room with hot and cold water. Inmates are free to make use of the shower cubicles daily during the opening hours of the showers, that is to say from 7.45 a.m. till 12.30 p.m. and from 2.00 p.m. to 8.30 p.m. The Government submitted that a limited waiting time for hot water usage was normal and that this waiting time was negligible since the prison was equipped with industrial water heaters.

66. The cells in Division 3 are opened at 7.30 a.m. by the prison guards who distribute hot drinks to the inmates. The cells are left open until 12.30 p.m. and are re-opened from 2.00 p.m. to 8.30 p.m. When the cells are open, the inmates are free to walk in and out of their cells and to access the exercise yard which is adjacent to the Division. Other amenities available to the inmates on a regular basis include a library, a gym, a church, workshops, a school and a tuck-shop. Other activities such as cultural and social events are held from time to time. There is also a communal TV and DVD player, and the inmates may have a television in their cell.

67. Concerning access to sanitary facilities, especially toilets, the Government submitted that the applicant had not complained that the toilet in his cell was not separated from the living area. The applicant was not housed in multi-occupancy cells and the cell doors were made of solid material with no transparent panels, thus ensuring privacy. The applicant did not complain that water to flush the toilets was not available. In this regard the Government made reference to the fact that running water was available at all times in the cells, along with cleaning materials including disinfectant which is made available by the authorities.

68. As to the medical treatment provided, the Government referred to the chronology of events (see paragraphs 15 and 18 above). The Government submitted that the prison is equipped with a clinic manned by qualified nurses who are present daily on a fourteen-hour work schedule. In-house doctors give their services to inmates on a daily basis. The prison also engages the services of a psychiatrist and a psychologist in order to examine inmates who need such medical assistance. The applicant had been regularly medically examined and even referred to the State hospital when necessary. It was established procedure for inmates to be examined by nurses immediately after an injury. Subsequently they would be examined by the prison doctor. In the applicant’s case, medical treatment had been provided after his injury. As regards the subsequent treatment, the Government pointed out that the appointment of 12 June 2015 was the only one which had been cancelled, as otherwise he had attended all the appointments that had been scheduled. They rebutted the applicant’s argument by submitting the full records instead of redacted ones concerning the nurse’s visit, and in relation to the cancelled appointment they relied on further documentation, namely a note which read “Refused by Inmate. Informed by CO148”, as well as an undated declaration by CO148 reaffirming this. They also referred to the report by the psychiatrist (see paragraph 17 above). In the light of the above the Government considered that the applicant had been given all the necessary medical treatment in a prompt manner. The treatment had been appropriate to the circumstances and no further emergencies had arisen.

2. The Court’s assessment

69. The Court refers to its general principles as set out in Story and Others (cited above, §§ 104-106 and 112, 119 and 125).

(a) Conditions of detention

70. The Court notes that in the present case, the conditions of the cells in which the applicant was held in the three divisions concerned are very similar and it will therefore deal with certain specific aspects together.

71. The Court also notes that most of the issues raised in the present case - namely the condition of the cells, the lighting and ventilation available, the heat suffered in the summer, the metal shutters, the availability of running water, and drinking water - have already been dealt with in Story and Others (cited above, §§ 114-125). Given the similarity of the complaints, as well as the submissions and documentary evidence provided by the parties, the Court refers to its general findings in that case concerning each of the issues mentioned, and reiterates its concerns (particularly at §§ 115-117, and 120-121) most of which are reiterated by the most recent CPT report (see paragraph 27 above). Furthermore, the Court notes that one of the pictures submitted by the Government to prove the availability of running water in cell 8, in fact does not show any running water. Nevertheless, the Court is prepared to accept that this is the result of an error, or in any event represented a temporary interruption which did not persist in the long run. The most recent CPT report (see paragraph 27 above) confirmed that running water was cut off intermittently. However, the applicant’s complaint did not focus on the lack of running water but rather on the quality of the water per se and the fact that it was not cold. In this connection the Court refers to its findings, in Story and Others (cited above, § 124).

72. Specifically, the Court also notes that the applicant complained that the dust falling from the ceiling of his cell caused him breathing problems, particularly as he was an asthma sufferer. In this connection the Court notes first and foremost that no evidence has been provided showing that the applicant had any complications or more frequent asthma attacks as a result of this alleged situation. The Court notes that the photographs submitted by the Government concerning the cell at issue only show its state after repair work had been carried out by the current detainee - which goes to show that the cell needed restoration, but reiterates that it does not find it demeaning for the detainees to be encouraged to paint their cells, with paint provided by the authorities (ibid, § 125). It has not been submitted that this was an obligation and the Government stated that assistance by the Trade Section personnel would have been forthcoming if requested (see paragraph 21 above). It does not appear that this was the case.

73. In connection with Division 6, in particular, the applicant claimed that no electricity was available (see paragraph 53 above), whereas the Government claimed that the electricity supply was fully functional (see paragraph 59). The Court notes that sometime after the applicant left Division 6, and prior to the CPT visit in 2015, Division 6 was indeed closed down. In their 2011 report (see paragraph 28 above) the CPT, which described the situation in Division 6 as appalling, had commented that the artificial lighting was poor. However, no mention was made of a total lack of electricity. That being so, and given the contrasting versions of the parties, the Court cannot conclude that the applicant’s claim in this respect is substantiated.

74. Lastly, as it did in Story and Others, in examining the cumulative effect of the factors complained of, the Court cannot but take account of the fact that cells were unlocked at 7.30 a.m. and left open until 12.30 p.m.; they were unlocked again at 2 p.m. and locked at 8.30 p.m. As to the time spent in Division 5 and 6, details concerning the matter have not been submitted by the parties but the Court notes that even in Division 6 - the highest security division - the applicant’s cell was left open for seven hours a day, and according to the CPT report, in Division 5 (at the time of the visit Division 6 had been closed down) where prisoners were subjected to a particularly restrictive regime, they were nonetheless allowed a couple of hours a day in the exercise yard (see paragraph 27 above). The applicant was therefore free to move around and access the exercise yard, as well as other recreational facilities, for several hours a day, depending on the Division. Such a favourable situation has a particular bearing when assessing the applicant’s conditions of detention. To that must be added the fact that, even when in the cell, the applicant was not exposed to extreme conditions, since in the relevant period he was always held in a cell measuring around 9 sq.m, with an individual sleeping place and the usual items of equipment.

75. In so far as the applicant complained that he was kept in solitary confinement, the Court reiterates that in assessing whether solitary confinement falls within the ambit of Article 3, regard must be had to the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned (see Rohde v. Denmark, no. 69332/01, § 93, 21 July 2005). In that connection the length of the period in question requires careful examination by the Court as to its justification, the need for the measures taken and their proportionality with regard to other possible restrictions, the guarantees offered to the applicant to avoid arbitrariness and the measures taken by the authorities to satisfy themselves that the applicant’s physical and psychological condition allowed him to remain in isolation (see Ramirez Sanchez v. France [GC], no. 59450/00, § 136, ECHR 2006-IX).

76. However, the Court notes that the situation does not appear to have been one of solitary confinement imposed as a sanction resulting from a disciplinary measure. The Government submitted that the decision to house the applicant in Division 6 had been for security purposes, presumably as a result of concerns following the incident of 12 July 2013. Nevertheless, the Court takes issue with the way in which this decision was taken, particularly the fact that the decision and the details pertaining to it were not made known to the applicant. The result was that he could not have taken any action in this respect, such as an appeal, even if this had been at all available. The Court notes that the CPT also raised concerns regarding such procedures whereby detainees are involuntarily separated from other inmates for security or disciplinary reasons (alongside the formal disciplinary procedures) and called for effective safeguards. Similar concerns were raised by the CPT concerning “removal from association” and placement in Division 5 which were part of the formal discipline and good order procedure of the facility. Furthermore, in their previous report of 2011, also referred to in 2016 (see paragraph 27 above), they had raised “concerns about the existence of an informal punishment system in the so-called ‘high-security unit’ of Division 6”.

77. Quite apart from the above concerns, the Court notes that the applicant’s detention in Division 6 was for no longer than two weeks, and his only restriction on speaking to other inmates applied in relation to his aggressor. While he claimed to have been unable to use the communal areas, the Government made no specific submission on this point and it is unclear whether this also formed part of the unpublished decision. No further details have been submitted by the applicant concerning other restrictions applicable in Division 6 and no detail whatsoever has been submitted concerning restrictions in Division 5, where the applicant spent nearly three months. It follows that, while similar situations - specifically decisions on punishment or security measures - certainly call for an appropriate framework, which would also dispel any discrimination concerns, in the light of the Court’s case-law referred to in paragraph 75 above, from the material available to it the Court cannot find that the situation the applicant endured during that period raises issues within the ambit of Article 3.

(b) Medical treatment

78. The Court reiterates that the authorities are under an obligation to protect the health of persons deprived of liberty. A lack of appropriate medical care may amount to treatment contrary to Article 3 (see Keenan v. the United Kingdom, no. 27229/95, § 111, ECHR 2001-III). Part of the appropriateness of the treatment is also its promptness (see Paladi v. Moldova, no. 39806/05, § 81, 10 July 2007 upheld by the Grand Chamber in Paladi v. Moldova [GC], no. 39806/05, § 72, 10 March 2009). Leaving a detained person without essential medical treatment as prescribed by medical experts over a substantial period of time and without satisfactory explanation amounts to inhuman and degrading treatment in breach of Article 3 of the Convention (see Mikhaniv v. Ukraine, no. 75522/01, § 74, 6 November 2008 and Jirsák v. the Czech Republic, no. 8968/08, § 75, 5 April 2012).

79. However, not every delay in the medical treatment of detainees is incompatible with Article 3 of the Convention. What is decisive from the point of view of that provision is whether the suffering resulting from delayed treatment reached the minimum level of severity required by Article 3 of the Convention (see, for example, Sarban v. Moldova, no. 3456/05, § 84-87, 4 October 2005, Paladi, cited above, § 81, and Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 121, 29 November 2007).

80. Regarding injuries, a six-day delay in treating a broken rib was found to be a violation of Article 3 (see Hurtado v. Switzerland, no. 17549/90, § 80, Commission decision of 8 July 1993, Decisions and Reports (DR)). Under Article 2 of the Convention a delay of two hours in treating a fractured skull, which eventually resulted in death, was found to be incompatible with the obligation to provide timely medical care (Anguelova v. Bulgaria, no. 38361/97, § 130, ECHR 2002-IV).

81. In Jirsák (cited above, §§ 82-84) the applicant had broken his ankle the night before he reported it, was not sent to hospital for an x-ray until the following day, and the treatment of his injury started only after that. The reasons that were advanced for the delay, such as the applicant’s allegedly intoxicated state or the radiographer’s absence on holiday, were found to be wholly unacceptable since the applicant was in the custody of the respondent State and it owed him a duty of care. In that case, although the Court accepted that the applicant must have suffered some pain, it could not speculate on its intensity and he had subsequently received adequate treatment for his injury, including an operation in a specialist hospital, regular check-ups and physiotherapy. Moreover, he had not submitted any evidence as to whether the continuing problems with his ankle were the consequence of the belated treatment or the injury itself. The Court thus considered that the one-day delay in treating his injury did not reach the necessary minimum level of severity to amount to inhuman or degrading treatment. As in Răducu v. Romania (no. 70787/01, § 59-62, 21 April 2009), the Court took into account the good quality of the medical treatment he subsequently received and which stabilised his condition.

82. Turning to the present case, by way of summary the Court reiterates that the applicant complained about the following: the two-hour wait following the incident of 12 July 2013, the delay in supplying him with crutches, the lack of visits by nurses, the failures in the psychiatric treatment, and the cancellation of his rehabilitative treatment.

83. The Court observes that the first examination of the applicant was conducted between one and two hours after the incident. He was then referred to hospital after the examination and was admitted at an unspecified time later on the same day. The Court notes that no explanation whatsoever has been provided by the Government for this delay, which was attributable to the State authorities.

84. The Court considers that, given the injuries sustained by the applicant, he must have suffered some pain but it cannot speculate on the intensity thereof. It does not consider that the fact that the applicant was supplied with crutches at an unspecified time on the day of the injury, but not immediately, had a substantial impact on his suffering. The Court observes that his head injury could have given rise to medical problems more serious than those which actually resulted and thus could have led to irreparable consequences for the applicant for which the State would have been responsible (compare Anguelova, cited above). However, in this case the injuries - although not minor - turned out to be of less consequence. The Court furthermore notes that later the same day and on the following day he received adequate and comprehensive treatment for his injuries, with various tests being undertaken and treatment provided (see paragraph 15 above).

85. The Court notes that although the applicant complained that his rehabilitative appointments had been cancelled, few details have been submitted by the parties on this matter. Indeed the Court is struck by the quality of the records sent to the Court, by the Government, in this respect. In particular the Court observes that on 14 July, the date of the case summary, it had been noted that the applicant should have his dressing changed within three days. However, no record has been submitted to this effect and the Government have not claimed that this was done. As to the alleged visit by the nurse on 15 July 2013 - which occurred one day later and not three, as suggested in the case summary - the Court observes that the record, which consists of a short, barely legible, handwritten note, gives absolutely no indication as to whether any treatment was carried out. It is apparent from the general records submitted to the Court that such notes usually provide details such as the purpose of the visit - for example to administer medicines - yet none were provided about this alleged visit; there is thus little in the way of substantiation, if indeed it occurred at all.

86. The Government also submitted that after the applicant’s discharge he had been taking antibiotics and his stitches were intact (see paragraph 18 above). However, no record was submitted as to the administration of these antibiotics, nor was there any follow-up regarding his stitches. In this connection, although the applicant admitted that he was on antibiotics (see paragraph 11 above) the Court observes that less than a week after his discharge, he had to be taken to hospital again because of recurrent swelling of the right ankle.

87. According to the applicant’s medical records held by the hospital, four follow-up appointments ensued after that in connection with his ankle (see paragraph 18 above) and according to the submitted documentation a further referral to the ophthalmological department was made on 5 August 2013 in connection with his facial injuries. The Government also stated that three other appointments with the ENT department took place between July and August 2013. These appointments were presumably also in connection with the applicant’s head injury, but no records to this effect have been submitted by the Government and these appointments do not appear in the hospital’s medical records, as submitted to the Court.

88. The Court would normally expect the Government to submit proper medical records in connection with their claims, but in the absence of a specific and detailed denial by the applicant, the Court is prepared to accept that such appointments took place.

89. The Government submitted that later referrals, from 2014 onwards, were not made in connection with this injury, and yet the applicant submitted that the cancellation of the appointments in 2014 and June 2015 were related to his rehabilitative treatment. Since the Government has not submitted any detailed documentation, the Court cannot ascertain whether subsequent medical appointments took place and whether they were or were not related to this injury or were prompted by other subsequent circumstances. In any event the Court considers that, even if - as claimed by the applicant - one or more appointments were cancelled without his knowledge, this must be seen against the background of the rest of the treatment provided.

90. As to the psychological/psychiatric treatment administered to the applicant, from the write up dated 6 July 2016 it is apparent that he received regular treatment (see paragraph 17 above) irrespective of whether or not it was after a suicide attempt - a matter which was disputed by the parties. The Court reiterates that medical treatment within prison facilities must be appropriate and comparable to the quality of treatment which the State authorities have committed themselves to providing for the entire population. However, this does not mean that each detainee must be guaranteed the same medical treatment as is available in the best health establishments outside the prison facilities (see Cara-Damiani v. Italy, no. 2447/05, § 66, 7 February 2012). Thus, the fact that on one occasion the applicant allegedly had to wait twenty-seven days for an appointment would in any event not appear to be particularly problematic. Moreover, the applicant admitted to later having refused treatment of his own volition (see paragraph 14 above).

91. Bearing in mind all the above, the Court is of the view that the treatment provided to the applicant, although poorly documented and not devoid of anomalies, does not appear to have been inadequate. Nor has the applicant submitted that he suffered any adverse physical consequences as a result of the delayed treatment or the alleged cancellation of appointments. Although he complained that he suffered psychological damage as a consequence of the detention and the way his situation was handled by the authorities, he failed to submit any documentation to this effect, despite having been released prior to the submission of his observations.

92. Taking account of the preceding paragraphs, although the Court is concerned about a number of matters highlighted above, in the present case it is not convinced that the overall conditions of detention and the medical treatment received by the applicant caused him distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention or that, given the practical demands of imprisonment, his health and well-being were not adequately protected.

93. It follows that there has been no violation of Article 3 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION

94. The applicant complained that the prison authorities had refused to forward his letters to the Court to dissuade him from pursuing his case before the Court. Article 34 of the Convention reads as follows:

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

95. The Government referred to the facts as set out in paragraph 25 above, which indicate that the applicant had been sending letters to the Court regularly through the prison authorities. They relied on Story and Others, cited above. It follows that there was no hindrance or interference by the prison authorities with the applicant’s right of individual petition.

96. The Court reiterates that the practice of intercepting, opening and reading prisoners’ letters amounts to an interference with the right to respect for correspondence. It is of the utmost importance for the effective operation of the system of individual petition guaranteed under Article 34 of the Convention that applicants or potential applicants should be able to communicate freely with the Convention organs without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see Akdivar and Others v. Turkey, 16 September 1996, Reports 1996-IV, § 105, and Sałapa v. Poland, no. 35489/97, § 94, 19 December 2002). In this context, “pressure” includes not only direct coercion and flagrant acts of intimidation, but also other improper indirect acts or contacts designed to dissuade or discourage applicants from using a Convention remedy (see Aydın v. Turkey, 25 September 1997, §§ 115-117, Reports of Judgments and Decisions 1997-VI). The interception of letters by prison authorities can also hinder applicants in bringing their cases to the Court (see Klyakhin v. Russia, no. 46082/99, § 119, 30 November 2004).

97. According to the Court’s case-law, although the opening of a letter from a lawyer may be permitted - if the prison authorities have reasonable cause to believe that it contains an illicit enclosure and when suitable guarantees are provided - no compelling reasons have been found to exist for the opening of letters to the Convention organs (see Campbell v. the United Kingdom, 25 March 1992, §§ 48 and 62, Series A no. 233, and Peers v. Greece, no. 28524/95, § 84, ECHR 2001 III).

98. The Court reiterates that it is important to respect the confidentiality of its correspondence since it may concern allegations against prison authorities or prison officials. The opening of letters both to and from the Convention organs undoubtedly gives rise to the possibility that they will be read and may conceivably, on occasion, also create the risk of reprisals by prison staff against the prisoner concerned (see Campbell, cited above, § 62).

99. It is thus of prime importance for the effective exercise of the right to individual petition under the Convention that the correspondence of prisoners with the Court should not be subject to any form of control, which might hinder them in bringing their cases to the Court (Story and Others, cited above, § 131).

100. The Court notes that although Maltese law provides for complaints to internationally recognised human rights bodies to be made under confidential cover (Prison Regulation 18) (see paragraph 26 above), from the case file it appears that several of the applicant’s letters to the Court were viewed by the prison authorities, as shown by the prison stamps.

101. The Court emphasises the necessity of abiding by the Prison Regulations in such matters. It notes that in the present case - unlike Story and Others (cited above, § 98) - there is no doubt that the earlier three letters sent to the Court by the applicant from the prison - prior to his correspondence through another address or, later, his lawyer - were opened and monitored, as evidenced by the relevant stamps dated 30 June 2014 (on two separate letters), and 6 May 2015 on the actual written pages (as opposed to the envelopes) (see, conversely, Harakchiev and Tolumov v. Bulgaria, nos. 15018/11 and 61199/12, § 276, ECHR 2014 (extracts), in connection with Article 8). Despite being asked a question in this respect, the Government failed to comment on the lawfulness of these monitoring measures.

102. It follows that the authorities of the respondent State have failed to comply with their obligations under Article 34 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

103. 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

104. The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage.

105. The Government submitted that the sum was exorbitant and that a declaration of the finding of a violation would be sufficient just satisfaction, and in any event any award should not exceed EUR 1,000.

106. The Court did not find a violation of Article 3 of the Convention. It finds, however, that the respondent State has failed to comply with its obligations under Article 34 of the Convention. It therefore awards the applicant EUR 3,000 in respect of non-pecuniary damage.

B. Costs and expenses

107. The applicant made no claim under this head.

108. Accordingly, the Court awards no sum in this respect.

C. Default interest

109. 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

1. Declares, unanimously, the complaints concerning the conditions of detention and the medical treatment of the applicant admissible and the remainder of the application inadmissible;

2. Holds, by four votes to three, that there has been no violation of Article 3 of the Convention;

3. Holds, unanimously, that the respondent State has failed to comply with its obligations under Article 34 of the Convention;

4. Holds, unanimously,

(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, the following amount:

(i) EUR 3,000 (three 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;

5. Dismisses, by four votes to three, the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 19 December 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli Ganna Yudkivska
Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Pinto de Albuquerque, Ranzoni and Bošnjak is annexed to this judgment.

G.Y.
M.T.

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You are here: BAILII >> Databases >> European Court of Human Rights >> PENARANDA SOTO v. MALTA - 16680/14 (Judgment : No violation of Prohibition of torture - Degrading treatment) (Substantive aspect)) [2017] ECHR 1168 (19 December 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/1168.html Cite as: [2017] ECHR 1168, ECLI:CE:ECHR:2017:1219JUD001668014, CE:ECHR:2017:1219JUD001668014