ABELE v. LATVIA - 60429/12 (Judgment : Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment Inhuman treatment) (Substantive aspect) Non-...) [2017] ECHR 835 (05 October 2017)

In the case of Ābele v. Latvia,

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

          Angelika Nußberger, President,
          Erik Møse,
          Nona Tsotsoria,
          André Potocki,
          Síofra O’Leary,
          Mārtiņš Mits,
          Gabriele Kucsko-Stadlmayer, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 5 September 2017,

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

PROCEDURE

1. The case originated in two applications (nos. 60429/12 and 72760/12) 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 Valters Ābele (“the applicant”), on 12 September and 24 October 2012 respectively.

2. The applicant, who had been granted legal aid, was represented by Ms J. Averinska, a lawyer practising in Riga. The Latvian Government (“the Government”) were represented by their Agent, Ms K. Līce.

3. The applicant alleged that his prison conditions had been inadequate in view of his particular situation and that his complaints in that regard had not been examined.

4. On 26 January 2015 the applications were communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1968 and is currently detained in Jēkabpils Prison. He is a person with special needs. The applicant is deaf and mute since birth and his knowledge of sign language is poor.

6. At least as of 2 March 2001, when his disability was certified as permanent, the applicant has been recognised as being category 3 disabled (the least severe level of disability). On an unspecified date his disability was re-categorised as category 2 (medium level of disability).

A. The applicant’s conviction and detention

7. On 7 May 2008 the applicant was convicted of aggravated murder and sentenced to fifteen years and six months’ imprisonment. That judgment became final on 24 February 2009. He started serving his sentence in the most restrictive “lower” regime in Liepāja Prison.

1. Detention in Brasa Prison

8. On 23 December 2011 the applicant was transferred to Brasa Prison. He was placed in the medium regime as he had served one quarter of his sentence. He was held in cell no. 301 (from 1 January 2012 to 26 February 2013) and cell no. 303 (from 26 February to 30 October 2013).

9. On 30 October 2013 the applicant was placed in the most restrictive “lower” regime. He was held in cell no. 203 (from 30 October 2013 until 16 February 2015).

10. On 24 February 2016 the applicant was placed in the least restrictive “higher” regime. It appears that as of that date he was held in three different multi-occupancy cells. The number of his cellmates varied from two to fourteen. Each inmate had no less than 4 sq. m of living space in those cells.

2. Conditions of detention

11. According to the applicant, he was held in dormitory-type cells nos. 301, 303 and 203 together with other inmates, all of whom were in good health except for the applicant. The applicant’s submissions as to the overall surface area in those cells as well as the size of the sanitary facilities were consistent with the Government’s submissions (see paragraph 13 below). His account of the number of inmates was slightly different - he alleged that he had been held together with ten to twenty inmates in cells nos. 301 and 303. However, as concerns cell no. 203 he agreed with the Government - six inmates had been held in that cell.

12. The applicant submitted that the heating had not been sufficient in those cells. He had been neither able to communicate with other inmates, nor with the prison management due to his disability. He had been in social isolation and had not received any special assistance.

13. According to the Government, the applicant was held in three different cells, the conditions of which are detailed in the table below. The calculation of personal space (overall surface area with the in-cell sanitary facility deducted, divided by number of inmates held therein) is based on an approximate measurement of the sanitary facility according to the floor plans of Brasa Prison.

Cell no.	Period of detention	Total number of inmates	Overall surface area in sq. m	Sanitary facility sq. m	Personal space in sq. m
301	01.01.2012- 26.02.2013	12	36	3.15	2.74
303	26.02.2013-30.10.2013	8	29	2.73	3.28
203	30.10.2013-16.02.2015	6	20	1.48	3.09

14. As regards out-of-cell activities, the Government indicated that while being held in the medium regime - in cells nos. 301 and 303 - the applicant had been able to freely leave those cells in daytime and to use the common area. The Government further submitted that cell no. 301 had been equipped with one window. That window had been fitted with bars and had been placed in a wall (adjacent to a corridor) facing another window (in the corridor). This cell had had three fluorescent lamps, including one night lamp located above the door. Heating had been provided by one heating pipe of 5 cm in diameter and the heaters located in the adjacent corridor and in the hallway. A new automatic boiler had been installed in Brasa Prison, which had ensured a temperature of 18˚C. Heating arrangements in cell no. 303 had been the same as in cell no. 301.

15. While being held in the most restrictive “lower” regime - in cell no. 203 - the applicant had been able to leave this cell only for a daily walk (one hour), to take a shower or for appointments with a doctor, a prison chaplain or a social worker when necessary.

16. Overall, inmates in Brasa Prison had had access to a psychologist, but the applicant had never availed himself of this possibility. He had, however, met with a prison chaplain and a social worker on several occasions. The Government provided records of three conversations between the applicant and a social worker in 2016, including a meeting on 11 April 2016 where the latter had called a non-governmental organisation (Latvijas Nedzirdīgo Savienība) concerning the applicant’s hearing aid. Lastly, the applicant had visited a psychiatrist at least on six occasions in the time period from 1 April 2015 to 7 September 2016.

3. State of the applicant’s health

17. On 27 December 2011 the state of the applicant’s health was examined for the first time in Brasa Prison. It was noted that the applicant was deaf and mute and that he suffered from spondylosis.

18. The applicant submitted an extract of his medical record in Brasa Prison. According to that document (dated 26 July 2016), he had been deaf since birth. On 13 August 2009 a psychiatrist had detected a psychiatric health condition (psihiskas veselības problēmas), namely, “reaction to situations with anxiety” (situācijas reakcija ar trauksmi). On 21 January 2010 the same psychiatrist had detected another sleep-related condition. On 10 December 2015 another psychiatrist diagnosed the applicant as having “organic personality disorder” (organiski personības traucējumi).

19. The Government submitted another extract of the applicant’s medical record in Brasa Prison. According to that document (dated 7 April 2015), upon admission to Brasa Prison the applicant had been diagnosed as being deaf and mute and having spondylosis. During the above-mentioned period the applicant had consulted prison medical staff on thirty-nine occasions. He had been examined, treated and provided with medication when necessary. No serious health conditions, which would have required an in-depth examination, had been diagnosed. There had been no indications that outpatient examination or treatment had been necessary. The applicant had most often complained of colds, headache, poor sleep, gastritis and back pain related to spondylosis. Those complaints had not concerned his disability. In 2013 and 2014 the prison medical staff had organised an outpatient medical examination (in relation to tuberculosis) and a consultation by an ophthalmologist to obtain glasses. On 1 April 2015, upon the request of the Prisons Administration (Ieslodzījuma vietu pārvalde), the applicant’s state of health had been examined. It had been satisfactory, he had not had any complaints and he had gained weight while in prison. In sum, his health had not deteriorated.

B. Review of the applicant’s complaints

1. Complaints examined by prison authorities

20. Over the course of two years (2012-14) the applicant lodged some twenty-five handwritten complaints with various institutions (the management of Brasa Prison, the Prisons Administration, the Ministry of Justice and the Ministry of the Interior).

21. He informed the authorities that he had been deaf and mute since birth and complained as follows:

1) he had communication problems and conflicts with other inmates (he referred to “conflicts”, having been “influenced”, “offended” and “laughed about” by other inmates);

2) he wished to be transferred to a single or dual-occupancy cell;

3) he wished to be transferred to another prison;

4) he wished to have his prison regime changed;

5) his conditions of detention were inadequate and

6) his medical care was inadequate.

22. His complaints were examined by the Prisons Administration, save for three of them that were examined by the management of Brasa Prison.

23. The following conclusions were made:

(1) There had been no real threat to the applicant’s life or health in Brasa Prison. He had not been subjected to psychological harassment. His complaints to the management of Brasa Prison had not concerned any threats from other inmates.

(2) The applicant did not have a subjective right to choose his cell or cellmates. It fell within the competence of the management of Brasa Prison. There was a limited number of cells with a capacity of four inmates and those inmates could not be moved for security reasons.

(3) The decision concerning the applicant’s transfer to another prison had to be taken by the Prisons Administration. Taking into account that the applicant’s state of health had permitted his placement in any prison, there had been no grounds to transfer him to another prison; he had had to continue serving his sentence in Brasa Prison.

(4) The possibility of his transfer to the most lenient prison regime could not be examined before 10 June 2015, when he would have served the relevant proportion of his prison sentence. As to the possibility of his transfer back to the more restrictive prison regime such actions could only be taken in cases of serious or systematic breaches of the prison regime.

(5) The conditions in cell no. 301 had been adequate. It had measured 36 sq. m. Natural and artificial lighting as well as heating had been sufficient. The temperature in cell had been 18˚C.

The conditions in cell no. 303 had been similar to cell no. 301 - lighting and heating had been adequate.

The conditions in cell no. 203 had been adequate. According to the Prisons Administration and the relevant floor plans that cell had measured 19.86 sq. m (including 1.87 sq. m for sanitation facilities). Besides the applicant, it had accommodated five other inmates. A reference was made to the Court’s case-law and the applicable domestic standard of 2.5 sq. m per male inmate. The temperature in the cell had been 18˚C.

(6) The applicant’s medical care had been carried out in accordance with domestic law. He had received the necessary medication in response to his complaints. He had never complained to prison doctors of “neurological diseases”, “noises” or “fears”, but he had had at least one consultation with a psychiatrist. In any event, he had been able to complain of the quality of medical care in prison to the Health Inspectorate.

2. Complaints to the administrative courts

24. On 1 October 2012 a judge of a first-instance court refused to allow the applicant’s application to be transferred to another prison and to have his prison regime changed to a more restrictive one, a request made by the applicant in order to allow him to be held in a cell with a smaller number of inmates. Those issues fell within the realm of criminal law and could not be examined by the administrative courts.

25. On 25 October 2012 another judge refused to allow the applicant’s application to be transferred to another prison and to be relieved from the obligation to continue serving his sentence. As concerns his transfer, reference was made to the decision by the Prisons Administration whereby a conclusion had been drawn that the Administrative Procedure Law had not applied. As concerns judicial review of that decision, such a complaint had already been examined (see paragraph 24 above). As concerns the release application, it fell within the realm of criminal law; this issue could thus not be examined by the administrative courts.

26. The applicant attempted to appeal against the above-mentioned refusals, but his appeal did not appear sufficiently clear. Accordingly, on 21 November 2012 another judge decided not to proceed with his appeal (atstāt bez virzības), asking the applicant to render it more precise.

27. On 10 December 2013 another judge examined further complaints by the applicant. His application to be transferred to a more lenient prison regime and another prison were refused because such complaints had already been examined (see paragraphs 24-25 above). His complaint about insufficient heating in Brasa Prison did not appear sufficiently clear; the judge decided not to proceed with it, asking the applicant to render it more precise. As the applicant did not provide further information, the latter complaint was considered as not submitted (uzskatīt par neiesniegtu).

28. On 2 April 2014 the applicant complained to the administrative courts that the Prisons Administration had extended the time-limit for its last reply. On 29 May 2014 a judge terminated the administrative proceedings in this connection since the Prisons Administration had issued its decision in the meantime.

C. Events subsequent to the communication

29. On 31 August 2016 a panel in Brasa Prison examined the possibility of the applicant’s transfer to a more lenient prison regime. The applicant and a sign-language interpreter were present. It was established that the applicant had been working in prison until 18 December 2015; he had stopped working owing to his state of health. He had a category 2 disability. He had completed secondary education but had not pursued his education further owing to being deaf and mute and needing a specialised learning programme. He had been working with an officer and a social worker for rehabilitation purposes. He had regularly visited a chaplain in prison; however, he had not met with a psychologist. He had participated in addiction recovery meetings. He had dedicated his free time to himself. He had received three positive citations (pamudinājums) from the prison management.

30. A conclusion was drawn that the applicant had participated in nearly all the rehabilitation activities provided in the prison taking into account his capabilities. Therefore it was possible to transfer him to a more lenient prison regime in a partly closed prison.

31. On 7 September 2016 the applicant was transferred to a partly closed prison in Jēkabpils, where he was held in a cell with two other inmates. One of them had a similar hearing impairment.

II. RELEVANT INTERNATIONAL AND DOMESTIC MATERIAL

A. Relevant international documents

32. The relevant parts of the United Nations Convention on the Rights of Persons with Disabilities, ratified by Latvia on 1 March 2010, have been outlined in Grimailovs v. Latvia (no. 6087/03, § 78, 25 June 2013).

33. The relevant parts of the Interim Report of 28 July 2008 (A/63/175) by the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment have been outlined in the above-cited Grimailovs case (ibid., § 79).

B. Relevant domestic law

34. The Administrative Procedure Law (Administratīvā procesa likums), which came into force on 1 February 2004 provides, among other things, for the right to challenge administrative acts and actions of public authorities before the administrative courts. The relevant provisions of that Law have been summarised in the case of Melnītis v. Latvia (no. 30779/05, §§ 24-26, 28 February 2012).

C. Domestic reports

35. In his annual report dedicated to human-rights issues in Latvia for the year 2013, the Ombudsman (Tiesībsargs) noted that inmates, including those in Brasa Prison, most commonly complained of conditions of detention (overcrowding, lack of ventilation, insufficient access to natural light, insufficient separation of sanitation facilities, unsanitary conditions in showers and toilets). He noted that he had issued recommendations to the competent domestic authorities in previous years in this connection. Nevertheless, inmates had continued to submit complaints concerning detention conditions; these conditions had not substantially improved. He recounted that in 2013 he had completed an on-site visit of Brasa Prison, which had been started in 2012. While he did not describe the results of that visit in full, he noted that his most important recommendation to the competent domestic authorities had concerned insufficient access to natural light, insufficient separation of sanitation facilities and ventilation in cells, as well as the number of inmates per cell.

THE LAW

I. JOINDER OF THE APPLICATIONS

36. The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their similar factual and legal background.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

37. The applicant, who is mute and deaf since birth, complained that conditions of detention cells nos. 301, 303 and 203 in Brasa Prison had been inadequate.

38. The Court will examine his complaint under Article 3 of the Convention, which reads as follows:

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

39. The Government contested that argument.

A. Admissibility

1. Submissions by the parties

40. The Government argued that the applicant had failed to use the remedies established by the Administrative Procedure Law. While the Prisons Administration had examined the applicant’s complaints about conditions of detention and found them to be adequate, the applicant had not pursued those complaints before the administrative courts. Referring to the Court’s case-law (they referred to Ignats v. Latvia (dec.), no. 38494/05, § 110, 24 September 2013; Iļjins v. Latvia (dec.), no. 1179/10, § 39, 5 November 2013; Jegorovs v. Latvia (dec.), no. 53281/08, §§ 110 and 119, 1 July 2014; Kočegarovs and Others v. Latvia (dec.), nos. 14516/10, 26544/10; and 44939/11, §§ 110-123, 18 November 2014), they considered that that avenue had been available to the applicant.

41. The Government were of the view that the applicant’s complaints before the administrative courts had chiefly concerned his transfer to another prison (see paragraphs 24-28 above). Those complaints had not concerned conditions of detention, save for one specific aspect, in relation to which the applicant had been given time to provide more details, which he had failed to do (see paragraph 27 above).

42. Furthermore, the applicant had never complained to the Health Inspectorate concerning medical care in prison. They considered that it had been an effective preventive remedy. In this connection, they referred to the Court’s decisions in the cases of Antonovs v. Latvia ((dec.) no. 19437/05, § 111, 11 February 2014) and Jegorovs (cited above, §§ 155-56) and argued that the administrative courts had also had the competence to review the Health Inspectorate’s decisions or, more generally, complaints pertaining to the quality of medical care in prison.

43. The applicant disagreed. No one in Brasa Prison could fully understand him. It was for this reason that he had not been able to properly lodge complaints with the prison authorities. Nor had he received any assistance from a sign-language interpreter or a social worker who could fully understand him. As concerns his complaints to the administrative courts, he had not been able to explain them concisely. Nor had he understood the court’s procedural decisions. No legal aid had been available.

44. In short, there had been no effective remedies for the applicant because he could not express his complaints or understand directions issued by the State authorities.

45. In their additional observations, the Government disagreed. They referred to the applicant’s complaints to the prison authorities to argue that he had been able to express his complaints in writing sufficiently clearly to be understood. He had also been able to understand written instructions. Furthermore, there had been two social workers and three psychologists in Brasa Prison. A sign-language interpreter had assisted the applicant during the evaluation panel meetings (see, for example, paragraph 29 above). The prison staff used writing and gestures as a communication tool with the applicant in daily situations. Lastly, the Government pointed out that the Prisons Administration in its lengthy decisions had reiterated the applicant’s complaints word for word and had explained their understanding of each particular complaint.

46. The applicant provided no further comment.

2. The Court’s assessment

47. In the area of complaints of inhuman or degrading conditions of detention, the Court has already observed that two types of relief are possible: an improvement in the material conditions of detention; and compensation for the damage or loss sustained on account of such conditions. If an applicant has been held in conditions that are in breach of Article 3, a domestic remedy capable of putting an end to the ongoing violation of his or her right not to be subjected to inhuman or degrading treatment is of the greatest value. Once, however, the applicant has left the facility in which he or she endured the inadequate conditions, he or she should have an enforceable right to compensation for the violation that has already occurred (see Melnītis v. Latvia, no. 30779/05, § 47, 28 February 2012 and the case-law cited therein).

48. The Court notes that there is a fundamental difference between the cases relied on by the Government (Ignats, Iļjins, Jegorovs and Kočegarovs and Others, all cited above) and the present case. The present applicant, at the moment of lodging his applications with the Court, was still held in the detention facility in question - Brasa Prison. The present applicant, in contrast to the applicants in the cases cited by the Government, continued to be held in conditions which he alleged to be in violation of Article 3 of the Convention. The Court’s conclusions reached in those cases cannot, therefore, be applicable in the present case.

49. In cases which concerned persons who continued to be kept in allegedly poor conditions of detention, the Court has dismissed non-exhaustion objections based on their failure to bring or prosecute to a conclusion claims for damages against the State. It has held that such claims could result only in awards of compensation and could not lead to an improvement of the status quo, they were not a remedy capable of providing adequate redress. The Court has explained that remedies for conditions of detention which are of a purely compensatory nature may be regarded as effective only in respect of applicants who have been either released or placed in conditions which meet Convention standards (see Iliev and Others v. Bulgaria, nos. 4473/02 and 34138/04, § 55, 10 February 2011, and the case-law cited therein).

50. The Court reiterates that, in principle, the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court (see Orchowski v. Poland, no. 17885/04, § 109, 22 October 2009, and Norbert Sikorski v. Poland, no. 17599/05, § 108, 22 October 2009). It has not been disputed that on 12 September and 24 October 2012, when the present applicant lodged his applications with the Court, he continued to be detained in Brasa Prison in allegedly poor detention conditions (see paragraphs 8-9 and 11 above).

51. The above considerations are sufficient for the Court to conclude that, at the relevant time, an application before the administrative courts would not have constituted an effective remedy for the present applicant by itself. The Government have not referred to any remedy that might have been available to him in order to obtain the improvement of his conditions of detention at the relevant time. The Government’s objection must therefore be dismissed.

52. Given that the applicant remained in allegedly poor detention conditions at the time of lodging the present applications and that a purely compensatory remedy was insufficient in that regard, the Court does not consider it necessary to examine the applicant’s further argument that the remedies under the Administrative Procedure Law were not effective for him on account of him being a person with special needs (see paragraphs 43-44 above).

53. The Court notes that the applicant’s complaint under Article 3 of the Convention is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Submissions by the parties

54. The applicant submitted that the conditions of detention in Brasa Prison had been inadequate in view of his state of health. He had been held in dormitory-type cells nos. 301, 303 and 203 (see paragraphs 11-12 above for more details of the applicant’s description of the conditions in those cells). The applicable domestic standard for personal space at the relevant time had been 2.5 sq. m. per male inmate. Placement together with many inmates who had no hearing impairment and who had been in good health and with whom the applicant could not communicate had put him in a highly vulnerable position and had exposed him to harassment.

55. While in theory the prison management could ensure educational, work and other activities for inmates, there were no activities offered for deaf and mute persons or for those with special needs. Although on 11 April 2016 a hearing aid had been arranged for the applicant, it had not functioned properly (noises and interference). These issues could only be resolved in the premises of the relevant organisation, not in the prison. There was no proof that the prison management had ever used sign-language interpreter when communicating with the applicant save for one occasion (see paragraph 29 above). The prison management mainly communicated with the applicant in writing. Lastly, the applicant referred to the United Nations Convention on the Rights of Persons with Disabilities (see paragraphs 32-33 above) and submitted that the prison management had not even attempted to provide a “reasonable accommodation” to the applicant’s needs arising from his disability.

56. The Government disagreed. In addition to their submissions summarised above (paragraphs 13-16), they pointed to a number of cases concerning prisoners’ state of health or special needs where the Court had found no violation (they referred to Kostjučenkovs v. Latvia (dec.), no. 19826/04, §§ 40-51, 8 March 2011; Van Deilena v. Latvia (dec.), no. 50950/06, §§ 59-97, 15 May 2012; Buks v. Latvia (dec.), no. 18605/03, §§ 39-44, 4 September 2002; and Rudevits v. Latvia (dec.), no. 47590/06, §§ 50-52, 26 June 2012).

57. As concerns the present applicant, they explained that he had been aided by a sign-language interpreter on at least three occasions in 2015-16. As concerns the applicant’s daily life in prison, the prison officials, doctors and other staff had used writing and gestures as a communication tool. Moreover, they referred to various letters by the Prisons Administration demonstrating that the latter had paid utmost attention - to the point of directly quoting the applicant’s complaint and providing their understanding as to its contents before providing its reply (see paragraphs 20-23 and 45 above).

58. In sum the domestic authorities had taken all available measures to ensure that the applicant had been understood and had received social assistance and counselling, and that his state of mental and physical health had been regularly monitored. They also pointed out that the applicant’s application to be transferred to a more lenient prison regime had recently been granted (see paragraphs 29-31 above).

2. The Court’s assessment

(a) General principles

59. The Court refers to its recent recapitulation of the relevant principles in cases concerning conditions of detention (see Muršić v. Croatia [GC], no. 7334/13, §§ 96-101, 20 October 2016).

60. As concerns prison overcrowding, in the case of Muršić the Court confirmed “the standard predominant in its case-law of 3 sq. m of floor surface per detainee in multi-occupancy accommodation as the relevant minimum standard under Article 3 of the Convention” (ibid., § 136). In that case the Court distinguished three situations with personal space below 3 sq. m (ibid., §§ 137-38), between 3 and 4 sq. m (ibid., § 139) and more than 4 sq. m (ibid., § 140).

61. Moreover, the Court has considered that where the authorities decide to place and keep a disabled person in continued detention, they should demonstrate special care in guaranteeing such conditions as correspond to the special needs resulting from his or her disability (see Farbtuhs v. Latvia, no. 4672/02, § 56, 2 December 2004; Jasinskis v. Latvia, no. 45744/08, § 59, 21 December 2010; Z.H. v. Hungary, no. 28973/11, § 29, 8 November 2012; and the international law material in paragraphs 32-33 above).

(b) Application to the present case

62. The Court notes at the outset that the crux of the applicant’s complaint concerns material conditions of his detention in multi-occupancy cells nos. 301, 303 and 203 in Brasa Prison in view of his disability. The Court notes that the applicant’s complaint in principle does not relate to the medical assistance provided to him or deterioration of his state of health in detention (compare and contrast with Krivošejs v. Latvia, no. 45517/04, § 61, 17 January 2012). Nor does it concern his continued detention in view of his state of health (compare and contrast with the above-cited Farbtuhs case). Nor does the applicant raise an arguable complaint about inter-prisoner violence (compare and contrast with J.L. v. Latvia, no. 23893/06, § 75, 17 April 2012).

63. The Court will accordingly examine material conditions in cells nos. 301, 303 and 203 in Brasa Prison as it is their cumulative effects, as well as the particular allegations advanced by the applicant, which have to be taken into consideration when assessing the State’s compliance with Article 3 of the Convention (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II). The length of the period during which a person is detained in the particular conditions also has to be considered (see, among many other authorities, Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 142, 10 January 2012). Another important factor to be taken into account is the applicant’s vulnerable position due to his disability and the fact that the authorities are required to demonstrate special care in guaranteeing conditions corresponding to his disability (see paragraph 61 above with further references).

64. In view of the relevant test enunciated above (see paragraph 60 above), the Court will address the applicant’s complaints separately with regard to the period in which he disposed of less than 3 sq. m of personal space, and the period in which he was allocated between 3 and 4 sq. m of personal space in Brasa Prison.

(i) Period in which the applicant disposed of less than 3 sq. m of personal space

65. The Court notes that the applicant was held in cell no. 301 from 1 January 2012 to 26 February 2013 (one year, one month and twenty-six days). According to the Government, the applicant had 2.74 sq. m of personal space in that cell. While the applicant submitted that at times the number of inmates in cell no. 301 had been higher than pointed out by the Government, implying that the personal space available to him had been even more reduced, his submissions in this connection were not supported by any evidence.

66. The Court finds that a strong presumption of a violation of Article 3 arises in the present case as concerns cell no. 301 (see Muršić, cited above, § 137). Accordingly, the question to be answered is whether there were factors capable of rebutting that presumption (ibid., § 138). As to the first of those factors, which need to be cumulatively met, the Court notes that the reduction in the applicant’s personal space to below 3 sq. m was of a considerably long duration (more than one year). Such a period cannot be regarded as “short, occasional and minor” and cannot therefore be used to rebut the presumption of a violation of Article 3 in the circumstances of the present case (see Muršić, cited above, §§ 151-52, where even a significantly shorter period of twenty-seven days could not be used to rebut the presumption). It follows that there is no need to examine the remaining factors.

67. Accordingly, the Court finds that from 1 January 2012 to 26 February 2013, when he disposed of less than 3 sq. m of personal space, the conditions of the applicant’s detention in cell no. 301 in Brasa Prison subjected him to hardship going beyond the unavoidable level of suffering inherent in detention and thus amounted to degrading treatment prohibited by Article 3 of the Convention.

(ii) Period in which the applicant was allocated between 3 and 4 sq. m of personal space

68. The applicant also complained of conditions in cells nos. 303 and 203 in Brasa Prison, where he was held from 26 February 2013 to 16 February 2015. According to the Government, in those cells the applicant disposed of personal space ranging from 3.09 to 3.28 sq. m. While the applicant submitted that at times the number of inmates in cell no. 303 had been higher than indicated by the Government, implying that the personal space available to him had been even more reduced, his submissions in this respect were not supported by any evidence.

69. The Court finds that the space element remains a weighty factor in its assessment of conditions of detention in cells no. 303 and 203 in Brasa Prison. However, the Court also has to examine whether the space factor was coupled with other aspects of inappropriate physical conditions of detention such as access to outdoor exercise, natural light or air, availability of ventilation, adequacy of room temperature, the possibility of using the toilet in private, and compliance with basic sanitary and hygienic requirements (see Muršić, cited above, § 139). According to the Latvian Ombudsman complaints about overcrowding in Brasa Prison were common at the material time (see paragraph 35 above). It is the applicant’s allegation in the present case that the reduced personal space afforded to him coupled with his disability made him particularly vulnerable. He even requested to be transferred to the most restrictive prison regime as that appeared to be a possibility for him to share a cell with fewer inmates and not to be exposed to the alleged harassment (see paragraphs 21 and 24 above).

70. In addition to the reduced personal space afforded to him, the applicant took issue with two particular aspects of his detention conditions. He alleged that he had not been able to engage in any meaningful activities due to his disability and that he had not been properly understood either by the prison staff or by other inmates. He had felt socially isolated. Apart from allegedly insufficient heating - a submission the Court considers unsubstantiated in light of the detailed information provided by the Government (see paragraphs 14 and 23 above) - the applicant did not complain about any other material conditions of detention.

71. The Court notes that while the applicant could leave cell no. 303, where he was held for some eight months, during the day and use the common area, the same did not hold true for cell no. 203, where he was held for twice as long a period (one year and four months). Throughout the latter period the applicant could only leave his cell for the daily walk, once a week to take a shower (see Jegorovs, cited above, § 72) or if he had an appointment with a doctor, a prison chaplain, a social worker (see paragraph 15 above). Thus for most of the time the applicant had to spend about twenty-three hours per day in his cell, where - in view of his disability - he was unable to communicate with other inmates.

72. The Court observes that provision of a hearing aid to the applicant, when such equipment appears to have been available in Latvia, was arranged only on 11 April 2016, after the applicant had already spent more than four years in detention. By that time he was no longer being held in cells with reduced personal space (see paragraph 10 above). Furthermore, when the hearing aid was eventually made available to the applicant, it did not function properly. It appears that this technical problem remained unresolved in Brasa Prison. While the Convention does not go as far as to require that a hearing aid be provided to every prisoner with a hearing impairment, the Court notes that the availability of a functioning hearing aid at an earlier stage could have at least partly alleviated the suffering related to the applicant’s hearing impairment in a prison setting, in view of the relatively high number of the inmates sharing the cells with the applicant (see paragraph 13 above).

73. As to the applicant’s communication with the prison staff, the Government submitted that they used writing and gestures in communicating with the applicant. Although the Government argued that the applicant had been aided by a sign-language interpreter on three occasions, they provided evidence of only one meeting on 31 August 2016 (see paragraph 29 above), which took place at a time when he was no longer being held in cells with reduced personal space. It is true that a range of activities and services was provided in the Brasa Prison (see paragraphs 14-16, 29 above), however it appears that the applicant was subject to the same regime, the same treatment and the same range of activities and services which was available for the prison population in general. In the relevant period, no particular attempts were made to overcome the obvious communication problems of the applicant with the prison staff.

74. The Court considers that the weighty factor of the reduced personal space made available to the applicant, ranging from 3.09 to 3.28 sq. m, which remains very close to the minimum standard of 3 sq.m of floor surface per detainee, for a period of almost two years, together with the inevitable feeling of isolation and helplessness in the absence of adequate attempts to overcome the applicant’s communication problems flowing from his disability must have caused the applicant to experience anguish and feelings of inferiority attaining the threshold of inhuman and degrading treatment.

75. In view of the cumulative effects of the above-mentioned considerations, the Court considers that there has been a violation of Article 3 of the Convention on account of the applicant’s conditions in cells nos. 303 and 203 in Brasa Prison, where he was held from 26 February 2013 to 16 February 2015.

(iii) Conclusion

76. Accordingly, the Court finds a violation of Article 3 of the Convention in respect of conditions of the applicant’s detention in cells nos. 301, 303 and 203 in Brasa Prison from 1 January 2012 to 16 February 2015.

III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

77. The applicant alleged that his complaints about conditions of detention had not been examined. The Court will examine his complaint under Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

78. The Government contested that argument.

A. Admissibility

79. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

80. Having regard to the finding relating to Article 3 (see paragraph 76 above), the Court considers that there is no need to examine this complaint under Article 13 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

81. 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

82. The applicant, without invoking a specific sum, claimed non-pecuniary damage.

83. The Government contested that claim and invited the Court to dismiss it as being manifestly ill-founded.

84. The Court has recently reiterated that, in particular as regards just satisfaction on account of non-pecuniary damage, the Court’s guiding principle is equity, which involves flexibility and an objective consideration of what is just, fair and reasonable in all the circumstances of the case, including not only the position of the applicant but the overall context in which the breach occurred. The Court’s awards in respect of non-pecuniary damage serve to give recognition to the fact that non-material damage occurred as a result of a breach of a fundamental human right and reflect in the broadest of terms the severity of the damage (see Nagmetov v. Russia [GC], no. 35589/08, § 73, 30 March 2017 with further references).

85. Although he did not refer to any specific sum, the applicant in the present case did make “claim” for just satisfaction on account of non-pecuniary damage during the communication procedure in accordance with Rule 60 of the Rules of Court (see, for example, Frumkin v. Russia, no. 74568/12, § 180, 5 January 2016; Svetlana Vasilyeva v. Russia, no. 10775/09, § 43, 5 April 2016; and Sürer v. Turkey, no. 20184/06, § 49, 31 May 2016). The Court is not prevented from applying a degree of flexibility, essentially in respect of non-pecuniary damage, as in a number of cases the Court has examined claims for which applicants did not quantify the amount, “leaving it to the Court’s discretion” (see Nagmetov, cited above, § 72 with further references and also Seagal v. Cyprus, no. 50756/13, §§ 165-67, 26 April 2016).

86. The Court considers it undeniable that the applicant sustained non-pecuniary damage on account of the violation of Article 3 of the Convention. Having regard to the particular circumstances of the case and making its assessment on an equitable basis as required by Article 41 of the Convention, the Court awards the applicant 7,500 euros (EUR) in respect of non-pecuniary damage.

B. Costs and expenses

87. The applicant did not submit a claim for the costs and expenses. Accordingly, the Court will not award him any sum on that account.

C. Default interest

88. 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. Decides to join the applications;

2. Declares the applications admissible;

3. Holds that there has been a violation of Article 3 of the Convention;

4. Holds that there is no need to examine the complaint under Article 13 of the Convention.

5. 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 7,500 (seven thousand five hundred 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.

Done in English, and notified in writing on 5 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško Angelika Nußberger
Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> ABELE v. LATVIA - 60429/12 (Judgment : Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment Inhuman treatment) (Substantive aspect) Non-...) [2017] ECHR 835 (05 October 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/835.html Cite as: [2017] ECHR 835, CE:ECHR:2017:1005JUD006042912, (2018) 67 EHRR 39, ECLI:CE:ECHR:2017:1005JUD006042912