A group that is particularly vulnerable to violations of the freedom from torture and ill-treatment are those detained by the state. The human rights supervisory bodies have ruled in many cases where they have found that conditions of detention or imprisonment amount to ill-treatment. In the following case the Human Rights Committee found that the conditions in prison violated Article 7.
Mukong v. Cameroon
Human Rights Committee
Communication No. 458/1991
Views of 21 July 1994
Keywords: detention conditions – journalist - right to return to one’s country – torture - arbitrary arrest or detention - expression
The facts as submitted by the author
2.1 The author is a journalist, writer and longtime opponent of the oneparty system in Cameroon. He has frequently and publicly advocated the introduction of multiparty democracy and has worked toward the establishment of a new political party in his country. He contends that some of the books that he has written were either banned or prohibited from circulation. In the summer of 1990, he left Cameroon, and in October 1990 applied for asylum in the United Kingdom. In December 1990, his wife left Cameroon for Nigeria with her two youngest children.
2.2 On 16 June 1988, the author was arrested, after an interview given to a correspondent of the B.B.C., and in which he had criticized both the President of Cameroon and the Government. He claims that in detention, he was not only interrogated about this interview but also subjected to cruel and inhuman treatment. He indicates that from 18 June to 12 July, he was continuously held in a cell, at the First Police District of Yaoundé, measuring approximately 25 square metres, together with 25 to 30 other detainees. The cell did not have sanitary facilities. As the authorities refused to feed him initially, the author was without food for several days, until his friends and family managed to locate him.
2.3 From 13 July to 10 August 1988, Mr. Mukong was detained in a cell at the Headquarters of the Police Judiciaire in Yaoundé, together with common criminals. He claims that he was not allowed to keep his clothes, and that he was forced to sleep on concrete floor. Within two weeks of detention under these conditions, he fell ill with a chest infection (bronchitis). Thereafter, he was allowed to wear his clothes and to use old cartons as a sleeping mat.
2.4 On 5 May 1989, the author was released, but on 26 February 1990, he was rearrested [?].
2.5 Between 26 February and 23 March 1990, Mr. Mukong was detained at the Mbope Camp of the Brigade Mobile Mixte in Douala, where he allegedly was not allowed to see either his lawyer, his wife or his friends. He claims that he was subjected to intimidation and mental torture, in that he was threatened that he would be taken to the torture chamber or shot, should any unrest among the population develop. He took these threats seriously, as two of his opposition colleagues, who were detained with him, had in fact been tortured. On one day, he allegedly was locked in his cell for twentyfour hours, suffering from the heat (temperatures above 40°C). On another day, he allegedly was beaten by a prison warder when he refused to eat.
3.1 The author alleges a violation of article 7 of the Covenant on account of the treatment he was subjected to between 18 June and 10 August 1988, and during his detention at the Mbope Camp.
The Committee’s admissibility decision
5.1 During its 45th session, the Committee considered the admissibility of the communication. It took note of the State party’s contention that the author had not availed himself of judicial remedies in respect of claims of ill-treatment and of inhuman and degrading treatment in detention. The Committee observed, however, that the State party had merely listed in abstracto the existence of several remedies without relating them to the circumstances of the case, and without showing how they might provide effective redress in the circumstances of the case. This applied in particular to the period of detention from 26 February to 23 March 1990, when the author was allegedly held incommunicado and subjected to threats. The Committee concluded that in the circumstances, it could not be held against the author if he did not petition the courts after his release and that, in the absence of further information from the State party, there was no further effective domestic remedy to exhaust.
Revision of admissibility and examination of the merits
9.1 The author has contended that the conditions of his detention in 1988 and 1990 amount to a violation of article 7, in particular because of insalubrious conditions of detention facilities, overcrowding of a cell at the First Police District of Yaoundé, deprivation of food and of clothing, and death threats and incommunicado detention at the Camp of the Brigade Mobile Mixte in Douala. The State party has replied that the burden of proof for these allegations lies with the author, and that as far as conditions of detention are concerned, they are a factor of the underdevelopment of Cameroon.
9.2 The Committee does not accept the State party’s views. As it has held on previous occasions, the burden of proof cannot rest alone with the author of a communication, especially considering that the author and the State party do not always have equal access to the evidence and that frequently the State party alone has access to the relevant information [?]. Mr. Mukong has provided detailed information about the treatment he was subjected to; in the circumstances, it was incumbent upon the State party to refute the allegations in detail, rather than shifting the burden of proof to the author.
9.3 As to the conditions of detention in general, the Committee observes that certain minimum standards regarding the conditions of detention must be observed regardless of a State party’s level of development. These include, in accordance with Rules 10, 12, 17, 19 and 20 of the U.N. Standard Minimum Rules for the Treatment of Prisoners [?], minimum floor space and cubic content of air for each prisoner, adequate sanitary facilities, clothing which shall be in no manner degrading or humiliating, provision of a separate bed, and provision of food of nutritional value adequate for health and strength. It should be noted that these are minimum requirements which the Committee considers should always be observed, even if economic or budgetary considerations may make compliance with these obligations difficult. It transpires from the file that these requirements were not met during the author’s detention in the summer of 1988 and in February/March 1990.
9.4 The Committee further notes that quite apart from the general conditions of detention, the author has been singled out for exceptionally harsh and degrading treatment. Thus, he was kept detained incommunicado, was threatened with torture and death and intimidated, deprived of food, and kept locked in his cell for several days on end without the possibility of recreation. In this context, the Committee recalls its General Comment 20 which recommends that States parties should make provision against incommunicado detention and notes that total isolation of a detained or imprisoned person may amount to acts prohibited by article 7[?]. In view of the above, the Committee finds that Mr. Mukong has been subjected to cruel, inhuman and degrading treatment, in violation of article 7 of the Covenant.
In this case the Human Rights Committee set out some minimum conditions for detainees such as floor space, cubic content of air for each prisoner, adequate sanitary facilities, clothing and food in concert with the UN Standard Minimum Rules for the Treatment of Prisoners . The Committee stressed that minimum requirements should always be observed, regardless of economic constraints suffered by the state. Here non-compliance with minimum standards amounted to a violation of Article 10(1) but additional, particularly harsh treatment that the victim was subjected to, such as incommunicado detention and threats of torture, resulted in a violation of Article 7.
In another case, Lewis v. Jamaica (Communication No. 527/1993, Views of 18 July 1996), the Committee found the denial of medical treatment to a prisoner on death row was treating him inhumanely in violation of Article 10(1):
10.4 As regards the author’s claim that he has been denied medical treatment on death row, the Committee notes that the author has furnished specific information showing that although appointments were made for a medical doctor to see him, these appointments were not kept, and that his skin condition has been left untreated. The Committee further notes that the State party has stated that it is investigating the matter, but that, two and a half years after the complaint was brought to the State party’s attention and more than a year after this communication was declared admissible, the State party has not forwarded any information explaining the matter. In the circumstances, the Committee finds that the lack of medical treatment constitutes a violation of article 10, paragraph 1, of the Covenant.
In another case,Matthews v. Trinidad and Tobago (Communication No. 569/1993, Views of 31 March 1998), the Committee found that conditions of detention violated Article 10(1) of the Covenant, especially as to sanitary conditions described as follows:
[?] a small open drainage pipe runs in front of the “rations room”, which means that human excrement is exposed at appr. 15 feet from where food is prepared. The dining shed is open-sided and the toilets, which do not have doors, are at a distance of only 8 to 10 feet. He claims that the toilets do not work properly, that buckets of salt water have to be thrown into them, and that swarms of flies invade the dining shed. As a result, many prisoners allegedly suffer from diarrhea.
For other cases regarding conditions of detention, see, for instance,Vuolanne v. Finland (see above), Herrera Rubio et al. v. Colombia, Communication No 161/83, Views of 2 November 1987, Viana Acosta v. Uruguay, Communication No.110/1981, Views of 29 March 1984, Angel Estrella v. Uruguay, Communication No. 074/1980, Views of 29 March 1983, Bleier v. Uruguay, Communication No. 030/1978, Views of 29 March 1982 and Polay Campos v. Peru (see above).
In Sextus v. Trinidad and Tobago (Communication No. 818/1998, Views of 16 July 2001) the Committee revisited the issue of the relationship between Articles 10(1) and 7 in the field of conditions of detention and adopted a clarifying statement that has rapidly become a standard formula:
7.4[?] The Committee considers, as it has repeatedly found in respect of similar substantiated allegations, [Footnote: See, for example, Kelly v. Jamaica (Communication 253/1987) and Taylor v. Jamaica (Communication 707/1996).] that the author’s conditions of detention as described violate his right to be treated with humanity and with respect for the inherent dignity of the human person, and are therefore contrary to article 10, paragraph 1. In the light of this finding in respect of article 10, a provision of the Covenant dealing specifically with the situation of persons deprived of their liberty and encompassing for such persons the elements set out generally in article 7, it is not necessary to separately consider the claims arising under article 7.
The African Commission has dealt with a few complaints regarding conditions of detention in Africa, In Krischna Achutan (on behalf of Aleke Banda), Amnesty International on behalf of Orton and Vera Chirwa v. Malawi (Communication 64/92, Seventh Activity Report 1993-1994, Annex IX) it found that certain aspects of imprisonment amounted to a violation of Article 5 of the African Charter.
The conditions of overcrowding and acts of beating and torture that took place in prisons in Malawi contravened this article. Aspects of the treatment of Vera and Orton Chirwa such as excessive solitary confinement, shackling within a cell, extremely poor quality food and denial of access to adequate medical care, were also in contravention of this article.
In Organisation Mondiale Contre la Torture and Association Internationale des Juristes Democrates, Commission Internatonale des Juristes (CIJ), Union Interafricaine des Droits de l’Homme v. Rwanda (Communications 27/89, 46/91, 49/91, 99/93, Tenth activity Report 1996-1997, Annex X) the Commission found: ‘The conditions of detention in which children, women and the aged are held violates their physical and psychological integrity and therefore constitutes a violation of Article 5’. It did not, however, specify what exactly these conditions were.
The Inter-American Court has dealt with conditions of detention in many cases. One is a case against Honduras regarding the disappearance of Mr. Saúl Godinez Cruz (Series C No. 5, Judgement of 20 January 1989, para 164), where the Court stated:
Moreover, prolonged isolation and deprivation of communication are in themselves cruel and inhuman treatment, harmful to the psychological and moral integrity of the person and a violation of the right of any detainee to respect for his inherent dignity as a human being. Such treatment, therefore, violates Article 5 of the Convention, which recognizes the right to the integrity of the person.
In the case of Suárez Rosero v. Ecuador , the Inter-American Court dealt with, inter alia, incommunicado detention.
Inter-American Court of Human Rights
Series C No. 35 1997
Judgement of 12 November 1997
Keywords: arbitrary detention - incommunicado detention - liberty of person - judicial guarantees - physical integrity - judicial protection - cruel and inhuman treatment
I INTRODUCTION OF THE CASE
1. On December 22, 1995, [?]. The Commission submitted this Case for the Court to rule as to whether Ecuador had violated, to the detriment of Mr. Rafael Iván Suárez-Rosero, Articles 5 (Right to Humane Treatment), 7 (Right to Personal Liberty), 8 (Right to a Fair Trial), and 25 (Right to Judicial Protection), all in conjunction with Article 1 (Obligation to Respect Rights) of the Convention, resulting from
Mr. Suárez’s arrest and detention in violation of a preexisting law; the failure to duly bring Mr. Suárez before a judicial official once he was in detention; the holding of Mr. Suárez in incommunicado detention for 36 days; the failure to respond adequately and effectively to his attempt to invoke the domestic judicial guarantees, as well as the State’s failure to release him or show any intention of so doing, within a reasonable time, or to guarantee that he would be tried within an equally reasonable time to substantiate the charges brought against him.
VII AS TO THE FACTS
a. Mr. Rafael Iván Suárez-Rosero was arrested at 2:30 a.m. on June 23, 1992, by officers of the National Police of Ecuador, in connection with police Operation “Ciclón”, the aim of which was to “disband one of the largest international drug-trafficking organizations”, [?];
b. Mr. Suárez-Rosero was arrested without a warrant from the competent authority and not in flagrante delicto [?];
c. on the day of his arrest, Mr. Suárez-Rosero gave an initial statement to police officers in the presence of three prosecutors from the Ministry of Public Affairs. No defense attorney was present during the questioning [?];
d. from June 23 to July 23, 1992, Mr. Rafael Iván Suárez-Rosero was held incommunicado [?] in a damp and poorly ventilated cell measuring five meters by three, together with sixteen other persons [?];
f. on July 23, 1992, Mr. Suárez-Rosero was transferred to the Men’s Social Rehabilitation Center of Quito (former García Moreno Prison), where he remained incommunicado for five more days [?];
g. during the entire period of his incommunicado detention, from June 23 to July 28, 1992, Mr. Suárez-Rosero was not allowed to receive visits from his family or communicate with an attorney. During that time, his only contact with his relatives was limited to the exchange of clothes and scribbled notes, which were censored by the security staff. [?];
h. from July 28, 1992, onwards Mr. Suárez Rosero was allowed to receive his family, lawyer and members of human rights organizations on his days of visitors. The interviews with his lawyer were conducted in the presence of police officers [?];
w. on April 16, 1996, the First Chamber of the Superior Court of Justice of Quito ordered Mr. Suárez-Rosero’s release [?];
x. the President of the Superior Court of Justice of Quito, in his judgment of September 9, 1996, decided that Mr. Suárez-Rosero is an accessory [.] to the crime of illegal trafficking in narcotic and drugs and psychotropic substances, defined and punishable under Art. 62 of the Law on Narcotic Drugs and Psychotropic Substances, and that, pursuant to the provisions of Arts. 44 and 88 of the Criminal Code, he was [.] sentenced to two years’ imprisonment which he [was to] serve at the Men’s Social Rehabilitation Center in [the] city of Quito, and that the time he has remained in preventive [.] detention would be deducted from that sentence.
Mr. Suárez-Rosero was also fined two thousand times the minimum living wage (judgment of the President of the Superior Court of Justice of Quito of 4.00 p.m. on September 9, 1996), and
y. at no time was Mr. Suárez-Rosero summoned to appear before a competent judicial authority to be informed of the charges brought against him [?].
XIII VIOLATION OF ARTICLE 5(2)
84. The Commission requested the Court to find that the incommunicado detention to which Mr. Suárez-Rosero was subjected for 36 days violated Article 5(2) of the American Convention, in that his isolation constituted cruel, inhuman and degrading treatment.
85. Ecuador did not contest that argument in its answer to the application.
86. In its closing arguments, the Commission again raised this matter, claiming that communication through a third party did not enable Mr. Suárez-Rosero’s family to ascertain his physical, mental or emotional state.
87. In its closing arguments, Ecuador maintained that Mr. Suárez-Rosero received adequate medical treatment during his incarceration, “as attested to by the official medical records included in the docket”.
89. As the Court has stated (supra, para. 51), incommunicado detention is an exceptional measure the purpose of which is to ensure the results of an investigation; it may not be applied except in the conditions previously established by law, in the sense attributed to it by Article 30 of the American Convention [?]. In the instant Case, those conditions are established in Article 22(19)(h) of the Political Constitution of Ecuador, which states that “[i]n any case [the detained person] may not be held incommunicado for more than 24 hours”. This precept is applicable by virtue of the reference to domestic law in Article 7(2) of the American Convention [?].
90. One of the reasons that incommunicado detention is considered to be an exceptional instrument is the grave effects it has on the detained person. Indeed, isolation from the outside world produces moral and psychological suffering in any person, places him in a particularly vulnerable position, and increases the risk of aggression and arbitrary acts in prisons.
91. The mere fact that the victim was for 36 days deprived of any communication with the outside world, in particular with his family, allows the Court to conclude that Mr. Suárez-Rosero was subjected to cruel, inhuman and degrading treatment, all the more so since it has been proven that his incommunicado detention was arbitrary and carried out in violation of Ecuador’s domestic laws. The victim told the Court of his suffering at being unable to seek legal counsel or communicate with his family. He also testified that during his isolation he was held in a damp underground cell measuring approximately 15 square meters with 16 other prisoners, without the necessary hygiene facilities, and that he was obliged to sleep on newspaper; he also described the beatings and threats he received during his detention. For all those reasons, the treatment to which Mr. Suárez-Rosero was subjected may be described as cruel, inhuman and degrading.
92. For the above reasons, the Court rules that the State violated Article 5(2) of the American Convention.
In this case the Court stressed that incommunicado detention is an exceptional measure because of its grave effects on the detained person: ‘isolation from the outside world produces moral and psychological suffering in any person, places him in a particularly vulnerable position, and increases the risk of aggression and arbitrary acts in prisons.’ The Court found that subjecting the victim to incommunicado detention for 36 days without contact with his family constituted cruel, inhuman and degrading treatment, especially as his detention was arbitrary and in violation of domestic laws.
In Urrutia v. Guatemala (para 87) (see above), the Court established that even brief arbitrary detention constitutes cruel and inhuman treatment and that solitary confinement produces moral and psychological suffering:
On other occasions, the Court has established that a “person who is unlawfully detained is in an exacerbated situation of vulnerability creating a real risk that his other rights, such as the right to humane treatment and to be treated with dignity, will be violated.” It has also stated that “prolonged isolation and deprivation of communication are in themselves cruel and inhuman treatment, harmful to the psychological and moral integrity of the person and of the right of any detainee to respect for his inherent dignity as a human being.” Solitary confinement produces moral and psychological suffering in the detainee, placing him in a particularly vulnerable position. The Court has also indicated that even if the unlawful detention has only lasted a short time, it is sufficient to constitute a violation of physical and moral integrity according to the standards of international human rights law, and that, in the presence of these circumstances, it is possible to infer, even when there is no other evidence in this respect, that the treatment received during solitary confinement is inhuman and degrading.
88. In view of the foregoing, the Court considers that the unlawful and arbitrary deprivation of freedom of Maritza Urrutia, subjecting her to the above-mentioned detention conditions, constitutes cruel and inhuman treatment and, consequently, the State violated Article 5(2) of the American Convention to her detriment.
The African Commission discussed incommunicado detention in Amnesty International, Comité Loosli Bachelard, Lawyers Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v. Sudan (Communications 48/90, 50/91, 52/91, 89/93, Thirteenth Activity report 1999-2000, Addendum), where it found that ‘holding an individual without permitting him or her to have any contact with his or her family, and refusing to inform the family if and where the individual is being held, is inhuman treatment of both the detainee and the family concerned.’
The European Court has dealt with many cases regarding inhuman conditions of detention. The Court has found that although the question whether the purpose of the treatment was to humiliate or debase the victim is a factor to be taken into account when determining whether torture or ill-treatment has taken place, the absence of intent cannot conclusively rule out a violation of Article 3. In Kalashnikov v. Russia (Application No. 47095/99, Judgement of 15 July 2002), the applicant complained about the conditions in the Magadan detention centre, in particular overcrowding and unsanitary conditions in his cell, as well as the length of the period during which he was detained in such conditions, which had an adverse effect on his physical health and caused humiliation and suffering. The applicant complained, inter alia, that a) his cell measured 17 square meters and contained eight bunk beds; it nearly always held 24 inmates; there were three men to every bunk and inmates slept in turn; b) it was impossible to sleep properly as the television and cell light were never turned off; c) the person using the toilet was in view of both his cellmates and the prison guard; d) inmates had to eat their meals in the cell at a dining table only a meter away from the toilet; e) the cell had no ventilation and was stiflingly hot in summer and very cold in winter; f) he was surrounded by heavy smokers, forcing him to become a passive smoker; g) the cells were overrun with cockroaches and ants; h) he contracted a variety of skin diseases and fungal infections, losing his toenails and some of his fingernails; and that on six occasions detainees with tuberculosis and syphilis were placed in his cell and he received prophylactic antibiotic injections.
97. The Court notes from the outset that the cell in which the applicant was detained measured between 17 m2 (according to the applicant) and 20.8m2 (according to the Government). It was equipped with bunk-beds and was designed for 8 inmates. It may be questioned whether such accommodation could be regarded as attaining acceptable standards. In this connection the Court recalls that the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment of Punishment (“the CPT”) has set 7 m2 per prisoner as an approximate, desirable guideline for a detention cell [?].
The figures submitted suggest that that any given time there was 0.9-1,9 m2 of space per inmate in the applicant’s cell. Thus, in the Court’s view, the cell was continuously, severely overcrowded. This state of affairs in itself raises an issue under Article 3 of the Convention.
Moreover, on account of the acute overcrowding, the inmates in the applicant’s cell had to sleep taking turns, on the basis of eight-hour shifts of sleep per prisoner. It appears from his request for release from custody on 16 June 1999, that at that time he was sharing his bed with two other inmates (see paragraph 74 above). Sleeping conditions were further aggravated by the constant lighting in the cell, as well as the general commotion and noise from the large number of inmates. The resulting deprivation of sleep must have constituted a heavy physical and psychological burden on the applicant.
The Court further observes the absence of adequate ventilation in the applicant’s cell which held an excessive number of inmates and who apparently were permitted to smoke in the cell. Although the applicant was allowed outdoor activity for one or two hours a day, the rest of the time he was confined to his cell, with a very limited space for himself and a stuffy atmosphere.
98. The Court next notes that the applicant’s cell was infested with pests and that during his detention no anti-infestation treatment was effected in his cell. [?].
Throughout his detention the applicant contracted various skin diseases and fungal infections, in particular during the years 1996, 1997 and 1999, necessitating recesses in the trial. While it is true that the applicant received treatment for these diseases, their recurrence suggests that the very poor conditions in the cell facilitating their propagation remained unchanged.
The Court also notes with grave concern that the applicant was detained on occasions with persons suffering from syphilis and tuberculosis, although the Government stressed that contagion was prevented.
99. An additional aspect of the crammed and insanitary conditions described above was the toilet facilities. [?].
101. The Court accepts that in the present case there is no indication that there was a positive intention of humiliating or debasing the applicant. However, although the question whether the purpose of the treatment was to humiliate or debase the victim is a factor to be taken into account, the absence of any such purpose cannot exclude a finding of violation of Article 3 (see Peers v. Greece cited above). It considers that the conditions of detention, which the applicant had to endure for approximately 4 years and 10 months, must have caused him considerable mental suffering, diminishing his human dignity and arousing in him such feelings as to cause humiliation and debasement.
102. In the light of the above, the Court finds the applicant’s conditions of detention, in particular the severely overcrowded and insanitary environment and its detrimental effect on the applicant’s health and well-being, combined with the length of the period during which the applicant was detained in such conditions, amounted to degrading treatment.
103. Accordingly, there has been a violation of Article 3 of the Convention.
In Kuznetsov v. Ukraine , the European Court dealt, inter alia, with conditions on death row.
European Court of Human Rights
Application No. 39042/97
Judgement of 29 April 2003
Keywords: duty to investigate - alleged assault while in detention - death row phenomenon - private life
81. The case concerned the conditions to which the applicant was subjected on death row in Ivano-Frankivsk Prison and his treatment there.
I. THE CIRCUMSTANCES OF THE CASE
A. Outline of events
82. On 12 December 1995 the Ivano-Frankivsk Regional Court [?] convicted the applicant of the murder of four persons and sentenced him to death and ordered the confiscation of his personal property. [?]
83. A moratorium on executions was declared by the President of Ukraine on 11 March 1997. In judgment no. 11p?/99 of 29 December 1999, the Constitutional Court of Ukraine held that the provisions of the Criminal Code concerning the death penalty were contrary to the Constitution of Ukraine. Death sentences were therefore commuted to life imprisonment pursuant to Act no. 1483-III of 22 February 2000.
On 2 June 2000 the Ivano-Frankivsk Regional Court commuted the applicant’s death sentence to life imprisonment.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
A. Alleged assaults of the applicant in prison
84. Before the Commission’s delegates, the applicant stated that he had been beaten on 2 September 1998. On 3 September 1998, at 8.48 a.m., he was found hanging in his cell. According to his mother, the suicide attempt had either resulted from the applicant’s ill-treatment by the prison authorities or an attempt on his life. [?]
85. The Court, like the Commission, considers that on the basis of the evidence, oral and written, it has not been established to the requisite standard of proof that the applicant was assaulted in Ivano-Frankivsk prison in breach of Article 3 of the Convention.
86. The Court accordingly finds no violation of Article 3 of the Convention in this regard.
B. Adequacy of the investigation
87. The Court observes that the applicant’s mother last visited the applicant on 11 August 1998 and that it was a fact that the applicant had been hospitalised on 3 September 1998, one day after he had been allegedly beaten by prison officers. It considers therefore that the applicant’s mother was therefore justifiably anxious and that her complaints raise an arguable claim that the applicant may have been ill-treated in prison.
88. The Court recalls that where an individual raises an arguable claim that he has been subjected to ill-treatment by the police or other agents of the State unlawfully and in breach of Article 3 of the Convention, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ? [the] Convention”, requires by implication that there should be an effective official investigation. Such an investigation, as with that under Article 2, should be capable of leading to the identification and punishment of those responsible [?].
89. In its Report the Commission noted that, following the various complaints by the applicant’s mother of his ill-treatment, the State authorities appeared to have carried out some investigation. However, the Commission was not satisfied that the investigation was sufficiently thorough and effective to meet the requirements of Article 3 of the Convention. In particular, it was noted that the decisions of the national authorities which had been produced to the Commission referred only to the fact of the dismissal of the complaints without demonstrating the steps taken by the domestic authorities during the investigation. It was further noted that, although it appeared from the medical file and from the evidence of the prison doctor that the applicant was under medical care between 4 and 7 September 1998 and was seen by the prison psychiatrist on 7 and 18 September and 1, 19 and 28 October 1998, the applicant’s medical examination with the participation of the medical staff of the Protection of Health Department of the prison was carried out only on 28 October 1998, that is, almost two months after the applicant’s alleged ill-treatment. The Commission observed that there was a lack of any contemporaneous records which could demonstrate, step by step, the nature of the investigation into the allegations and that no external authority appeared to have been involved in any such investigations. In these circumstances, the Commission concluded that the investigations had been both perfunctory and superficial and did not reflect any serious effort to discover what had really occurred in the prison in September 1998.
90. In the light of its own examination of the material before it, the Court shares the findings and reasoning of the Commission and concludes that the applicant’s arguable claim that he had been subjected to ill-treatment in prison was not subject to an effective investigation by the domestic authorities as required by Article 3 of the Convention.
91. There has therefore been a violation of Article 3 of the Convention in this regard.
C. Conditions of the applicant’s detention on death row
92. The Court has consistently stressed that the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Measures depriving a person of his liberty may often involve such an element. In accordance with this provision the State must ensure that a person is detained under conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to such distress or hardship exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured [?].
93. In addition, as underlined by the Court in the Soering v. the United Kingdom judgment, present-day attitudes in the Contracting States to capital punishment are relevant for the assessment whether the acceptable threshold of suffering or degradation has been exceeded [?]. Where the death penalty is imposed, the personal circumstances of the condemned person, the conditions of detention awaiting execution and the length of detention prior to execution are examples of factors capable of bringing the treatment and punishment received by the condemned person within the proscription under Article 3 (ibid.). When assessing conditions of detention, account has to be taken of the cumulative effects of those conditions, as well as the specific allegations made by the applicant [?].
94. [?] The Court accepts that, until the formal abolition of the death penalty and the commutation of his sentence, the applicant must have been in a state of some uncertainty, fear and anxiety as to his future. However, it considers that the risk that the sentence would be carried out, and the accompanying feelings of fear and anxiety on the part of those sentenced to death, must have diminished as time went on and as the de facto moratorium continued in force. [?].
95. The Court notes the findings of the Commission that eight death row inmates were detained on the day of the Delegates’ visit to Ivano-Frankivsk Prison in single cells without the possibility of communicating with other inmates. They were frequently observed by prison guards through a little window in the door of the cell. The light was on during 24 hours per day and the radio was switched off only at night. The Court further notes that according to the applicant’s mother, the applicant had been suffering from nervous disorder already before he had been sentenced and detained. On the ground of his mental illness he had been relieved from military service. Moreover, he had been suffering from chronic gastritis.
96. The Court notes the findings of the Commission that until May 1998 death row inmates were not allowed to have daily outdoor walks and windows in their cells were fully shuttered. When inspected by the Commission’s Delegates, the applicant’s cell was found to have been freshly painted, with an open toilet and a washbasin with cold water, two beds, a table and a little bench, both fixed to the floor, central heating and a window with bars. There were some books, a chess set, garlic, oil, a stock of soap and toilet paper. The applicant’s cell was overheated, particularly in comparison with other rooms in the prison.
97. Concerning the visits by the applicant’s mother, the Court relies on the Commission’s finding that two warders were present when his mother visited him, who were authorised to interrupt their conversation when they considered that the mother or the applicant had said anything “untrue”. Except for her visit of 27 August 1998, all the requests of the applicant’s mother to visit him were granted. However, her requests of 24 September 1997 and 26 March 1998, were granted about three months after the requests had been submitted. Moreover, such visits were generally limited to a maximum of twelve in a year. [?]
98. Concerning the applicant’s correspondence, the Court observes that although the applicant was allowed to send more than twelve letters a year as provided for in the Instruction, until October 1997, he was not entitled to do so. [?]
99. The Court views with particular concern the fact that, until at earliest May 1998, the applicant, in common with other prisoners detained in prison under a death sentence, was locked up for 24 hours a day in cells which offered a very restricted living space, that the windows of the cells were covered with the consequence that there was no access to natural light, that there was no provision for any outdoor exercise and that there was little or no opportunity for activities to occupy himself or for human contact. In common with the observations of the CPT concerning the subjection of death row prisoners in Ukraine to similar conditions, the Court considers that the detention of the applicant in unacceptable conditions of this kind amounted to degrading treatment in breach of Article 3 of the Convention. In the case of the present applicant, the situation was aggravated by the fact that he was placed in solitary confinement following his suicide attempt. In this regard, the Court agrees with the Commission that, although it is quite normal for prisons that inmates are obliged to follow disciplinary rules, the disciplinary punishment inflicted on the applicant in the present case because of his suicide attempt seems to be particularly severe and disproportionate to the aim which it was to attain. The applicant’s situation was further aggravated by the fact that he was throughout the period in question subject to a death sentence although, as noted in paragraphs 11 and 115 above, a moratorium had been in effect since March 1997.
100. The Court considers that in the present case there is no evidence that there was a positive intention of humiliating or debasing the applicant. However, although the question whether the purpose of the treatment was to humiliate or debase the victim is a factor to be taken into account, the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3 of the Convention [?]. It considers that the conditions of detention, which the applicant had to endure in particular until May 1998, must have caused him considerable mental suffering, diminishing his human dignity. [?]
101. The Court has also borne in mind, when considering the material conditions in which the applicant was detained and the activities offered to him, that Ukraine encountered serious socio-economic problems in the course of its systemic transition and that prior to the summer of 1998 the prison authorities were both struggling under difficult economic conditions and occupied with the implementation of new national legislation and related regulations. However, the Court observes that lack of resources cannot in principle justify prison conditions which are so poor as to reach the threshold of treatment contrary to Article 3 of the Convention. Moreover, the economic problems faced by Ukraine cannot in any event explain or excuse the particular conditions of detention which it has found in paragraph 125 to be unacceptable in the present case.
102. There has accordingly been a violation of Article 3 of the Convention in this respect.
Here the Court found conditions of detention in violation of Article 3 due to the fact that, inter alia, the detained were locked up for 24 hours a day in small cells with covered windows so they had no access to natural light and there was no provision for any outdoor exercise and ‘that there was little or no opportunity for activities to occupy himself or for human contact’. The Court found the author’s claims of assault unsubstantiated but ruled that the Ukraine had violated the Convention, as it had not carried out a satisfactory investigation into the author’s allegations of abuse.
In the case of Lorsé et al. v. The Netherlands (Communication No. 52750/99, Judgement of 4 February 2003) the Court dealt with conditions of detention, especially the practice of frequent strip searches, in a high security prison:
70. The applicants also submitted that, if not inhuman, the treatment to which Mr Lorsé had been subjected was at the very least degrading. In this respect the Court observes that pursuant to the EBI house rules, Mr Lorsé was strip-searched prior to and following an “open” visit as well as after visits to the clinic, the dentist’s surgery or the hairdresser’s. In addition to this, for more than six years he was also obliged to submit to a strip-search, including an anal inspection, at the time of the weekly cell-inspection (see paragraph 37 above), even if in the week preceding that inspection he had had no contact with the outside world (see paragraph 65 of the CPT report) and despite the fact that he would already have been strip-searched had he received an “open” visit or visited the clinic, dentist or hairdresser’s. Thus, this weekly strip-search was carried out as a matter of routine and was not based on any concrete security need or Mr Lorsé’s behaviour.
The strip-search as practised in the EBI obliged Mr Lorsé to undress in the presence of prison staff and to have his rectum inspected, which required him to adopt embarrassing positions.
71. For Mr Lorsé, this was one of the features of the regime which was hardest to endure, but the Government maintained that the strip-searches were necessary and justified.
72. The Court has previously found that strip-searches may be necessary on occasions to ensure prison security or to prevent disorder or crime [?]. In the cases of Valasinas and Iwanczuk one occasion of strip-search was at issue, whereas the case of McFeeley et al. concerned so-called “close body” searches, including anal inspections, which were carried out at intervals of seven to ten days, before and after visits and before prisoners were transferred to a new wing of the Maze Prison in Northern Ireland, where dangerous objects had in the past been found concealed in the recta of protesting prisoners.
73. In the present case, the Court is struck by the fact that Mr Lorsé was submitted to the weekly strip-search in addition to all the other strict security measures within the EBI. In view of the fact that the domestic authorities, through the reports drawn up by the Psychological Department of their Penitentiary Selection Centre, were well aware that Mr Lorsé was experiencing serious difficulties coping with the regime, and bearing in mind that at no time during Mr Lorsé’s stay in the EBI did it appear that anything untoward was found in the course of a strip-search, the Court is of the view that the systematic strip-searching of Mr Lorsé required more justification than has been put forward by the Government in the present case.
74. The Court considers that in the situation where Mr Lorsé was already subjected to a great number of control measures, and in the absence of convincing security needs, the practice of weekly strip-searches that was applied to Mr Lorsé for a period of more than six years diminished his human dignity and must have given rise to feelings of anguish and inferiority capable of humiliating and debasing him.
Accordingly, the Court concludes that the combination of routine strip-searching with the other stringent security measures in the EBI amounted to inhuman or degrading treatment in violation of Article 3 of the Convention. There has thus been a breach of this provision.
In McGlinchey et al. v. The United Kingdom Application No. 50390/99, Judgement of 29 April 2003), the Court dealt with the adequacy of medical care provided by prison authorities. Judith McGlinchey, a heroin addict suffering withdrawal symptoms, became very sick in prison and subsequently died. The Court found that there had been a violation of Article 3 in relation to the prison authorities’ treatment of the victim (this case is also analysed under the right to health § 6.E):
103. The evidence indicates to the Court that by the morning of 14 December 1998 Judith McGlinchey, a heroin addict whose nutritional state and general health were not good on admission to prison, had suffered serious weight loss and was dehydrated. This was the result of a week of largely uncontrolled vomiting symptoms and an inability to eat or hold down fluids. This situation, in addition to causing Judith distress and suffering, posed very serious risks to her health, as shown by her subsequent collapse. Having regard to the responsibility owed by prison authorities to provide the requisite medical care for detained persons, the Court finds that in the present case there was a failure to meet the standards imposed by Article 3 of the Convention. It notes in this context the failure of the prison authorities to provide accurate means of establishing Judith’s weight loss, which was a factor that should have alerted the prison to the seriousness of her condition, but was largely discounted due to the discrepancy of the scales. There was a gap in the monitoring of her condition by a doctor over the weekend when there was a further significant drop in weight and a failure of the prison to take more effective steps to treat Judith’s condition, such as her admission to hospital to ensure the intake of medication and fluids intravenously, or to obtain more expert assistance in controlling the vomiting.
104. The Court concludes that the prison authorities’ treatment of Judith McGlinchey contravened the prohibition against inhuman and degrading treatment contained in Article 3 of the Convention.