CASE OF YANEZ PINON AND OTHERS v. MALTA
No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)
Carlo Ranzoni;Ganna Yudkivska;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano
8. The applicants were born in 1963, 1976 and 1961 respectively and at the time the applications were lodged were detained in the Corradino Correctional Facility, Paola. 9. The first applicant is serving a sentence of thirteen years’ imprisonment in the Corradino Correctional Facility. The sentence was imposed on him by the Criminal Court on 24 May 2010 for drugrelated offences. The Criminal Court also ordered the applicant to pay a fine of 30,000 euros (EUR) as well as EUR 1,898.21 in fees payable to the court experts, which were to be converted into a further eighteen months’ imprisonment if not paid. Pending proceedings before this Court, the first applicant − having served his sentence − was released from detention in September 2016. 10. The applicant alleged that he had been detained in Division 6, a highsecurity division, from 12 September 2006 until 23 August 2008. He claimed that during this period he had been unable to use any electronic equipment, to work, study or go to church, and that he had been subjected to psychological torture and inhuman and degrading treatment. He argued that he was neither aggressive nor an addict and there was no reason why he should have been placed in Division 6, which was intended to house very dangerous, problematic, aggressive and addicted prisoners. The Government submitted that the first applicant had been placed in Division 6 following an order from the head of security at the prison, and that, according to documents submitted to the Court, on 1 August 2007 the applicant had been given the option to move to a less secure Division, but had refused. In Division 6 he had had access to the main library of the prison. English lessons and mass were also provided in the Division. He could make phone calls and had had access to the communal TV and DVD player, and TV sets were also allowed in the cells. During that time he had also carried out paid work assembling plastic toys. 11. Since 23 August 2008 the first applicant has been detained in Division 3, specifically in cell 139 since 19 August 2013. 12. He complained that the cell windows were very small and that there was inadequate ventilation and no natural light. The water supply was inadequate and he had to use a bucket to flush the toilet. 13. He claimed to be suffering from symptoms that were the aftereffects of physical and psychological stress. In this regard, the first applicant stated that he had been examined by the prison psychologist, who had prescribed medicine to help him sleep in addition to painkillers. According to the applicant the psychologist had also suggested that he be referred to the psychiatric hospital, but no such transfer had taken place. 14. The Government submitted that the cells in which the first applicant had been housed in both Division 6 and 3 had measured 365cm x 265cm. They noted that the first applicant had been asked (on an unspecified date) whether he wanted to be transferred from Division 3 but he had replied in the negative. He had also been asked, following communication of the complaint to the respondent Government, whether he had a problem with the window in his cell and the reply had been in the negative. They submitted that the applicant had chosen to paint over the glass shade covering the ceiling light in his cell, and when asked about this, he had stated that he had no need for a ceiling light and for that reason had painted over it. According to the Government, the first applicant had a secondary light that he used and he had stated that it provided plenty of light for him. Moreover, the cell had two vents on opposite sides and the cell door had an aperture which was always left open for ventilation purposes. Relying on an indistinct photo submitted to the Court, the Government submitted that the applicant had covered the ventilation grilles on the wall with masking tape, thereby restricting the ventilation. 15. The Government submitted that the cell was equipped with a washbasin with running water and an additional wall-mounted tap. According to the Government, when the applicant was asked whether he had an issue with the provision of water, he stated that he no longer had any issues. As far as the use of the toilet was concerned, the Government admitted that Division 3 did not have a combined flushing and WC system and that the inmates had to flush the toilets manually using buckets that were provided in all cells and could be filled from the wall-mounted taps. 16. The Government submitted that the prison psychologist was not in a position to prescribe medicine or to refer inmates to the psychiatric hospital. They stated that when the first applicant was interviewed by the prison psychologist on 18 October 2006, he had stated that he was sleeping three to four hours per night but that he did not want to take medication. According to the medical records kept by the prison medical unit, none of the doctors who had examined the applicant had found it necessary to refer him to a psychiatrist. The in-house doctor at the prison confirmed that the first applicant was never referred for psychiatric treatment as he was not mentally unstable and had not expressed a desire to be referred. The doctor also confirmed that he could not see that there had ever been such a referral by any doctor in the past. The applicant had met the doctor on four occasions and the latter had treated him for his medical needs but no psychiatric concerns had been observed or reported or expressed. On 1 May 2016 the applicant had refused all treatment, which is the right of any patient and must be respected. The Government submitted that the doctor had also confirmed that the medical notes showed that, whilst in Division 6, the first applicant had also been examined by medical doctors and treatment had been provided as needed. 17. The second applicant is currently serving a term of imprisonment of eleven years for drug-related offences in the Corradino Correctional Facility. The Criminal Court, which sentenced him on 26 September 2012, had also imposed a fine of EUR 30,000, which the applicant was to pay within two months and which would be converted to a further term of one year’s imprisonment if not paid. The Criminal Court also ordered the second applicant to pay EUR 1,032.71 in respect of costs arising from the appointment of experts. Likewise, if not paid within fifteen days, this sum would be converted into a term of imprisonment. The judgment was confirmed on appeal on 12 December 2013. The applicant has been held in cell 102 in Division 3 since 9 February 2012. 18. The applicant claimed that he was forced to buy bottled drinking water, as the available water was undrinkable. Since there is no laundry service in prison, he was dependent on donated clothes − which did not always fit him – in order to have access to clean clothing. 19. The applicant alleged that his cell was old and that he was living in squalor. The cell walls contained asbestos and the old paint was peeling off the walls and the ceiling. Moreover, according to the applicant, the building was infested by rats and cockroaches. 20. During summer, the cell was too hot and since the cell window was too small, the ventilation was inadequate. On the other hand, during winter the cell was freezing cold. No heating was provided in the cells and the blankets were not adequate. The applicant stated that he had to wear his jacket in order to be able to sleep in winter. 21. The applicant, a non-smoker, complained that he was not separated from inmates who smoke. He was thus a victim of passive smoking every hour of the day. 22. According to the applicant he was frequently not given any breakfast and more than 95% of the food served in prison consisted of bread and pasta. He also stated that, although tobacco was easily accessible, fresh fruit was mostly restricted. Occasionally, apples that were past their sell-by date and could not be sold in local supermarkets were brought to the inmates. 23. The Government submitted that, when specifically asked by the prison authorities whether he had ever lodged a request to be transferred to a newer part of the prison, the second applicant replied that he had never made such a request and that he did not want to be transferred. 24. They further submitted that the tap water in the cell was fit for human consumption. The water in all parts of the prison facility had been certified by the Public Health Laboratory as being potable (certification submitted to the Court is dated 2015). The water is tested and certified approximately every six months. Division 3 had access to water directly from the mains, that is to say, drinking water. In addition to the availability of the running tap water supply, the inmates had the right to obtain bottled water from the residents’ tuck-shop. 25. In 2015 the second applicant received EUR 40.79 every four weeks in so-called “Work & Pay” remuneration and gratuity money, as well as EUR 169.49 every four weeks for work he carried out assembling plastic dolls. They stated that at the tuck-shop a six-pack of water cost EUR 2.24 and an individual bottle EUR 0.38. 26. The Government submitted that inmates were provided with washing powder − at no cost – so that they could wash their clothes. All cells were equipped with a wall-mounted tap and a sink with running water in which to wash their clothes. It was the duty of the inmates to wash their clothing and to be clean at all times. 27. The Government submitted that the walls did not contain asbestos but were built from Maltese limestone. They stated that the applicant had never painted his cell, nor had he ever requested any materials to do so, even though such material was free of charge. The Government claimed that the applicant had stated that he would never paint his cell himself because he felt that this was the responsibility of the prison officials. 28. The Government denied that the building was infested by rats and cockroaches, pointing out that pest control treatment had been carried out sixteen times at the prison since 2013 (certificates confirming the application of pest control in specific areas of the prison, including Division 3, were submitted to the Court). 29. The Government also submitted that, apart from the window, there were also three vents in the cell, along with an aperture in the cell door which was always left open. However, the applicant had fixed a sheet over the window and had covered one of the ventilation grilles on the wall with a piece of paper, thereby restricting the amount of ventilation. 30. The Government submitted that the second applicant had asked for an extra blanket in January 2012 (while in Division 12) but had then rejected the extra blanket he was given, saying that it was too old. Since the applicant had been in Division 3, he had not asked for any additional blankets. 31. As to the second applicant’s claim concerning passive smoking, the Government submitted that the second applicant resided in a single cell and had access to fresh air in the adjoining yard for most of the day. The learning zones were all smoke-free. 32. The Government contested the applicant’s allegation concerning breakfast and the quality of food, stating that breakfast was served as follows: on weekdays all inmates were served with a ham or cheese sandwich and at weekends and on public holidays sandwiches were served with boiled eggs. The inmates had access to unlimited tea and coffee. The Government submitted to the Court the 15 daily menus constituting the lunch and dinner choices over a six month period – the menus showed a variety of meat and fish dishes, as well as pasta dishes and pies. Apart from the menu of the day, inmates could opt for tuna salad, eggs and chips with corned beef, eggs and chips with ham or cheese, omelette with ham or cheese and soup, or both. According to the Government, in cases where an inmate had been ordered to go on a diet by the doctor, pasta with ricotta or steamed fish would be provided at lunchtime and steamed chicken for dinner. Should a special diet be prescribed by the medical doctor, the food thereby indicated would be provided by the prison authorities. According to the Government, fresh fruit was delivered to the prison every Monday and Thursday − approximately eleven boxes of bananas and fourteen boxes of oranges were delivered to the prison and distributed to the inmates weekly. 33. On 28 April 2015 the second applicant instituted proceedings complaining about his conditions of detention. In particular he noted that, cumulatively, he had been held in the correctional facility since 13 July 2009 and, since that date, had been forced to live in a cell subject to the following hardships: without adequate drinking water; without clothing to keep him warm throughout winter; being dependent on charitable institutions to obtain clothing; the cell contained a significant quantity of asbestos that was causing him physical harm; the cell was infested with rats and cockroaches; the Corradino Correctional Facility lacked adequate sanitary facilities; the cell only had one small window which could not be opened as it was too high up; during winter he was only given one thin blanket although the facility was cold and it was therefore difficult to sleep; all detainees were allowed to smoke wherever and whenever they wanted and, as a consequence, inmates who, like the applicant, are non-smokers, were being subjected to passive smoking; these conditions amounted to a breach of Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and Article 36 of the Constitution of Malta. 34. On 10 November 2015 the second applicant gave oral testimony and submitted that in prison he generally felt hot and had been advised by a prison guard to buy a fan; after asking for water he had been advised to either buy it or drink the water supplied by the correctional facility. Nothing further was submitted in his oral testimony. 35. The respondent denied the above allegations. According to the medical doctor there were no mental or physical issues, nor had the applicant ever sought medical assistance. As regards the structural complaints submitted by the second applicant, the maintenance official submitted the following evidence in summarised form: 36. The Division in which the complainant was held consists of sixty cells, one of which is not currently in use; complainant is housed in a cell on his own; his particular cell is a normal one with a standard window and adequate light – being built the way it is for security reasons – and the lighting in the cell is appropriate; when the cells are open, inmates may freely walk in and out of them whenever they want, except when “under report” (that is to say confined to quarters); the complainant had access to open spaces from 2.00 p.m. to 5.00 p.m. just like all other inmates and when so authorised; the Correctional Facility conducts a yearly analysis of the water supply to check that it is fit for human consumption, and the most recent report (that of 2015), conducted by a private laboratory, concluded that the water supply is good for drinking and meets the standard for human consumption; the Facility provides potable water from the mains for the inmates and that water is supplied free of charge; inmates are allowed to buy bottled water; when inmates enter the Facility they are given blankets, sheets, pillows and a mattress; upon request, they are also given extra blankets, however, the complainant had never registered any such request; as regards any infestation of rats and cockroaches, the maintenance official presented a report submitted by a private company on these issues (such inspection is carried out yearly) stating that three rodent control visits were carried out in 2014 and the last visit showed that “everything was under control”. As regards smoking: inmates are allowed to smoke in cells; if some inmates within a particular cell are nonsmokers, then the other inmates are not allowed to smoke in that particular cell; the complainant does not smoke, although the prison doctor affirms that he stated upon admission into the Correctional Facility that he was a smoker. 37. By a judgment of 28 June 2016 the Civil Court (First Hall) in its constitutional competence dismissed the second applicant’s complaint. It considered that he had failed to submit the evidence that was deemed legally necessary to prove his case − the complainant had merely alleged the existence of the various shortcomings referred to above, but had failed to submit the relevant evidence to substantiate his allegations. By contrast, the evidence submitted in the proceedings by the doctor and the maintenance official satisfactorily showed that the allegations were unfounded. 38. On the specific issues raised, the court found as follows: Water supply: the Water Services Corporation submitted adequate proof that the water supply used in the Correctional Facility was potable, fit for human consumption and conformed to the Legal Notice on Water intended for Human Consumption Regulation, 2009, after being microbiologically analysed to this end. However, reference is made to the Chemistry (PHL) Water Analysis Test Report, which stated that the “chloride content exceeds the indicator parameter value in LN 17 of 2009”. Even given the above breach of the statutory limit, the complainant’s allegation is not substantiated as he could make use of viable alternatives to overcome the issue, either consuming warm potable water or buying bottled water from the gratuity money given to him by the facility’s authorities; 39. Blankets and clothing: it sufficiently results that, upon entering the Correctional Facility, inmates are issued with a residential kit consisting of blankets, sheets, pillows and a mattress; if required, inmates may ask their Division officer for more blankets. As regards clothing, the Facility is supported by charities which are allowed to distribute suitable clothing as required. It is apparent that the complainant never submitted a complaint on these issues. 40. Asbestos: The complaint submitted by the complainant alleging that there is asbestos in his cell is not borne out by fact; There is therefore no such danger to the complainant’s health and in fact, no such complaint has been submitted by the complainant at any time during his stay in the facility since 2009. 41. Rodents and cockroaches: pest control by a private company that specialises in this particular activity is constantly and periodically (yearly) undertaken by the Facility’s authorities. According to the treatment report released by the private company involved (dated 4 July 2014) the situation was certified as being under control. 42. Smoking: the complainant is housed in a cell on his own. However, inmates are allowed to smoke in particular areas and at particular times. In the particular division where the complainant is housed, there is no area where smoking is prohibited, and the complainant is therefore being subjected to passive smoking. Ideally, non-smokers should be segregated from smokers in order to avoid unnecessary hardship but, despite this resulting in an unsavoury situation, it is understood that because of the particular circumstances such obvious segregation might not be practically possible. As a result it cannot be held that this situation reaches the level of severity and intensity required by Article 3 of the Convention or Article 36 of the local Constitution. Furthermore, upon examining the medical records presented in the case file of the proceedings, no medical or physical deterioration was recorded in the health of the complainant as a result of the passive smoking analysed herein 43. Cell window and consequent availability of adequate light: the cell at issue is a normal Division cell furnished with a standard window and occupied only by the complainant. The window provides enough light in the cell to serve its purpose. The complainant is allowed to leave his cell at the appointed times, and on the basis of the medical reports that were accumulated throughout the years of confinement, no medical conditions have been reported as arising as a result thereof. 44. No appeal appears to have been lodged against this judgment. 45. The third applicant is currently detained in the Corradino Correctional Facility. By a judgment of the Criminal Court of 22 June 2010 he was found guilty and sentenced to ten years’ imprisonment and a fine of EUR 30,000, which was to be converted into a term of eighteen months’ imprisonment if not paid, along with EUR 1,289.50 in respect of expert fees. The applicant has been detained in Division 3 since 2010; for the first two and a half years he was held in cell 120, which was a little worse than cell 147 in which he has been housed ever since. 46. He stated that his cell window was positioned at a height of more than two metres; he therefore had to climb onto something to open it. It had three metal bars which hampered the entry of natural light. 47. According to the third applicant, the temperature in his cell may be as low as 10 oC during winter, and yet he is not allowed to have a heater in his cell. In winter, the applicant allegedly suffers from arthritis, which causes him unbearable pain. However, he is not able to use Voltaren (which is the only medicine provided by the prison authorities) because he suffers from Hepatitis C. 48. The applicant alleged that during the summer the cells were infested with cockroaches. Furthermore, his cell became very hot and there was inadequate ventilation. However, prison regulations restricted the number of fans per cell to one. Although the applicant had two fans in his cell, he stated that in summer they merely circulated the hot air and the steel door of the cell prevented any fresh air circulation. By contrast, he noted that the offices of the prison personnel (who were exposed to the same temperatures) were equipped with air conditioning and heating facilities. 49. The applicant claimed that in winter the hot water supply was not sufficient to cater for the approximately sixty inmates in his Division. Furthermore, the water was not drinkable and he therefore had to purchase bottled water, which was only possible when he had money. He claimed that when he did not have any money, he was obliged to drink the undrinkable water, which caused him skin blemishes. He stated that drinking water was only distributed to the prison personnel, but did not reach the detainees. 50. The applicant also claimed that inmates did not have access to a laundry and foreign inmates were not given detergents with which to wash their clothes and clean their cells and toilets. 51. According to the applicant, the building was a hundred years old and its condition was inadequate. Dust fell from the applicant’s cell’s ceiling and walls, which he then breathed in. 52. The applicant also stated that since the prison did not provide him with tablets for his migraine, he had been obliged to buy such tablets for six years. 53. According to the Government, the applicant has resided in cell 147 in Division 3 since 8 January 2015, and when asked by the prison authorities if he would like to be transferred to another part of the prison, he declined. 54. In reply to the second and third applicants’ claims, the Government submitted that the window in the cell could be opened using a tool provided by the authorities or by standing on the bed or on a chair or stool. Moreover, the metal bars at the window were a security feature and did not prevent natural light from entering the cell. 55. As to the claim concerning heaters, the Government referred to their submissions below (see paragraph 100). They further noted that – due to the climate in the Maltese islands – such requests were not frequent; however, they submitted that due consideration would be given to the matter if a medical reason was found to be at the root of such request. 56. The Government submitted that the applicant had been diagnosed with right dupuytrens contracture, which is a hand deformity affecting the fingers, so that they cannot be straightened completely. The applicant underwent surgery on the 27 August 2014 which did not result in any complications. The applicant was discharged and prescribed paracetamol and diclofenac. Although the applicant alleged that he suffered from arthritis, he did not visit the medical unit complaining of pain in the joints. 57. The Government also referred to the submissions made in paragraphs 26 and 29 above). They noted that the window in cell 147 could be opened and closed by the occupant. There were also two vents as well as the aperture in the cell door which was always left open. According to the Government the third applicant had covered one of the wall vents with a sheet of paper, thereby restricting the amount of ventilation, and the aperture in the cell door had been covered with a piece of cardboard from inside the cell. Furthermore, the Government submitted that it was permissible for inmates to have more than one fan in their cell. In fact, most of the inmates had two fans, as did the third applicant. 58. As to the quality and provision of water, the Government referred to their submissions in paragraph 86 below. They noted that in 2015, the [third] applicant received EUR 36.45 every four weeks in “Work & Pay” remuneration and gratuity money, as well as EUR 207.50 every four weeks for work he carried out assembling plastic dolls, thereby enabling him to buy bottled water at tuck-shop prices. 59. According to the Government there are no medical records referring to skin blemishes at the Medical Unit. They acknowledged that Division 3 was located within the older part of the facility however they stated that all cells were equipped with the necessary facilities and paint was provided on request so that the inmates could keep their cells in good condition. Relying on photos submitted, the Government considered that the ceiling and walls appeared to be in good condition and there was no flaking. 60. Lastly, the Government acknowledged that the applicant had had to buy migraine tablets, namely Zolmiles 2.5mg. Purchasing these tablets was standard policy for all inmates who suffer from migraine since inmates are eligible for medicine which is supplied by the Government to all citizens for free, but Zolmiles is not on the free medication list. Nevertheless, as can be seen from documentation submitted to the Court, the Secretary of the Malta Community Chest Fund (MCCF) informed the applicant that the MCCF Board had decided to grant him the full cost of treatment upon presentation of the original receipts. They noted that the third applicant had been referred to the State hospital in December 2011 for a common migraine and medication was prescribed as stated above. On 27 August 2014 he was admitted to the Day care unit at the State hospital, where he underwent surgery, and he was discharged the same day, with a follow-up appointment being scheduled for 11 September 2014.