CASE OF EPNERS-GEFNERS v. LATVIA
No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
Alvina Gyulumyan;Corneliu Bîrsan;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
6. The applicant was born in 1964 and lives in Liepāja. 7. On 1 October 1999 the applicant was arrested on suspicion of aggravated robbery. 8. On 11 April 2002 the Kurzeme Regional Court (Kurzemes apgabaltiesa) convicted the applicant of aggravated robbery and sentenced him to six years and one month’s imprisonment. 9. On 5 June 2002, on the applicant’s appeal, the Criminal Chamber of the Supreme Court (Augstākās tiesas Krimināllietu lietu palāta) upheld in substance the judgment of the first-instance court. 10. On 20 September 2002 the Senate of the Supreme Court (Augstākās tiesas Senāts) dismissed the applicant’s appeal on points of law in a preparatory meeting (rīcības sēde). 11. On 23 August 2004 the Jelgava Court (Jelgavas tiesa) decided to apply a pre-release scheme to the applicant and ordered his release before the end of his sentence. 12. On 18 May 2000 the applicant’s wife gave birth to their son. 13. On 16 November 2000 and 20 November 2001 the applicant received two short-term visits from his wife. He also received four short-term visits from his aunt during his pre-trial detention. 14. The applicant was able to receive long-term visits while serving his sentence, starting from 5 October 2002. Until his release on 23 August 2004 the applicant received six long-term visits from his wife; each of these visits lasted for about sixteen hours. 15. According to the Government, the applicant first complained about his dental care on 29 June 2000. A prison doctor prescribed pain relieving medication (Ibuprofen) and advised him to consult a dentist. 16. On 16 August 2000 the applicant complained of toothache to the prison doctor, who prescribed other pain relieving medication (Analgin) and advised him to consult a dentist. 17. On 18 August 2000 the applicant saw a dentist, who discovered that he had dental caries in one tooth. During his examination, the dentist noted that the applicant had two missing teeth and the remains of twenty-one damaged teeth. All in all, he had eight just healthy teeth. The applicant refused the recommended treatment. 18. On 10 August 2001 the applicant again complained of toothache to the prison doctor, who prescribed pain relieving medication (Analgin). 19. On 19 September 2001 the applicant was examined by a psychiatrist, who considered that the applicant’s complaints of headaches were related to his dental cavity problems. The doctor advised him to consult a dentist. 20. On 25 October 2001 the applicant saw the dentist, who diagnosed him as suffering from periodontal disease (loose teeth). Subsequently, four teeth were extracted. 21. On 26 November 2001 the applicant lodged a complaint with the General Inspectorate (Ģenerālinspektora birojs), which at the material time was the institution in charge of organising the execution of criminal sentences and the probation system and was supervised by the Ministry of Justice. His complaint was that he had not been receiving appropriate dental care and that he needed dental prosthetics. The applicant’s complaint was transferred to the Prisons Administration (Ieslodzījuma vietu pārvalde) for examination. 22. On 11 December 2001 the Prisons Administration informed the applicant that, following his requests, a dentist had made several extractions. This service had been free of charge. It had been established that the applicant had eight teeth left. It was presumed that he had not taken appropriate care of his teeth prior to his detention. The applicant was informed that dental prosthetics could be provided only at his own expense and that the Ministry of Finance did not allocate any funds to the Prisons Administration or prisons for this purpose. 23. On 27 December 2001 the applicant submitted a complaint to the Chancery of the President of Latvia (Latvijas Valsts prezidenta kanceleja) about his dental care. The applicant’s complaint was transferred to the Ministry of Justice and from there to the General Inspectorate for examination, which transferred the complaint to the Prisons Administration. 24. On 12 February 2002 the Prisons Administration informed the applicant that he had already received an answer on 11 December 2001 as regards his complaint of 26 November 2001. It reiterated that dental prosthetics could not be provided free of charge in prisons. 25. Until 14 May 2001 the detention of persons in remand prisons was governed by an instruction, which had been approved by the Minister of the Interior on 30 April 1994. 26. Rule 26 of that instruction provided that detainees placed in remand prisons were allowed to receive short-term visits upon approval from the authority conducting the criminal proceedings (that is, either from the investigating authorities or the court, depending on the stage reached in the proceedings). 27. Rule 32 of that instruction stipulated that detainees placed in remand prisons could receive one short-term visit (up to one hour) per month from family members and other persons only with written permission from the person or body dealing with the particular criminal case. 28. In 2001 the Ministry of Justice took over the supervision of penitentiary institutions from the Ministry of the Interior. 29. On 9 May 2001 the Minister of Justice issued an order enacting a transitional instruction on the detention of persons in remand prisons. The instruction entered into force on 14 May 2001. 30. Rule 25 of the transitional instruction provided that detainees could receive one short-term visit per month with written permission from the authority dealing with the particular criminal case. 31. The transitional instruction of the Minister of Justice remained applicable until 1 May 2003, when Cabinet Regulation no. 211 (2003) took effect. Subsequently, Cabinet Regulation no. 288 (2006) replaced it as of 20 April 2006. Finally, the Law on Custody Procedure (Apcietinājumā turēšanas kārtības likums) took effect on 18 July 2006. 32. On 19 December 2001 the Constitutional Court (Satversmes tiesa) delivered its judgment in case no. 2001-05-03 on the compliance of the internal regulations on remand prisons (issued under the authority of the transitional instruction of the Minister of Justice) with the Constitution (Satversme). The Constitutional Court found, among other things, that the transitional instruction as well as the internal regulations on remand prisons had not been made public and that they were internal normative acts (iekšējie normatīvie akti). As a result, it concluded that some of the rules contained in the internal regulations on remand prisons were unconstitutional, but not those concerning short-term visits. 33. On 23 April 2009 the Constitutional Court delivered its judgment in case no. 2008-42-01 on whether the restriction of the duration of short-term visits to one hour for detainees, which emanated from the Law on Custody Procedure (in effect since 18 July 2006), was in compliance with the Constitution. 34. Having examined the Court’s case-law, the practice of several member States of the Council of Europe, and the European Prison Rules, the Constitutional Court found, on the one hand, that there was no obligation for States to ensure long-term visits for detainees and that the restriction to receive such visits was compatible with the Constitution, namely, with the right to private and family life contained therein. On the other hand, the Constitutional Court held that the blanket one-hour restriction on monthly short-term visits was not proportionate and thus not compatible with the Constitution. The restriction was abrogated as of 1 December 2009 and, since 11 August 2011, the relevant provision reads: “detainees have the right to receive visits lasting at least one hour from their relatives or other persons at least once a month”. 35. Cabinet Regulation no. 358 (1999), in force at the material time and effective until 28 March 2007, provided as follows: “2. Convicted persons shall receive the minimum standard of health care free of charge up to the amount established by the Cabinet of Ministers. In addition, the Prisons Administration, within its budgetary means, shall provide the convicted persons with: 2.1. primary, secondary and tertiary (in part) medical care; 2.2. emergency dental care; 2.3. examination of health conditions; 2.4. preventive and anti-epidemic measures; 2.5. medication and injections prescribed by a doctor of the institution; 2.6. medical accessories. 3. Detained persons shall receive medical care in accordance with Article 2 of these regulations, excluding planned in-patient treatment.... Detained persons shall be sent to receive in-patient treatment only in acute circumstances.”