CASE OF LADUNA v. SLOVAKIA
Violation of Art. 14+8;No violation of Art. 13;No violation of P1-1;Non-pecuniary damage - award
Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
6. The applicant was born in 1973. At present he is serving a life sentence in Leopoldov Prison. 7. The applicant was accused of several serious offences. In that context he was detained pending trial from 1 September 2001 to 9 February 2006. On the latter date he started serving a nine-year prison term to which he had been sentenced for robbery. Further details are set out in the decision of 20 October 2010 on the admissibility of the present application. 8. During his detention on remand the applicant lodged several complaints with the Directorate General of Prison Administration, in which he complained about the conditions of his detention. He raised many issues, among which were the restrictions on his visiting rights (visits were allowed only once a month for thirty minutes and it was only possible to speak to visitors through a partition), the right to buy food in prison, the lack of hot water in his cell, and a lack of contact with other prisoners. He also alleged that convicted prisoners serving a sentence had more rights than he had as a remand prisoner. 9. The Directorate General of Prison Administration sent replies to the applicant on more than ten occasions. It found all of the applicant’s complaints to be ill-founded. It also held that the conditions in the prisons in which the applicant had been detained during the investigation and judicial proceedings had been in conformity with the relevant law. 10. Furthermore, the applicant has been obliged, both during his detention and after his conviction, to use half of the money he received from his family to reimburse the debt which he owed to the State (this debt resulted from court decisions and from the statutory obligation to contribute to his maintenance in prison), failing which he was not allowed to buy supplementary food in the prison shop. Thus, the applicant’s overall debt amounted to the equivalent of some 750 euros (EUR) in March 2008. In the period from December 2002 to January 2008 he had reimbursed approximately EUR 360 of the debt. 11. On 16 January 2003 the applicant lodged a complaint with the Prosecutor General submitting that his human rights had been violated. He complained, inter alia, about the manner in which the State had forced him to reimburse the debt resulting from the statutory obligation to contribute to his maintenance in prison. 12. On 30 January 2003 the Prosecutor General dismissed that complaint as no breach of the law had been found in the applicant’s case. 13. During the whole period of his detention during the investigation and trial the applicant could not watch television, whereas convicted prisoners had the possibility of watching television programmes collectively in the assembly room of the relevant prison wing. Through the prison broadcast system the prison administration let the detainees listen to a public and a private radio station, each of which was transmitted every other day. For almost the whole period of his detention pending trial the applicant was kept alone in his cell. 14. Pursuant to section 2(1) of the Detention Act 1993, a person’s detention during an investigation and judicial proceedings must respect the detained person’s right to be presumed innocent. Any restrictions must be justified by the purpose of the detention and by the aim of ensuring order, the safety of others and the protection of property in places where accused persons are detained. Subsection 2 of section 2 permits the restriction of only those rights of detained persons of which they cannot avail themselves in view of the fact that they are detained on remand. Detention on remand must not diminish the human dignity of the accused person. 15. Section 10(1) provides that an accused person detained during an investigation and judicial proceedings is entitled to receive visitors once a month for a minimum of thirty minutes. Where justified, the prison governor may permit more frequent visits or another form of contact. Subsection 5 of section 10 provides that visits to accused persons should take place in the presence of a prison officer and without direct contact between the accused and the visitor. Other arrangements may be authorised by the prison governor in justified cases. 16. Section 12a(10) states that an accused person is entitled to use his or her money to purchase groceries and other items in prison, provided that he or she has fulfilled the relevant statutory requirements. These include, inter alia, the obligation to pay at least the same amount of his or her debt to the prison administration or to other entitled people when wishing to withdraw money from his or her account in prison. When this and the other conditions are not met, the prison governor should allow the detained person, at his or her written request, to use money to purchase medicine and medical items which are not provided free of charge under the relevant law, to buy basic toiletries, and also to pay any applicable taxes and fees (section 12(11)). 17. Pursuant to section 19(1) of the Detention Act 2006, accused persons are entitled to receive visitors every three weeks for at least one hour. Where an accused is detained on the ground that he or she could influence witnesses or co-accused, or hamper the criminal investigation into the case, he or she can receive visitors only subject to the consent of the prosecuting authority or court dealing with the case (section 19(2)). Accused persons detained in prisons at the lowest security level are allowed to have direct contact with their visitors as a general rule. In other cases visits take place without direct contact unless the prison governor decides otherwise, and in the presence of a prison officer. In the situations set out in section 19(2), the prosecuting authority or court may request that the visit take place in the presence of one or more of its representatives (section 19(3)). 18. Section 1(1) of the Serving of Prison Sentences Act 1965 defines the purpose of the serving of a prison term as preventing convicted persons from committing further offences and preparing them on a continuous basis for an appropriate way of life. 19. Section 2 lists cultural and educational work as one of the means of attaining the purpose of the imprisonment of convicted persons. 20. Section 11 provides for the social rights of convicted persons. Subsection 1 guarantees to convicted persons the necessary material and cultural conditions for ensuring their appropriate physical and mental development. 21. Section 12(3) provides that a convicted person is entitled to receive visitors who are his or her close friends and/or relatives at a time determined by the prison governor. The frequency of the visits depends on the type of security level to which a convicted person is subject: visits are allowed at least once a fortnight for convicted persons at the lowest security level; once a month for convicted persons at the medium security level; and once every six weeks for those at the highest security level. Visits to a convicted person subject to the medium or highest levels of security take place without physical contact. A prison governor may exceptionally decide otherwise. 22. Section 24(1) of the Serving of Prison Sentences Act 2005 provides that a convicted person is entitled to receive visitors at least once a month for two hours. 23. Section 28(3) provides that, where a convicted person has not paid a part of his or her debt to the State in respect of prisoners’ maintenance contributions and to other creditors registered with the prison authorities, he or she can use his or her money only for the purchase of basic sanitary items, objects necessary to engage in correspondence, medicine (which cannot be provided free of charge), medical fees, and for the payment of debts and court and administrative fees. 24. Pursuant to section 34(1), subject to the approval of the prison governor, convicted persons may use in their cells, at their own expense, their own radio and television receivers. 25. Regulation 3(1) provides that convicted persons should be treated in a way which reduces the negative impact of imprisonment on their personality. 26. Regulation 8(1) lists sports and leisure activities, radio and television broadcasts, films and convicted persons’ own cultural, educational or entertainment activities among the cultural and educational activities for persons who serve a prison term. 27. Regulation 8(6) provides that convicted persons are allowed to follow radio and television broadcasts. The scope is to be determined by prison rules. 28. The frequency and duration of visits to convicted persons by their close friends and/or relatives is governed by Regulations 80, 86 and 90. Visits are allowed at least once a fortnight for convicted persons at the lowest security level; once a month for convicted persons at the medium security level; and once every six weeks for those at the highest security level. As a rule, visits take place without direct supervision by a prison officer in prisons with the lowest security level. In other cases visits are supervised by a prison officer and no direct contact between the convicted person and the visitor is allowed. In all three types of prison the duration of a visit is to be a minimum of two hours. 29. The relevant part of Article 10 of the International Covenant on Civil and Political Rights concerning humane treatment of persons deprived of liberty, by which Slovakia has been bound since 28 May 1993, reads as follows: “2. (a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons; ...” 30. General Comment No. 21 concerning humane treatment of persons deprived of liberty (Article 10 of the International Covenant on Civil and Political Rights) was adopted by the United Nations Human Rights Committee on 10 April 1992. In its relevant part it reads: “9. Article 10, paragraph 2 (a), provides for the segregation, save in exceptional circumstances, of accused persons from convicted ones. Such segregation is required in order to emphasise their status as unconvicted persons who at the same time enjoy the right to be presumed innocent as stated in Article 14, paragraph 2. ...” 31. The European Prison Rules are recommendations of the Committee of Ministers to member States of the Council of Europe as to the minimum standards to be applied in prisons. States are encouraged to be guided by the Rules in their legislation and policies and to ensure wide dissemination of the Rules to their judicial authorities and to prison staff and inmates. 32. The 1987 European Prison Rules (Recommendation No. R (87) 3) were adopted by the Committee of Ministers of the Council of Europe on 12 February 1987. In Part V they contained a number of basic principles concerning untried prisoners, including the following: “91. Without prejudice to legal rules for the protection of individual liberty or prescribing the procedure to be observed in respect of untried prisoners, these prisoners, who are presumed to be innocent until they are found guilty, shall be ... treated without restrictions other than those necessary for the penal procedure and the security of the institution. 92. 1. Untried prisoners shall be allowed to inform their families of their detention immediately and given all reasonable facilities for communication with family and friends and persons with whom it is in their legitimate interest to enter into contact. 92. 2. They shall also be allowed to receive visits from them ... subject only to such restrictions and supervision as are necessary in the interests of the administration of justice and of the security and good order of the institution. ...” 33. On 11 January 2006 the Committee of Ministers of the Council of Europe adopted a new version of the European Prison Rules (Recommendation Rec(2006)2). It noted that the 1987 Rules “need[ed] to be substantively revised and updated in order to reflect the developments which ha[d] occurred in penal policy, sentencing practice and the overall management of prisons in Europe”. 34. The 2006 Rules contain the following principles concerning untried prisoners, inter alia: “95. 1. The regime for untried prisoners may not be influenced by the possibility that they may be convicted of a criminal offence in the future. ... 95. 3. In dealing with untried prisoners prison authorities shall be guided by the rules that apply to all prisoners and allow untried prisoners to participate in various activities for which these rules provide. ... 99. Unless there is a specific prohibition for a specified period by a judicial authority in an individual case, untried prisoners: a. shall receive visits and be allowed to communicate with family and other persons in the same way as convicted prisoners; b. may receive additional visits and have additional access to other forms of communication; ...” 35. On 6 December 2001 the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) published its report on the visit to Slovakia which had taken place from 9 to 18 October 2000. The relevant parts read as follows: “79. In the report on the 1995 visit (cf. paragraphs 126 to 130 of CPT/Inf (97) 2), the CPT stressed the importance for prisoners to be able to maintain good contact with the outside world. In view of the situation found in 1995, the Committee recommended that the visit entitlement of remand prisoners in Bratislava Prison be substantially increased and invited the Slovak authorities to explore the possibility of offering more open visiting arrangements for such prisoners. ... 80. In their responses, the Slovak authorities expressed some misgivings about the approach proposed by the CPT, principally based on the objective of preserving the interests of justice (preventing collusion, etc.). It is therefore not surprising that the delegation which carried out the 2000 visit observed little or no change in this area. In particular, remand prisoners’ visit entitlement remained limited to a mere 30 minutes every month ..., although they could receive from time to time an additional visit at the director’s discretion. Further, visits for such prisoners continued to take place in booths, with prisoner and visitor(s) separated by a screen. ... 81. The CPT accepts that in certain cases it will be justified, for security-related reasons or to protect the legitimate interests of an investigation, to have visits take place in booths and/or monitored. However, the CPT wishes once again to invite the Slovak authorities to move towards more open visiting arrangements for remand prisoners in general. ... Arguments based on the need to protect the interests of justice are totally unconvincing as a justification for the present inadequate visit entitlement for remand prisoners. The CPT therefore reiterates its recommendation that the visit entitlement for remand prisoners be substantially increased (for example, to 30 minutes every week). ...” 36. On 2 February 2006 the CPT published its report on the visit to Slovakia which had taken place from 22 February to 3 March 2005. The relevant parts read as follows: “46. A fundamental problem as regards remand prisoners in the Slovak Republic is the total lack of out-of-cell activities offered to such inmates. At the time of the visit, remand prisoners were being held for 23 hours a day in their cells in a state of enforced idleness; their only source of distraction was reading books from the prison library and listening to the radio and, in a limited number of cases, watching television. No work was offered to such prisoners, and possibilities for sports activities were few and far between, if available at all. ... The deleterious effects of such a restricted regime were exacerbated by the lengthy periods of time for which persons could be held in remand prisons. ... The CPT calls upon the Slovak authorities to take steps, as a matter of priority, to devise and implement a comprehensive regime of out-of-cell activities (including group association activities) for remand prisoners. The aim should be to ensure that all prisoners are allowed to spend a reasonable part of the day outside their cells, engaged in purposeful activities of a varied nature (group association activities; work, preferably with vocational value; education; sport). The legislative framework governing remand imprisonment should be revised accordingly. ... ... 61. The situation as regards the visiting entitlements for remand prisoners had not changed in the last ten years. It remained the case that adults were entitled to a mere 30-minute visit per month ... The conditions under which visits took place continued to be closed (in booths with a screen separating inmates from their visitors). This was exactly the situation which prevailed during the first visit of the CPT to the Slovak Republic in 1995. The CPT calls upon the Slovak authorities to revise the relevant legal provisions in order to increase substantially the visit entitlement for remand prisoners. The objective should be to offer the equivalent of a visit every week, of at least [30 minutes]. Further, the Committee invites the Slovak authorities to introduce more open arrangements for visits to remand prisoners.” 37. The Government’s response to the latter report, published on 2 February 2006, contains the following information: “Under the methodological guidance issued by the General Director of the CPCG (No. GR ZVJS-116-45/20-2003) in conformity with the current legislation on the enforcement of remand imprisonment, remand prisoners are allowed to have their own TV sets subject to certain conditions. The methodological guidance issued by the General Director of the CPCG (No. GR ZVJS-116-38/20-2003) provides for certain leisure-time activities and allows the performance of certain sports and special-interest activities, in particular to juvenile and female remand prisoners. Remand prisons take permanent efforts to create spatial and material conditions for special-interest activities of remand prisoners, and for sports activities both inside and in outdoor premises of prison establishments. The issue of creating [an] adequate programme of activities for remand prisoners is addressed also in the new draft law on remand imprisonment, which is currently considered by the National Council of the Slovak Republic in connection with the re-codification of the Criminal Code and of the Code of Criminal Procedure. The new draft law on remand imprisonment aims at introducing a lighter remand regime and proposes that remand prisoners be differentiated by categories to enable their participation in special-interest activities that can mitigate or reduce the negative impact of incarceration on remand prisoners. The implementation of adequate activity programmes proposed for all remand prisoners is conditional on the creation of adequate spatial, material and staffing conditions. After the new law has entered into effect, the CPCG will gradually create material conditions for [the] above-mentioned programmes and start [...] their practical implementation. ... Under the new draft legislation on remand imprisonment, the visit entitlement is to be extended from one visit of at least 30 minutes a month to a visit of at least one hour once in three weeks. In justified cases, the prison governor will have the right to grant more frequent visits. ...”