CASE OF KASPEROVIČIUS v. LITHUANIA
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)
Guido Raimondi;Helen Keller;Ineta Ziemele;Paulo Pinto De Albuquerque
5. The applicant was born in 1962 and lives in Vilnius. 6. In October 2006 the applicant was detained at the Anykščiai Police Detention Facility (hereinafter – “the Anykščiai Facility”) in cell No. 3. From 9 to 11 October he shared the cell with another person, and from 12 to 16 October he was held alone. The detention facility contained seven cells in total. 7. The applicant complained to the administration of the Anykščiai Facility that the conditions of his detention had been appalling. In their letter of reply dated 6 November 2006, they informed the applicant that because the cell in which he had been held was situated at semi-basement level, it was technically impossible for it to have a window through which natural light could enter. They also explained that in order to install sinks and toilets in the cells, full-scale renovation would be required, but said that this was precluded owing to a lack of financial resources. 8. The applicant then lodged a complaint, the content of which is unknown to the Court, with the Anykščiai District Prosecutor’s Office. In its reply dated 16 November 2006, the Prosecutor’s Office conceded that some of the applicant’s allegations were true: the Anykščiai Facility had indeed not met proper “norms of hygiene and functioning”. They said that the Government had been informed about the fact and that the building of a new facility was planned. 9. The applicant lodged a further complaint with the Ombudsman, arguing that he had been held in a cell without a sink or toilet. The cell also lacked a window, so there had been no natural light or fresh air. 10. The head of the Anykščiai Facility informed the Ombudsman that the building had been constructed in 1926 and thus it had been impossible to install toilets and sinks in the cells. He explained that detainees were taken to a communal toilet at the end of the corridor and that “each cell had a bucket for the night”. Detainees could also take drinking water to their cell. 11. On 23 January 2007 the Ombudsman found the applicant’s complaint valid. He noted that in March 2006 health care specialists had pointed out “over and over again” (eilinį kartą) that the cells lacked sanitary units as well as natural light, although the artificial lighting met domestic legal norms. The old air vents were inadequate and the air conditioning system was ineffective. However, the facility administration was not to blame for the insufficient funding that had precluded the possibility of improving conditions in the facility. 12. The applicant then initiated proceedings before the Panevėžys Regional Administrative Court seeking compensation for non-pecuniary damage, arguing that he had been held in degrading conditions at the Anykščiai Facility. In particular, his cell had had no built-in toilet, so he had had to use a bucket. Nor did the cell have a sink, so he had suffered from a lack of drinking water. Furthermore, as a result of the inadequate lighting and the lack of fresh air, he had suffered constant headaches and his eyes had become sore. The applicant claimed 210,000 Lithuanian litai (approximately 61,000 euros) in non-pecuniary damages. He also claimed that his rights under Article 3 of the Convention had been violated. 13. In reply to the lawsuit, the Anykščiai Facility acknowledged that the establishment did not meet the domestic legal hygiene requirements, but argued that its administration was not to blame for the lack of funding that had caused the problem and that the construction of a new remand facility was planned. 14. On 19 October 2007 the Panevėžys Regional Administrative Court dismissed the applicant’s claims as unfounded. The court acknowledged that the conditions at the Anykščiai Facility had been unacceptable, particularly as the cells lacked sinks and toilets and inmates had to be taken to a communal toilet and had to take water to their cells. Moreover, not all cells had natural light, the air came through old vents and the air conditioning system was ineffective. Nevertheless, the court held that the facility’s administration could not be held liable for those deficiencies because the State had not allocated sufficient financial resources to improve the situation. 15. The applicant appealed against the judgment, and on 11 July 2008 the Supreme Administrative Court granted the appeal in part, acknowledging that the conditions of the applicant’s detention had been unacceptable. The court noted that the Anykščiai Facility had not challenged the applicant’s claim that while detained, he had had to relieve himself in a bucket at night. The court considered that fact degrading. The court also found it established that the applicant had been held in a cell without a sink, and that his cell had had no natural light or adequate ventilation, which had had a negative effect on his mental health (sukėlė neigiamus išgyvenimus). On these points the court found that certain domestic regulations on hygiene standards in detention facilities - providing that cells should have natural light and that detainees should be able to use a toilet in conditions that were not degrading - had been breached. The court conceded that degrading conditions of detention could in theory amount to a violation of Article 3 of the Convention. With regard to the applicant’s case, the court held that the conditions in which he had been held had “approached the threshold of a violation of Article 3 of the Convention”. Nevertheless, the applicant had been held for only a short time, he was 44 years of age and there was no evidence that the conditions at the detention facility had affected his [physical] health. Nor was there any indication that the detention facility administration had intended to humiliate the applicant. Certain hardships, such as a lack of privacy, were to be considered unavoidable for those who were deprived of their liberty. In the light of the above-mentioned considerations, the Supreme Administrative Court held that, in the applicant’s case, the minimum level of severity within the meaning of Article 3 of the Convention had not been reached. 16. As to the applicant’s claim in respect of non-pecuniary damage, the Supreme Administrative Court referred to the case-law of the European Court of Human Rights, noting that in some cases the finding of a violation was recognised as sufficient just satisfaction. It also noted that the applicant had instituted court proceedings for damages nine months after the end of his detention in the police facility, by which time the effects of the negative experience would have diminished to a certain extent. Emphasising that in the instant case there had been no violation of Article 3 of the Convention, as well as the fact that the poor detention conditions were a result of limited financial resources, the Supreme Administrative Court rejected in its entirety the applicant’s claim for pecuniary compensation for the non-pecuniary damage he had sustained. 17. When submitting their observations on the admissibility and merits, the Government provided the Court with a copy of the schedule of the Anykščiai Facility, which showed that at the relevant time the inmates were to be taken for an hour’s walk once a day. 18. The Civil Code provides: “1. Non-pecuniary damage shall be deemed to be a person’s suffering, emotional distress, inconvenience, mental shock, emotional depression, humiliation, damage to reputation, diminished opportunity to associate with others, etc., evaluated by a court in pecuniary terms. 2. Non-pecuniary damage shall be compensated only in the cases provided for by law. Non-pecuniary damage shall be compensated in all cases where it is incurred on account of crime, health impairment or deprivation of life, as well as in other cases provided for by law. In assessing the amount of non-pecuniary damage, the court shall take into consideration the consequences of the damage sustained, the extent of the fault of the person by whom the damage has been caused, his financial status, the amount of pecuniary damage sustained by the aggrieved person, any other circumstances of importance for the case, and the criteria of good faith, justice and reasonableness.” 19. In case no. A143-1966/2008 the Supreme Administrative Court acknowledged that a person who had been detained in improper, unsanitary conditions had sustained non-pecuniary damage. 20. The Regulations applicable to the activities of detention facilities at police stations, approved by Order no. 88 of the Ministry of the Interior on 17 February 2000, provide that “detainees shall have a right to use the lavatory in conditions that do not degrade their honour and dignity” (point 76). They also provide that “the [detainees] shall be taken by a guard from the cells that lack sanitary units to a lavatory (...). During the changing of the guards’ shifts, any other traffic on the remand facility premises is forbidden” (point 219). 21. Hygiene Norm HN 37:2002 “Detention facilities. Rules for construction and operation”, approved by Ministry of Health Order no. 215 of 17 May 2002, reads, in so far as relevant, as follows: “1. This hygiene norm applies to all newly constructed, reconstructed, renovated and operational police station detention facilities. 2. The hygiene norm prescribes the main hygiene requirements applicable to the construction of police station detention facilities, providing a safe and healthy living environment for the detainees and a safe and healthy working environment for the employees and officials. 3. The hygiene norm must be observed by all persons who design, equip or operate in the detention facilities and the detainees ... 22. In operating detention facilities, natural light and air circulation shall be ensured in the cells by constructing clear glass windows which can be opened ... 28. The cells and the lock-up room shall contain a sanitary unit (a lavatory and a washbasin). In the cells the sanitary unit shall be separated by a 1.2 metre high barrier ...” 22. Recommendation Rec(2006)2 of the Committee of Ministers of the Council of Europe on the European Prison Rules, adopted on 11 January 2006, reads as follows: “1. All persons deprived of their liberty shall be treated with respect for their human rights. ... 4. Prison conditions that infringe prisoners’ human rights are not justified by lack of resources. ...” “10.1 The European Prison Rules apply to persons who have been remanded in custody by a judicial authority or who have been deprived of their liberty following conviction. ...” “... 18.1 The accommodation provided for prisoners, and in particular all sleeping accommodation, shall respect human dignity and, as far as possible, privacy, and meet the requirements of health and hygiene, due regard being paid to climatic conditions and especially to floor space, cubic content of air, lighting, heating and ventilation. 18.2 In all buildings where prisoners are required to live, work or congregate: a. the windows shall be large enough to enable the prisoners to read or work by natural light in normal conditions and shall allow the entrance of fresh air except where there is an adequate air conditioning system; b. artificial light shall satisfy recognised technical standards; and c. there shall be an alarm system that enables prisoners to contact the staff without delay. 18.3 Specific minimum requirements in respect of the matters referred to in paragraphs 1 and 2 shall be set in national law.” “19.1 All parts of every prison shall be properly maintained and kept clean at all times ... 19.3 Prisoners shall have ready access to sanitary facilities that are hygienic and respect privacy.” 23. The Committee for the Prevention of Torture and Inhuman or Degrading Treatment (hereinafter referred to as “the CPT”) visited Lithuania from 17 to 24 February 2004. Its report reads as follows: “34. In its first report to the Lithuanian authorities, drafted following its visit in 2000, the CPT was critical of conditions of detention in police detention centres; with a view to improving the situation in the establishments concerned, it made a number of specific recommendations. In their follow-up report (dated September 2001), the authorities acknowledged that of the 47 police detention centres in Lithuania, only eight (i.e., 17%) met “the requirements set forth by Hygiene Norm HN 37-1997”; it was considered necessary to secure sufficient resources in order to renovate or replace the other detention centres. Nevertheless, by the time of the 2004 visit, the proportion of detention centres which conformed to the requisite standards remained low (20%). As the Seimas (Parliamentary) Ombudsman has recently pointed out, ‘legal acts have been adopted on the improvement of living conditions of inmates in police commissariat detention establishments, however the real results are expected only in a couple of years since the implementation of the program directly depends on State funding’. The 2004 visit confirmed that many of the CPT’s key recommendations concerning conditions of detention in police detention centres have yet to be implemented. 35. The material conditions under which detained persons (in police custody, on remand, or sentenced) were being held in the police detention centres in Kaunas and Marijampolė were totally unacceptable. Detainees were locked up ... with little or no access to natural light and, in many cases, dim artificial lighting. A tap placed directly above the minimally partitioned lavatory was the only source of drinking water. In certain cells, persons were obliged to relieve themselves in a bucket in the direct presence of their cellmates. The ventilation system which had been installed in Kaunas since the visit in 2000 could scarcely counter the effects of the above-mentioned conditions on the air in the cells ... The cumulative effect of the very poor material environment and the impoverished regime could be described as inhuman and degrading, especially considering that persons were being held under such conditions for prolonged periods.” 24. After a further visit to Lithuania from 21 to 30 April 2008, the CPT delegation noted that efforts were being made to improve conditions in certain police detention centres. Particular mention was made of the recent substantial renovation of the detention facilities at Kaunas City Police Headquarters, which had been the subject of severe criticism by the CPT after the 2000 and 2004 visits. During the 2008 visit, the delegation observed very good material conditions in that establishment. The authorities informed the delegation at the outset of the visit that major renovation had also been carried out in police detention centres at Klaipėda and Panevėžys. Indeed, when visited by the delegation, the latter establishment was found to offer good detention conditions. The delegation was also informed that renovation work was planned in several other police detention centres, in the context of the “Police Development Programme for 2007-2011” (paragraphs 24 and 25 of the CPT report). 25. However, the CPT noted that material conditions in the other police detention centres visited (Jonava, Rokiškis, Kupiškis, Šiauliai and Trakai) displayed a number of major shortcomings and could in some cases be considered inhuman and degrading. The majority of cells seen by the delegation were in a poor state of repair and filthy. Detainees often had little or no access to natural light, and the cells had dim artificial lighting and poor ventilation. At Jonava, a tap placed directly above the minimally partitioned and unhygienic in-cell toilets was the only source of drinking water. Furthermore, as was the case during previous CPT visits, most detainees in police detention centres were locked in their cells for the majority of the day, their only diversions consisting of conversing with their cellmates or, in some detention centres, watching TV. For the CPT, “such a state of affairs was totally unacceptable” (paragraph 26 of the CPT report). 26. More generally, the CPT called upon the Lithuanian authorities to step up their efforts to bring conditions of detention in all police detention centres to an acceptable level. In particular, measures had to be taken to ensure first that access to natural light and artificial lighting, as well as ventilation, was adequate; secondly that all detainees had ready access to drinking water in salubrious conditions and were provided with basic hygiene products; and thirdly that the state of repair and hygiene in the cells and the communal sanitary facilities was adequate (paragraph 27 of the CPT report). 27. After a further visit to Lithuania from 14 to 18 June 2010, the CPT concluded: “25. Material conditions of detention in the three police detention centres visited ranged from very good (Kaunas) to satisfactory (Wing 2 at Klaipėda) to poor − and in some areas very poor (Wing 1 at Klaipėda and Vilnius). Kaunas City Police Detention Centre had been renovated prior to the 2008 visit and the CPT’s report commented favourably on the material conditions. The delegation which carried out the 2010 visit observed that those conditions remained of a very good standard. Klaipėda City Police Detention Centre had been partially refurbished. In the renovated wing of the building (Wing 2), material conditions were satisfactory on the whole. Nonetheless, access to natural light left something to be desired, and the toilets were insufficiently partitioned. Conversely, conditions in the non-renovated wing (Wing 1) were very poor. The cells were in a dilapidated state, dirty and damp, and the same was true of the mattresses and blankets. Further, access to natural light, artificial lighting and ventilation were limited, and the toilets lacked a partition and were malodorous. As for the electrical installations, they seemed hazardous. The delegation was also informed that, in winter, the cells were very cold. At Vilnius City Police Detention Centre, the cells were in a poor state of repair and hygiene, and access to natural light and ventilation were inadequate. Moreover, the toilets only had a low partition. In four cells (nos. 8 to 11), the windows had been concreted over, and there was therefore no access to natural light and no evident means of ventilation; the atmosphere in these cells was damp and suffocating.”