CASE OF ĀBELE v. LATVIA
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1968 and is currently detained in Jēkabpils Prison. He is a person with special needs. The applicant is deaf and mute since birth and his knowledge of sign language is poor. 6. At least as of 2 March 2001, when his disability was certified as permanent, the applicant has been recognised as being category 3 disabled (the least severe level of disability). On an unspecified date his disability was re-categorised as category 2 (medium level of disability). 7. On 7 May 2008 the applicant was convicted of aggravated murder and sentenced to fifteen years and six months’ imprisonment. That judgment became final on 24 February 2009. He started serving his sentence in the most restrictive “lower” regime in Liepāja Prison. 8. On 23 December 2011 the applicant was transferred to Brasa Prison. He was placed in the medium regime as he had served one quarter of his sentence. He was held in cell no. 301 (from 1 January 2012 to 26 February 2013) and cell no. 303 (from 26 February to 30 October 2013). 9. On 30 October 2013 the applicant was placed in the most restrictive “lower” regime. He was held in cell no. 203 (from 30 October 2013 until 16 February 2015). 10. On 24 February 2016 the applicant was placed in the least restrictive “higher” regime. It appears that as of that date he was held in three different multi-occupancy cells. The number of his cellmates varied from two to fourteen. Each inmate had no less than 4 sq. m of living space in those cells. 11. According to the applicant, he was held in dormitorytype cells nos. 301, 303 and 203 together with other inmates, all of whom were in good health except for the applicant. The applicant’s submissions as to the overall surface area in those cells as well as the size of the sanitary facilities were consistent with the Government’s submissions (see paragraph 13 below). His account of the number of inmates was slightly different – he alleged that he had been held together with ten to twenty inmates in cells nos. 301 and 303. However, as concerns cell no. 203 he agreed with the Government – six inmates had been held in that cell. 12. The applicant submitted that the heating had not been sufficient in those cells. He had been neither able to communicate with other inmates, nor with the prison management due to his disability. He had been in social isolation and had not received any special assistance. 13. According to the Government, the applicant was held in three different cells, the conditions of which are detailed in the table below. The calculation of personal space (overall surface area with the in-cell sanitary facility deducted, divided by number of inmates held therein) is based on an approximate measurement of the sanitary facility according to the floor plans of Brasa Prison. 14. As regards out-of-cell activities, the Government indicated that while being held in the medium regime – in cells nos. 301 and 303 – the applicant had been able to freely leave those cells in daytime and to use the common area. The Government further submitted that cell no. 301 had been equipped with one window. That window had been fitted with bars and had been placed in a wall (adjacent to a corridor) facing another window (in the corridor). This cell had had three fluorescent lamps, including one night lamp located above the door. Heating had been provided by one heating pipe of 5 cm in diameter and the heaters located in the adjacent corridor and in the hallway. A new automatic boiler had been installed in Brasa Prison, which had ensured a temperature of 18˚C. Heating arrangements in cell no. 303 had been the same as in cell no. 301. 15. While being held in the most restrictive “lower” regime – in cell no. 203 – the applicant had been able to leave this cell only for a daily walk (one hour), to take a shower or for appointments with a doctor, a prison chaplain or a social worker when necessary. 16. Overall, inmates in Brasa Prison had had access to a psychologist, but the applicant had never availed himself of this possibility. He had, however, met with a prison chaplain and a social worker on several occasions. The Government provided records of three conversations between the applicant and a social worker in 2016, including a meeting on 11 April 2016 where the latter had called a non-governmental organisation (Latvijas Nedzirdīgo Savienība) concerning the applicant’s hearing aid. Lastly, the applicant had visited a psychiatrist at least on six occasions in the time period from 1 April 2015 to 7 September 2016. 17. On 27 December 2011 the state of the applicant’s health was examined for the first time in Brasa Prison. It was noted that the applicant was deaf and mute and that he suffered from spondylosis. 18. The applicant submitted an extract of his medical record in Brasa Prison. According to that document (dated 26 July 2016), he had been deaf since birth. On 13 August 2009 a psychiatrist had detected a psychiatric health condition (psihiskas veselības problēmas), namely, “reaction to situations with anxiety” (situācijas reakcija ar trauksmi). On 21 January 2010 the same psychiatrist had detected another sleep-related condition. On 10 December 2015 another psychiatrist diagnosed the applicant as having “organic personality disorder” (organiski personības traucējumi). 19. The Government submitted another extract of the applicant’s medical record in Brasa Prison. According to that document (dated 7 April 2015), upon admission to Brasa Prison the applicant had been diagnosed as being deaf and mute and having spondylosis. During the above-mentioned period the applicant had consulted prison medical staff on thirtynine occasions. He had been examined, treated and provided with medication when necessary. No serious health conditions, which would have required an indepth examination, had been diagnosed. There had been no indications that outpatient examination or treatment had been necessary. The applicant had most often complained of colds, headache, poor sleep, gastritis and back pain related to spondylosis. Those complaints had not concerned his disability. In 2013 and 2014 the prison medical staff had organised an outpatient medical examination (in relation to tuberculosis) and a consultation by an ophthalmologist to obtain glasses. On 1 April 2015, upon the request of the Prisons Administration (Ieslodzījuma vietu pārvalde), the applicant’s state of health had been examined. It had been satisfactory, he had not had any complaints and he had gained weight while in prison. In sum, his health had not deteriorated. 20. Over the course of two years (2012-14) the applicant lodged some twentyfive handwritten complaints with various institutions (the management of Brasa Prison, the Prisons Administration, the Ministry of Justice and the Ministry of the Interior). 21. He informed the authorities that he had been deaf and mute since birth and complained as follows: 1) he had communication problems and conflicts with other inmates (he referred to “conflicts”, having been “influenced”, “offended” and “laughed about” by other inmates); 2) he wished to be transferred to a single or dual-occupancy cell; 3) he wished to be transferred to another prison; 4) he wished to have his prison regime changed; 5) his conditions of detention were inadequate and 6) his medical care was inadequate. 22. His complaints were examined by the Prisons Administration, save for three of them that were examined by the management of Brasa Prison. 23. The following conclusions were made: (1) There had been no real threat to the applicant’s life or health in Brasa Prison. He had not been subjected to psychological harassment. His complaints to the management of Brasa Prison had not concerned any threats from other inmates. (2) The applicant did not have a subjective right to choose his cell or cellmates. It fell within the competence of the management of Brasa Prison. There was a limited number of cells with a capacity of four inmates and those inmates could not be moved for security reasons. (3) The decision concerning the applicant’s transfer to another prison had to be taken by the Prisons Administration. Taking into account that the applicant’s state of health had permitted his placement in any prison, there had been no grounds to transfer him to another prison; he had had to continue serving his sentence in Brasa Prison. (4) The possibility of his transfer to the most lenient prison regime could not be examined before 10 June 2015, when he would have served the relevant proportion of his prison sentence. As to the possibility of his transfer back to the more restrictive prison regime such actions could only be taken in cases of serious or systematic breaches of the prison regime. (5) The conditions in cell no. 301 had been adequate. It had measured 36 sq. m. Natural and artificial lighting as well as heating had been sufficient. The temperature in cell had been 18˚C. The conditions in cell no. 303 had been similar to cell no. 301 – lighting and heating had been adequate. The conditions in cell no. 203 had been adequate. According to the Prisons Administration and the relevant floor plans that cell had measured 19.86 sq. m (including 1.87 sq. m for sanitation facilities). Besides the applicant, it had accommodated five other inmates. A reference was made to the Court’s case-law and the applicable domestic standard of 2.5 sq. m per male inmate. The temperature in the cell had been 18˚C. (6) The applicant’s medical care had been carried out in accordance with domestic law. He had received the necessary medication in response to his complaints. He had never complained to prison doctors of “neurological diseases”, “noises” or “fears”, but he had had at least one consultation with a psychiatrist. In any event, he had been able to complain of the quality of medical care in prison to the Health Inspectorate. 24. On 1 October 2012 a judge of a first-instance court refused to allow the applicant’s application to be transferred to another prison and to have his prison regime changed to a more restrictive one, a request made by the applicant in order to allow him to be held in a cell with a smaller number of inmates. Those issues fell within the realm of criminal law and could not be examined by the administrative courts. 25. On 25 October 2012 another judge refused to allow the applicant’s application to be transferred to another prison and to be relieved from the obligation to continue serving his sentence. As concerns his transfer, reference was made to the decision by the Prisons Administration whereby a conclusion had been drawn that the Administrative Procedure Law had not applied. As concerns judicial review of that decision, such a complaint had already been examined (see paragraph 24 above). As concerns the release application, it fell within the realm of criminal law; this issue could thus not be examined by the administrative courts. 26. The applicant attempted to appeal against the above-mentioned refusals, but his appeal did not appear sufficiently clear. Accordingly, on 21 November 2012 another judge decided not to proceed with his appeal (atstāt bez virzības), asking the applicant to render it more precise. 27. On 10 December 2013 another judge examined further complaints by the applicant. His application to be transferred to a more lenient prison regime and another prison were refused because such complaints had already been examined (see paragraphs 24-25 above). His complaint about insufficient heating in Brasa Prison did not appear sufficiently clear; the judge decided not to proceed with it, asking the applicant to render it more precise. As the applicant did not provide further information, the latter complaint was considered as not submitted (uzskatīt par neiesniegtu). 28. On 2 April 2014 the applicant complained to the administrative courts that the Prisons Administration had extended the time-limit for its last reply. On 29 May 2014 a judge terminated the administrative proceedings in this connection since the Prisons Administration had issued its decision in the meantime. 29. On 31 August 2016 a panel in Brasa Prison examined the possibility of the applicant’s transfer to a more lenient prison regime. The applicant and a sign-language interpreter were present. It was established that the applicant had been working in prison until 18 December 2015; he had stopped working owing to his state of health. He had a category 2 disability. He had completed secondary education but had not pursued his education further owing to being deaf and mute and needing a specialised learning programme. He had been working with an officer and a social worker for rehabilitation purposes. He had regularly visited a chaplain in prison; however, he had not met with a psychologist. He had participated in addiction recovery meetings. He had dedicated his free time to himself. He had received three positive citations (pamudinājums) from the prison management. 30. A conclusion was drawn that the applicant had participated in nearly all the rehabilitation activities provided in the prison taking into account his capabilities. Therefore it was possible to transfer him to a more lenient prison regime in a partly closed prison. 31. On 7 September 2016 the applicant was transferred to a partly closed prison in Jēkabpils, where he was held in a cell with two other inmates. One of them had a similar hearing impairment.