I incorrectly predicted that there's no violation of human rights in NANARTONIS v. LITHUANIA.

Information

  • Judgment date: 2017-10-10
  • Communication date: 2017-10-11
  • Application number(s): 22357/15
  • Country:   LTU
  • Relevant ECHR article(s): 3, 8, 8-1, 14
  • Conclusion:
    Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review)
    Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)
  • Result: Violation
    • SEE FINAL JUDGMENT

JURI Prediction

  • Probability: 0.622573
  • Prediction: No violation

  • Inconsistent


Legend

 In line with the court's judgment
 In opposition to the court's judgment
Darker color: higher probability
: In line with the court's judgment  
: In opposition to the court's judgment

Communication text used for prediction

Applications nos.
22357/15 and 234/15Marius NANARTONIS against Lithuaniaand Aidas KAZLAUSKAS against Lithuanialodged on 27 April 2015 and 9 December 2014 respectively The applicants are Lithuanian nationals.
The facts of the cases, as submitted by the applicants, may be summarised as follows.
A.
The circumstances of the cases 1.
Proceedings regarding the applicant’s conditions of detention in Prison Hospital The applicant was confined to Prison Hospital from 22 March to 4 April 2010, from 21 to 27 September 2011, from 25 February to 4 March 2011 and from 17 to 24 January 2014.
On 17 September 2013 the applicant lodged a complaint, before the Vilnius Regional Administrative Court, alleging overcrowding and other inadequate sanitary conditions at the hospital.
He subsequently provided a specified complaint.
On 19 May 2014 the Vilnius Regional Administrative Court applied the three-year statutory time-limit to part of the applicant’s complaint.
It held that the applicant had been placed in overcrowded wards for fifteen days and awarded him 100 Lithuanian litai (LTL, approximately 29 euros (EUR)) in compensation for fifteen days in overcrowded wards for the periods from 21 until 27 September 2011 and from 17 until 24 January 2014.
The applicant appealed, and on 9 December 2014 the Supreme Administrative Court upheld the first-instance decision.
2.
Proceedings regarding the request for a portable digital music (MP3) player On 15 July 2013 the applicant asked the administration of Vilnius Correctional Facility to allow him to receive a portable digital music (MP3) player from a person who was not his relative.
On 17 July 2013 his request was refused.
The applicant complained to the Prison Department, which replied in August that the administration of Vilnius Correctional Facility had acted in accordance with domestic law.
On 20 August 2013 the applicant lodged a complaint before the Vilnius Regional Administrative Court regarding the refusal of the administration of Vilnius Correctional Facility to allow him to receive an MP3 player from someone to whom he was not related.
He asked the court to oblige the Correctional Facility administration to issue him with permission to receive equipment and other items from acquaintances because his relatives were not visiting him, and to award him compensation in respect of non‐pecuniary damage.
On 13 January 2014 the Vilnius Regional Administrative Court held that the applicant could receive an MP3 player from his spouse, partner or close relatives.
However, as the person who had proposed to bring him the player was not within the circle of such persons, the refusal of the Correctional Facility administration was lawful.
The court had no doubts about the provisions of domestic law and observed that they were designed to motivate inmates to work, to communicate with their relatives and to enhance their social ties.
The applicant’s complaint was therefore dismissed.
The applicant appealed, and on 30 October 2014 the Supreme Administrative Court upheld the first-instance decision.
The court held that the applicant had not denied that he had close relatives, but had simply claimed that they were not visiting him.
The applicant was placed in the same position as other inmates.
His right to have an MP3 player had not been denied, as he could purchase one.
It was not prohibited for persons other than close relatives to give money to convicted inmates, thus the applicant could receive the money to buy one.
In February 2014 the applicant lodged a petition with the Parliamentary Commission on Petitions (“the Commission”), requesting a change in the relevant provision of the Code for the Execution of Sentences in order for it to read that electronic items could be given to inmates by their friends and acquaintances as well as their spouses, partners and close relatives.
In March 2014 the Commission decided not to examine the applicant’s petition as it was not clear enough.
In March 2014 the applicant lodged a new petition with the Commission.
In April 2014 the Commission informed the applicant that his petition would be examined.
In June 2014 the Commission examined the applicant’s petition and decided to reject it.
The applicant’s proposal was to amend Article 96 § 1 of the Code for the Execution of Sentences so that it allowed inmates to receive electronic items from their acquaintances or friends, as well as from their spouses, partners or close relatives.
The Commission held that the existing regulation was aimed at preventing inmates from receiving items acquired by criminal methods, for example, by their accomplices.
In June 2014 the Lithuanian Parliament dismissed the applicant’s proposal.
The applicant did not specify to the Court whether he had an acquaintance or a friend who was willing to give him electronic items.
B.
Relevant domestic law and practice For the relevant domestic law and practice as regards conditions of detention, see Mironovas and Others v. Lithuania (nos.
40828/12 and 6 others, §§ 50-69, 8 December 2015).
At the material time, Article 96 § 1 of the Code for the Execution of Sentences provided that convicted inmates (except for inmates placed in a disciplinary regime) were allowed to use television sets, computers, video and portable digital music players, radio sets, computer-game devices and other items listed in the Internal Rules of Correctional Facilities.
Those items could be purchased with the inmates’ own money or could be given to them by their spouses, partners or close relatives.
From 23 June 2015, Article 96 § 1 of the Code for the Execution of Sentences provides that convicted inmates (except for those placed in a disciplinary regime or confined to cells) are allowed to use electronic devices and other items listed in the Internal Rules of Correctional Facilities.
Those items can be purchased with the convicted inmates’ own money or given to them.
At the material time, point 173 of the Internal Rules of Correctional Facilities provided that convicted inmates (except for inmates placed in a disciplinary regime) were allowed to use the items they had purchased or received: radios, shavers, video players, computer-game devices, portable digital music players, television sets with screens up to 51 centimetres, computers, water heaters, hair dryers, electric kettles, toasters, sandwich makers, musical instruments, CDs and other data-storage devices with up to 4 GB of capacity, lamps, bedding (except for blankets, mattresses and pillows) if the convicted inmate had refused in writing to accept the bedding attributed to him.
On 29 March 2016 the Internal Rules of Correctional Facilities were amended and point 173 was removed.
Article 3.135 of the Civil Code defines close relatives as persons related by direct consanguinity up to the second degree (parents and children, grandparents and grandchildren) and persons related by collateral consanguinity within the second degree (siblings).
COMPLAINTS 1.
The first applicant (application no.
22537/15) complains under Article 3 of the Convention of the degrading conditions in which he was detained in Prison Hospital.
2.
The first applicant also complains, under Article 8 taken alone and in conjunction with Article 14 of the Convention, of the authorities’ refusal to allow him to receive a portable digital music (MP3) player from a person other than his spouse, partner or close relative.
3.
The second applicant (application no.
234/15) complains, under Article 8 taken alone and in conjunction with Article 14 of the Convention, that he was unable to receive electronic devices from friends or acquaintances.
common QUESTIONS 1.
Have the authorities breached the applicants’ right to respect for their private life, contrary to Article 8 of the Convention, by refusing to allow them to receive a portable digital music (MP3) player (see, mutatis mutandis, Laduna v. Slovakia, no.
31827/02, § 53, ECHR 2011)?
2.
Have the applicants suffered discrimination in the enjoyment of their right to respect for their private life, on account of the fact that the authorities refused to allow them to receive MP3 players from a person other than their spouse, partner or close relative, contrary to Article 14 of the Convention read in conjunction with Article 8 of the Convention?
The Government are requested to provide information about the current domestic regulations, specifically the internal rules of correctional facilities and remand prisons regarding inmates’ right to receive electronic devices and the circle of persons allowed to give such devices to inmates.
Separate

Judgment

SECOND SECTION

CASE OF BAĞLAR v. TURKEY

(Application no. 40708/11)

JUDGMENT

STRASBOURG

10 October 2017

This judgment is final but it may be subject to editorial revision. In the case of Bağlar v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Julia Laffranque, President,Jon Fridrik Kjølbro,Stéphanie Mourou-Vikström, judges,and Hasan Bakırcı, Deputy Section Registrar,
Having deliberated in private on 5 September 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 40708/11) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Elvan Bağlar (“the applicant”), on 21 April 2011. 2. The applicant was represented by Mr H. Çalışçı, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent. 3. On 14 March 2013 the application was communicated to the Government. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant, who was born in 1989, lives in Istanbul. 5. On 14 January 2009 the applicant was taken into police custody on suspicion of membership of an illegal organisation. 6. On 17 January 2009 the investigating judge at the Istanbul Assize Court, after questioning the applicant, ordered his pre-trial detention. 7. On 24 June 2009 the Istanbul public prosecutor filed an indictment with the Istanbul Assize Court. 8. The trial commenced before the Istanbul Assize Court and the first preparatory hearing was held on 4 November 2009. 9. In the subsequent hearings held between 17 February 2010 and 3 November 2010, the applicant appeared before the court and the judges ordered his continued detention. 10. The applicant filed an objection against the decision of 3 November 2010. On 29 November 2010 the 12th Chamber of the Istanbul Assize Court dismissed this objection without holding an oral hearing, and based on the public prosecutor’s written opinion, which had not been communicated to the applicant or his representative. 11. On 13 February 2013 the applicant was released from detention on remand. 12. According to the latest information in the case-file, the proceedings against the applicant are still pending before the first-instance court. II. RELEVANT DOMESTIC LAW
13. A description of the relevant domestic law which was in force at the material time can be found in Altınok v. Turkey (no. 31610/08, §§ 28-32, 29 November 2011). THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
14. Relying on Article 5 § 3 of the Convention, the applicant complained that the length of his detention on remand had been excessive. 15. The Government maintained that the applicant had not exhausted domestic remedies, as he was still in detention on remand on 23 September 2012 and should have applied to the Constitutional Court. 16. The applicant did not comment on the Government’s objection within the time-limit set by the Court. 17. Having examined the main aspects of the new remedy before the Turkish Constitutional Court, the Court found that the Turkish Parliament had entrusted that court with powers that enabled it to provide, in principle, direct and speedy redress for violations of the rights and freedoms protected by the Convention, in respect of all decisions that had become final after 23 September 2012, and declared it as a remedy to be used (see Hasan Uzun v. Turkey, (dec.), no. 10755/13, §§ 68-71, 30 April 2013). 18. The Court further notes that the Constitutional Court’s jurisdiction ratione temporis had begun on 23 September 2012, and that it was clear from the judgments already delivered that it accepted an extension of its jurisdiction ratione temporis to situations involving a continuing violation which had begun before the introduction of the right of individual application and had carried on after that date. 19. In the present case, the applicant’s detention started on 17 January 2009 and ended on 13 February 2013 when he was released. Accordingly, the applicant’s detention period, even including the period before 23 September 2012, fell within the Constitutional Court’s temporal jurisdiction (see Koçintar v. Turkey (dec.), no. 77429/12, §§ 15-26, 39, 1 July 2014, and Levent Bektaş v. Turkey, no. 70026/10, §§ 40-42, 16 June 2015). 20. As a result, taking into account the Government’s objection, the Court concludes that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
A. Concerning the applicant’s lack of presence before the appeal court examining his objections to his pre-trail detention
21. Relying on Article 5 § 4 of the Convention, the applicant complained about not being able to appear before the court when his pre‐trial detention was reviewed. 22. The Government contested that argument. 23. In the present case, the applicant was placed in detention on remand on 17 January 2009. At the end of the hearing held on 3 November 2010, the trial court decided the continuation of the applicant’s detention. The applicant subsequently filed an objection against this decision. 24. The Court observes that this objection was dismissed on 29 November 2010 by the 12th Chamber of Istanbul Assize Court, without holding an oral hearing. Nevertheless, the applicant had appeared before the trial court twenty-six days before his objections were examined by the appeal court. In these circumstances, the Court does not consider that a further oral hearing before the appeal court was required for the purposes of Article 5 § 4. 25. The Court thus concludes that the lack of an oral hearing during the proceedings did not jeopardise the principle of equality of arms (see Altınok v. Turkey, no. 31610/08, §§ 54-55, 29 November 2011; Çatal v. Turkey, no. 26808/08, § 40, 17 April 2012; and Ali Rıza Kaplan v. Turkey, no. 24597/08, §§ 28-32, 13 November 2014). 26. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. B. Concerning the non-communication of the public prosecutor’s opinion
27. The applicant complained under Article 5 § 4 the Convention that he did not have an effective remedy to challenge the lawfulness of his detention. He contended that his right to have an effective remedy was breached since his objection was dismissed by the appeal court on the basis of the public prosecutor’s written opinions, which were not communicated to him or to his representative. 28. The Government contested that argument, submitting that the public prosecutors’ opinions were very brief and identical and did not have any bearing on the decisions of the appeal courts. They further submitted that Law no. 6459, which entered into force on 30 April 2013, made the communication of the public prosecutor’s opinion to the accused or his lawyer obligatory. They therefore argued that the applicant did not suffer any significant disadvantage and that this complaint must be declared inadmissible. 29. The Court reiterates that it has already examined and rejected a similar objection of the Government’s objections on the same issue (see, in particular, Hebat Aslan and Firas Aslan v. Turkey, no. 15048/09, §§ 68-83, 28 October 2014). The Court finds no particular circumstances in the instant case which would require it to depart from its findings concerning the above-mentioned application. 30. The Court notes that this part of the application is not manifestly ill‐founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 31. Turning to the merits of the applicant’s complaint, the Court notes that the present case raises issues similar to the case of Altınok (cited above, §§ 57-61), where it found a violation of Article 5 § 4 of the Convention. There is no reason to depart from those findings. 32. Accordingly, the Court considers that in the present case there has been a violation of Article 5 § 4 of the Convention on account of the non‐communication of public prosecutor’s opinion to the applicant or his representative in the context of review proceedings of lawfulness of the applicant’s detention. III. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION
33. The applicant complained under Article 5 § 5 of the Convention that he had been denied the right to compensation for the violation of his rights under Article 5 § 4 of the Convention. 34. The Government contested that argument. 35. The Court reiterates that paragraph 5 of Article 5 requires a remedy in compensation for a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4 (Wassink v. the Netherlands, 27 September 1990, § 38, Series A no. 185‐A). This right to compensation presupposes that a violation of one of the preceding paragraphs of Article 5 has been established, either by a domestic authority or by the Court. 36. In this connection, the Court notes that it has found that the applicant’s right to have an effective remedy to challenge the lawfulness of his detention was infringed in the present case on account of the non‐communication of the public prosecutor’s opinion (see paragraph 33 above). 37. The Court notes that it has examined a similar issue in the case of Altınok (cited above, §§ 66-69), where the Court found a violation of Article 5 § 5 of the Convention. There is no reason to depart from those findings. 38. Accordingly, the Court concludes that in the present case there has been a violation of Article 5 § 5 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
39. The applicant did not submit a claim for just satisfaction within the time-limit set by the Court. Accordingly, the Court considers that there is no call to award him any sum on that account. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaints raised under Article 5 §§ 4 and 5 of the Convention, concerning the non-communication of the public prosecutor’s opinion to the applicant or his representative, and the lack of compensation in this respect admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 5 § 4 of the Convention on account of the non-communication of the public prosecutor’s opinion to the applicant or his representative;

3. Holds that there has been a violation of Article 5 § 5 of the Convention. Done in English, and notified in writing on 10 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan BakırcıJulia LaffranqueDeputy RegistrarPresident