This week in Strasbourg - A roundup of the European Court of Human Rights' case law - week 27

Blogpost written by Marc de Werd -  Courtesy Press Service of the European Court of Human Rights in Strasbourg

PRISON OVERCROWDING in Europe has been repeatedly established by the Council of Europe's Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). The CPT was set up under the Council of Europe’s “European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment”, which came into force in 1989. It builds on Article 3 of the European Convention on Human Rights which provides that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. The CPT is not an investigative body, but provides a non-judicial preventive mechanism to protect persons deprived of their liberty against torture and other forms of ill-treatment.

In the case of Fehér v. Hungary the applicant, Sándor Fehér, is a Hungarian national who was born in 1947 and lives in Szolnok (Hungary). The applicant complains about overcrowding during his pre-trial detention on robbery charges from September 2006 to October 2008. He alleges that his detention in cramped conditions with only limited time spent outside his cell was inhuman and degrading. 

The Court found a violation of article 3 of the Convention and held in general:

"The Court has consistently stressed that a breach of Article 3 of the Convention would generally involve suffering and humiliation beyond that which is inevitably connected with a given form of legitimate treatment or punishment. Measures depriving a person of his or her liberty may often involve such elements. Thus, under this provision, the State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject the individual to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, the prisoner’s health and well-being are adequately secured."

In the context of Mr. Fehér's case the Court held:

"The Court notes that at Szolnok Prison, the applicant was accommodated for over two years and one month in cells with 1.7 m2 ground surface per person on average (see paragraph 7 above). It observes by contrast that the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) considers 4 m2 living space per inmate an acceptable minimum standard in multi-occupancy cells (see, for example, in respect of other Hungarian prisons, paragraphs 65 and 80 of the Report to the Hungarian Government on the visit to Hungary carried out by the CPT from 24 March to 2 April 2009).

For the Court, the living space available to the applicant in this instance was so limited that it cannot be considered as sufficiently mitigated by the time spent outside the cell, even if accepting the Government’s version in this respect, referring to an allowance of four hours a day for the greater part of the period.

The Court further notes that, in so far as the situation of those in pre-trial detention is concerned, it is at the prison governor’s discretion whether or not to keep the doors of cells open during the day, even if there is obvious overcrowding (see paragraph 7 above). In the Court’s eyes, this deference falls short of the requisite guarantees in circumstances such as the present one, the overcrowding amounting to inhuman and degrading treatment."

The Court found a violation on the same grounds in the case of Rzakhanov v. Azerbaijan. The applicant, Shakir Hajimurad oglu Rzakhanov, is an Azerbaijani national who was born in 1961. He is currently detained in Gobustan Prison (Azerbaijan) where he is serving a life sentence for murder, of which he was convicted in 1997. He complained of his poor detention conditions, in particular the small size of his cell and its window, a lack of ventilation and of outdoor exercise periods, poor quality of food and of his placement in solitary confinement. 

Also read the ECtHR's Factsheet on Detention conditions and treatment of prisoners

EXCESSIVE FORCE

In Holodenko v. Latvia the Court found a violation of Article 3 (prohibition of inhuman or degrading treatment), because the police used excessive force against Mr. Holodenko during both his arrest and ensuing detention at the police station and because the authorities’ investigation into his allegations was inadequate. The Court also in the two Turkish cases it found violations of Article 3.  The case of Gülbahar Özer and Others v. Turkey concerns the killing of the applicants’ five children, aged between 13 and 24, by soldiers in southeast Turkey in 2005. The applicants allege that the investigation into the incident, if it had been carried out adequately by, for example, taking swabs for gunpowder residue, would have shown that their children had been unarmed and could not possibly have opened fire on the soldiers. In Mustafa Aldemir v. Turkey (only in French) Mr Aldemir complains in particular of a violation of Article 3 (prohibition of inhuman or degrading treatment/no effective investigation). The case concerns his complaint that he has been disabled since being wounded by gunfire from soldiers who mistook him for a terrorist while they were lying in wait during an operation.

DISAPPEARENCES

In Baysultanova and Others v. Russia The applicants, Tumisha Baysultanova, Zara Dzhamaldinova and Zulay Bisultanova, are Russian nationals who were born in 1935, 1960, and 1953 respectively and live in Grozny, the Chechen Republic (Russia). The case concerns the disappearance of Beslan Baysultanov, the applicants’ son and brother, respectively, in May 2000, after he was taken away by armed men in uniforms. The applicants complained that their relative was abducted by Russian servicemen and was to be presumed dead, and that there had been no effective investigation into the incident. They also they complained of the psychological distress they suffered as a result of their relative’s disappearance and of the authorities’ failure to carry out a proper investigation. The Court found violations of Articles 2, 3 and 5. It held inter alia:

"The Court has found on many occasions that in a situation of enforced disappearance, close relatives of the victim may themselves be victims of treatment in violation of Article 3. The essence of such a violation does not mainly lie in the fact of the “disappearance” of the family member, but rather concerns the authorities’ reactions and attitudes to the situation when it is brought to their attention (-).

In the present case, the Court notes that the first applicant is the mother of the disappeared person and that the second and third applicants are his sisters. The second applicant witnessed the abduction of Beslan Baysultanov. The applicants have not had any news of their relative for more than twelve years. During this period they have made enquiries of various official bodies, both in writing and in person, about their missing relative. Despite their attempts, the applicants have never received any plausible explanation or information about what became of Beslan Baysultanov following his detention. Most of the responses they received denied State responsibility for his arrest or simply informed them that the investigation was ongoing. The Court’s findings under the procedural aspect of Article 2 are also of direct relevance.

The Court therefore concludes that there has been a violation of Article 3 of the Convention in respect of the applicants."

TAXES

In R. SZ. v. Hungary the Court concludes that there had been a violation of Article 1 of Protocol No. 1. Mr R. SZ., is a Hungarian national who was born in 1973 and lives in Budapest. He was employed by a State-owned limited company for 11 years until July 2010 when his contract was terminated by mutual agreement. He complains that part of his severance pay was taxed at a rate of 98%. Further relying on Article 14 (prohibition of discrimination) read in conjunction with Article 1 of Protocol No. 1, he also alleges that the tax was discriminatory as various categories of tax subjects were treated differently. Notably, he was taxed more for being in long-term employment giving rise to substantial severance pay which went over the set threshold.

"As it transpires from its case-law, in the area of social and economic legislation including in the area of taxation as a means of such policies States enjoy a wide margin of appreciation, which in the interests of social justice and economic well-being may legitimately lead them, in the Court’s view, to adjust, cap or even reduce the amount of severance normally payable to the qualifying population. However, any such measures must be implemented in a non-discriminatory manner and comply with the requirements of proportionality."

In this case however the Court takes into consideration in the proportionality analysis that the tax rate applied exceeds considerably the rate applicable to all other revenues, without determining in abstracto whether or not the tax burden was, quantitatively speaking, confiscatory in nature. For the Court, given the margin of appreciation granted to States in matters of taxation, the applicable tax rate cannot be decisive in itself, especially in circumstances like those of the present case. The Court further found the measure complained of entailed an excessive and individual burden on the applicant’s side.

"This is all the more evident when considering the fact that the measure targeted only a certain group of individuals, who were apparently singled out as having been paid, directly or indirectly, out of the public purse. Assuming that the impugned measure served the interest of the State budget at a time of economic hardship, the Court notes that the majority of citizens were not obliged to contribute, to a comparable extent, to the public burden. The Court concludes that the specific measure in question, as applied to the applicant, even if meant to serve social justice, cannot be justified by the legitimate public interest relied on by the Government. It affected the applicant being in good-faith standing and deprived him of the larger part of an acquired right (statutorily guaranteed to a large extent), serving the special social interest of labour-market reintegration. In the Court’s opinion, those who act in good faith on the basis of law or contracts should not be frustrated in their expectations without specific and compelling reasons. Therefore the measure cannot be held to be reasonably proportionate to the aim sought to be realised."

Note judge Lorenzen's concurring opinion, already expressed in the case of N.K.M. v. Hungary and joined by judges Raimondi and Jočiene, pointing out that the judgment to some extent addresses the issue whether the tax law was applied retroactively (paragraphs 51, 52 and 74):

"I find it important (-) to underline that the Convention – save in criminal cases and, to a certain extent, in the framework of Article 6 of the Convention – does not contain a general prohibition on legislation with retroactive effect, and that the Court in its case-law so far has not developed clear principles as to when and under what circumstances retroactive tax legislation is incompatible with Article 1 of Protocol No 1. In M.A. and 34 Others the Court in fact stated directly that “retrospective tax legislation is not as such prohibited by that provision”. The judgment should in my opinion be understood as not having introduced new principles concerning this issue."

For a good comment on the earlier N.K.M. case read David Hart QC Strasbourg rules that excessive tax rates offend A1P1 and  Ingrid Leijten's N.K.M. v. Hungary: Heavy Tax Burden Makes Strasbourg Step In and From Stec to Valkov :Possessions and Margins in the Social Security Case Law of the European Court of Human Rights. 

Also read the ECtHR's Fact sheet on Taxation
 

PRISONER VOTING RIGHTS

In the case of Anchugov and Gladkov v. Russia the Court found a violation of Article 3 of Protocol No. 1 (right to free elections). The case concerns the applicants’ complaint that, as convicted prisoners in detention, they were banned from voting in a number of parliamentary elections held between 2000 and 2008. They rely in particular on Article 3 of Protocol No. 1 (right to free elections). The applicants, Sergey Anchugov and Vladimir Gladkov, are Russian nationals who were born in 1971 and 1966. Mr Anchugov is currently serving a 15-year prison sentence for murder, theft and fraud in Orenburg (Russia). Mr Gladkov was convicted of murder and aggravated robbery in February 2000 and sentenced to 15 years’ imprisonment; he has since been released on parole and lives in Moscow.

The Court found that the applicants had been deprived of their right to vote in parliamentary elections regardless of the length of their sentence, of the nature or gravity of their offence or of their individual circumstances. It rejected the Government’s argument that this case was essentially different from the cases against other countries, notably Italy and the United Kingdom, in which the Court had addressed the issue of disenfranchisement, as the ban on prisoners’ voting rights in Russia was laid down in the Constitution rather than in an act of parliament. Indeed, all acts of a member State are subject to scrutiny under the Convention, regardless of the type of measure in question. The Court therefore concluded that, despite the room for manoeuvre they had to decide on such matters, the Russian authorities had gone too far in applying an automatic and indiscriminate ban on the electoral rights of convicted prisoners.

Both the Government and the applicants brought forward an interesting constitutional issue. Accoording to the Government the present case is distinguishable from Hirst v. the United Kingdom (no. 2) , as in Russia a provision imposing a voting bar on convicted prisoners is laid down in the Constitution – he basic law of Russia adopted following a nationwide vote – rather than in an “ordinary” legal instrument enacted by a parliament, as was the case in the United Kingdom (see paragraph 85 above). According to the applicants however, the fact that in Russia the ban on electoral rights of convicted prisoners in detention was imposed by a constitutional provision, which could not be changed, only confirmed its absolute nature. 

The Court held:

"according to its established case-law, a Contracting Party is responsible under Article 1 of the Convention for all acts and omissions of its organs regardless of whether the act or omission in question was a consequence of domestic law or of the necessity to comply with international legal obligations (-). As has been noted in paragraph 50 above, Article 1 makes no distinction as to the type of rule or measure concerned and does not exclude any part of a member State’s “jurisdiction” – which is often exercised in the first place through the Constitution – from scrutiny under Convention. The Court notes that this interpretation is in line with the principle set forth in Article 27 of the 1969 Vienna Convention on the Law of Treaties (see paragraph 36 above).

Further, as to the Government’s argument that the adoption of the Russian Constitution was preceded by extensive public debate at various levels of Russian society (see paragraph 85 above), the Court observes that the Government have submitted no relevant materials which would enable it to consider whether at any stage of the debate referred to by the Government any attempt was made to weigh the competing interests or to assess the proportionality of a blanket ban on convicted prisoners’ voting rights (see Hirst (no. 2) [GC], cited above, § 79). Nor can the Court discern in the Government’s argument any other factor leading it to another conclusion.

In such circumstances, the Court is bound to conclude that the respondent Government have overstepped the margin of appreciation afforded to them in this field and have failed to secure the applicants’ right to vote guaranteed by Article 3 of Protocol No. 1.

The Court notes the Government’s argument that the restriction complained of is enacted in a chapter of the Russian Constitution, amendments to or revision of which may involve a particularly complex procedure (see paragraph 86 above). It reiterates in this connection that its function is in principle to rule on the compatibility with the Convention of the existing measures. It is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention (ibid., § 83). As has been noted in paragraph 107 above, there may be various approaches to addressing the question of the right of convicted prisoners to vote. In the present case, it is open to the respondent Government to explore all possible ways in that respect and to decide whether their compliance with Article 3 of Protocol No. 1 can be achieved through some form of political process or by interpreting the Russian Constitution by the competent authorities – the Russian Constitutional Court in the first place – in harmony with the Convention in such a way as to coordinate their effects and avoid any conflict between them."

Also read the ECtHR's Factsheet on Prisoners' right to vote

Courtesy: Press Service of the European Court of Human Rights in Strasbourg