THIRD SECTION
CASE OF
ALEKSEJEVAv. LATVIA
(Application no.
21780/07)
JUDGMENT
STRASBOURG
3 July 2012
This judgment will become final in the circumstances set
out in Article 44 § 2 of the Convention. It may be subject to
editorial revision.
In the case of Aleksejevav. Latvia,
The European Court of Human Rights (Third Section), sitting as
a Chamber composed of:
JosepCasadevall, President,
CorneliuBîrsan,
EgbertMyjer,
JánŠikuta,
InetaZiemele,
NonaTsotsoria,
KristinaPardalos, judges,
andMarialena Tsirli, Deputy Section Registrar,
Having deliberated in private on 12 June 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no. 21780/07)
against the Republic of Latvia lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Latvian national, Ms. Jeļena Aleksejeva (“the
applicant”), on 13 April 2007. At the time of the lodging of the application
the applicant’s surname was Brehova, which she changed to her maiden name after
her divorce (see paragraph 22 below).
The Latvian Government
(“the Government”) were represented by their Agent, Mrs I. Reine.
The applicant alleged, in particular, that the
national authorities had failed to adequately protect her from potential
attacks by other prisoners and that they had violated her right to respect for
her private life and family life by not allowing her to receive visits from her
partner and her mother. She relied on Articles 3 and 8 of the Convention.
On 21 June 2007the application was communicated
to the Government. It was also decided to rule on the admissibility and merits
of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1984 and lives in Rīga.
A. The conditions of the applicant’s imprisonment
On 18 October 2006 the applicant was detained in
Iļğuciema Prison, the only prison in Latvia for female detainees.
The applicant’s mother had worked in
Iļģuciema Prison for approximately twenty-five years prior to her
daughter’s detention there. In 2006 the applicant’s mother was an assistant to
the prison governor. Her last day of work at the prison was on 19 October
2006. On the following day, the director of the Latvian Prison Administration
approved the applicant’s mother’s retirement from service at the Ministry of
Internal Affairs as of 22 October 2006 due to her having reached the
retirement age.
According to the applicant, on the day on which
she was brought to Iļģuciema Prison she was told by the head of
security that this was the first time a relative of a staff member
ofIļģuciema Prison had been detained there. The applicant was advised
to conceal this information from employees and other detainees at the prison,
as it was considered that she might be in danger if that information were found
out.
On 19 October 2006 a guardtook away a photo of
the applicant’s mother from her cell, explaining that the photo could reveal
their personal ties and endanger the applicant’s safety.
On 26 October 2006 the applicant was moved
from an intake cell to a two-person cell. She started serving her sentence in
the lowest (the most restrictive)imprisonment regime. From 22 January 2007
the applicant shared the cell with a former bailiff. The applicant encountered
other detainees during her daily walks, while attending cooking classes, and
during weekly showers and visits to the laundry room.
According to the applicant, she lived in
constant fear of her connection with her mother being found out, as the
attitude of prisoners towards the relatives of people employed in prisons, the
police orthe courts was negative. According to the applicant, one of the
inmates of Iļģuciema Prison knew who her mother was. That inmate was
released from prison in 2007.
After the case was communicated to the
respondent Government the applicant submitted more specific information about
the attitude of other prisoners towards her. According to the applicant, one
former inmate (V.M.) had known of the risks faced by the applicant but had been
afraid to give any such information in writing because she had only recently
been released from prison, was still on probation and was therefore afraid of
possible repercussions from the State authorities. In particular, V.M. had
allegedly witnessed an incident in which an inmate, L.A., had used derogatory
language and veiled threats towards the applicant and had also implied that she
had learned of the applicant’s family relations from a prison staff member,
T.J.
On 5 December 2006 the Rīga City Vidzeme
District Court examined an application made by the applicant on 17 October 2006
to postpone the start of the execution of her prison sentence. The applicant
was present at the hearing and brought her mother’s previous employment at
Iļģuciema Prison to the court’s attention. The applicant’s
application to postpone the start of the execution of her sentence was refused.
On 5 February 2007 the applicant submitted
a complaint to the Ombudsman’s Office (Tiesībsarga birojs),
requesting, inter alia, a transfer to an open prison where she could be
isolated from other prisoners and where her mother’sprior employment would not
cause problems. The applicant stated that the situation in prison could become
dangerous for her if other prisoners found out about her family ties.
In a subsequent meeting with the deputy governor
of Iļģuciema Prison the applicant was told that it was not possible
to ensure her separation from other prisoners unless she was kept in complete
isolation. However, both the deputy governor and the applicant agreed that
isolation would be comparable to an additional punishment and therefore that
that option was not acceptable.
On 12 April 2007, prior to a meeting of an
administrative commission of Iļģuciema Prison which was to decide the
question of whether the applicant should be transferred to medium (less
restrictive) imprisonment regime, the applicant was invited to sign a pre-typed
form waiving her right to representation by a lawyer at the meeting of the
commission. At the bottom of the form the applicant added, in her own hand,
that in the event of her transfer to the medium imprisonmentregime she did not
object to having to share a cell with other prisoners.
On 8 May 2007 the meeting of the
administrative commission took place. The applicant was transferred to
themedium imprisonmentregime and placed in a cell with other prisoners.
According to the Government, because of safety considerations she was put in a
cell together with firsttime prisoners.
On 14 August 2007 the Ombudsman, in
response to the applicant’s complaint of 5 February, informed her that a
representative of the office had visited Iļģuciema Prison and had
found that there were sufficient safeguards in place concerning the security of
inmates in the prison, and that the applicant’s life and health were not under
threat.
B. Visiting rights
On 26 February 2007 the governor of
Iļğuciema Prison refused the applicant’s request to allow a long-term
visit by a man whom she described as her partner. The applicant was informed
that by law she was only entitled to receive long-term visits from individuals
other than close relatives if her relatives did not visit her. The applicant
was asked to submit proof of her divorce from her then husband.
On 28 February 2007 a prison official informed
the applicant that she was not allowed to receive visits from her alleged
partner, irrespective of a written statement from the Rīga City Kurzeme
District Court that the applicant’s divorce case was pending before it.
According to the applicant, she was informed by
the staff of Iļģuciema Prison that receiving visits from her mother would
be “problematic” because if such visits were to occur the prisoners would find
out about their family relationship. As a result, the applicant’s mother did
not visit her. The applicant made full use of her four monthly phone calls to
talk to her mother.
After the
applicant was divorced from her husband on 16 April 2007, between
26 April 2007 and 22 September 2007 she was allowed to receive five
long-term visits and six short-term visits from her alleged partner.
From 29 August to 5 September 2007 the
applicant was granted leave from prison to visit her mother.
On 21 January 2008 the applicant was
authorised to serve her sentence under the highest (the least restrictive)
imprisonmentregime and wastransferred to Vecumnieki Open Prison. On an
unspecified later date she was released from prison.
II. RELEVANTEUROPEAN AND DOMESTIC LAW
The European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment (hereinafter “the
CPT”) has developed standards relating to the treatment of persons deprived of
their liberty. The following is an extract from its 11th General
Report (CPT/Inf (2001) 16, paragraph 27):
“The duty of care which is owed by custodial staff to those in
their charge includes the responsibility to protect them from other inmates who
wish to cause them harm. In fact, violent incidents among prisoners are a
regular occurrence in all prison systems; they involve a wide range of
phenomena, from subtle forms of harassment to unconcealed intimidation and
serious physical attacks.
Tackling the phenomenon of inter-prisoner violence requires
that prison staff be placed in a position, including in terms of staffing
levels, to exercise their authority and their supervisory tasks in an
appropriate manner. Prison staff must be alert to signs of trouble and be both
resolved and properly trained to intervene when necessary. The existence of
positive relations between staff and prisoners, based on the notions of secure
custody and care, is a decisive factor in this context; this will depend in
large measure on staff possessing appropriate interpersonal communication
skills. Further, management must be prepared fully to support staff in the
exercise of their authority. Specific security measures adapted to the
particular characteristics of the situation encountered (including effective
search procedures) may well be required; however, such measures can never be
more than an adjunct to the above-mentioned basic imperatives. In addition, the
prison system needs to address the issue of the appropriate classification and
distribution of prisoners.”
Under Latvian legislation,
section 11 (5) of the Law on the Detention Procedure (Apcietinājumā
turēšanas kārtības likums) specifically provided at the
relevant time that detained persons whose conviction had not become finaland
who belonged to certain specified groups (such as former employees of
law-enforcement agencies, including the Prison Administration, and the
judiciary, as well as their close relatives) were to be detained separately
from other prisoners.
Paragraph 13 of Regulation No. 423 (2006)
of the Cabinet of Ministers, entitled “The Internal Rules of
DetentionInstitutions” (Brīvības atņemšanas iestādes
iekšējās kārtības noteikumi), provides that prisoners
ought to be placed in cells after taking into account the availability of free
spaces, the psychological compatibility of the convicted persons, their level
of education and state of health.
Article 45 of the
Sentence Enforcement Code (Sodu izpildes kodekss), applicable to
convicted prisoners and as in force at the material time, provided for two
types of visits in prison – short-term (one to two hours) and long-term (six to
forty-eight hours). Long-term visits were normally meant for spending time
together with close relatives of the prisoners (parents, children, siblings,
spouses and so on). Article 45 went on to say that “[i]f a convicted
person does not have any close relatives or if his close relatives do not visit
him, the detention institution’s administration may authorise long-term visits
with other relatives or other persons”.
At the relevant time, the number of visits that
prisoners in partly-closed (daļēji slēgti) prisons were
allowed to receive depended on their imprisonment regime. According to article
505 of the Sentence Enforcement Code,visiting rights progressed from
four to six to eight long-term and short-term visits per year for prisoners in
the lowest, medium and highestimprisonment regimes respectively. The length of
the long-term visits allowed also increased progressively.
THE LAW
I. ALLEGED
VIOLATION OF ARTICLE 3 OF THE CONVENTION
The applicant complained of a lack of separation
in Iļģuciema Prison of prisoners belonging to vulnerable categories,
such as her. She argued that the resulting danger to her safety had been in
violation of Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
Admissibility
The Government contested the applicant’s
argument and referred to the regulations applicable to the allocation of prison
cells (see paragraph 27 above) and added that prison authorities strived to
ensure the safety and confidentiality of convicted employees of law-enforcement
institutions and the judiciary, as well as their close relatives. The
Government submitted that the administration of Iļģuciema Prison had
been perfectly aware of the applicant’s special situation and had therefore
placed her in a two-person cell together with a former bailiff. Subsequently,
the applicant herself had confirmed in writing that she had no objection to
being transferred to themedium imprisonmentregime where she would have to share
a cell with several other convicts. In order to guarantee the applicant’s
safety she had been placed in a cell holding first time prisoners.
The Government next referred to the Court’s
case-law, according to which the applicant had a duty to submit evidence
capable of proving beyond reasonable doubt that she had been subjected to
ill-treatment that had attained the minimum level of severity required for it
to fall within the scope of Article 3 of the Convention. In this regard, the
Government submitted that the applicant had not submitted any credible
statements or evidence concerning her situation in Iļģuciema Prison
and that in any case her complaints were purely hypothetical and abstract.
The applicant emphasised that the Latvian penal
system was unable to ensure separation of female prisoners belonging to
vulnerable categories due to a lack of adequate infrastructure (male prisoners
in a comparable situation were held in a special wing of Matīsa Prison).
The applicant argued that she had consented to her transfer to the medium
imprisonment regime (see paragraph 16 above) under duress or due to fraud,
as evidenced by the fact that her consent had been recorded on a pre-typed
form.
At the outset, the Court observes that the
parties appear to be in agreement that the applicant, being a close relative of
a former prison guard, belonged to a category of prisoners at risk of violence
from other prisoners. Indeed, the vulnerability of individuals in circumstances
comparable to those of the applicant in the prison environment is specifically
acknowledged by the special protective measures envisaged by section 11 (5)
of the Law on the Detention Procedure (see paragraph 26 above), although
itwas not directly applicable to the applicant’s situation. In its case-law,
the Court has consistently held that the obligation on the High Contracting
Parties under Article 1 of the Convention to secure to everyone within their
jurisdiction the rights and freedoms defined in the Convention, taken together
with Article 3, requires States to take measures designed to ensure that
individuals within their jurisdiction are not subjected to torture or inhuman
or degrading treatment or punishment, including such ill-treatment administered
by private individuals (see Kovaļkovs
v. Latvia (dec.),
no. 35021/05, § 47,31 January
2012). These measures should provide effective protection, in
particular, of vulnerable persons, and include reasonable steps to prevent
ill-treatment of which the authorities had or ought to have had knowledge (see Đurđević v. Croatia, no. 52442/09, § 102, 19
July 2011, with further references).
The extent of this obligation of protection
depends on the particular circumstances of each case (Stasi v. France, no. 25001/07, § 79,
20 October 2011). The Court in its case-law with regard to the
protection of vulnerable prisoners has clarified that the national authorities
have an obligation to take all steps reasonably expected to prevent real and
immediate risks to the respective prisoners’ physical integrity, of which the
authorities had or ought to have had knowledge (see, among many other examples,
Pantea v. Romania,no. 33343/96, § 190, ECHR 2003‑VI
(extracts), and Premininy v. Russia, no. 44973/04, § 84, 10 February 2011).
With regard to the minimum severity of treatment
required to trigger the authorities’ responsibility to protect an individual,
the Court’s approach has evolved. Initially, the Court held that “the mere
feeling of stress of a detained person” (I.T. v. Romania (dec.),
no. 40155/02, 24 November 2005) and “the mere fear of reprisals from
the [applicant’s] cell-mates” (Golubev v. Russia (dec.),
no. 26260/02, 9 November 2006) were not, by themselves,
sufficient to bring the situation within the scope of Article 3. Soon
afterwards, the Court found that “the cumulative effect of overcrowding and the
intentional placement of a person in a cell with persons who may present a
danger to him may in principle raise an issue under Article 3 of the
Convention” (Gorea v. Moldova no. 21984/05, § 47, 17 July 2007). In two
more recent cases (Rodić and Others
v. Bosnia and Herzegovina, no. 22893/05, 27 May 2008, and Alexandru
Marius Radu v. Romania, no. 34022/05, 21 July 2009) the Court has gone one step further and held that “the hardship the applicants endured, in particular the
constant mental anxiety caused by the threat of physical violence and the anticipation
of such ..., must have exceeded the unavoidable level inherent in detention”.
Therefore, a breach of Article 3 of the Convention was found.
. However,
the Court has also noted that the obligation to protect vulnerable prisoners
should not be interpreted in such a way as to impose an impossible or excessive
burden on the authorities (Pantea, cited above, § 189, and Stasi,
cited above, § 78).
. Turning
to the present case, the Court notes that the State authorities were aware that
the applicant belonged to a category of prisonersat risk of inter-prisoner
violence. As to the question of whether the authorities had or ought to have
had more particular knowledge of any threats to the applicant’s well-being, the
Court underlines that it does not appear from any of the materials in the case
file or from the submissions of the applicant to the Court that she ever
informed the staff of Iļģuciema Prison about any specific incidents,
such as the alleged threats to her made by L.A. (see paragraph 12 above).
39. In these
circumstances, where the State authorities did not have any specific and
detailed information about any threats to the applicant (see, mutatis mutandis,
Đurđević v. Croatia, cited above, § 118, and Kovaļkovs
v. Latvia, cited above, § 53), what needs to be determined is whether
the steps taken by the prison administration were an adequate response to her
belonging to the general category of prisoners at risk. The Court notes that
the applicant initially shared a cell with another prisoner in a situation
similar to hers. Subsequently, she explicitly consented in writing to being
moved to another cell that she had to share with other convicts. The Court does
not share the applicant’s opinion that the use of a pre-typed form
automatically gives rise to a presumption that the person signing such a form
has been tricked or forced to do so (see paragraph 34 above). In the absence of
any other indications whatsoever that the applicant was forced to record her
consent to her transfer to a larger cell, the Court finds that her transfer was
voluntary.
40. The Court does not
lose sight of the fact that for objective reasons – the applicant’s family ties
with her mother – the applicant might very well have felt some anxiety and
discomfort. However, taking into account the considerations outlined above, the
Court finds that in so far as the State authorities knew of any potential risks
to the applicant, they took all measures that could reasonably have been
expected of them to ensure her safety.
It
follows that this complaint is manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 (a) and 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION
The applicant complained of restrictions on her
entitlement to receive visits from her partner and her mother. She cited Article
8 of the Convention, which, in so far as is relevant, provides as follows:
“1. Everyone has the right to respect for his
private and family life ....
2. There shall be no interference by a public
authority with the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of health or morals, or for
the protection of the rights and freedoms of others.”
A. Admissibility
1. Visits from the applicant’s alleged partner
The Government submitted that the applicant’s
complaint concerning visits from the man she had claimed was her partner was
incompatible ratione materiae with the provisions of the Convention
within the meaning of Article 35 § 3 (a) of the Convention. In
support of this argument, the Government argued that the applicant’s
relationship with her alleged partner could not be qualified as “family life”,
as they had neither been a traditional family nor had they had any de facto
family ties, such as a shared household, children together or similar bonds.
At the same time, the Government conceded that
the applicant’s relationships with her alleged partner could fall within the
concept of “private life”, which is also protected by the Convention.
The applicant submitted that after being
transferred to Vecumnieki Open Prison she and her partner had set up a common
household.
The Court agrees with the Government that at the
relevant time the applicant cannot be said to have had formed family ties with
her alleged partner. Their purported subsequent cohabitation does not change
that conclusion. However, it has not been disputed that the applicant’s private
life was at stake. Therefore the Court dismisses the Government’s argument
about incompatibility ratione materiae.
The Court moreover considers that this complaint
is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. No other ground for declaring it inadmissible has been established.
It must therefore be declared admissible.
2. Visits from the applicant’s mother
The Government argued that the applicant had
never requested authorisation for a visit from her mother. According to
information furnished to the Government by the Ministry of Justice, it would
have been possible to ensure that any visits that the applicant received in
prison from her motherremained confidential.
The applicant explained that the layoutof the
prison was such that both long-term and short-term visitors to the prison would
inevitably be seen by other prisoners and thus it would not have been possible
to keep visits from her mother secret. In addition, she explained that she had
been told by prison administration employees that it was not possible for her
mother to visit her on so many occasions that she had eventually given up and
had not submitted any further requests to that effect.
The Court considers that it derives logically
from the structure of the Convention proceedings that it falls upon the
applicant to submit at least prima facie evidence of the existence of an
interference with her Convention rights. In the light of the facts of the
present case, such prima facie evidence could be a written refusal to allow the
applicant’s mother’s visits or any reliable information about the alleged
inadequacy of the layout of the visiting areas of Iļģuciema Prison.
Taking into account the fact that the applicant
admitted that she had never submitted any written requests to allow her mother’s
visits and the fact that the information submitted by the parties concerning
the layout of the visiting areas does not allow the Court to conclude with any
certainty that the organisation of confidential visits therein would have been
impossible, the Court considers that the applicant has failed to submit prima
facie evidence of an interference with her right to respect for her family
life.It follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
B. Merits
The Government emphasised that the applicant had
been allowed to receive eleven visits from her alleged partner after her
divorce had been finalised (see paragraph 20 above). Thus there had been
no interference with the applicant’s right to respect for her private life.
The Government submitted, in the alternative,
that the applicant’s complaint lacked merit because she had not been allowed to
receive long-term visits from her alleged partnerfor only a limited time, while
she had still been married to another man.
The applicant agreed that the situation
concerning long-term visits from her partner had eventually been resolved. She
nevertheless considered that the earlier lack of opportunity for her to receive
long-term visits had been unacceptable. She pointed out that nowhere in
national legislation was it said that married prisoners could not receive
long-term visits frompeople who were not their relatives.
The Court has frequently held that a person’s
detention entails by its nature a limitation on his or her private and family
life (see, for example, Messina v. Italy(no. 2), no. 25498/94, §
61, ECHR 2000‑X). Even so, any restriction on a
detained person’s right to respect for their private and family life must be
applied “in accordance with the law” within the meaning of Article
8 § 2 of the Convention (see Kučera v. Slovakia, no. 48666/99, § 127, 17 July 2007).The
expression “in accordance with the law” not only necessitates compliance with
domestic law, but also relates to the quality of that law (Niedbała
v. Poland, no. 27915/95, § 79, 4 July 2000, and Gradekv. Poland,
no. 39631/06, § 42, 8 June 2010). Law which confers discretion on public authorities is
not in itself contrary to that requirement (Lavents v. Latvia,
no. 58442/00, § 135, 28 November 2002, and Wegera v. Poland,
no. 141/07, § 71, 19 January 2010). However, the law must be sufficiently clear in its terms
to give individuals an adequate indication as to the circumstances in which and
the conditions on which public authorities are entitled to curtail those
individuals’ liberties.
Turning to the present case, the Court has some
doubts as to whetherArticle 45 of the Sentence Enforcement Code (see paragraph 28,
above) as in force at the relevant timeprovided an adequate indication of the
conditions to be taken into account by the prison authorities when
authorising (or not) a visit from a person not closely related to a prisoner.
In the circumstances of the present case the Court, however, agrees with the
Government andtakes note of the short period of time during which the applicant had been denied the visits from her partner.
The Courtaccepts that once the divorce proceedings had terminated, the
applicant’s request for visits were granted within a particularly
short time(see paragraph22, above).
In the light of the above, there has accordingly
been no violation of Article 8 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint concerning the
applicant’s inability to receive long-term visits from her alleged partner
admissible and the remainder of the application inadmissible;
2. Holds that there has been no violation of
Article 8 of the Convention.
Done in English, and notified in writing on3 July 2012,
pursuant to Rule 77§§2 and3 of the Rules of Court.
Marialena
Tsirli Josep
Casadevall
Deputy Registrar President
