CASE OF FERNANDES v. PORTUGAL

FOURTH SECTION

CASE OF FERNANDES v. PORTUGAL

(Applications nos. 33023/17 and 56476/17)

JUDGMENT
 

STRASBOURG

16 January 2024

This judgment is final but it may be subject to editorial revision.

In the case of Fernandes v. Portugal,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

 Tim Eicke, President,
 Branko Lubarda,
 Ana Maria Guerra Martins, judges,
and Ilse Freiwirth, Deputy Section Registrar,

Having regard to:

the applications against the Portuguese Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the applicant listed in the appended table, (“the applicant”), on the various dates indicated therein;

the decision to give notice of the complaints concerning Articles 3, 6 and 13 of the Convention to the Portuguese Government (“the Government”) represented by their Agent, Ms M.F. da Graça Carvalho, Deputy Attorney General, and, after 1 September 2022, Mr. Ricardo Bragança de Matos, Public Prosecutor, and to declare the remainder of the application inadmissible;

the decision to grant the applicant leave to present his own case under Rule 36 § 2 in fine of the Rules of Court,

the Government’s observations,

Having deliberated in private on 28 November 2023,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The applicant was born in Brazil on 17 February 1975. By judgment of the Lisbon Criminal Court on 5 May 2006 he was sentenced to twenty-five years’ imprisonment for the aggravated murder of two police officers.

2.  After being detained in Linhó and Paços de Ferreira prisons, on 18 May 2007 the Director-General for Reintegration and Prison Services (the “DGRPS”) decided to place the applicant under the high security regime for preventive security reasons, in view of the seriousness of the offences committed and the threat he posed to prison security, in accordance with Article 15 of the Code on Enforcement of Criminal Sanctions. The applicant was placed in the Monsanto High Security Prison. The security regime imposed on him was subsequently reviewed and extended every six months by the DGRSP, following a proposal by the Director of Monsanto Prison, based on an assessment of the applicant’s dangerousness and his behaviour in prison, which was characterised by disciplinary issues, interpersonal difficulties, isolation, lack of interest in any activity, and disregard for prison rules. Those decisions were notified to the Public Prosecutor’s Office attached to the Court for the Execution of Sentences of Lisbon (“the CESL”).

3.  The latest review took place on 29 November 2016. As in the previous reviews, the DGRPS imposed an additional period of six months on the basis of a technical opinion of 28 November 2016, on the proposal of the Director of the Monsanto prison. Referring to previous decisions, it concluded that the reasons for imposing the security regime on the applicant remained valid and that there was no evidence of positive progress in his behaviour in prison which could justify a change in the regime.

4.  The applicant challenged the decision before the CESL on the grounds that it was unfounded, requesting to be heard and to submit additional evidence. By decision of 1 February 2017 the CESL held that the DGRSP’s decision had been lawful. The applicant contested this decision as null and void because he had not been heard or given the opportunity to submit evidence. In a final decision dated 24 March 2017 the CESL upheld its decision, stating that a hearing or submission of evidence would not provide any new information beyond what the applicant had already argued at length.

5.  During his detention in Monsanto Prison, the applicant suffered from knee problems as a result of an injury sustained on 14 October 2008 during sports activities in the prison yard. This has led to his reduced mobility, and later to obesity and increased isolation.

6.  The applicant was confined alone to his cell most of the time and hardly participated in any activities. He was allegedly not informed of the activities taking place and his internal requests were ignored. He had initially enrolled in a distance learning law course, but eventually gave up as textbooks were allegedly withheld by the prison guards. He had limited contacts inside, including with other inmates, and outside the prison, including restrictions on contact with his family and on the use of the telephone. He was strip-searched every time he left or entered his cell, including to go to the vending machine. After the occasional visits from his parents or his lawyer, he had to strip naked and squat down so that his anus could be examined (“revista por desnudamento e agachamento”).

7.  On 19 January 2018, the applicant was transferred to Brazil in order to serve the remaining prison sentence there.

8.  Relying on Article 3 of the Convention, the applicant complained about the conditions of detention in the Monsanto High Security Prison. He alleged in particular that the lengthy imposition of the security regime and various restrictions on him, coupled with his lack of access to medical care and to any form of purposeful leisure or occupational activity, amounted to inhuman and degrading treatment.

9.  The applicant also complained, under Articles 6 and 13, of the lack of fairness in the decision-making process concerning the application of the security regime and the lack of effective domestic remedies in this respect.

THE COURT’S ASSESSMENT

10.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment (Rule 42 § 1 of the Rules of Court).

11.  The Court notes that the complaint raised by the applicant under Article 3 of the Convention on account of the continued imposition of the security regime and related restrictions on him is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

12.  The Court refers to the relevant general principles which were summarised in Piechowicz v. Poland (no. 20071/07, §§ 158-65 and 166‑78, 17 April 2012, with further references), and Bamouhammad v. Belgium (no. 47687/13, §§ 115-18 and 134, 17 November 2015).

13.  The Court notes that from 18 May 2007 to 19 January 2018 – that is, for ten years, eight months and one day – the applicant was under the maximum‑security regime in the Monsanto High Security Prison and, consequently, subjected to high-security measures and restricted contacts inside and outside the prison (see paragraphs 2, 6 and 7 above).

14.  The Court observes that the decision of 18 May 2007 of the DGRPS imposing the security regime on the applicant pursued a legitimate aim, warranted by the fact that he had been charged with violent offences and the threat he posed to prison security (see paragraphs 2-3 above). It was therefore not unreasonable on the part of the authorities to consider that he should be subjected to tighter security controls, increased supervision, and restricted contacts inside and outside the prison.

15.  The Court however does not find that the continuous, routine, and indiscriminate application over more than ten years of the full range of measures available to the authorities under the security regime was necessary to maintain prison security or that it could be justified by the applicant’s behaviour in prison. In that regard, the Court notes that the authorities relied on the same grounds on which the initial decision had been based (see paragraphs 2-3 above), and failed to demonstrate that the continued imposition of the security regime and restrictive measures on the applicant remained necessary or could still be justified in its entirety for the same reasons throughout the period of detention. Furthermore, they did not show that they had taken into account the applicant’s individual situation or the combined effects of the continued application of the contested measures on his state of health and prospects for reintegration. It appears that the procedure for reviewing the applicant’s situation had become a mere formality and was limited to the repetition of the same grounds in successive decisions (see Piechowicz, cited above, § 177).

16.  The Court has even more misgivings with regard to the strip searches to which the applicant was subjected daily or several times a day whenever he left or entered his cell, including to go to the vending machine and involving moreover an anal inspection after outside visits (see paragraph 6 above). The Court has already held (see, Piechowicz, cited above, § 176), that strip searches might be necessary to ensure prison security or to prevent disorder or crime. However, it is not persuaded by the Government’s argument that such systematic and embarrassing checks performed on the applicant daily and, in a particularly intrusive form, after each outside visit respectively, were necessary to ensure prison security. In fact, it appears that these strip searches were carried out routinely and were not linked to any particular security need or suspicion regarding the applicant’s conduct. The Court considers that the practice of daily strip searches over a protracted period of time, must have caused him feelings of inferiority, anxiety and accumulated distress which went beyond the unavoidable suffering and humiliation inherent in the imposition of detention (see mutatis mutandis, Piechowicz, cited above, §§ 175-76).

17. Lastly, the Court is not convinced that the authorities made any effort to counteract the negative effects the prolonged and continuous security measures and isolation must have had on the applicant by providing him with the necessary mental or physical stimulation. The Court notes that the information provided by the Government in this regard does not call into question the applicant’s account, including his numerous requests to the prison administration to challenge his lack of access to activities and his being often left in his cell without any explanation. The Court notes that the mere existence of an individualised adaptation plan to which the Government point and the possibility of spending two hours a day in the open air are clearly insufficient to demonstrate that the applicant was given access to a clear, progressive programme of purposeful activities to counteract the dissociating effects and detachment from society which long-term imprisonment can have. This pernicious effect of imprisonment is demonstrated by the information provided by the applicant which has not been refuted by the Government. For instance, the applicant submitted that in the early part of his sentence he made efforts to be active and participate in activities such as sport and attending a distance learning law school, but gradually abandoned them due to a lack of support from the prison authorities and ended up being left out of any re-socialisation programme in prison. For their part, although the Government contested the applicant’s description and stated in general terms that the applicant had chosen to remain alone in his cell and not to participate in any activities, they did not provide any information as to what activities were available or proposed to him and whether the applicant had effective access to them.

18.  The Court also notes that the circumstances of the present case are entirely consistent with the observations made by the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the “CPT”) in its reports following its visits to Monsanto high-security prison in 2008, 2012, 2013 and 2016, which cover the period of the applicant’s detention under review (see paragraphs 2-7 above). This is particularly true with regard to strip searches, the lack of educational activities and programmes, the brief and superficial justification and lack of proper psychological assessment of detainees for the purpose of reviewing the application of the security regime, and the restrictions on family contact, including by telephone, which particularly affect foreign detainees, such as the applicant.

19.  In conclusion, the Court finds that, in assessing the facts as a whole and considering the cumulative effect of the security regime on the applicant and its particularly long duration, the measures taken exceeded the legitimate requirements of security in prison and that they were not in their entirety necessary to attain the legitimate aim pursued by the authorities (compare Piechowicz, cited above, § 178).

20.  There has thus been a violation of Article 3 of the Convention on account of the continued imposition of the security regime and various restrictions on the applicant.

21.  Regarding the applicant’s remaining complaints under Article 3 of the Convention in particular the alleged lack of medical care (paragraph 8 above), the Court notes that the Government have provided a detailed and convincing account of the adequate material conditions of detention under which the applicant was held in Monsanto Prison, including those aspects relating to food and the medical care received by the applicant during his detention, as evidenced by the medical file submitted by them. This information was not contested by the applicant. Accordingly, the Court finds that there is no indication of a violation of Article 3 in this respect (compare Bădulescu v. Portugal, no. 33729/18, § 34, 20 October 2020). It follows that this part of the application must be rejected as manifestly ill-founded under Article 35 §§ 3 and 4 of the Convention.

22.  The applicant also complained under Articles 6 and 13 of the Convention. Having regard to the facts of the case, the submissions of the parties, and its findings above, the Court considers that it has dealt with the main legal questions raised by the case and that there is no need to examine the admissibility and merits of these remaining complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

23.  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,

Done in English, and notified in writing on 16 January 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Ilse Freiwirth Tim Eicke
 Deputy Registrar President

APPENDIX

List of cases

No.

Application no.

Case name

Applicant
Year of Birth
Place of Residence
Nationality

1.

33023/17

Fernandes v. Portugal

Marcus José FERNANDES
1975
Tijuca
Portuguese/Brazilian

2.

56476/17

Fernandes v. Portugal