CASE OF LINDSTRÖM AND MÄSSELI v. FINLAND

FOURTH SECTION

CASE OF LINDSTRÖM AND MÄSSELI v. FINLAND

(Application no. 24630/10)

JUDGMENT

STRASBOURG

14 January 2014

FINAL

14/04/2014

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Lindström and Mässeli v. Finland,

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

Ineta Ziemele, President,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Vincent A. De Gaetano,
Paul Mahoney,
Faris Vehabović, judges,
and Françoise Elens-Passos, Section Registrar,

Having deliberated in private on 10 December 2013,

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

PROCEDURE

1. The case originated in an application (no. 24630/10) against the Republic of Finland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Finnish nationals, Mr Mark Kristian Lindström and Mr Jouni Kristian Mässeli (“the applicants”), on 2 May 2010.

2. The applicants were represented by Mr Tommi Koivistoinen, a lawyer practising in Tampere. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

3. The applicants alleged, in particular, under Article 3 of the Convention that they had been treated in an inhuman and degrading manner by the prison authorities when they were forced, in isolation, to wear overalls which covered them from feet to neck and were “sealed” by prison staff with plastic strips, in order to check whether they had concealed drugs in their body.

4. On 19 September 2011 the application was communicated to the Government under Article 3 of the Convention. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). On 3 April 2013 the application was re-communicated ex officio under Article 8 of the Convention. On 24 June 2013 the President of the Section decided not to accept the applicants’ further claims for costs and expenses submitted out of time (Rule 38 § 1 of the Rules of Court).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were born in 1976 and 1971 and live in Åminnefors and Kotka respectively.

6. The applicants were serving their prison sentence in Riihimäki Prison. The first applicant had been convicted of aggravated drug offence, aggravated theft and firearms misdemeanour, and sentenced to an imprisonment of two years and eight months. He started to serve his sentence in Riihimäki Prison in early 2004. The second applicant had been convicted of attempted manslaughter and sentenced to an imprisonment of four years and three months. He started to serve his sentence in Riihimäki Prison approximately in November 2003.

7. After an unsupervised meeting with his family, the first applicant was put in isolation from 13 to 16 November 2004 as he was suspected of having concealed unlawful substances inside his body. The second applicant was isolated from 9 to 16 May 2004 on returning to the prison after leave.

8. While in isolation, the applicants had to give up their normal prison clothing and to wear overalls which covered them from feet to neck and were “sealed” by prison staff with plastic strips. The applicants were not able to remove the overalls by themselves. When they needed to use the toilet, they had to call the guards to escort them there and to remove the overalls. According to the first applicant, the first time the guards did not come quickly enough and he had to relieve himself in the overalls.

9. On his second day in isolation, the second applicant was given laxatives without any prior medical consultation but with his consent. When they took effect, the second applicant called for a guard to take him to the toilet but it took a long time for the guard to arrive and the applicant had to defecate in the overalls. He claims that afterwards he had to put the same dirty overalls back on and was not provided with the possibility to wash.

10. The applicants claimed that they were not allowed to wash during the whole time in isolation. The dirty overalls apparently caused skin irritation in the first applicant and broke the skin of the second applicant.

11. In February 2005 the applicants reported the matter to the police.

12. On 25 January 2007 the public prosecutor pressed charges against the Riihimäki Prison director and two chief guards for breach of official duty (virkavelvollisuuden rikkominen, brott mot tjänsteplikt) because they had failed to respect the applicants’ human dignity during their isolation. In addition, the applicants pressed charges for coercion (pakottaminen, olaga tvång) and defamation.

13. On 15 June 2007 the Riihimäki District Court (käräjäoikeus, tingsrätten), after having held an oral hearing in the presence of the applicants and several witnesses, dismissed all charges against the accused. It found that the use of overalls was acceptable because of the need to control and prevent smuggling of drugs and other substances into prison. It was not intended that a prisoner defecate in them, but defecation took place in separate, supervised toilets. The use of overalls as such did not have any effect on how quickly a prisoner could be taken to a toilet. The use of overalls was not meant to humiliate the prisoners and did not restrict their privacy any more than the isolation itself did. The use of overalls was thus not as such a measure which would have degraded the applicants. They had not been expected, let alone coerced, to defecate in the overalls: the first applicant had done so of his own will as a protest against the use of overalls while the second applicant, as a legally isolated prisoner, needed to be taken to a separate toilet which he did not reach on time. There was no evidence that the guards had delayed their response to the calls of the applicants. It had not been shown that the applicants did not have the possibility to wash whenever necessary.

14. By letter dated 5 July 2007 the applicants appealed to the Kouvola Appeal Court (hovioikeus, hovrätten).

15. On 30 September 2008 the Kouvola Appeal Court accepted the conclusions of the District Court and upheld its judgment. It found that the purpose of the use of overalls was to prevent the smuggling of drugs into prison. Concealing drugs in the body could also cause significant health risks to the prisoner. The court found that it had not been shown that the use of overalls had any effect on how quickly a prisoner was taken to a toilet. Moreover, it found, by referring to the case-law of the Court, that the suffering and humiliation caused by the use of overalls did not exceed the inevitable suffering and humiliation caused by the legal isolation itself. The rights of prisoners were not restricted more than what was necessary for the purposes of isolation and the use of overalls cannot therefore be regarded as violating human dignity.

16. By letter dated 1 December 2008 the applicants appealed to the Supreme Court (korkein oikeus, högsta domstolen).

17. On 4 November 2009 the Supreme Court refused the applicants leave to appeal.

II. RELEVANT DOMESTIC LAW AND PRACTICE

18. According to Chapter 2, section 9d, of the Act on Execution of Sentences (laki rangaistusten täytäntöönpanosta, lagen om verkställighet av straff, Act no. 364/1999 as in force at the relevant time), a prisoner could be isolated from other prisoners if there were grounds to suspect that he or she might be concealing drugs or other unlawful substances or items inside the body while in prison or when entering a prison. Such a decision could be taken by the prison director. A prisoner could be held in isolation until drugs or other unlawful substances or items had been evacuated from the body or until there were no longer any grounds for the isolation. The isolation could not, however, last for more than seven days. If the isolation caused risks to the prisoner’s health, it had to be interrupted. A medical doctor needed to verify whether isolation would cause any risks to the prisoner’s health. The isolated person’s health was to remain under close medical control. Moreover, in the relevant Government Bill HE 10/1998 vp it was stated that isolation could also be ended if a prisoner requested an X-ray examination or a medical examination. An isolated prisoner would in practice be placed in a cell with a dry toilet.

19. According to Chapter 2, sections 7 and 8, of the same Act, a prisoner was to have appropriate clothing, and had the right to outdoor exercise every day. Chapter 7, section 1, of the same Act provided a possibility for appealing but only in respect of disciplinary sanctions or if the release on parole was postponed.

20. Section 7b of the Prison Service Decree (vankeinhoitoasetus, fångvårdsförordningen, Act no. 878/1995 as in force at the material time) provided that a decision on observation in isolation had to be given in writing. The prisoner had to be informed about the grounds for the isolation. During isolation, the prisoner and his or her health had to be observed by cameras or by other means.

21. On 18 March 2004 the Riihimäki Prison director issued detailed rules on the use of closed overalls for observation purposes and on other procedures during the isolation of a prisoner suspected of concealing unlawful substances inside the body. These rules, as in force at the relevant time, provided the following:

- a prisoner wears closed overalls and only underpants under them;

- sleeve ends of the overalls are adjusted by means of plastic strips;

- opening the zipper is prevented by means of a plastic strip;

- a prisoner is given a Bible, AA (Alcoholics Anonymous) literature and a drinking vessel;

- smoking requisites and toiletries are kept by staff;

- a prisoner smokes and eats under supervision by staff;

- on request, a prisoner is permitted to wash under supervision;

- laxatives are given to a prisoner only before noon;

- a prisoner defecates and urinates under supervision by staff;

- a nurse and a medical doctor are called when necessary;

- the isolation cell is provided with a mattress and a pillow; and

- the overalls are washed after every use.

22. These Rules were revised on 23 December 2004 and 17 February 2005. In addition, they provide the following:

- a prisoner is permitted to wash his or her hands after defecation and urination;

- a prisoner is permitted to shower under supervision by staff every second day;

- a mattress, a pillow and a blanket are provided on request; and

- outdoor exercise is arranged according to the daily routine.

23. On 1 October 2006 the new Prison Sentences Act (vankeuslaki, fängelselagen, Act no. 767/2005) entered into force. Chapter 18, section 4, of the Act provides the same regulation on observation in isolation (eristämistarkkailu, observation i isolering) as was previously provided in section 9d of the Act on Execution of Sentences, with some slight amendments. Chapter 18, section 4, subsections 1 and 3, of the Act read as follows:

“If there are reasonable grounds to suspect that a prisoner is concealing inside the body unlawful substances or items meant in Chapter 9, section 1, subsections 1 or 2 while in prison or when entering a prison, he or she can be placed in a room or cell where he or she and the evacuation of the unlawful substances or items can be observed round the clock with technical means or otherwise.

...

The medical personnel shall be immediately informed about the placement of a prisoner in observation in isolation. A medical doctor or other medical personnel shall verify as soon as possible the health condition of the prisoner. The prisoner shall be closely observed by technical surveillance or in some other manner.”

24. On 31 December 2012 the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman) found in his statement (Dnro 2011/2/10) that the use of closed overalls meant such a restriction to fundamental rights protected by the Constitution that it required a clear basis in law. The legal provisions concerning imprisonment, the travaux préparatoires or the lower level regulations did not recognise the concept of closed overalls. They were clearly a different type of means to the technical means of surveillance destined for the supervision of prisoners. The use of closed overalls rather meant that prisoners did not have to be observed continuously and therefore their use meant a different kind of interference with the fundamental rights. Technical means of surveillance restricted mainly a prisoner’s right to protection of his or her privacy whereas the overalls restricted his or her free will and self-determination. He found that Chapter 18, section 4, subsection 1, of the Prison Sentences Act did not provide a sufficient legal basis for the use of closed overalls.

25. On 26 February 2013 a legislative motion (LA 10/2013 vp), signed by 103 Members of Parliament, was submitted to Parliament. The motion proposed an amendment to the Prison Sentences Act to the effect of permitting the use of closed overalls.

26. Following the statement of 31 December 2012 by the Parliamentary Ombudsman, the Criminal Sanctions Agency (Rikosseuraamuslaitos, Brottspåföljdsmyndiheten) prohibited the use of closed overalls as from 15 March 2013.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

27. The applicants complained under Article 3 of the Convention that that they had been treated in an inhuman and degrading manner. The applicants’ complaints do not concern the material conditions of the Riihimäki prison, nor their isolation as such but rather the use of closed overalls while in isolation. They claim that the use of overalls, especially dirty ones, was degrading. There was no evidence that the applicants had been involved in smuggling drugs into the prison.

28. Article 3 of the Convention reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

29. The Government contested that argument.

A. Admissibility

30. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

31. The applicants pointed out that the use of overalls did have an effect on how quickly a prisoner could defecate as it was quicker for a prisoner to undress him or herself than for a guard to undress the prisoner. A delay of 10 minutes was already too long, especially if the prisoner had been given laxatives. The guards had testified before the domestic courts that the delay could be as long as 15 minutes. The first applicant claimed that he would not have defecated in the overalls, had he been taken to the toilet in time. The second applicant maintained that he was obliged to defecate in the overalls twice and both times he had to continue wearing the same, dirty overalls.

32. The Government noted that it had been decided to isolate the applicants as they were suspected of having concealed unlawful substances inside their bodies. The isolation of the first applicant lasted for less than three days and that of the second applicant for nearly seven days. Prevention of drugs smuggling was extremely important in order to maintain order and ensure security in prisons. The purpose of isolation was to prevent unlawful smuggling of substances into the prison as well as to prevent any health risks to the detainees in case the swallowed packages broke inside their bodies. For this reason such detainees had to be observed continuously and all defecation had to take place under supervision. The detainees were under camera surveillance but as it was not continuous, it had been necessary to use closed overalls for observation purposes.

33. The Government noted that the closed overalls resembled normal overalls with the difference that the legs were equipped with integrated plimsolls, the zipper was at the back and the sleeves were adjusted by means of plastic strips. The prisoners could not remove the overalls by themselves or draw their hands inside the sleeves. Prisoners in isolation were not permitted to wear their own clothes. They were also required to defecate in a specially constructed toilet bowl which permitted the straining and checking of excrement. The location of such toilets largely depended on the structure of the prison: in Riihimäki prison they were located outside the cell. The use of overalls did not have any effect on how quickly a prisoner could be taken to a toilet. The prisoners could press a call button in the isolation cell to contact the staff and the guards were obliged to go to such prisoners without delay. The staff would normally reach the isolation cell in a couple of minutes. In exceptional cases the maximum delay was approximately 10 minutes.

34. The Government emphasised that prisoners under observation seldom defecated in their overalls. In fact, the District Court had found that the first applicant had defecated in the overalls deliberately as he had wanted to get rid of the overalls. After defecating, the first applicant was permitted to take a shower. The first applicant had not submitted any evidence to prove that the plastic strips had caused abrasions to his wrists or that the overalls caused an allergic reaction.

35. As to the second applicant, the Government noted that it appeared from the trial documents that he had not been forced to take laxatives but had taken them of his own free will. The District Court found that the second applicant had defecated in the overalls as the guards had failed to escort him to the toilet in time. However, the overalls had been changed every time a prisoner defecated in them. Moreover, the second applicant’s allegation that the dirty overalls had chafed the skin of his back raw was unfounded and not supported by any evidence. The Government further noted that the Rules in force at the material time provided that isolated prisoners had to be given an opportunity to wash under supervision if so requested. Therefore, the second applicant’s allegation that he had repeatedly not been permitted to wash himself after defecating was not credible.

36. The Government pointed out that closed overalls used for observation purposes did not differ essentially from ordinary overalls and that they did not have any impact on the normal movement and activity of the applicants. The applicants had not presented any evidence of the alleged abrasions. Their allegations were not convincing as they conflicted with the documentary evidence. Moreover, the isolation periods were short and during those periods the prisoners’ needs could be fulfilled at their request. The use of closed overalls did not involve any intent to degrade the applicants. Their use was only aimed at preventing the smuggling of unlawful substances into the prison and pursued therefore a legitimate aim. The applicants had thus not been subjected to inhuman or degrading treatment or punishment.

2. The Court’s assessment

37. The Court reiterates at the outset that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000‑IV).

38. The Court further reiterates that, according to its case-law, ill‑treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25).

39. Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering, and also “degrading” because it was such as to arouse in the victims feeling of fear, anguish and inferiority capable of humiliating and debasing them (see, for example, Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000-XI). In order for a punishment or treatment associated with it to be “inhuman” or “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (see V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX; Valašinas v. Lithuania, no. 44558/98, § 102, ECHR 2001‑VIII; and Jalloh v. Germany [GC], no. 54810/00, § 68, ECHR 2006‑IX). The question of whether the purpose of the treatment was to humiliate or debase the victim is a further factor to be taken into account, but the absence of any such purpose cannot conclusively rule out a violation of Article 3 (see, for example, Peers v. Greece, no. 28524/95, § 74, ECHR 2001-III; and Kalashnikov v. Russia, no. 47095/99, § 101, ECHR 2002-VI).

40. Conditions of detention may sometimes amount to inhuman or degrading treatment (see Peers v. Greece, cited above, § 75). When assessing conditions of detention, account has to be taken of the cumulative effects of those conditions, as well as the specific allegations made by the applicant (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II).

41. While measures depriving a person of his liberty often involve an element of suffering or humiliation, it cannot be said that detention in a high-security prison facility, be it on remand or following a criminal conviction, in itself raises an issue under Article 3 of the Convention. The Court’s task is limited to examining the personal situation of the applicant who has been affected by the regime concerned (see Aerts v. Belgium, 30 July 1998, §§ 34-37, Reports of Judgments and Decisions 1998‑V). In this connection the Court emphasises that, although public order considerations may lead States to introduce high‑security prisons for particular categories of detainees, Article 3 nevertheless requires those States to ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well‑being are adequately secured (see Kudła v. Poland [GC], cited above, §§ 92-94).

42. In this context, the Court has previously held that complete sensory isolation, coupled with total social isolation, can destroy the personality and constitutes a form of inhuman treatment which cannot be justified by the requirements of security or any other reason. On the other hand, the removal from association with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or degrading punishment (see Messina v. Italy (no. 2) (dec.), no. 25498/94, ECHR 1999‑V). In assessing whether such a measure may fall within the ambit of Article 3 in a given case, regard must be had to the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned (see Van der Ven v. the Netherlands, no. 50901/99, § 51, ECHR 2003‑II; and Lorsé and Others v. the Netherlands, no. 52750/99, § 63, 4 February 2003).

43. The above-mentioned principles have also been applied in the context of strip and intimate body searches. A search carried out in an appropriate manner with due respect for human dignity and for a legitimate purpose may be compatible with Article 3 (see, mutatis mutandis, Labita v. Italy [GC], no. 26772/95, §§ 122-127, ECHR 2000‑IV; and Yankov v. Bulgaria, no. 39084/97, §§ 114‑121, 11 December 2003, where there was no valid reason established for the shaving of the applicant prisoner’s head). However, where the manner in which a search is carried out has debasing elements which significantly aggravate the inevitable humiliation of the procedure, Article 3 has been engaged: for example, where a prisoner was obliged to strip in the presence of a female officer, and his sexual organs and food were touched with bare hands (see Valašinas v. Lithuania, cited above, § 117), and where a search was conducted before four guards who derided and verbally abused the prisoner (see Iwańczuk v. Poland, no. 25196/94, § 59, 15 November 2001). Similarly, where the search has no established connection with the preservation of prison security and prevention of crime or disorder, issues may arise (see, for example, Iwańczuk v. Poland, cited above, §§ 58-59, where a search of the applicant, a model remand prisoner, was conducted when he wished to exercise his right to vote; and Van der Ven v. the Netherlands, cited above, §§ 61-62, where strip-searching was systematic and long-term without convincing security needs).

44. Turning to the circumstances of the present case, the Court observes first of all that the applicants’ complaints concern the use of closed overalls while in isolation. The parties do not disagree on the fact that the applicants had to wear closed overalls during their stay in isolation which, in the first applicant’s case, lasted for less than three days and in the second applicant’s case for nearly seven days.

45. It is not in dispute that the closed overalls resemble normal overalls with the difference that the legs are equipped with integrated plimsolls, the zipper is at the back and the sleeves are adjusted by means of plastic strips. The prisoners cannot remove the overalls by themselves or draw their hands inside the sleeves. Otherwise they can move normally in the overalls. Prisoners may not wear their own clothes while in isolation.

46. The Court notes that the applicants were placed in isolation and were subjected to the use of closed overalls because they were suspected of having smuggled drugs or other illegal substances into the prison inside their bodies (see paragraphs 18 and 23 above). The Government indicated in their submissions that the prevention of drugs smuggling was extremely important in order to maintain order and ensure security in prisons as well as to prevent any health risks to the prisoners in case the swallowed packages broke inside their bodies. The Government further noted that, for this reason, such prisoners had to be observed continuously and that all defecation had to take place under supervision. Even though the prisoners were under camera surveillance, it was not continuous and needed to be accompanied with the use of closed overalls. Although the applicants denied having harboured any intentions to smuggle drugs inside their bodies, the Court considers that the existence of such an observation system can be acceptable as such. Maintaining order and security in prisons as well as guaranteeing the prisoners’ well‑being can be proper grounds for introducing the system of closed overalls to be used while prisoners are in isolation. Other means of observation, such as cameras or on the spot surveillance, may not appear to be sufficient. Moreover, the Court notes that ultimately these measures were designed for the protection of prisoners’ health and that their intention as such is not to humiliate. As the domestic courts noted, it was not intended that prisoners defecate in the overalls but defecation was to take place in separate, supervised toilets.

47. Even if the practice of using isolation and closed overalls in combating drug trafficking in prisons can have acceptable aims, the Court notes that this practice might be assessed differently if it led, in concrete circumstances, to situations which are contrary to Article 3 of the Convention. In the present case the applicants claimed that they were not taken to the toilet quickly enough and therefore they had to defecate in the overalls. They claim that they had to use dirty overalls and were not given a possibility to wash. The overalls had allegedly also caused the applicants to suffer skin irritation.

48. The Court notes that this kind of circumstance might be considered contrary to Article 3 of the Convention. However, during the domestic proceedings the domestic courts found that there was no evidence that the guards had delayed their response to the applicants’ calls to use the toilet. Nor was it shown that the applicants had not had an appropriate possibility to wash whenever necessary or that they had to continue to wear dirty overalls. Moreover, the applicants had failed to submit any evidence to prove that the plastic strips had caused abrasions to their wrists or that the overalls caused them allergic reactions. It is not for the Court to re-examine the validity of the assessment carried out by the domestic authorities. Having regard to the circumstances of the case, the Court accepts the assessment made by the domestic authorities and finds that the applicants have not been able to prove their allegations.

49. The Court considers that in a situation where there were convincing security needs, the practice of using closed overalls during the relatively short period of isolation cannot, in itself, reach the threshold of Article 3 of the Convention. This is especially so in the present case where the applicants have not been able to produce any evidence to support their allegations concerning the possibly humiliating elements of their treatment.

50. Accordingly, the Court concludes that the use of closed overalls did not reach the threshold of Article 3 of the Convention in the present case. There has thus been no violation of this provision.

II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

51. The applicants complained that they had been treated in an inhuman and degrading manner when they were forced to use closed overalls, especially dirty ones, during isolation. This complaint was communicated ex officio to the Government under Article 8 of the Convention.

52. Article 8 of the Convention reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

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.”

53. The Government contested that argument.

A. Admissibility

54. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

55. The applicants maintained that the use of closed overalls, isolation and camera monitoring meant that there had been an interference with their right to respect for their private life. The use of closed overalls, in particular, had no legal basis in the domestic law but was only a practice adopted in a few prisons. It was based only on guidelines and orders given by the management of individual prisons. As to the necessity, the applicants noted that many other prisons had been able to prevent drug trafficking in other ways, without making the prisoner wear closed overalls. The Government had not been able to show that the use of overalls had produced good results.

56. The Government acknowledged that the use of closed overalls amounted to an interference with the applicants’ right to respect for their private life. The interference had a basis in national law, especially in Section 9d of the Act on Execution of Sentences and in other orders and rules in force at the relevant time, and it pursued the legitimate aims of public safety, prevention of disorder or crime and protection of health and rights and freedoms of others.

57. As to the necessity in a democratic society, the Government noted that it was extremely important to prevent the smuggling of drugs and other unlawful substances into prisons. Drug trafficking had many side effects, such as intimidation of other inmates, indebtedness and subjugation. It was important to ensure that any substances smuggled by the prisoner inside his or her body were evacuated from the body so that the prisoner could not hide or dispose of them. Smuggling drugs inside the body caused a considerable health risk for the person in question. Therefore such prisoners had to be observed continuously and all defecation needed to take place under supervision. Cameras were used for observation purposes but they were not gap-free or as comprehensive as observation on the spot. The use of closed overalls was necessary to prevent smuggling and the frequency of drugs in prisons had been reduced. The Finnish prison services aimed at normality and openness in all respects, for example by granting regular unsupervised family visits. Isolation was used rarely and only then as a last resort. However, in the present case, the isolation of the applicants and the use of closed overalls were proportionate measures which were necessary in a democratic society.

2. The Court’s assessment

58. The Court notes first of all that neither of the parties has put in question the applicability of Article 8 of the Convention. Both parties also agree that the use of closed overalls amounted to an interference with the applicants’ right to respect for their private life. The Court notes that the concept of private life also comprises of the respect for human dignity.

59. The parties, however, disagree whether this interference was in accordance with the law. The applicants argue that the interference had no legal basis in the domestic law but was only a practice adopted in a few prisons which was based only on guidelines and orders given by management of those individual prisons. The Government, on the other hand, argue that the interference had a basis in section 9d of the Act on Execution of Sentences and in other orders and rules in force at the relevant time.

60. The Court notes that the expression “in accordance with the law”, within the meaning of Article 8 § 2 requires firstly that the impugned measure should have some basis in domestic law. Second, the domestic law must be accessible to the person concerned. Third, the person affected must be able, if need be with appropriate legal advice, to foresee the consequences of the domestic law for him, and fourth, the domestic law must be compatible with the rule of law (see, among many other authorities, Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000‑V; Liberty and Others v. the United Kingdom, no. 58243/00, § 59, 1 July 2008; and Kennedy v. the United Kingdom, no. 26839/05, § 151, 18 May 2010).

61. The Court reiterates that, in accordance with the case-law of the Convention institutions, in relation to Article 8 § 2 of the Convention, the term “law” is to be understood in its substantive sense, not its formal one. In a sphere covered by written law, the “law” is the enactment in force as the competent courts have interpreted it (see, inter alia, Société Colas Est and Others v. France, no. 37971/97, § 43, ECHR 2002-III). In this respect, the Court notes that its power to review compliance with domestic law is limited, it being in the first place for the national authorities, notably the courts, to interpret and apply that law (see, inter alia, Chappell v. the United Kingdom, 30 March 1989, § 54, Series A no. 152-A).

62. As to the question of legal basis, the Court notes that Chapter 2, section 9d, of the Act on Execution of Sentences (see above paragraph 18), which was indicated as a legal basis by the Government, only concerns the conditions for isolating a prisoner when he or she is suspected of having concealed drugs inside his or her body. This provision provides, for example, for the maximum length of isolation in such cases but it does not contain any mention of the modalities of such isolation, including the use of closed overalls. As the Parliamentary Ombudsman noted in his statement of 31 December 2012, the use of overalls restricted the free will and self-determination of a prisoner. Moreover, according to him, the legal provisions concerning imprisonment, the travaux préparatoires or the lower level regulations do not recognise the concept of closed overalls. In fact, as the applicants pointed out, the use of closed overalls was regulated at the time of the impugned events only by the rules of 18 March 2004 issued by the director of Riihimäki Prison (see above paragraph 21).

63. The Court considers that in these circumstances it appears that there was no proper legal basis for imposing the use of closed overalls on prisoners at the relevant time. Even though some amendments were made in the Prison Sentences Act of 2005, it appears that, as pointed out by the Parliamentary Ombudsman in his statement of 31 December 2012, even since these amendments there is no sufficient legal basis for the use of closed overalls in prisons. The amendments made to the Act of 2005 concerned only technical means of surveillance destined for the observation of the prisoners. However, the use of closed overalls represents a different kind of observation which does not seem to be covered by the wording of the 2005 Act, let alone the wording of Chapter 2, section 9d, of the Act on Execution of Sentences which was in force at the relevant time. There is therefore a doubt whether Chapter 2, section 9d, of the Act on Execution of Sentences could provide such a legal basis on the strength of which powers could be delegated to prison directors to issue rules on the use of closed overalls.

64. Even assuming that Chapter 2, section 9d, of the Act on Execution of Sentences provided a sufficient legal basis and that the director of Riihimäki Prison could issue the rules of 18 March 2004 with the strength of the delegated powers of that provision, the Court notes that the domestic law must also fulfil other qualitative criteria, namely that it is accessible to the person concerned, foreseeable and compatible with the rule of law. The Court notes that the provision in question, namely Chapter 2, section 9d, of the Act on Execution of Sentences, was accessible to the applicants. However, the foreseeability requirement appears to pose problems. On the basis of the wording of Chapter 2, section 9d, of the Act on Execution of Sentences as well as its preparatory works it is difficult to foresee, even with the help of appropriate legal advice, that the use of closed overalls could be imposed during isolation. As concerns the rules of 18 March 2004, their content is more clear and foreseeable but it is doubtful whether they were made accessible to the applicants (see Ciorap v. Moldova, no. 12066/02, § 103, 19 June 2007). According to their wording, the rules were only addressed to the personnel of the prison. Furthermore, as far as legal safeguards are concerned, the Court notes that the Act on Execution of Sentences was not drafted in a sufficiently clear manner as it remained silent on the modalities of isolation (see Doerga v. the Netherlands, no. 50210/99, § 52, 27 April 2004; and Wisse v. France, no. 71611/01, § 34, 20 December 2005). Nor did it appear to provide any possibility of appeal or other effective remedy in the case of isolation of a prisoner.

65. The Court therefore concludes that the interference complained of was not “in accordance with the law” as required by the second paragraph of Article 8. Accordingly, there has been a violation of Article 8 of the Convention.

66. Having regard to the above conclusion, the Court does not consider it necessary to review compliance with the other requirements of Article 8 § 2 in this case (see, for example, Kopp v. Switzerland, 25 March 1998, Reports of Judgments and Decisions 1998-II, § 76, and Heino v. Finland, no. 56720/09, § 49, 15 February 2011).

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

67. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

68. The applicants claimed 3,000 euros (EUR) each in respect of non‑pecuniary damage.

69. The Government considered the claim too high as to quantum. Each applicant should be awarded reasonable compensation for non-pecuniary damage not exceeding EUR 1,500.

70. The Court considers that the applicants have suffered non-pecuniary damage. Therefore it awards each of the applicants EUR 3,000 in respect of non-pecuniary damage.

B. Costs and expenses

71. The applicants also claimed EUR 2,767.50 and EUR 1,389.90 respectively for the costs and expenses incurred before the Court.

72. The Government considered that the total amount of compensation for costs and expenses should not exceed EUR 1,125 (inclusive of value‑added tax) for the first applicant and EUR 670 (inclusive of value‑added tax) for the second applicant. The fact that the issues at stake were the same for both applicants and that they had been represented by the same counsel should be taken into account by way of a reduction of the amount of compensation.

73. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award, for the proceedings before the Court, the sum of EUR 2,500 (inclusive of value‑added tax) in respect of the first applicant and EUR 1,000 (inclusive of value-added tax) in respect of the second applicant.

C. Default interest

74. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT

1. Declares unanimously the application admissible;

2. Holds by five votes to two that there has been no violation of Article 3 of the Convention;

3. Holds unanimously that there has been a violation of Article 8 of the Convention;

4. Holds unanimously

(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:

(i) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to each of the applicants;

(ii) EUR 2,500 (two thousand five hundred euros) in respect of the first applicant and EUR 1,000 (one thousand euros) in respect of the second applicant, plus any tax that may be chargeable to the applicants, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses unanimously the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 14 January 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Françoise Elens-PassosIneta Ziemele
RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Bianku and Vehabović is annexed to this judgment.

I.Z.
F.E.P.

JOINT DISSENTING OPINION OF JUDGES BIANKU AND VEHABOVIC

While we agree with the conclusion of the majority of the Chamber in respect of Article 8, we are unable to share their view that there has been no violation of Article 3 of the Convention.

As to the facts of the case

The reasoning in paragraphs 48 to 49 of the judgment in the present case is based on the assessment of the domestic courts which found as follows: “there was no evidence that the guards had intentionally delayed their response to the applicants’ calls to use the toilet. Nor was it shown that the applicants had not had an appropriate possibility to wash whenever necessary. Moreover, the applicants had failed to submit any evidence to prove that the plastic strips had caused abrasions to their wrists or that the overalls caused them allergic reactions”. On the basis of those conclusions, the Chamber concluded that the “practice of using closed overalls during the relatively short period of isolation cannot, as such, be regarded as diminishing the applicants’ human dignity or giving rise to feelings of anguish and inferiority capable of humiliation and debasing them.”

We can accept the argument that the domestic courts are better placed than this Court to assess the circumstances of the case and to provide an appropriate legal response to all factual and legal questions raised by the applicants. However, the domestic courts simply disregarded the fact that the use of overalls is not prescribed by law while confirming the fact that the applicants were made to wear the overalls for four and eight days respectively in solitary confinement without any proof that they were involved in drug trafficking in the prison.

Moreover, the Riihimäki District Court and subsequently the Kouvola Appeal Court came to the conclusion that the applicants had defecated in their overalls but that the prison guards had not intended to delay their response to the applicants’ calls. In fact, those courts conceded that the applicants had used sealed overalls; had been unable to remove the overalls by themselves; and had had to call the guards to escort them when they needed to use the toilet in order to remove the overalls there. At least once the guards had arrived too late and the applicants had defecated in their sealed overalls. It is worth mentioning that one applicant was in isolation for four days, from 13 to 16 November 2004 inclusively, and the other from 9 to 16 May 2004. There seems to be a widespread practice in the Riihimäki Prison of making prisoners wear overalls and of following the same procedure of a delayed response on the part of the prison guards to prisoners’ calls to relieve themselves, especially when the latter are given laxatives.

As to the law

Much to our regret, we cannot but disagree with the Chamber’s conclusion in paragraph 50, which is based on the facts established by the Chamber that “the use of overalls did not reach the threshold of Article 3 of the Convention in the present case.”

It is the Court’s constant practice to consider treatment to be “inhuman” where, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering. It has deemed treatment to be “degrading” where it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see, for example, Kudla v. Poland (GC), no. 30210/96, § 92, ECHR 2000-XI).

It appears from the facts that both applicants were in isolation without any contact with other prisoners and without any possibility of undertaking regular prison activities. Moreover, they were obliged to use sealed overalls in the absence of any legal basis for the application of that kind of procedure to prisoners. All those restrictions, which have no legal basis and are imposed at the authorities’ discretion, are incompatible with a prison regime in a democratic society. They played their part in increasing the applicants’ distress and mental suffering (see, for example, Ilascu and Others v. Moldova and Russia, No. 48787/99, 8 July 2004, § 444, ECHR 2004-VII). Whereas the legality of the measure might be considered as having no bearing on the issue whether the specific treatment reaches the threshold of Article 3, we think that the subjective and incorrectly assessed effects[i], and the lack of a proper and clear legal basis compatible with Article 3 standards, may result in situations, such as the one in the present case, where that threshold is reached.

We disagree with the Chamber’s conclusion that the applicants were unable to produce any evidence to support their allegations of humiliating treatment while in isolation. The domestic courts confirmed in their decisions that the applicants had defecated in sealed overalls but concluded that there was no evidence that the guards had intentionally delayed their response to the applicants’ calls to use the toilet. As the prisoners were given laxatives and were wearing sealed overalls, the prison guards must have been aware that the prisoners’ physical needs depended on a proper response on their part. The lack of a proper response cannot be justified merely on the grounds that the guards did not intentionally respond too late, especially if the procedure in question logically required the constant presence of prison guards for a fairly short period of time. Furthermore, lack of intention (see paragraph 48 of the judgment) does not necessarily mean that the treatment has not reached the threshold of Article 3 of the Convention.[ii] Our opinion is that, contrary to the conclusion reached by the Chamber in this case, if a person is placed in isolation, even for a fairly short period of time, and is obliged to wear overalls in which he defecates as a result of an allegedly slow response by the prison guards, this does reach the minimum the threshold under Article 3 of the Convention and must be regarded as degrading treatment.

[i] See as to the proportionality of the measures taken for security purposes, Henaf v. France, 65436/01, Judgment of 27 November 2003.

[ii] See among other Peers v. Greece, 28524/85, Judgment of 19 April 2001.

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