CASE OF OSKIRKO v. LITHUANIA

FOURTH SECTION

CASE OF OSKIRKO v. LITHUANIA

(Application no. 14411/16)

JUDGMENT

STRASBOURG

25 September 2018

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

In the case of Oskirko v. Lithuania,

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

Paulo Pinto de Albuquerque, President,
Egidijus Kūris,
Iulia Motoc, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 4 September 2018,

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

PROCEDURE

1. The case originated in an application (no. 14411/16) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a stateless person, Mr Igor Oskirko (“the applicant”), on 9 March 2016.

2. The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė.

3. On 13 September 2017 the complaints under Article 3 of the Convention concerning the applicant’s conditions of detention and the complaints under Articles 8 and 14 of the Convention concerning his inability to receive long-term conjugal visits were communicated to the Government, and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. On 18 April 2018 the parties were asked to submit further observations in writing (Rule 54 § 2 (c) of the Rules of Court).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1973 and is detained in Kybartai.

A. The applicant’s detention in Klaipėda police station

5. On 22 December 2011 the applicant was arrested and taken to Klaipėda police station, where he was detained for various periods until 5 March 2013, for 130 days in total. For twenty-two days the applicant had between 3.25 and 4 square metres of personal space at his disposal; for the remaining period he had more than 4 square metres of personal space, sometimes even up to 9.36 square metres.

B. The applicant’s detention in Šiauliai Remand Prison

6. On 4 January 2012 the applicant was taken to Šiauliai Remand Prison, where he was detained for various periods until 13 March 2013. No information concerning separate cells, their sizes and the number of inmates has been provided to the Court.

C. The applicant’s detention in Lukiškės Remand Prison

7. On 4 March 2013 the applicant was convicted of murder and sentenced to twelve years’ imprisonment. On 11 October 2013 the Court of Appeal rejected an appeal by the applicant and the judgment became final.

8. On 13 March 2013 the applicant was taken to Lukiškės Remand Prison to serve his sentence, and was detained there until 23 December 2015, when he was transferred to Kybartai Correctional Facility.

9. According to the documents in the Court’s possession, the conditions of the applicant’s detention were as follows. Between 13 March 2013 and 5 May 2014 the applicant was held in five different cells: nos. 88A, 93, 111, 223 and 228 and he was detained there for 419 days in total. For 316.5 days the applicant was alone in the cells, the plot of which varied between 6.83 and 7.94 square metres. For the remaining period he had between 3.82 and 3.87 square metres of personal space, except for one evening, when he had 2.48 square metres of personal space at his disposal.

10. The applicant submitted two schemes of different cells in Lukiškės Remand Prison. It is indicated in the schemes that the toilets were separated from the rest of the cells by partitions but that they were visible from the entrance of the cell. The Government have not provided any information regarding this matter.

D. Administrative proceedings regarding the applicant’s conditions of detention and family visits

11. On 3 June 2014 the applicant lodged a complaint with the Vilnius Regional Administrative Court. He asked the court to oblige Lukiškės Remand Prison to immediately terminate his inhuman and degrading treatment, transfer him to a cell where he would have no less than 4 square metres of personal space (not including space for the toilet and the furniture), and award him 86,886 euros (EUR) in compensation. He complained regarding overcrowding, low temperatures, damp, the lack of proper partitions between toilets and cells, the fact that he was held with convicted inmates who were serving sentences for grave crimes, the insufficient nutritional value of the food, the fact that he could only shower once a week for fifteen minutes, and the lack of time spent in the open air. He also complained about the lack of long-term visits in Lukiškės Remand Prison from 23 November 2011 until October 2013, and claimed that consequently he had separated from his partner.

The applicant further complained regarding his conditions of detention in Klaipėda police station between 23 December 2011 and 5 March 2013. He complained regarding overcrowding, the lack of ventilation, damp, low temperatures, the lack of proper partitions between toilets and cells, the lack of time spent in the open air, the fact that the shower had only been available once a week for fifteen minutes, the insufficient nutritional value of the food, the fact that there had been no long-term or short-term visits, and the fact that there were no separate cells for non-smokers and inmates who had tuberculosis or HIV.

He also complained regarding his conditions of detention in Šiauliai Remand Prison between 4 January 2012 and 13 March 2013. He complained regarding overcrowding, low temperatures during the winter and high temperatures during the summer, insufficient ventilation, the fact that he could only shower once a week, the lack of proper partitions between toilets and cells, and the fact that there had been no long-term visits.

12. On 26 January 2015 the Vilnius Regional Administrative Court allowed the applicant’s claim in part. The court held that he had spent 419 days in Lukiškės Remand Prison, and had had more than 3.6 square metres of personal space at his disposal for 418 days. On one evening the applicant had had 2.48 square metres of personal space at his disposal. The court further held that the partition between the toilet and the cell of 1.5

As regards Šiauliai Remand Prison, the court held that the applicant had spent 296 days there. The court further held that he had had insufficient personal space in the cells for 283 days (insufficient cell space had been unquestionably proved in respect of forty-eight days, and for the remaining 235 days the applicant had had a varying amount of personal space at his disposal) and found that the lack of proper partition walls between toilets and cells had breached both domestic requirements and the standards of the CPT. The court also found that the air temperature in cell no. 9 had been 0.19˚C lower than the standard. As regards long-term visits, the court held that the applicant had not been entitled to them, in accordance with domestic law.

With regard to Klaipėda police station, the court found that the applicant had had insufficient personal space (less than 5 square metres) for fifty‑seven days, and that the partition wall between the toilet and the cell, which was 1.2 and 1.3 metres in height in different cells, had been too low and had not satisfied the standards of the domestic law or the CPT. In relation to visits, the court held that people did not have a right to receive any visits from their relatives when they were transferred to police stations temporarily.

As a result, the court awarded the applicant compensation of EUR 1,200 from Šiauliai Remand Prison and EUR 200 from Klaipėda police station.

13. The applicant lodged an appeal against that decision, but on 10 November 2015 the Supreme Administrative Court upheld the first-instance decision. The court only noted that with regard to Klaipėda police station, the first-instance court had miscalculated the time that the applicant had spent in overcrowded cells and stated that he had had less than 5 square metres of personal space for eighty-three days. However, the higher court found that for twenty-six days he had had between 4.77 and 4.84 square metres of personal space, which was less than the domestic requirement at the time (see paragraph 18 below). However, the court held that for those twenty-six days the deviation from the domestic norms had not been significant and thus it agreed with the first-instance decision.

14. From the information available to the Court, it appears that the applicant never asked the prison administration if he could receive long‑term conjugal visits from his partner, and although short-term visits were available to him, he only used his right to receive them once, on 26 June 2013. Two other short-term visits were changed into phone calls (the visits of 12 June 2015 and 29 October 2015).

II. RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIAL

A. On conditions of detention

15. For the relevant domestic law and practice and international material on conditions of detention, see Mironovas and Others v. Lithuania (nos. 40828/12 and 6 others, §§ 50-69, 8 December 2015).

16. During its latest visit to Lithuania from 5 to 15 September 2016, the CPT again visited Lukiškės Remand Prison. In its report, published on 1 February 2018, the CPT noted:

“As regards regimes, the Committee once again calls upon the Lithuanian authorities to take decisive steps to develop programmes of activities for both sentenced and remand prisoners. The current situation where more than half of sentenced prisoners have no meaningful activities certainly does not contribute to their social rehabilitation ...

...

Turning to the regime in remand prisons, it remained impoverished even though remand prisoners were now allowed to attend secondary education. This notwithstanding, remand prisoners continued to be locked up in their cells for up to 22-23 hours per day.

50. At Lukiškės Prison, the delegation noted that material conditions were in general better than during the 2012 visit due to continuous efforts of the management to renovate parts of the prison. However, a number of unrenovated cells were still dilapidated, humid and lacking adequate ventilation; proper access to daylight was problematic throughout the prison due to small windows. Despite the decrease of population, some cells were overcrowded and did not provide 4 m2 of living space per inmate.

58. The Committee wishes to reiterate that ensuring that sentenced prisoners are engaged in purposeful activities of a varied nature (work, preferably with vocational value; education; sport; recreation/association) is not only an essential part of rehabilitation and re-socialisation, but it also contributes to the establishment of a more secure environment within prisons. Moreover, remand prisoners should also, as far as possible, be offered work and other structured activities.

The CPT once again calls upon the Lithuanian authorities to take decisive steps to develop programmes of activities for both sentenced and remand prisoners. The aim should be to ensure that prisoners are able to spend a reasonable part of the day (8 hours or more) outside their cells, engaged in purposeful activities of a varied nature (work, education, sport, etc.) tailored to the needs of each category of prisoner (adult remand or sentenced prisoners, inmates serving life sentences, female prisoners, etc.).

59. At Lukiškės Prison, the delegation was informed of plans to adapt parts of the adjoining premises of the former Prison Hospital for organised activities such as work, schooling and sports. The Committee would like to be informed whether these plans have now been implemented and if so, how many remand prisoners participate in the aforementioned activities.”

17. Rules on equipment and maintenance of correctional facilities (Dėl pataisos įstaigų įrengimo ir eksploatavimo taisyklių patvirtinimo), approved by the order No. V-82 of 3 March 2011 of the Director of the Prison Department, provided that if it was not possible to equip a cell with a separate sanitary unit, the existing unit had to be separated from the rest of the cell by a partition of at least 1.5 metres in height and it had to be covered with surface that was easily cleaned and protected against humidity and disinfection products (Point 16.5).

18. Rules on activities of territorial police stations (Teritorinių policijos įstaigų areštinių veiklos taisyklės), approved by the order No. 5-V-356 of 29 May 2007 of the Police Commissioner General, provided that a person held in a cell of a police station had to have no less than 5 square metres of personal space.

B. On visits

19. For the relevant domestic law and practice as regards visits, see Varnas v. Lithuania (no. 42615/06, §§ 58-61, 9 July 2013) and Čiapas v. Lithuania, ((dec.), no. 62564/13, §§ 10-14, 4 July 2017).

20. In a case unrelated to that of the applicant, the Supreme Administrative Court relied on the Court’s interpretation in the case of Varnas (cited above) and awarded the relevant applicant compensation of EUR 2,000 for both his conditions of detention and the lack of long-term conjugal visits (decision of 19 April 2016, no. A-618-552/2016).

21. In another case unrelated to that of the applicant, the Supreme Administrative Court also relied on the Court’s interpretation in the case of Varnas (cited above) and held that public administrative authorities should rely on Article 8 of the Convention. The Supreme Administrative Court acknowledged that the refusal on the basis of domestic law to grant conjugal visits to pre-trial detainees was not justified by objective and reasonable grounds to treat pre-trial detainees and convicted inmates differently. As a result, the Supreme Administrative Court awarded the applicant in that case compensation of EUR 1,000 (decision of 8 September 2016, no. A‑850‑662/2016).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

22. The applicant complained regarding the conditions of his detention. He relied on Article 3 of the Convention, which reads as follows:

Article 3

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

A. Admissibility

1. The parties’ submissions

23. The Government argued that the applicant could no longer be considered a “victim” of a violation of Article 3 of the Convention. His case had been reviewed by the administrative courts and decisions in his favour had been issued. The applicant had received adequate and sufficient compensation and, as regards Šiauliai Remand Prison, the number of inmates there had constantly changed over the course of 235 days, and thus that had positively affected the applicant’s personal space. The compensation for this period could thus be reduced. The Government also stated that, as regards Klaipėda police station, the applicant had received adequate compensation, and it had to be taken into account that at all times he had had more than 4 square metres of personal space there. Finally, the Government argued that although in Lukiškės Remand Prison the applicant had not had enough personal space for one evening and the partition between the sanitary facilities and the rest of the cells had not been sufficient, the acknowledgement of the violation of the applicant’s rights had been sufficient.

24. The applicant argued that the amounts awarded to him had been inadequate.

2. The Court’s assessment

25. The principles governing the assessment of an applicant’s victim status have been summarised in paragraphs 178-192 of the Court’s judgment in the case of Scordino v. Italy (no. 1) ([GC], no. 36813/97, ECHR 2006‑V). In that connection, the Court notes that a decision or measure favourable to the applicant is not, in principle, sufficient to deprive him or her of his or her status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention. One of the characteristics of sufficient redress which may remove a litigant’s victim status relates to the amount awarded as a result of using the domestic remedy. The Court indicates that an applicant’s victim status may depend on the level of compensation awarded at domestic level on the basis of the facts about which he or she complains before the Court (ibid., §§ 180 and 202).

26. The Court also refers to the general principles concerning the assessment of an applicant’s victim status in cases of conditions of detention, stemming from its case‑law and to its earlier findings (see Mironovas and Others v. Lithuania, nos. 40828/12 and 6 others, §§ 84-85 and 93-94, 8 December 2015) and the specific aspects of the victim status in Lithuanian conditions of detention cases (ibid., §§ 86-88).

(a) Šiauliai and Lukiškės Remand Prisons

27. In the applicant’s case the Lithuanian courts admitted a violation of domestic legal norms setting out specific aspects pertinent to the conditions of detention in both Šiauliai and Lukiškės Remand Prisons (see paragraphs 12 and 13 above). However, the Court considers that even though the applicant was awarded EUR 1,200 for the time spent in Šiauliai Remand Prison, this amount, whilst apparently consistent with Lithuanian case-law at that time, is significantly lower than the amounts that the Court awards in similar cases (see Mironovas and Others, cited above, §§ 99 and 156). As for Lukiškės Remand Prison, the applicant did not receive any award at all. The Court thus considers that the applicant retains his victim status under Article 34 of the Convention for his complaint in respect of Šiauliai and Lukiškės Remand Prisons and dismisses the Government’s preliminary objection of loss of victim status.

28. The Court furthermore notes that the applicant’s complaint about his conditions of detention in Šiauliai and Lukiškės Remand Prisons is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

(b) Klaipėda police station

29. The Court considers that in Klaipėda police station the applicant had no less than 3 square metres of personal space during the entire period of his detention (see paragraph 5 above). He had up to 4 square metres of personal space for twenty-two days in total. For the remaining periods, he had no less than 4.3 square metres of personal space, and sometimes even up to 9.36 square metres of personal space. In the Court’s view, the personal space at his disposal during the applicant’s entire stay in Klaipėda police station did not in itself raise an issue under Article 3 of the Convention; however, the Court has to assess the other aspects of the physical conditions of the applicant’s detention (see Muršić v. Croatia [GC], no. 7334/13, §§ 139-140, ECHR 2016).

30. The Court notes that in previous cases before it concerning the issue of proper partition between sanitary facilities from the cells, it found violations of Article 3 only when other aggravating factors were present and their cumulative effect made the conditions of detention incompatible with that provision (see, mutatis mutandis, Szafrański v. Poland, no. 17249/12, § 27, 15 December 2015 and the references therein).

31. In contrast, the Court observes that in the present case the domestic courts acknowledged that the partition between the sanitary facilities and the rest of the cell was not sufficient (see paragraph 12 above) but no other aggravating factors were found, thus it was the only hardship that the applicant had to bear. Moreover, the applicant was awarded compensation of EUR 200. Having examined the documents submitted to it by the parties, the Court sees no grounds to depart from the assessment of the domestic courts.

32. Taking into consideration the foregoing, the Court considers that the overall circumstances of the applicant’s detention in Klaipėda police station cannot be found to have caused distress and hardship which went beyond the threshold of severity under Article 3 of the Convention. This part of the applicant’s complaint is therefore manifestly ill-founded and must be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Merits

1. The parties’ submissions

(a) The applicant

33. The applicant submitted that during his detention in Lukiškės and Šiauliai Remand Prisons he had had insufficient personal space and the toilets had not been properly separated from the cells.

(b) The Government

34. The Government submitted that the applicant had spent 283 days in total in Šiauliai Remand Prison: for forty-eight consecutive days the domestic standard in respect of personal space had not been met, and for the remaining 235 days the number of inmates in the prison had constantly changed. Since the prison administration had not submitted information about the number of inmates detained on those days, the courts had accepted that the applicant had not had sufficient personal space throughout this period, although in reality he might have had. The Government further submitted that the therapy and fitness rooms in the prison had been newly equipped and that the inmates had been offered various out-of-cell activities.

35. The Government also submitted that the domestic courts had established that legal norms regarding the proper separation of toilets from cells had been violated, and the applicant had received compensation for this violation in Šiauliai Remand Prison.

36. The Government stated that monetary compensation was not the only possible satisfaction for violation of certain rights. They also stated that it had to be taken into account that out of 419 days the applicant had spent in Lukiškės Remand Prison, he was the only inmate in the cell for 316 days, which was a decisive factor in assessing the separation between sanitary facilities and the cells. Moreover, other material conditions of the applicant’s detention regarding temperature, ventilation and humidity had been met. The applicant could have one or one hour and a half of outdoor daily exercise, he could also visit the chapel, the library with internet access, go to the gym and take part in cultural and sports events organised by the prison administration.

37. The Government also claimed that in accordance with domestic rules in force at the material time, it was necessary to separate the sanitary unit from the rest of the cell with a partition of at least 1.5 metres high (see paragraph 17 above), and in the applicant’s case the sanitary facilities had been separated from the rest of the cell by a brick partition. The Government thus were of the view that the applicant’s conditions of detention in Lukiškės Remand Prison had not reached the threshold of severity required by Article 3 of the Convention.

2. The Court’s assessment

(a) General principles

38. The Court refers to the principles summarised in its case-law regarding conditions of detention (see, for instance, Kudła v. Poland [GC], no. 30210/96, §§ 90-94, ECHR 2000-XI; Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 139-159, 10 January 2012; Varga and Others v. Hungary, nos. 14097/12 and 5 others, §§ 69-78, 10 March 2015; Mironovas and Others, cited above, §§ 115-123; and Muršić, cited above, §§ 96-141).

(b) Application of the general principles to the present case

(i) Šiauliai Remand Prison

39. The Court considers it established that for 283 days out of the 296 days the applicant spent in Šiauliai Remand Prison he did not have enough personal space at his disposal. In the absence of evidence showing otherwise, the Court considers that the applicant had less than 3 square metres of personal space in Šiauliai Remand Prison for those 283 days.

40. The Court finds that it is not necessary to assess whether any of the periods during which the applicant had less than 3 square metres of personal space were short, occasional and minor, because in any event they were not compensated for by other factors (see Muršić, cited above, §§ 137-38). It firstly notes that the domestic courts established that the temperature in one of the cells was lower than the standard and that the toilets and the cells had not been properly separated, which was contrary to both domestic hygiene norms and the standards of the CPT (see paragraph 12 above). The Court further observes that the CPT, in its reports concerning Lithuania, repeatedly stated that the vast majority of remand prisoners in Šiauliai Remand Prison were locked up in their cells for twenty-three hours per day, the only regular daily out-of-cell activity being one hour of outdoor exercise (see Mironovas and Others, cited above, § 149). In such circumstances, the Court finds those facts sufficient to create a strong presumption of a violation of Article 3 in relation to the period of 283 days when it can be assumed that the applicant did not have enough personal space at his disposal. The Court is unable to find that the lack of personal space was compensated for by appropriate material conditions of detention, sufficient freedom of movement outside the cell and adequate out-of-cell activities. It follows that the applicant’s conditions of detention in Šiauliai Remand Prison subjected him to hardship going beyond the unavoidable level of suffering inherent in detention and thus amounted to degrading treatment prohibited by Article 3 of the Convention.

41. There has accordingly been a violation of this provision.

(ii) Lukiškės Remand Prison

42. The Court notes that during the period from 13 March 2013 to 23 December 2015 (see paragraph 8 above) was detained in Lukiškės Remand Prison. The Court has information concerning his conditions of detention only as far as 418.5 days (between 13 March 2013 and 5 May 2014) are concerned. During that period, there was one evening when he did not have enough personal space at his disposal. The Court considers it as a short, occasional and minor reduction in his required personal space. Moreover, for 316.5 out of those 418.5 days the applicant was alone in his cells (see paragraph 9 above). For 102 days, the applicant had between 3 and 4 square metres of personal space at his disposal. It cannot be said that the dimensions of his cells were so small as to restrict the applicant’s freedom of movement below the threshold tolerated by Article 3. However, even in cases where a prison cell – measuring in range of 3 to 4 square metres of personal space per inmate – is at issue the space factor remains a weighty factor in the Court’s assessment of the adequacy of the conditions of detention. In such instances a violation of Article 3 will be found if the space factor is coupled with other aspects of inappropriate physical conditions of detention related to, in particular, access to outdoor exercise, natural light or air, availability of ventilation, adequacy of room temperature, the possibility of using the toilet in private, and compliance with basic sanitary and hygienic requirements (see Muršić, cited above, § 139). In cases where a detainee disposed of more than 4 square metres of personal space in multi-occupancy accommodation in prison and where therefore no issue with regard to the questions of personal space arises, other aspects of physical conditions of detention remain relevant for the Court’s assessment of adequacy of an applicant’s conditions of detention under Article 3 of the Convention (ibid., § 140).

43. The Court has already noted the inappropriateness of conditions of detention which did not allow the possibility of using the toilet in private (see Muršić, cited above, § 106; Neshkov and Others v. Bulgaria, nos. 36925/10 and 5 others, § 241, 27 January 2015; Shkarupa v. Russia, no. 36461/05, §§ 55-56, 15 January 2015; Ananyev and Others, cited above, §§ 149 and 157, 10 January 2012; and Mandić and Jović v. Slovenia, nos. 5774/10 and 5985/10, § 76, 20 October 2011). In the present case, the height of the partitions installed to separate the lavatory from the living area in cells where the applicant was kept, was not able to ensure his privacy when he had to use the toilet. The Court notes that in the absence of any information provided by the Government, even though explicitly requested by the Court, about the partition between the sanitary facilities and the cell in Lukiškės Remand Prison concerning the applicant, it will take into account the schemes the applicant has provided together with the courts’ decisions (see paragraphs 10, 12 and 13 above). For several months of his detention, the applicant could be seen by his cellmates, and possibly by guards, while carrying out such intimate procedures. Even during the time he spent alone in the cells, he could be possibly seen by guards, as the lavatories had no doors and, as it appears, they had not been separated from the entrance by any partition.

44. The lack of sufficient partition between sanitary facilities and the rest of the cells was not the only hardship that the applicant had to bear, as he had almost no access to various activities outside the cells. In this context, the Court observes that the CPT, after visiting Lukiškės Remand Prison in 2008 and 2012, found that nearly all detainees were locked up in their cells for twenty-three hours a day, with no out-of-cell activities other than outdoor exercise of one hour in small and dilapidated yards; its findings following a visit in 2016 were similar (see Mironovas and Others, cited above, §§ 65 and 67, as well as paragraph 16 above). The applicant was not able to freely move around the prison during the day and remained confined to his cell most of the time (compare and contrast Mironovas and Others, cited above, §§ 134 and 139, and Muršić, cited above, §§ 155‑63).

45. Having regard to the cumulative effect of the aforementioned factors (see Canali v. France, no. 40119/09, §§ 52-53, 25 April 2013), the Court finds that the fact that the applicant, being afforded no privacy and experiencing a lack of out-of-cell activities, was obliged to live, sleep and use the toilet in the cells for 419 days, must have caused him distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and to arouse in him feelings of fear, anguish and inferiority capable of humiliating and debasing him.

46. There has therefore been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention in Lukiškės Remand Prison.

II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14

47. The applicant complained under Article 8 that not being allowed conjugal visits from his partner and visits from his family during his pre‑trial detention had caused him intolerable mental and physical suffering, and that eventually his partner had decided to separate from him. He also complained under Article 8 taken in conjunction with Article 14 that his entitlement in that respect had been restricted more than that of a convicted person serving a prison sentence. The relevant parts of Article 8 and Article 14 provide as follows:

Article 8

“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.”

Article 14

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

A. The parties’ submissions

48. The applicant stated that he had not had long-term visits in Klaipėda police station, Šiauliai Remand Prison or Lukiškės Remand Prison.

49. The Government stated that the applicant had been detained on remand from 22 December 2011 onwards and had been convicted on 4 March 2013. The judgment convicting him had become final on 11 October 2013 (see paragraph 7 above). During that period, the applicant had not addressed the prison administration with a request for a long-term visit. The Government noted that the exercise of a person’s right to a long-term visit depended on his or her will. In the absence of such will, the prison administration could not be obliged to organise a long-term visit.

50. The Government maintained that the applicant had been able to rely on Varnas v. Lithuania (no. 42615/06, 9 July 2013) and the provisions of the Convention before the domestic courts, because by the time his administrative case had been examined in the domestic courts, the judgment in Varnas v. Lithuania had already become final. The Government also argued that the domestic courts had established an effective domestic compensatory remedy: the Supreme Administrative Court had taken account of the difference in treatment between remand detainees and convicted people as regards long-term visits, had found violations and had awarded compensation (see paragraphs 20 and 21 above). However, the applicant had failed to use that remedy.

B. The Court’s assessment

51. The Court finds that it is not necessary to address all the issues raised by the parties, because the complaints are in any event inadmissible for the following reasons.

52. The Court reiterates that in order to rely on Article 34 of the Convention an applicant must meet two conditions: he or she must fall into one of the categories of applicants mentioned in Article 34 and must be able to make out a case that he or she is the victim of a violation of the Convention. According to the Court’s established case-law, the concept of “victim” must be interpreted autonomously and irrespective of domestic concepts such as those concerning an interest or capacity to act (see Gorraiz Lizarraga and Others v. Spain, no. 62543/00, § 35, ECHR 2004-III, and Čiapas v. Lithuania (dec.), no. 62564/13, § 27, 4 July 2017). The word “victim”, in the context of Article 34 of the Convention, denotes the person or persons directly or indirectly affected by the alleged violation (see Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 47, ECHR 2013 (extracts)).

53. In the present case, the Court notes that the applicant never explicitly requested any long-term conjugal visits from his partner (see paragraph 14 above) and never complained about the lack of long-term conjugal visits before the national authorities, save for his hypothetical statement before the domestic courts that no long-term visits had been allowed (see paragraph 11 above). The applicant had a short-term visit on 26 June 2013, and two other short-term visits were changed into phone calls (see paragraph 14 above). It appears that the applicant never asked for more short-term visits or argued that he had been refused them.

54. The applicant therefore cannot be said to have suffered from the lack of long-term conjugal visits. It follows that he cannot claim to be a victim of a violation of Article 8 of the Convention in relation to his complaint regarding the lack of conjugal visits from his partner (see Burden v. the United Kingdom [GC], no. 13378/05, § 33, ECHR 2008).

55. Having regard to the above, the Court finds that this part of the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) of the Convention. It must therefore be rejected pursuant to Article 35 § 4.

56. The Court lastly notes that the applicant’s complaint of discrimination is closely linked to his complaint under Article 8 which was examined above. Consequently, taking into account its above findings, the Court considers that the applicant cannot claim to be a victim, within the meaning of the Convention, of a violation of his rights guaranteed by Article 14. Therefore, this part of the application is likewise incompatible ratione personae with the provisions of the Convention and must be dismissed pursuant to Article 35 § 4.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

57. 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

58. The applicant claimed 85,486 euros (EUR) in respect of non‑pecuniary damage.

59. The Government submitted that the amount requested by the applicant in respect of non-pecuniary damage was excessive, unjustified and unsubstantiated.

60. Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the applicant EUR 8,900 in respect of non-pecuniary damage.

B. Costs and expenses

61. The applicant did not submit any claim in respect of costs and expenses. The Court therefore makes no award under this head.

C. Default interest

62. 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, UNANIMOUSLY,

1. Declares the complaints under Article 3 of the Convention concerning the applicant’s conditions of detention in Lukiškės and Šiauliai Remand Prisons admissible, and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 3 of the Convention in respect of the applicant’s conditions of detention in Šiauliai and Lukiškės Remand Prisons;

3. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 8,900 (eight thousand nine hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

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

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 25 September 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea TamiettiPaulo Pinto de Albuquerque
Deputy RegistrarPresident

Full & Egal Universal Law Academy