Information Note on the Court’s case-law No. 95
March 2007
Çiloğlu and Others v. Turkey - 73333/01
Judgment 6.3.2007 [Section II]
Article 11
Order for a prisoner with a short life expectancy to serve a further two years of his sentence before becoming eligible for release on licence: no violation
Article 3
Degrading treatment
Inhuman treatment
Use of a teargas, known as “pepper spray”, to break up demonstrators: no violation
In 1985 the applicant, a Serbian national, killed two people in the course of an armed robbery in Germany. He was arrested two years later in Spain, where he subsequently served a prison sentence for other offences. He was extradited to Germany in 1999 following a request by the German authorities for his temporary surrender. There he was convicted of two counts of murder and aggravated robbery and sentenced to life imprisonment, after the trial court had ruled that his “guilt was of particular gravity”. In 1994 the applicant was diagnosed as being infected with HIV and in October 2005 as suffering from full‑blown AIDS. His severe immune deficiency, which made him vulnerable to severe HIV-associated infections and was expected to progress, was partly attributed to his failure to take prescribed medication. His life expectancy was estimated to be approximately two years, possibly longer with effective therapy.
A request by the applicant for the remainder of his sentence to be suspended was rejected by a regional court in December 2005, inter alia, on the ground that the gravity of the offences required a further two years of the sentence to be served with effect from May 2005. That decision was upheld on appeal. The Federal Constitutional Court subsequently refused to admit the applicant’s complaint for adjudication on the grounds that it only partly fulfilled the admissibility requirements (as relevant documents were missing) and that the remainder of the complaint was unfounded. It reaffirmed the principle that respect for human dignity demanded that convicted persons had to be granted a concrete and realistic chance of regaining their liberty. It found, however, that the additional two-year requirement was acceptable from a constitutional perspective in view of the gravity of the offences, the applicant’s dangerousness and the need to protect the public, the possibility that his life expectancy would increase with therapy, and the fact that he could make a fresh request for release in the event of a change of circumstances. It would appear that at some point, the applicant’s health deteriorated dramatically and he was admitted to intensive care. He has not specified when this happened or submitted any documentary evidence confirming his condition. He is currently in a prison hospital in Germany.
Inadmissible: The application had to be regarded as inadmissible to the extent that the applicant had failed to comply with the domestic criteria of admissibility; the Court could not base its examination of the case on facts which the Federal Constitutional Court had been unable to review. As to the substance of the complaint, Article 3 could not be interpreted as laying down a general obligation to release detainees suffering from an illness that was particularly difficult to treat or to transfer them to a civil hospital. Nevertheless, the State had to ensure that prisoners were detained in conditions compatible with respect for human dignity, that they were not subjected to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that their health and well-being were adequately secured by, among other things, requisite medical assistance. The applicant had been infected with HIV for more than thirteen years. He was now suffering from AIDS and his life expectancy had been estimated at two years. However, the alleged deterioration in his health appeared to have occurred only after the Federal Constitutional Court had given its final decision; the applicant, who was represented by counsel, had not established that he had availed himself of any further domestic remedies, such as filing a fresh request for his sentence to be suspended. As the Federal Constitutional Court had ruled that the domestic authorities were under an obligation to react to any change in his circumstances, there was no indication that such a request would have had no prospect of success: failure to exhaust domestic remedies.
With respect to the conditions of detention, the applicant was currently being held in a prison hospital. He had not suggested that his detention there was ill-adapted to his condition or that he was not receiving appropriate treatment. The domestic courts had examined his case thoroughly and the Federal Constitutional Court had expressly acknowledged that a change in his condition might warrant a re‑examination of his case. Moreover, the domestic courts found, on the basis of expert psychological evidence, that the applicant continued to pose a considerable danger to the public, in spite of his disease. In these circumstances, neither his state of health at the relevant time, nor his alleged distress, had attained a sufficient level of severity: manifestly ill-founded.
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This summary by the Registry does not bind the Court.
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