Information Note on the Court’s case-law 260
March 2022
Fenech v. Malta - 19090/20
Judgment 1.3.2022 [Section I]
Article 3
Degrading treatment
Inhuman treatment
Positive obligations
Adequate and proportionate measures during Covid-19 pandemic protecting health of detained applicant, lacking a kidney, and limiting spread of virus in the prison: no violation
Facts – The applicant was arrested and, since 30 November 2019, has been detained on remand at the Corradino Correctional Facility (CCF), Paola, on charges of promoting, organising or financing an organisation with a view to committing a criminal offence, and complicity in wilful homicide. The applicant complained about his conditions of detention and that the authorities had not taken adequate measures to safeguard his life and health in view of his vulnerable status - he has one kidney - against any potential future Covid-19 infection in prison.
Law –
(a) The applicant’s complaint concerning the State’s positive obligation to preserve his health and well-being in view of the Covid-19 pandemic –
(i) Applicability of Article 2 (substantive positive obligations) –In view of the worldwide figures of confirmed cases of Covid-19 and deaths reported to WHO, and without diminishing the seriousness of this sometimes deadly virus, the Court could not consider that individuals were a victim of an alleged violation of Article 2 without substantiating that in their own circumstances the acts or omissions of the State had or could have put their life at real and imminent risk. In the present more than a year and a half after the start of the pandemic, the applicant had not been infected and vaccination had been made available to him as early as April 2021 - although it was not known if he had availed himself of this opportunity. In any event, even if he were to contract Covid-19, besides a Consultant Surgeon’s report at the start of the pandemic, he had not provided any studies or relevant materials that gave a clear picture of the chances that a man of his age (early forties), lacking a kidney, would certainly or quite likely die of the disease, were he to be infected (pre- or post-vaccination). Thus, the Court could not speculate as to whether his condition in such case would be of a life-threatening nature attracting the applicability of Article 2.
Accordingly, although the applicability of Article 2 in certain Covid-19 related cases could not be excluded, in the circumstances of the present case, this provision was not applicable.
Conclusion: incompatible ratione personae / materiae (unanimously)
(ii) Article 3 (substantive) – Regarding the obligation that States had to adequately ensure the health and well-being of prisoners under Article 3, the Court considered that given the nature of Covid-19, its well-documented effects and easy transmission, the authorities had to put certain measures in place aimed at avoiding infection, limiting the spread inside the prison, and providing adequate medical care in the case of contamination. Preventive measures had to be proportionate to the risk but without posing an excessive burden on the authorities in view of the practical demands of imprisonment and the novel global pandemic situation.
In this connection, the Court shared the considerations made by the WHO that in all countries, the fundamental approach to be followed was the prevention of introduction of the infectious agent into prisons or other places of detention, limiting the spread within the prison, and reducing the possibility of spread from the prison to the outside community. Countries had to prepare to respond to different public health scenarios, recognising that there was no one-size-fits-all approach to managing cases and outbreaks of Covid-19. Furthermore, the passage of time had brought along not only new variants, but also an extended scientific knowledge of the virus as well as relevant responses (both via vaccinations and medical treatment). All these factors had made it possible for Governments to adapt their policies and protocols to the changing circumstances. As this process was still ongoing, the Court could not lose sight of the challenges being posed by the constant evolution of this pandemic.
After the outbreak of Covid-19 internationally, for several months, CCF had effectively been put into lockdown whereby visitors of all kinds were not allowed in and the staff worked weekly shifts to avoid excessive exposure to outside factors. Those specific measures had certainly diminished the risk of wide-spread contamination within the prison thus preserving the health and safety of inmates and staff. In addition, general measures had been implemented such as regular disinfection, cleaning, mask wearing, provision of hand sanitiser and temperature checks for prisoners and prison guards alike, rapid and PCR testing, and quarantine periods whose duration had been decreased over time. Importantly vaccination against Covid-19 had been deployed withing the prison in an extremely timely manner and by April 2021 all the inmates who wished so had been vaccinated. It was clear thus that the authorities had maintained their vigilance and adapted their protocols to the evolving situation. Moreover, there was no indication that the CCF was or is generally overcrowded, a factor which could enhance proliferation of the virus. In view of this there was no pressing necessity to consider a greater use of alternatives to pre-trial detention, particularly for persons like the applicant accused of particularly serious crimes.
In so far as the applicant complained that he should have been protected from exposure more than other detainees, the Court noted that he was not the only prisoner who qualified as vulnerable. Given the practical demands of imprisonment and the novelty of the situation, the Court accepted that it might not have been possible to make arrangements for each one of them to be moved to safer quarters before any outbreak of infection in the prison. While provision should be made to allow prisoners at highest risk to be separated from others, the applicant had not shown that he fell within the category of the most vulnerable. Indeed, the applicant had not submitted that he was at any stage during his detention exposed to a Covid-19 positive individual and the mere fact that a group of detainees (none of whom was known to be positive for Covid-19) shared a dormitory and used the same medical, sanitary, catering and other facilities did not in itself raise an issue under Article 3.
Nor had there been any indication that the spread of the virus had not been, and continued not to be, limited via these measures, or that the contaminations had gone out of hand. Considering the spike in all European countries in cases due to the highly transmissible Omicron variant, it would be unrealistic to expect that a detainee would never come in contact with a positive person, even more so given that certain measures could only be kept in place for as long as reasonably necessary (for example, the suspension of family visits).
Consequently, the Court considered that the authorities had put in place adequate and proportionate measures in order to prevent and limit the spread of the virus.
Lastly, even assuming that the applicant contracted Covid-19 while in prison, there was no indication that qualified assistance would not be available.
In these circumstances it could not be said that the authorities had failed to secure his health, or that he had been subjected to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention.
Conclusion: no violation (unanimously)
(b) The applicant’s complaint as to his conditions of detention – This concerned two consecutive periods:
(i) From 30 November 2019 to 3 January 2020 (detention in a single cell in relative social isolation) – Bearing in mind the limited stringency of the measure, its duration, the objective pursued, and the conditions in which it was imposed, as well as the lack of significant effects on the applicant, the Court, based on the material before it, could not find that the applicant’s situation during the first period of his detention amounted to treatment contrary to Article 3.
Conclusion: no violation (unanimously)
(ii) From 4 January 2020 onwards (detention in a dormitory) – There had also been no breach of Article 3 in relation to this period taking into account the material conditions but also the restrictions (no access to the gym, his family, church - mass- or other activities) that had been put in place for a limited time within a very specific context, namely during a public health emergency, for significant health considerations, not only on the applicant and all prison detainees, but on society at large. Indeed, the Court had already noted that the Covid‑19 pandemic was liable to have very serious consequences not just for health, but also for society, the economy, the functioning of the State and life in general, and that the situation should therefore be characterised as an “exceptional and unforeseeable context”. Further, when family visits had been suspended, alternative measures had been put in place allowing the applicant to maintain regular contact with his family (calls via skype once a week and regular phone calls throughout the relevant period). This had been a situation endured by persons at liberty all over the world, and the applicant was no exception.
Conclusion: no violation (unanimously)
(See also Fenech v. Malta (dec.), no. 19090/20, 23 March 2021, Legal Summary; Terheş v. Romania (dec.), 49933/20, 13 April 2021, Legal Summary; see Ünsal and Timtik v. Turkey (dec.), 36331/20, 8 June 2021)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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