CM/Del/OJ/DH(2007)987 Section 5 PUBLIC 13 March 2007
987th meeting (DH), 13-14 February 2007
Public information version
This document only takes into account the information available to the Secretariat on 5 January 2007.
SECTION 5 - SUPERVISION OF GENERAL MEASURES ALREADY ANNOUNCED
(See Addendum 5 for part or all these cases)
The Deputies are invited to supervise progress in the adoption of general measures aiming at preventing further similar violations to those found by the Court in the following cases. If necessary, supplementary information on some or all the cases listed below will appear in Addendum 5. The Deputies are invited to resume consideration of these cases in 6 months at the latest.
SUB-SECTION 5.1 – LEGISLATIVE AND/OR REGULATORY CHANGES
- 1 case against Belgium
51564/99 Čonka, judgment of 05/02/02, final on 05/05/02, Interim Resolution ResDH(2006)25
The case concerns the facts surrounding the expulsion from Belgium of the applicants, Slovakian nationals of Romany origin and asylum seekers. Summoned to the police station under the pretext of completing the files concerning their application for asylum, the applicants were in fact arrested, taken to a closed transit centre and then deported to Slovakia. The European Court found that it was not compatible with Article 5 for administrations to make a conscious decision to deceive people – even people in an irregular situation – so as to deprive them more easily of their liberty in the context of a summons (violation of Article 5§1). The conditions of their detention did not permit them to lodge an appeal on the legality of their detention (violation of Article 5§4). The circumstances under which the applicants were deported, at the same time as about 70 other asylum seekers, did not take into account the genuine and individual situation of each of those concerned, leading to a violation of Article 4 of Protocol 4. Finally, the remedies against expulsion, particularly application for suspension which may be brought before the Conseil d’Etat makes the implementation of a remedy too uncertain to satisfy the requirements of Article 13 (violation of Article 13 of the Convention combined with Article 4 of Protocol No. 4).
Individual measures: The applicants were expelled on 05/10/1999. Their application for judicial review of the decision of expulsion was struck off the list by the Conseil d’Etat, on the ground that the applicants failed to pay the corresponding court fees (after dismissal of their application for legal aid). In its judgment, the European Court granted them just satisfaction for non-pecuniary damage. The applicants have never requested any other individual measure before the Committee of Ministers.
1) Violation of Article 5§1 and Article 4 of Protocol No. 4 (facts surrounding the detention and expulsion): the judgment of the European Court has been published on the internet site of the Ministry of Justice.
2) Violation of Article 5§4 (possibility of appeal against detention): the Belgian authorities have indicated that a Royal Decree adopted on 02/08/2002 provides that, upon arrival in a detention centre managed by the Aliens’ Office, occupants receive an information booklet explaining, inter alia, the avenues of appeal against detention, the possibility of introducing a complaint concerning the circumstances of the detention and possibility of receiving legal assistance. By law, this booklet is available at least in the three national languages and in English (Article 17). According to the Belgian authorities, it also exists in some fifteen other languages. Furthermore, the director of the centre, their deputy or a staff member appointed by the director must explain to detainees the reasons for their detention, the legal provisions and regulations applying to their situation, and the possible remedies against the decision. This must be done in a language that the detainee understands, with the help of an interpreter if necessary (Article 17).
Detainees have the right to receive legal assistance. The director of the centre makes sure that detainees can request the legal assistance provided for by law (Article 62).
Detainees have the right to call their lawyer, free of charge, each day between eight o’clock in the morning and ten o’clock in the evening. Lawyers may contact their clients by telephone at any time. Telephone contact by phone between a detainee and his or her lawyer may not be forbidden (Article 63). According to the Belgian authorities, detainees in centres may also send papers by fax to their lawyer, if they expressly request this. Finally, lawyers and the interpreters assisting them have access to the centre each day at least from eight a.m. to ten p.m., if they have a client there and can provide a valid professional card. Lawyers’ visits may not be forbidden (Article 64).
3) Violation of Article 13 combined with Article 4 of Protocol No. 4 (access to appeals against expulsion): On 19/07/2002 the Ministry of the Interior adopted a circular concerning the execution of orders to leave the territory taken against certain unsuccessful asylum seekers. The directive, notified to the Director General of the Aliens’ Office, lays down the rule that “in the case of introduction of applications for stays under the emergency procedure before the Conseil d’Etat of an order to leave the territory taken against an unsuccessful asylum seeker, the order to leave the territory will not be executed as long as the Conseil d’Etat has not ruled on this emergency stay of execution.” Furthermore a wide reform of the Conseil d’Etat has been initiated, one of the measures envisaged being the establishment of the Aliens’ Disputes Board (Conseil du contentieux des Etrangers). This is a new judicial body with full powers to resolve disputes.
Appeals brought before it will have an automatic suspensive effect. For other grounds of dispute involving aliens, the powers of the new Board will be limited to suspension and annulment or, where an application is brought to suspend an expulsion, to freeze the measure for a certain, renewable, period of time. The Conseil d’Etat will no longer be competent for appeals on points of law against this Board’s decisions.
In Interim Resolution ResDH(2006)25, the Committee of Ministers encouraged Belgium to pursue this reform.
• Recent developments: The Belgian authorities informed the Secretariat that the reform mentioned above was enacted through a Law of 15/09/2006 reforming the Conseil d’Etat and setting up the Aliens’ Disputes Board. The law partially entered into force on 1/12/2006: many of its provisions, including those concerning the automatic suspensive effect for asylum seekers of seising the Board, are not yet in force as they have to be implemented through Royal decree.
• A copy of the relevant provisions concerning this reform is awaited.
The Deputies decided to resume consideration of this item at the latest at their 997th meeting (5-6 June 2007) (DH), in the light of further information to be provided concerning general measures, namely the reform of the Conseil d’Etat and the Aliens’ Disputes Board.
- 1 case against the Russian Federation
58973/00 Rakevich, judgment of 28/10/03, final on 24/03/04
The case concerns the unlawfulness of the applicant’s enforced internment in a psychiatric hospital because the domestic procedure was not respected. The local court, which was seised by the hospital, did not order the applicant’s internment until 39 days after she had been interned, in comparison with the 5 days provided by law (violation of Article 5§1). The case also concerns the fact that the applicant could not contest the lawfulness of her internment before a court (violation of Article 5§4).
The applicant was released from the hospital on 12/11/1999.
Individual measures: No individual measure is required: the applicant has been released and the European Court has awarded just satisfaction in respect of the damage she sustained.
General measures: In response to the Secretariat’s letter of 30/08/2004 requesting an action plan, the authorities have provided the following information:
1) Dissemination of the judgment: The Vice-Chairman of the Supreme Court addressed a circular letter of 31/08/2004 to the lower courts, drawing their attention to the Convention’s requirements as set out in the present judgment, and in particular to the obligation of stricter compliance with the legal time-limits for judicial review of the lawfulness of compulsory psychiatric confinement.
The Russian translation of the judgment of the European Court was published in the official Russian daily Rossijskaia Gazeta (4/11/2003), which publishes all laws and regulations of the Russian Federation, and the Bulletin of the European Court’s judgments (No. 2, 2004).
2) Legal reform in progress: Amendments to the Code of Civil Procedure and the Federal Law on Psychiatric Treatment and Associated Civil Rights Guarantees have been submitted for opinion to the competent authorities (Ministry of the Interior, General Prosecutor’s Office and Ministry of Finance). These amendments provide the right of a person of unsound mind who is compulsorily confined in a psychiatric institution to appeal directly to a court to challenge the lawfulness of detention under a procedure respecting Article 5§4 of the Convention.
On 29/10/2004 the Secretariat sent its observations on the draft law based on the case-law of the European Court and the experience of other countries confronted with the same problem in the past.
3) Other measures being taken:
The government is examining the possibility of setting up a special service, independent of the bodies of medical care, for the protection of patients placed in mental hospitals.
On 19/06/2006 the Government of the Russian Federation commissioned the state agencies involved in the development of the draft law to take note of the practices at issue in other countries.
• The authorities are invited to keep the Committee informed about the progress of the legislative reform and of other measures that have been announced. In particular, information is awaited on the time-table for the adoption of the draft law.
Additional clarifications recently requested by the authorities regarding the Convention’s requirements in this area will be shortly provided in writing by the Secretariat.
The Deputies decided to resume consideration of this item at latest at their 1007th meeting (16-17 October 2007) (DH), in the light of the information to be provided concerning the general measures, namely the progress of the legislative measures and other measures that have been announced.
SUB-SECTION 5.2 – CHANGES OF COURTS’ CASE-LAW OR OF ADMINISTRATIVE PRACTICE
No new case
SUB-SECTION 5.3 – PUBLICATION / DISSEMINATION
No new case
- 2 cases against Greece
40907/98 Dougoz, judgment of 06/03/01, final on 06/06/01
28524/95 Peers, judgment of 29/09/99, final on 19/04/01
Interim Resolution ResDH(2005)21
The first case concerns the conditions of the applicant's detention in 1997, in the Alexandras Avenue (Athens) Police Headquarters and the Drapetsona (Piraeus) police detention centre, which amounted to degrading treatment (violation of article 3). The case also concerns the fact that the applicant's detention pending expulsion was not in accordance with a procedure “prescribed by law” within the meaning of the Court's case-law (violation of Article 5§1). Finally, the case concerns the fact that the domestic legal system did not afford the applicant an opportunity to have the lawfulness of his detention pending expulsion determined by a national court (violation of Article 5§4).
The second case concerns the conditions of the applicant's detention in 1994, in Korydallos prison, which amounted to degrading treatment (violation of article 3). The case also concerns the opening by the prison administration of letters addressed to him by the Secretariat of the former European Commission of Human Rights, a measure considered by the Court as unnecessary in a democratic society (violation of Article 8).
Individual measures: The applicants are no longer detained in Greece. They were expelled in 1998.
1) Violations of Article 5§§1 and 4 in the Dougoz case:
• Information provided: The detention and expulsion of aliens following a court order are now regulated by Inter-ministerial Decision 137954 (OJHR B 1255/16.10.2000), issued under Immigration Law 1975/1991 and making express reference to Article 5§1f of the Convention. According to this Decision, the detention of aliens under expulsion following a court order is now subject to control by the public prosecutor and the courts.
2) Violation of Article 8 in the Peers case:
The Penitentiary Code (Art 53§§ 4 and 7 of Law 2776/1999) may now be regarded as providing sufficient safeguards for the protection of prisoners' correspondence.
3) Common violation of Article 3
• New information provided on Greek authorities’ action plan:
Measures to improve detention conditions in police and other detention centres
- A new centre for the transfer of detainees has opened in Athens (Petrou Ralli Avenue). It has a total area 25,000m² and one of its wings is used solely for detainees pending expulsion. This wing has a capacity of 208 men, 150 women and 20 minors.
- Seven new detention centres opened in various police headquarters, four of which on the border islands of Chios, Samos, Lesbos and Corfou. On Samos an immigrants’ reception centre is also under construction.
Measures to improve detention conditions in prisons
- Construction of new prisons: A new prison in Trikala opened in June 2006. Six more are expected to open in 2007 in Drama, Serres, Chania, Domokos, Grevena and Thiva. Each will have a capacity of 400 persons. The construction of five more prisons is scheduled to start in 2008. All these new prisons are constructed in accordance with international standards: the detainees are kept in cells of 2 persons; each cell is 15m² with toilet, shower and windows allowing their lighting and airing. Training and multi-purpose rooms, laboratories and libraries are also provided for. Moreover, important renovation works are carried out in many prisons.
Special measures for preventing prison overpopulation
- On 12/09/05 Law 3388/2005 entered into force providing, inter alia, that the reception capacity of the present “independent prisons” may not exceed 300 detainees, while the future, new ones should not exceed 400.
- A programme of detainees’ segregation according to age, the nature of offences and the gravity of penalties is under way;
- Law 3346/2005 provides that convicts who have served a part of their sentence may be set free under certain conditions. Since its application, 400 detainees have benefited.
- Justice Minister decision 138317/2005 introduced the possibility of measures alternative to imprisonment under conditions. These consist of community service; 102 public institutions participate in this programme with, (until September 2006), 756 beneficiaries.
- Justice Minister decision 8508/2005 has allowed the transfer to agricultural prisons (which are less crowded) of 650 detainees.
Training of prison staff: In 2005 125 prison surveillance staff members took part in seminars on the treatment of detainees.
Education and professional training of detainees:
a) “Second chance” schools are operational in the Korydallos and Larissa prisons, in co-operation with the Education Ministry, benefiting young detainees without professional training. Participation in these programmes results in the halving of detainees’ sentences;
b) In minors’ prisons now there exist primary and secondary schools run in cooperation with the Education Ministry.
Drug-dependent detainees: Support programmes exist for the support of these detainees, also providing for the follow-up of their treatment after release.
In 2005, for the first time, cultural, artistic and sport events took place in various prisons in the context of the programme “life is everywhere”.
• Information expected on common violation of Article 3:
1) Despite measures adopted so far, further major improvements of detention conditions in prisons or detention centres are necessary. It is noted that concerns in this respect have been expressed in the Human Rights Commissioner’s follow-up Report on Greece (CommDH(2006)13, 29/03/06, §§14-19) and in the report of CPT on its 2005 visit to Greece (CPT/Inf(2006)41) where CPT welcomed the measures already taken by Greece but noted that “there is still much to be done and the authorities need in particular to invest greater efforts to tackle the systemic deficiencies in the prison service and the establishments holding foreigners nationals” (§7).
Thus, more, concrete information is awaited on the improvement of detention conditions in prisons and police and other detention centres.
2) The Greek authorities have informed the Committee that given that 35% of the prison population is aliens, a programme is under way for their return to serve their sentences in their country of origin and that special co-operation is in place with Albania to build a new prison there financed by Greece, given that 50% of alien detainees come from that country. More information is also awaited;
3) Information is also awaited on the construction of immigrants’ reception centre on Samos mentioned above and on any other new, similar centres, as well as on the progress of the detainees’ segregation programme;
• Finally, information is awaited on the existence of domestic effective remedies in similar cases concerning degrading detention conditions under Article 3, in accordance with Recommendation of the Committee of Ministers to member states Rec(2004)6 on the improvement of domestic remedies.
1. noted with interest additional information provided by the Greek authorities concerning general measures to improve detention conditions;
2. decided to resume consideration of these items at the latest at their 1013th meeting (4-5 December 2007) (DH), in the light of further information to be provided concerning general measures, in particular the construction of new prisons and detention centres and the provision of effective domestic remedies in respect of poor detention conditions.
Note 1 Those items marked with an asterisk * were added after approval of the draft Agenda (Preliminary list of items for consideration at the 987th meeting) in accordance with the Rules adopted by the Committee of Ministers for the application of Article 46 of the European Convention on Human Rights.