FIFTH SECTION
CASE OF
HELLIG v. GERMANY
(Application no.
20999/05)
JUDGMENT
STRASBOURG
7 July 2011
FINAL
07/10/2011
This judgment has become final under
Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Hellig v. Germany,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
DeanSpielmann, President,
ElisabetFura,
Boštjan M.Zupančič,
IsabelleBerro-Lefèvre,
AnnPower,
GannaYudkivska,
AngelikaNußberger, judges,
andClaudia Westerdiek, Section Registrar,
Having deliberated in private on 31 May 2011,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
20999/05) against the Federal Republic of Germany lodged with the Court under
Article 34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by aGerman national, Mr Herbert Hellig (“the
applicant”), on 31 May 2005.
The applicant was represented by Mr H.-O. Sieg, a
lawyer practising in Frankfurt/Main. The German Government (“the Government”)
were represented by their Agent, MrsA. Wittling-Vogel, of the Federal Ministry
of Justice.
The applicant alleged, in particular,that his
detention in a security cell amounted to inhuman and degrading treatment or
punishment within the meaning of Article 3 of the Convention.
On 15 December 2009 the President of the Fifth
Sectiondecided to give notice of the applicationto the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1953 and lives in
Frankfurt/Main.
1. Background to the case
The applicant was serving a prison sentence in
Butzbach prison.
In October 2000 the Butzbach prison authorities ordered him to move from his
single cell to a cell which he would have to share with two other inmates and
which did not have a screen or curtain separating the toilet from the rest of
the cell.
By letter of 11 October 2000 the applicant,
referring to a decision given by the Frankfurt Court of Appeal in 1985 in a
case concerning a different prisoner, informed the head of Butzbach prison that
accommodation in such a cell was generally unlawful and that he refused to
move. On that same date, the applicant lodged a motion with the Gießen Regional Court, which was brought to the attention of that court only after the
applicant’s transfer to the multi-occupancy cell.
On 12 October 2000 the prison staff ordered the
applicant to vacate his single cell and announced that they would use force (unmittelbarer
Zwang) if he refused to do so. Accordingly, the applicant vacated his cell
and was taken to the multi-occupancy cell. At the door of that cell, however,
he again refused to move into the cell. Subsequently, a scuffle ensued between
the applicant and prison staff. According to the applicant’s submissions, he
was kicked and beaten by the prison staff, while he had merely passively
resisted being placed into the multi-occupancy cell. According to the Government,
the applicant kicked the prison staff.
Subsequently, the applicant was forcibly taken to
a security cell which had no items which could cause danger (besonders
gesicherter Haftraum ohne gefährdende Gegenstände), where he was
strip-searched and undressed. It is not clear from the material submitted by
the parties whether the applicant remained naked for the whole period of time
he spent in the security cell.
The security cell had a size of approximately
8.46 square metres and was equipped as follows: two doors with chain link, two
cameras, one milky glass pane for daylight, one mattress with fire-proof sheet,
one squat toilet, one call system, two windows above the doors, aluminium
ceiling with ventilation slits, tiled floor. The temperature of the cell was
controlled to ensure comfort, and the meals were served at the usual times.
Following his placement in the security cell,
the applicant was examined by the prison physicianwho diagnosed minor bruising
on the applicant’s front and his left shin and bruising and a small hematoma on
his left thorax. On 12, 13, 16, 18 and 19 October 2000 the applicant was
re-examined by the prison physician. According to the physician’s report
submitted on 31 October 2000, the injuries would heal without complications;the
bruising in the thorax area could, according to medical experience, cause
discomfort for a longer period of time.
On 14 October 2000 the applicant was visited by
a psychiatrist.
On 15 October 2000 the prison pastor visited the
applicant. In his letter to the police dated 12 January 2001 the pastor made
the following statement:
“As the security chain was locked, which permitted to open the
door only slightly, I could see that the prisoner was naked. I am not sure
whether he sustained injuries which exceeded bruises and refer to the medical
report. However, the prisoner was in a very agitated state of mind and talked
about having been beaten by prison staff.”
On 16 October 2000 the head of the prison
administration made the following report:
“Since 12 October 2000 the prisoner is placed in the specially
secured room...Following his medical examination, it was intended to transfer
him today to a
multi-occupancy cell on station B I. In the presence of the prison guards B.
and H. and myself the prisoner Hellig declared that he insisted on his right to
be attributed a single cell as provided by the case-law of the Court of Appeal
and that he would not leave the specially secured room. If this should be done
by force, the prison guards would have to “beat him to death”.”
On 17 October 2000 the applicant was visited by
the prison psychologist Dr E. who made the following report on his conversation
with the applicant:
“I visited Mr Hellig on 17 October 2000 in the segregation cell
with the intention of finding a way out of the deadlock situation. However, Mr
Hellig proved to be unable to compromise and stubbornly insisted on his request
to be transferred to a single cell ... He could hardly imagine to remain in
this prison after having been abused in connection with his placement in the
segregation cell ... I have the impression that
Mr Hellig is so obsessed that he is currently unable to compromise and to
discuss a temporary solution. He feels mistreated and deprived of the single
cell he previously occupied as a prison worker and station aid. Being a
sportsperson and non-smoker, he could not be expected to share a cell with
smokers.”
The applicant stayed in the security cell until 11.30
a.m. on
19October 2000 when he consented to being placed in the prison hospital.
Thereafter the applicant instituted the following two sets of proceedings.
2. Proceedings relating to the alleged use of violence by the
prison guards and the unlawfulness of the detention in the security cell
On 25 October 2000 the applicant requested the Gießen Regional Court to declare that his detention in the isolation cell and the force used
by the prison authorities had been unlawful. He submitted that he had been
kicked and beaten by prison staff even though he had not given the prison
guards any reasons to use violence against him.
On 8 April 2004 the Regional Court rejected the
request. The Court took note of the written statements made by the prison
pastor, the head of the prison administration and the prison psychologist (see
§§ 14-16, above). It further pointed out that it had been beyond doubt that
accommodation in a multi-occupancy cell with toilets that were not separated by
screens or curtains from the rest of the cell would have been unlawful, as the
Frankfurt Court of Appeal had already established in its earlier case-law.
According to the Regional Court the fact that
the applicant was taken to the isolation cell was not due to his refusal to
move into the
multi-occupancy cell. It was in particular not a disciplinary measure to punish
him for resisting, but he was detained in the isolation cell because his
behaviour constituted a specific risk of violence and physical harm to other persons
(section 88 §§ 1, 2 no. 5 of the Prison Act, see “Relevant domestic law”
below), which allows for temporary detention in security cells.
The court based its findings on the statements
of the prison personnel, who had confirmed that the applicant had begun pushing
and hitting prison staff and that he had become very aggressive when he was
ordered to move to the multiple occupancy cell. According to the official
statements made by the prison guards, only the prisoner himself had used
violence. In view of the applicant’s violent behaviour it had been necessary
for the prison authorities to use force to take the applicant into the security
cell in order to prevent him from causing harm to the prison guards.
The Regional Court further considered that “it
could not be established for certain” whether there was a serious danger of
self-injury or suicide during the time of his detention in the specially
secured room.
Such detention was proportionate as it had not
been possible to release the applicant from the cell before 19 October 2000.
The applicant had announced that the staff members would have to kill him if
they wanted to transfer him forcibly into the multi-occupancy cell. It was thus
very likely that he would once again have resisted any such transfer. Therefore
the specific risk of violent acts by the applicant persisted until 19 October
2000. Furthermore, the prison psychologist had stated that the applicant had
not at all been ready to reach a compromise and, in particular, that he had
stubbornly insisted on being transferred to a single cell.
On 8 April 2004 the applicant filed an appeal on
points of law.
He submitted in particular that, under the relevant guidelines, the duration of
detention in a specially secured room should not exceed twenty-four hours. It
followed that his seven-day placement had been disproportionate.
On 27 September 2004 the Frankfurt Court of
Appeal declared the applicant’s appeal inadmissible, reasoning that no decision
in the matter was required for the purpose of further developing the law or to
secure the consistency of the case-law.
On 26 October 2004 the applicant lodged a
constitutional complaint. He alleged that he had been kicked and beaten before
being brought in the security cell, even though he had offered to consent to
his placement in the security cell. He further submitted as follows:
“In the instant case, I do not complain about the deprivation
of liberty as such. However, the constitutional complaint is directed against
the exceptionally severe conditions of my temporary detention (“besonders
einschneidende Art und Weise meiner zeitweiligen Unterbringung”)during the
execution of sentence.”
. On
28 December 2004 the Federal Constitutional Court, relying on its Rules of
Procedure, refused to admitthe applicant’s constitutional complaint,
without giving further reasons.
3. Criminal proceedings
On 12 March 2001 the Gießen Public Prosecutor’s
Office discontinued the criminal proceedings against the prison staff involved
in the applicant’s transfer to the security cell. The Prosecutor’s Office noted
that the applicant’s medical examination on 12. October 2000 established that
he had sustained bruises. An x-ray taken some days later did not reveal any
fractures or other bone injuries. It was thus established that the applicant
suffered injuries on the occasion of his transfer into the security cell. It
could, however, not be established whether these injuries had been caused by
the prison staff, in particular by kicking or beating, orif they had been the
unavoidable effect of his forced transfer to the security cell.
II. RELEVANT DOMESTIC LAW
The relevant provisions of the Prison Act read
as follows:
Section 88 (Special
Precautions)
“(1) Special precaution may be ordered in respect of a prisoner
where, in view of his behaviour or on account of his mental state, there is
increased danger of his escaping or danger of violent attacks against persons
or property or the danger of suicide or self-injury.
(2) The following measures shall be permissible as special
precautions:
...
5. detention in a specially secured room containing no
dangerous objects,
...
(5) Special precautions shall be continued only as long as is
required by their purpose.”
Section 92 (Supervision
by Medical Officer)
“(1) Where a prisoner is detained in a specially secured cell
or shackled
(section 88 (2) nos. 5 and 6) the medical officer shall visit him soon and, if
possible, daily thereafter ...
(2) The medical officer shall be consulted regularly as long as
a prisoner is deprived of daily outdoor exercise.”
Section 96 (Principle of
Proportionality)
“(1) From among several possible and suitable measures of
direct coercion those shall be chosen which will presumably least affect the
individual and the general public.
(2) Direct coercion shall not be applied where any damage
likely to be caused thereby would obviously be out of proportion to the desired
result.”
Section 109 (Request for
a Court Ruling)
“(1) A measure regulating individual matters in the field of
execution of imprisonment may be contested by requesting a court ruling...”
III. Council
of Europe documents
29. The following
extracts are taken from the 2nd General Report of the European Committee for
the Prevention of Torture (CPT/Inf (92) 3):
“56. The CPT pays particular attention to prisoners
held, for whatever reason (for disciplinary purposes; as a result of their
‘dangerousness’ or their ‘troublesome’ behaviour; in the interests of a
criminal investigation; at their own request), under conditions akin to
solitary confinement.
The principle of proportionality requires
that a balance be struck between the requirements of the case and the application of a solitary-confinement-type regime,
which is a step that can have very harmful consequences for the person
concerned. Solitary confinement can, in certain circumstances, amount to
inhuman and degrading treatment; in any event, all forms of solitary
confinement should be as short as possible...”
From the CPT report on Finland 1998 (CPT/Inf (96)28):
“102. It should be added that the unit also contained an
"observation cell" in which prisoners considered to be suicidal or
likely to injure themselves could be located. Surveillance was maintained via
an internally mounted CCTV camera ...
The delegation was informed that prisoners placed there would often be stripped
of their clothes and left naked in the cell. Such a practice is completely
unacceptable.
The CPT recommends that the practice of placing prisoners naked
in the observation cell be ended immediately; prisoners placed in this cell
should be provided with
tear-proof clothing and bedding...”
From the CPT report on Belgium 2009 (CPT/Inf (2010)24
(translation from the French original):
“130. ...To keep a prisoner naked in a cell constitutes,
according to the CPT, degrading treatment. The CPT recommends that this
practice be stopped immediately. Specially adapted clothing exists which
permits the prisoner to keep a minimum amount of clothing while taking into
account the risk of suicide.”
THE LAW
I. COMPLAINT ABOUT THE APPLICANT’S ALLEGED
ILL-TREATEMENT BY PRISON STAFF
The applicant complained about having been
kicked and beaten by prison guards prior to his placement in the security cell.
He relied on
Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
The Government referred to the findings in the
decision of the Gießen Regional Court dated 8 April 2004.
The Court notes that it is not clear from the
parties’ submission of which legal remedies the applicant availed himself with
the aim of enforcing a criminal prosecution of the prison guards who allegedly
mistreated him. Even assuming exhaustion of domestic remedies, the applicant’s
complaint about the alleged maltreatment has to be declared inadmissible as
being manifestly ill-founded on the following grounds.
According to the Court’s case-law, Article 3
does not prohibit in absolute terms the use of force against persons in public
custody. However, such force may be used only if indispensable and must not be
excessive.
In respect of a person deprived of his liberty, recourse to physical force
which has not been made strictly necessary by his own conduct diminishes human
dignity and is in principle an infringement of the right set forth in Article 3
(see, among other authorities,Ribitsch v. Austria,
4 December 1995, § 38, Series A no. 336 and Staszewska v. Poland,
no. 10049/04, § 53, 3 November 2009).
The Court reiterates that allegations of
ill-treatment must be supported by appropriate evidence (see, among other
authorities, Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006‑IX;
and, mutatis mutandis, Klaas v. Germany, 22 September 1993, § 30,
Series A no. 269).
It notes that the Gießen Regional Court, having thoroughly examined the
applicant’s allegations and the statements made by the prison guards and
further witnesses, concluded that only the applicant had used violence against
the prison guards, but not vice-versa. The Court notes that the
applicant has not submitted any evidence which would lead to a different
conclusion.
The Court further notes that the prison
physician, having examined the applicant immediately after his placement in the
security cell, had diagnosed only minor bruising and a small hematoma, which
would heal without complications. An x-ray taken a few days after the incident
did not reveal any fractures or other bone injuries. The Court accepts that
these injuries could be explained by the fact that the applicant had resisted
when being forcibly taken to the security cell.
The Court further notes that the Gießen Regional Court acknowledged that it would not have been lawful to place the applicant
in a multi-occupancy cell, as it was not equipped for three occupants. It
appears, however, that no appropriate accommodation had been available for the
applicant at the relevant time. Under these circumstances, the Court considers
that the applicant, in the interest of the maintenance of prison order, could
have been reasonably expected to pursue his legal complaint against his
transfer, and eventually to claim damages for any inappropriate accommodationoccurring
in the meantime, instead of physically resisting his transfer.
Taking all these circumstances into account, and
in particular the minor extent of the injuries sustained by the applicant, the
Court concludes that the threshold for inhuman treatment was not reached in
respect of the applicant’s treatment during the transfer. It follows that this
part of the application is manifestly ill-founded and must be rejected in
accordance with Article 35 § 3(a) of the Convention.
II. COMPLAINT ABOUT THE LAWFULNESS OF THE
DETENTION IN THE SECURITY CELL
The applicant complained that his placement in
the security cell and his detention there for seven days without clothes
amounted to inhuman and degrading treatment within the meaning of Article 3of
the Convention.
The Government contested that argument.
A. Admissibility
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. Submissions by the applicant
The applicant complained about having been
detained for seven days in the security cell, where he was without clothes and
did not have facilities for personal hygiene. He emphasised that it had been
confirmed by the domestic courts that his placement in a multi-occupancy cell,
as originally envisaged by the prison authority, would have been unlawful. It
followed that he was entitled to resist the prison officer’s coercive measures
aimed at forcing him into the multi-occupancy cell. Consequently, there was no
legal ground for transferring him to the security cell.
The applicant further submitted that it had not
been true that he had violently attacked prison staff, as was already
demonstrated by the fact that none of the prison officers had been injured. He
had merely wished to remain in a single cell. He would have left the specially
secured room immediately and without resistance if he had been offered such
accommodation.
The applicant further submitted that his confinement
in the security cell had been intended to coerce him into consenting to
placement in a multi-occupancy cell.
2. Submissions by the Government
The Government considered that the applicant’s
placement in a security cell, in view of the specific circumstance of the
present case, did not amount to inhuman or degrading treatment within the
meaning of Article 3 of the Convention. The applicant’s treatment had been in
line with the relevant provisions of the Prison Act and of the administrative
guidelines.
With regard to the length of the placement, the
Government did not consider that the threshold for inhuman treatment had been
crossed.
The specific circumstances of his confinement did not cause the applicant to
suffer physical or emotional distress to the extent that it could be viewed as
inhuman treatment. They pointed out that the applicant, besides having been
visited by the medical service on an almost daily basis, also received visits
by the psychological service and by a spiritual adviser.
Because the facts of the case dated back almost
ten years, the full details of the placement could no longer be ascertained.
The written documents did not clearly show whether the applicant was naked
during his entire stay in the security cell. However, it was common practice to
place inmates without clothing in this type of cell in order to protect them
from self-injury as long as their excitable and/or emotional condition persisted.
The decision as to whether this danger persisted was made in consultation with
the medical service. It was also the general rule that prisoners received two
blankets when being placed in this type of cell and that the
room-temperature was adapted to their wishes.
The applicant’s placement in the security cell
was the only remaining possibility of averting a present danger of injuries to
the prison guards and of guaranteeing security and order in view of the
applicant’s recognisable propensity for violence, as was evidenced by the
attack on the prison guards. The proportionality of the measure was monitored
at appropriate intervals. The prison management had been endeavouring to lift
the security measure as soon as possible. However, this was initially made
impossible by the applicant’s lack of co-operation. With his consent, the
applicant was temporarily transferred to the hospital on 19 October 2000
because no single-occupancy cell had been available at the prison.
The Government further considered that neither
the short duration of the applicant’s confinement, nor the concrete
circumstances, nor the aims pursued brought the applicant’s detention within
the scope of Article 3 of the Convention. The purpose of placing the applicant
in the security cell had not been to punish him for his refusal to move into a
multi-occupancy cell; rather, the placement had been due to the fact that a
significant disruption in the prison order was to be feared because of his
attack on the prison guards and his subsequent conduct.
The Government finally submitted that it should
also be taken into account that the applicant had, in the end, reached his aim
not to be placed in a multi-occupancy cell.
3. Assessment by the Court
The Court reiterates 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.
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 level of severity 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, inter alia, Price v. the
United Kingdom, no. 33394/96, § 24, ECHR 2001-VIIand Jalloh, cited
above,
§ 67). Allegations of ill-treatment must be supported by appropriate evidence
(see, mutatis mutandis, Klaas, cited above, § 30 andJalloh,
cited above, § 67). To assess this evidence, the Court adopts the standard of
proof “beyond reasonable doubt” but adds that such proof may follow from the
coexistence of sufficiently strong, clear and concordant inferences or of
similar unrebutted presumptions of fact (see Ireland v. the United Kingdom,
18 January 1978, §161 in fine, Series A no. 25;Labitav. Italy
[GC],
no. 26772/95, § 121, ECHR 2000-IV and Jalloh, cited above, § 67).
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 (see Labita, cited above, § 120). Treatment has
been considered “degrading” when it was such as to arouse in its victims
feelings of fear, anguish and inferiority capable of humiliating and debasing
themand possibly breaking their physical or moral resistance (see Hurtado v.
Switzerland,
28 January 1994, opinion of the Commission, § 67, Series A no. 280),
or when it was such as to drive the victim to act against his will or
conscience (see, for example, Denmark, Norway, Sweden and the Netherlands v.
Greece(the “Greek case”), nos. 3321/67, 3322/67, 3323/67 and
3344/67, Commission’s report of 5 November 1969, Yearbook 12,
p. 186 and Keenan v. the United Kingdom, no. 27229/95, § 110,
ECHR 2001-III).Furthermore, in considering whether treatment is “degrading”
within the meaning of Article3, one of the factors which the Court will take
into account is the question whether its object was to humiliate and debase the
person concerned, although the absence of any such purpose cannot conclusively
rule out a finding of a violation of
Article 3 (see Raninen v. Finland, 16 December 1997, § 55, Reports
of Judgments and Decisions 1997‑VIII; Peers v. Greece, no.
28524/95, §§ 68 and 74, ECHR 2001-III; and Jalloh, cited above,§68). 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 Labita, cited above, § 120
and Jalloh, cited above, § 68).
Turning to the circumstances of the instant
case, the Court observes, at the outset, that the applicant had been placed in
the security cell in order to prevent him from attacking prison staff. With
regard to the specific circumstances of his detention, the Court notes that the
cell had a surface of approximately 8.46 square metres and was equipped with a
mattress and a squat toilet. The Court considers that the very basic facilities
found in the security cell were not suited for long-term accommodation. The
Court notes, however, that the applicant’s placement in this cell was, at no
time, considered by the prison authorities as a long-term measure.This is
demonstrated by the fact that the prison authorities and the psychological
service, on 16 and 17 October 2000, tried to convince the applicant to vacate
the security cell and eventually moved him to the prison hospital as no other
single occupancy cell had been available at the relevant time.
The Court further observes that it is not clear
from the material submitted by the parties if the applicant, after having been
strip-searched and placed in the security cell, remained naked during his
entire stay in that cell. The Court notes in this respect that it does not
appear that the applicant had, at any time during his placement in the security
cell or during the proceedings before the domestic courts, expressly complained
of having been denied access to clothes.He only complained about having been
naked in his complaint before the Court.
On the other hand, the Court takes note of the
Government’s submissions that it had been common practice to place inmates
without clothing in this type of cell in order to protect them from self-injury
as long as their agitated state persisted. The Court further notes that the
prison pastor, who briefly visited the applicant three days after his placement
in the security cell, in his statement recorded in the decision given by the
Gießen Regional Court on 8 April 2004, had reported that the applicant, who had
been in a very agitated state, had been naked.
The Court, assuming the application of the
general rule referred to by the Government (see §§ 46 and 54, above) in the
applicant’s case, concludes that there are sufficiently strong, clear and
concordant indications that the applicant had been naked during the entire
period of his stay in the security cell.The Court further observes that the
domestic authorities had knowledge of these indications andwould have been in a
position further to examine these facts.Accordingly, the Court bases its
further examination of the applicant’s complaint on the assumption that the
applicant had indeed been naked during his seven-day placement in the security
cell.
The Court considers that to deprive an inmate of
clothing is capable of arousing feelings of fear, anguish and inferiority
capable of humiliating and debasing him. As to the aims pursued, the Court
takes note of the Government’s submissions that, as a rule, inmates were placed
without clothes in the security cell in order to prevent them from inflicting
harm on themselves. The Court notes, however, that the Gießen Regional Court,
which had the benefit to examine the facts of the case at an earlier stage than
the Court and to hear witnesses, could not establish for certain whether there
was a serious danger of self-injury or suicide during the time of the
applicant’s placement in the cell. The Court further observes that there is no
indication that the prison authorities had considered the use of less intrusive
means, such as providing the applicant with tear-proof clothing, as recommended
by the European Committee for the Prevention of Torture (see § 29, above).
Having regard to all these elements the Court
considers that the seven days placement in the security cell as such may have
been justified by the circumstances of this particular case. However, the Court
considers that the Government have failed to submit sufficient reasonswhich
could justify such harsh treatment as to deprive the applicant of his clothes
during his entire stay. The applicant has therefore been subjected to inhuman
and degrading treatment contrary to Article 3.
It follows that there has been a violation of
Article 3of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant further complained that the length
of the proceedings about his placement in the security cell violated his right
to an effective remedy under Article 13 of the Convention. Furthermore, the
decision given by the Gießen Regional Court was inconsistent with its own
case-law and thus violated his right to equal treatment under Article 14 of the
Convention.
However, in the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court finds that they do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols.
It follows that these complaints are manifestly
ill-founded and must be rejected in accordance with Article 35 §§ 3(a) and 4 of
the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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.”
The applicant claimed 40,000 euros (EUR) in
respect of
non-pecuniary damage as compensation for pain and suffering resulting from the
injuries, from his forced transfer to the security cell and his detention
therein.
The Government referred to their submissions that there had
been no violation of Article 3 of the Convention.
The Court observes that the applicant’s
complaint was only partially successful. Ruling on an equitable basis, it
awards the applicant
EUR 10,000 in respect of non-pecuniary damage.
A. Costs and expenses
The applicant also claimed EUR 200 for the costs
and expenses incurred before the domestic courts and EUR 5,000 for those
incurred before the Court.
The Government did not comment.
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 were
reasonable as to quantum. The Court notes that the applicant has not submitted
any documentary evidence for his alleged expenses before the domestic courts
and did not further specify the costs claimed by his counsel for his
representation before the Court. Under these circumstances, the Court considers
it reasonable to reject the claim for expenses in the domestic proceeding and
to award the applicant the sum of EUR 3,500 for the proceedings before the
Court.
B. Default interest
The Court considers it appropriate that the
default interest 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 complaint concerning the
lawfulness of the detention in the security cell admissible and the remainder
of the application inadmissible;
2. Holds that there has been a violation of
Article 3 of the Convention;
3. Holds
(a) that the respondent State is to pay the
applicant, within three months from the date on which the judgment becomes
final in accordance with Article 44 § 2 of the Convention,
(i) EUR 10,000 (ten thousand euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 3,500 (three thousand five hundred euros),
plus any tax that may be chargeable to the applicant, 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;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 7 July 2011,
pursuant to
Rule77§§2 and3 of the Rules of Court.
Claudia Westerdiek Dean
Spielmann
Registrar President
