Not allowing a detainee to attend his mother’s funeral and mot allowing his sister to visit him violated his family’s life.

JUDGMENT

Kosenko v. Russia 17.03.2020 (no. 15669/13 and 76140/13)

see here

SUMMARY 

Detainees’ rights. Not granting permission to a prisoner with psychiatric problems to attend his mother’s funeral and not granting permission for a visit to his sister.

According to the ECtHR, the applicant’s pre-trial detention was not incompatible with his psychiatric health condition, given the medical follow-up and treatment he received, the relatively short time he remained in custody (less than five months) and the absence of aggravating factors related to the conditions of his detention.

However, the Court noted that the applicant’s detention was extended without serious consideration of the alternative restrictive conditions. It also ruled that the right to family life had been violated due to the restriction of family visits during his temporary detention and during his trial, and that he had not been granted permission to attend the funeral of his mother due to a court order, without a personalized assessment of his particular condition.

Violation of Articles 5 § 3 and 8 of the ECHR. Violation of Article 3 of the ECHR

PROVISIONS

Article 3

Article 5

Article 8

PRINCIPAL FACTS

The applicant, Mikhail Kosenko, is a Russian national who was born in 1975 and lives in Moscow.

The case concerned the applicant’s pre-trial detention after he took part in the Bolotnaya Square
protest in Moscow in May 2012.

The applicant was arrested in June 2012 on suspicion of taking part in mass disorder and using
violence against the police during the protest in Bolotnaya Square, which was a rally of opposition
activists which led to clashes with the police (the Court has issued a number of judgments related to
events that day).

Mr Kosenko, who has schizophrenia and receives a disability pension, was remanded in custody after
his arrest, with the court referring to the seriousness of his offence and the fact that he might
abscond or interfere with the investigation. The pre-trial detention order was extended several
times, with the applicant appealing for alternative preventive measures, such as house arrest or bail.
He was ultimately found guilty of the charges in October 2013 but absolved from criminal liability
owing to mental incapacity. He was committed to a psychiatric hospital, from which he was released
in July 2014. His mother died during his pre-trial detention and he was not able to attend her funeral
because the authorities did not respond to his applications for short-term leave. He was also not
allowed visits from his sister, who was his legal guardian.

During his pre-trial detention he was held for a time in a facility which did not have a hospital ward.
He also received several visits from psychiatrists.

Relying on Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on
Human Rights, the applicant complained that he had not received adequate medical assistance for
his psychiatric condition in the first five months of his pre-trial detention.

He also raised complaints about the reasons for his detention in particular under Article 5 § 3 (right
to liberty and security / entitlement to trial within a reasonable time or to release pending trial).

Under Article 8 (right to respect for private and family life) he complained about the restrictions on
family visits and the refusal to give him short-term leave to attend his mother’s funeral.

THE DECISION OF THE COURT…

Article 3

the Court has no grounds to conclude that the applicants initial detention in the general detention facility IZ-77/4 had been incompatible with his state of health, given the medical supervision and treatment he received, the relatively short period under examination (less than five months) and the absence of aggravating factors related to the material conditions of his detention. Moreover, there is nothing in the case file to corroborate the applicants allegation that his condition had significantly deteriorated as a result. Accordingly, this treatment did not reach the minimum level of severity required to fall within the scope of Article 3 of the Convention. The Court notes that the applicant did not complain about his subsequent detention and treatment after his transfer to IZ-77/2, or his subsequent placement in a psychiatric institution where he underwent successful treatment following the termination of the criminal proceedings against him, which resulted in his being discharged from the hospital.

There has accordingly been no violation of Article 3 of the Convention on account of the quality of the applicants medical treatment while he was detained in the regular detention facility.

Article 5

Having regard to the material in its possession, the Court notes that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Indeed, the specific offence imputed to the applicant – taking part in an assault on a police officer, causing injuries but no lasting harm (classified as a serious offence) – may have initially warranted his pre-trial detention. However, with the passage of time, the nature and the seriousness of the offence as grounds for the applicants continued detention inevitably became less and less relevant. The Court further notes that the applicants detention was extended without serious consideration of alternative preventive measures, such as personal guarantees by prominent public figures submitted by the applicant.

There has accordingly been a violation of Article 5 § 3 of the Convention.

Article 8

Restrictions on visits in the remand prison

he applicant complained that his requests and those of his sister for her to visit him in detention had been rejected or ignored for eight months; moreover, by law he had been unable to receive more than two family visits per months during his pre-trial detention and only in a room where he had been separated from his visitors by a glass partition.

The Court has established that denial of visits, separation barriers and other restrictive arrangements amount to an interference with the right to respect for family life. It has also held that an inflexible and automatic regulation of short-visit arrangements, such as compulsory use of glass partitions between the detainee and the visitors, cannot be accepted as being “necessary in a democratic society”. It specified that the State does not have a free hand in introducing restrictions in a general manner without affording any degree of flexibility for determining whether the limitations are appropriate or indeed necessary in specific cases .

As regards the matter of exercising visiting rights during a convicted prisoners stay at a remand prison, the Court has previously found that section 18 of the Pre-trial Detention Act does not meet the “quality of law” requirement, in that it confers on the authority in charge of the case unrestricted discretion to grant or refuse prison visits. It does not limit the scope of the discretion and the manner of its exercise, and deprives the detainee of the minimum degree of protection against arbitrariness or abuse to which citizens are entitled under the rule of law in a democratic society.

The Court notes that in the present case the applicants allegations that he had very limited contacts with his family while in detention, pending and during the court hearings, appear well-founded. The fact that his sister had attempted to meet him during that period is confirmed by the verbatim record of the hearing of 10 July 2013, where her complaint to that effect is mentioned. The court on 10 July 2013 rejected the request to secure the applicants right to family visits without consideration, in particular without finding out why the applicant had had no visits for the eight previous months, and without indicating how his right could be secured through other procedures. The courts refusal to examine the matter is particularly striking, given that the applicants sister was his legal guardian. The Governments submission that the applicant and his sister could have obtained a meeting and did so relates to a later period, in October and November 2013, and therefore cannot be taken into account.

The Court considers that this application discloses the same defects in the legal regulations as set out above, and that the restriction on the applicants family life was not “in accordance with the law”. In the light of the above considerations, the Court finds that there has been a violation of Article 8 of the Convention on account of the limitation on visits the applicant could receive during his pre-trial detention and trial.

Leave to attend a funeral

Whereas Article 8 does not guarantee an unconditional right to leave to attend a relatives funeral, and even though a detainee by the very nature of his situation may be subjected to various limitations of his rights and freedoms, every such limitation must be nevertheless justifiable as being “necessary in a democratic society”. The authorities can refuse an individual the right to attend the funeral of his parents only if there are compelling reasons for such refusal and if no alternative solution can be found.

In the instant case the Russian authorities did not give any consideration to the applicants request to attend the funeral. Their refusal was not based on an assessment of his individual situation; in fact, the Government submitted that the Russian legislation did not provide for a possibility of granting a detainee short-term leave to attend a funeral. Accordingly, the decision to refuse the applicant leave was taken in a manner incompatible with the States duty to carry out an individualised evaluation of his particular situation and to demonstrate that the restriction of his right to attend a relatives funeral was “necessary in a democratic society”.

There has therefore been a violation of Article 8 of the Convention on account of the refusal to grant the applicant leave to attend his mothers funeral.


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