CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 1 mars 2022

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margin-left:17pt; margin-bottom:3pt; text-indent:-17pt; text-align:justify } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .s8773B649 { width:25.2pt; display:inline-block } .s827E7349 { width:140.75pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s8EB5F569 { font-family:Arial; font-size:6.67pt; vertical-align:super } .s7C768949 { font-family:Arial; text-decoration:underline; color:#0000ff } .sC800182F { font-family:Arial; color:#0000ff }   FIRST SECTION CASE OF FENECH v. MALTA (Application no. 19090/20)     JUDGMENT   Art 3 (substantive) • 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 • Not shown that applicant within category of most vulnerable prisoners requiring separation from others Art 3 (substantive) • Conditions of detention not amounting to inhuman or degrading treatment • Limitations imposed during exceptional and unforeseeable public health emergency on important health grounds, affecting all prison detainees and society at large • Alternative measures in place ensuring contact with family during suspension of visits Art 2 (substantive) • Life • Applicability of Art 2 in certain Covid-19 related cases not excluded but assessed on an individual case basis • Applicant’s failure to substantiate real and imminent risk to his life from potential Covid-19 infection due to any acts or omissions by the State   STRASBOURG 1 March 2022 FINAL   01/06/2022   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Fenech v. Malta, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Péter Paczolay, President,   Krzysztof Wojtyczek,   Alena Poláčková,   Gilberto Felici,   Raffaele Sabato,   Lorraine Schembri Orland,   Ioannis Ktistakis, judges, and Renata Degener, Section Registrar, Having regard to: the application (no.   19090/20) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Maltese national, Mr Yorgen Fenech (“the applicant”), on 6 May 2020; the decision to give notice to the Maltese Government (“the Government”) of the complaints concerning Articles 2 and 3 and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated in private on 22 February 2022, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the applicant’s conditions of detention in the Corradino Correctional Facility and whether the Maltese authorities took adequate measures to safeguard the applicant, who only has one kidney, against any potential future Covid-19 infection in the prison. THE FACTS 2.     The applicant was born in 1981 and is currently detained at the Corradino Correctional Facility (‘CCF’), Paola. The applicant was represented by Mr W. Jordash, a lawyer practising in the Hague, the Netherlands. 3.     The Government were represented by their Agents, Dr C. Soler, State Advocate, and Dr J. Vella, Advocate at the Office of the State Advocate. 4.     The facts of the case may be summarised as follows. BACKGROUND TO THE CASE 5.     The applicant is a businessman and the former head of the Tumas   Group. He was arrested on his yacht on 20 November 2019 on suspicion of involvement in the murder of Maltese journalist Daphne   Caruana Galizia in October 2017. On the same day he was released on bail. 6 .     On 30 November 2019 the applicant was arraigned before the Court of Magistrates acting as a court of criminal inquiry, and was accused of promoting, organising or financing an organisation with a view to committing a criminal offence, and complicity in wilful homicide. The applicant pleaded not guilty to the charges. He was remanded in custody and has since then been detained in the CCF, Paola, Malta. CONSTITUTIONAL REDRESS PROCEEDINGS 7.     Following the refusal of a number of requests for release, the last ones (at the time) being rejected in April 2020 (see for details Fenech v.   Malta (dec.) no.   19090/20, §§ 4-33, 23 March 2021) on 1 May 2020 the applicant instituted constitutional redress proceedings seeking a declaration of breaches of Articles 5 § 1 (c) and 5 § 3 and 5 § 4 of the Convention and asked the court to release him. The proceedings came to an end by a judgment of 23   November 2020 by which the Constitutional Court rejected the applicant’s complaints. The applicant had not raised any complaints under Articles 2 or   3 of the Convention during these proceedings, as he considered that constitutional redress proceedings would not be an appropriate remedy given their duration and the urgency of the matter. OTHER RELATED PROCEEDINGS 8.     On 17 November 2020, the applicant’s legal counsel at the domestic level (CM) filed an application before the Court of Magistrates asking for the court’s protection in view of the prison authorities’ refusal to allow the lawyer even to show certain documents to the applicant. According to the applicant, in its decree of 23 November 2020 (not submitted to the Court), the court observed that a lawyer should not be prevented from taking documents with him to prison in order to discuss them with the detainee. However, the court also observed that, pursuant to Regulation 54(1) of the Prisons Regulations, any document may be read or examined by the Director if he suspects that such correspondence is unrelated to the proceedings. 9 .     On 23 November 2020 the applicant filed a further application before the Court of Magistrates by which he sought an order by the court to ensure confidential communications whilst he was in detention. He pointed out his lack of opportunity to communicate verbally or in written form with his lawyers, the lack of any opportunity to bring and show documents to him in prison, and to have a secure telephone line without recording. According to the applicant, in its decree of 24 November 2020 (not submitted to the Court), the Court of Magistrates declined to intervene, claiming that the issue was solely within the jurisdiction of the Director of Prisons, and the court had no jurisdiction to intervene on issues concerning the management of the prison or the implementation of the relevant legal provisions regulating the prison facility. With particular reference to the request for an unrecorded telephone line, the court denied the request, referring to Regulation 59 of the Prisons Regulations, which specifically allowed the monitoring and recording of all conversations in prison. 10.     The applicant did not lodge constitutional redress proceedings complaining about the above. CONDITIONS OF DETENTION AT THE CORRADINO CORRECTIONAL FACILITY 11.     In his application to the Court the applicant claimed that ever since he had been remanded in custody, he had endured a mixture of abusive, unsanitary and unhealthy conditions of detention as follows. 12 .     According to the applicant,   from 30 November 2019 to 3   January 2020, he was placed in solitary confinement. During that time i)   he was   not   given any warm clothing or socks, was left in a cell in used shorts and T-shirt provided by the prison and refused access to his own clothing; ii)   he did not have proper bedding in his cell, which had a makeshift bed which was a piece of foam on the floor, without any sheets or pillows; iii)   he was forced to use a hole in the ground of his cell as a bathroom, and there was no provision for flushing, and no hand basins to wash his hands; iv)   the cell had only artificial lighting, and the neon tube was left on twenty-four hours and seven days a week; v)   the applicant was only allowed sixty minutes out of his cell a day, within which time he was expected to eat, wash up, clean his cell, and finally take a break. During this break, the applicant was not allowed to go outside for fresh air or sunlight, and his movement was restricted to visiting another room; vi)   he was not given any water or cigarettes from 10   p.m. ‑ 6 a.m.; and was not allowed access to any books from the library for the first twenty-seven days. 13 .     Since 4 January 2020 onwards, the applicant was moved to a dormitory, the conditions of which he also considered unsanitary and unhealthy. He shared his cell with four or five other detainees (whose identity could change). The cell measured 34.8 sq.m. (sic.) and each detainee had less than 4 sq.m. of free space. The detainees slept on bunk beds and shared a toilet, shower, and handbasin. They had to wash their clothes, dishes and plates in the same handbasin. The applicant was not allowed to use the gym for exercise. Instead, he was able to walk in a yard for thirty minutes per day. The remainder of the day, he was confined to the shared cell. 14 .     The applicant submitted that he was in daily contact with guards (who were rotated every week) and nurses and a chaplain (who also rotated). On any single day, the applicant was exposed to ten persons who left the prison at least weekly. The applicant was not allowed to go to mass or church; was subjected to CCTV surveillance in his cell; was deprived of family visits and was only allowed to speak to his family by Skype once (according to his application). While he was able to discuss legal issues with his counsel on a confidential basis in person, all legal documents were (temporarily) seized and could be read or photocopied by the prison authorities. Moreover, confidential meetings with the applicant and his lawyers were under surveillance through a CCTV. THE APPLICANT’S MEDICAL BACKGROUND 15 .     The applicant was, at the time of lodging the application in 2020, thirty-eight years of age and has only one kidney. On 12 April 2020, a Consultant Surgeon AA wrote a report (submitted to the Court at the time of lodging the application) stating that the applicant was “susceptible in any infective situation such as Corona virus infection leading to Covid-19 which has been shown to be associated not only with respiratory complications but also with the development of renal complications which will be aggravated in a patient like the applicant who at present already has a reduced renal reserve as a consequence of only having one kidney”. RELEVANT LEGAL FRAMEWORK CRIMINAL CODE 16 .     Article 9 of the Criminal Code, Chapter 9 of the Laws of Malta, concerning solitary confinement reads as follows: “(1) The punishment of solitary confinement is carried into effect by keeping the person sentenced to imprisonment, during one or more terms in the course of any such punishment, continuously shut up in the appointed place within the prison, without permitting any other person, not employed on duty nor specially authorized by the Minister responsible for the prisons, to have access to him. (2) No term of solitary confinement shall exceed ten continuous days. (3) More terms of solitary confinement may only be applied with an interval of two months between one term and another. (4) Nevertheless, solitary confinement may be applied during those intervals in case of any infringement of the prison regulations or for any other offence committed during the said intervals, provided that the terms be of short duration and that they shall not together exceed fifteen days in any one interval. (5) Where the law prescribes the punishment of solitary confinement and does not specify the particular number of terms, it shall not be lawful to inflict more than twelve terms of solitary confinement. (6) The punishment of solitary confinement is applied in the cases prescribed by law. (7) Before awarding the punishment of solitary confinement the court shall satisfy itself, if necessary by medical evidence, which may include a medical examination of the person convicted, that the person convicted is fit to undergo the said punishment. (8) Where, in the course of the execution of the punishment of solitary confinement, the medical officer of the prison certifies in writing that the prisoner is no longer fit to undergo such punishment, the execution of that punishment shall be suspended until such time as the prisoner is again certified to be medically fit to undergo such punishment.” PRISONS ACT 17.     Section 8 of the Prisons Act, Chapter 260 of the Laws of Malta, provides for the establishment of the Board of Visitors of the Prisons, which as of 2015 is called the Corradino Correctional Facility Monitoring Board. In so far as relevant, as amended in 2015, it reads as follows: “(1) There shall be a Corradino Correctional Facility Monitoring Board, composed of such members as shall be appointed every two years by the President. (2) If any vacancy in the Board occurs on account of death, resignation or for any other cause, the President shall, as soon as practicable, appoint another person to fill the vacancy: Provided that the Board and the members thereof may act notwithstanding any such vacancy. (3) The members of the Board shall exercise such functions as shall be assigned to them by regulations made under article 6 of this Act. (4) The Minister responsible for the Prisons, the Chief Justice, the judges, the magistrates and the Attorney-General shall be ex officio Special Visitors of the prisons, and as such it shall be lawful for them to have at any time access to the prisons for the purpose of inspecting such prisons and any of the prisoners therein. They shall enter in the official Visitors’ Book any remarks which they may deem proper in regard to the prisons and prisoners, and the book shall be produced to the members of the Corradino Correctional Facility Monitoring Board on their next visit to the prisons. (5) The Director of Prisons shall ensure that all prisoners are made aware of the Corradino Correctional Facility Monitoring Board and its functions thereof and to make available the necessary mechanism in order that the prisoners can make their requests or complaints to the Board.” PRISONS REGULATIONS 18 .     In so far as relevant the Prisons Regulations, Subsidiary Legislation   260.03, as amended in 2016 and later, but not including the amendments introduced by means of Legal Notice 475 of 2021, Prisons (Amendment No. 2) Regulations, 2021, published in the Government Gazette on 17   December 2021(*), read as follows: Regulation 8(1) “(1) An unconvicted prisoner may keep, if he has them with him on his admission to prison, or have supplied to him at his expense and retain for his own use, books, newspapers, writing materials and other means of occupation, unless this is objectionable to the Director on the grounds that they are not compatible with the interest of the administration of justice or the security or good order of the prison.” Regulation 17 “(1) Every request by a prisoner to see the Director, the [the Corradino Correctional Facility Monitoring] Board or a member thereof, and any complaint made by a prisoner, shall be recorded by the prison officer to whom it is made and promptly passed on to the Director. (2) The Director shall, without undue delay, see prisoners who have asked to see him and take cognizance of any request or complaint made to him. (3) Where a prisoner has asked to see the Board, or a member thereof, the Director shall ensure that the Secretary of the Board is informed of the request within a reasonable time. (4) Prison officers in direct contact with prisoners, shall, at their request, supply prisoners with an appropriate form approved by the Director for the purpose of making requests, complaints or petitions. Prisoners may, however, submit any request, complaint or petition in any other proper written form and even verbally.” Regulation 18 “(1) If a prisoner so requests the Director may interview him without any other person being present. (2) If a prisoner requests an interview with the Board, the Secretary and any two other members thereof may interview him without the Director or any other person being present. (3) Every prisoner shall be allowed to make a request or complaint to the Director, to the Board or to the Minister, or to petition the President of Malta, or to an internationally recognized human rights body, under confidential cover. (4) Every request, complaint or petition of a prisoner shall be dealt with and replied to without undue delay.” Regulation 19 “(1) Where accommodation is shared it shall be occupied by prisoners suitable to associate with each other in those conditions. (2) The accommodation provided for prisoners, and in particular all sleeping accommodation, shall meet the requirements of health and hygiene, due regard being had to climatic conditions and especially the cubic content of air, a reasonable amount of space, lighting and ventilation. Such accommodation shall also allow the prisoner to communicate at any time with a prison officer.” Regulation 20 “In all places where prisoners are required to live or work – (a) the windows shall be such as to enable the prisoners to read or work by natural light in normal conditions and shall be so constructed that they can allow the entrance of fresh air, and shall, with due regard to security requirements, present in their size, location and construction as normal an appearance as possible; (b) artificial light shall satisfy recognised technical standards and, as regards the cells, shall be capable of being dimmed at night in such a way as to permit supervision.” Regulation 21 “Every prisoner shall be provided with a separate bed and separate bedding appropriate for warmth and health, which shall be kept in good order and changed often enough to ensure its cleanliness in accordance with the orders of the Director.” Regulation 23 “(1) Prisoners shall be required to keep their persons clean, and to this end they shall be provided with such toilet articles as are needed for health and cleanliness, which articles shall be replaced as necessary. ... (3) Each cell shall be provided with a wash hand basin with running water and with a toilet. If there is no flushing equipment each prisoner shall be allowed to have a sufficient quantity of water for keeping the toilet clean. (4) Proper toilet facilities shall also be provided in other parts of the prison. ...” Regulation 25 “(1) Prisoners sentenced to imprisonment shall be provided at the normal times with food which is suitably prepared and presented, and satisfies in quality and quantity modern standards of diet and hygiene, and which takes into account the age, sex, and health of the prisoners, the nature of their work and so far as possible, their religious or cultural requirements. (2) The Director shall regularly inspect food provided to the prisoners and shall ensure that no prisoner shall be given food which is less than or different from that which is ordinarily provided, except upon the written recommendation of the Medical Officer. (3) The provisions of this regulation shall also apply to unconvicted prisoners and prisoners sentenced to detention, provided that the Director may establish a system under which such prisoners may be supplied with reasonable amount of food at their own expense or at the expense of their family. In no case can such food be passed to other prisoners without the permission of the Director. (4) No prisoner sentenced to imprisonment shall be allowed, except as authorised by the Director or by the Medical Officer, to have any food other than that ordinarily provided. (5) In this regulation "food" includes drinking water.” Regulation 28 “(1) Prisoners not engaged in outdoor work shall be given exercise in the open air for not less than a total of one hour, each day, if weather permits: Provided that exercise consisting of physical training maybe given indoors instead of in the open air. (2) The Director may in exceptional circumstances authorize reduction of the period aforesaid. (3) The Medical Officer shall decide on the fitness of every prisoner for exercise and physical training, and may excuse a prisoner from, or modify, any such activity on medical grounds. Special arrangements shall be made for remedial physical education and therapy for those prisoners who need it.” Regulation 31 “... (7) The Medical Officer shall inform the Director if he suspects any prisoner of having suicidal intentions, and such prisoner shall be placed under special observation.” Regulation 32 “(1) The Medical Officer shall ensure the care of the physical and mental health of the prisoners and shall also ensure that medical doctors see, under proper conditions and with such frequency as is reasonably required, all sick prisoners, those who report illness or injury, and any prisoner who may require medical attention. ... (3) (a) The Medical Officer shall report to the Director whenever he considers that a prisoner’s physical or mental health has been or will be adversely affected by continued imprisonment or by any condition of imprisonment. (b) If any prisoner is found to have any infectious or contagious disease, a report thereof shall be made forthwith to the Director by the Medical Officer, under whose direction steps shall be taken to treat the condition and to prevent its transmission to others.” Regulation 33 “ ... (1) (a) Every prisoner shall, as soon as possible after admission, and prior to his release, be separately examined by a medical practitioner of the prison medical services. A record is to be entered of the state of health of the prisoner and other necessary particulars in a register kept for the purpose (...)” Regulation 34 “(1) The Medical Officer shall regularly advise the Director on: (a) the quantity, quality, preparation and serving of food and water; (b) the hygiene and cleanliness of the prison and prisoners; (c) the sanitation, heating, lighting, and ventilation of the prison; and (d) the suitability and cleanliness of the prisoners’ clothing and bedding. (2) The Medical Officer shall at least once every six months make a report to the Director on the health of the prisoners and on the general sanitation of the prison.” Regulation 37 “The medical services of the prison shall seek to detect and shall treat any physical or mental illness or defect or drug-related condition which may affect a prisoner’s well-being in prison or which may impede a prisoner’s re-settlement after release. All necessary medical, surgical and psychiatric services available without charge to the community outside prison shall also be provided to the prisoner.” Regulation 39 “(1) The Medical Officer shall ensure that the prison medical service keeps proper medical records for each prisoner, and such other records as may be necessary including the times of attendance of medical practitioners, all examinations, inspections and visits carried out, all prescriptions and orders issued, any advice given to the Director relating to any prisoner or prison officer. The stocks of medicines and medical equipment, and generally of all matters relevant to the performance of the duties pertaining to the prison medical service. (2) All records under this regulation shall be kept in the prison and shall be accessible, subject to their confidentiality, to the Minister, the Director, the Board and to any properly authorised person: Provided that as regards the medical records of prisoners the provisions of regulation 7(4) [1] shall, mutatis mutandis , apply. (...) ” Regulation 47 “An adequately stocked library containing books and periodicals of a suitable instructional and recreational range shall be provided at the prison and, subject to any directions of the Director, every prisoner shall be allowed to have library books and periodicals and to exchange them. The library shall, as far as practicable be organised in co-operation with public and community library services.” Regulation 51 “(1) Except as provided by these regulations, every letter and communication to or from a prisoner may be read or examined by the Director or a prison officer deputed by him, and the Director may stop any letter or communication if its contents are objectionable or if it is of inordinate length. (2) Every visit to a prisoner shall take place within the sight of a prison officer. (3) Visits to a prisoner may, with the consent of the Director, take place within the hearing of a prison officer. (4) No object may be handed over to a prisoner during any visit without the approval of the Director. (5) The Minister may give directions, generally or in relation to any visit or class of visits, concerning the days, times, duration and any other condition of visits to prisoners.” Regulation 52 “(1) Subject to the provisions of sub regulation (11), an unconvicted prisoner may send and receive as many letters and may receive as many visits within such limits and subject to such conditions, as the Minister may direct, either generally, or in particular cases. ... (3) The Director may allow a prisoner to send or receive an additional letter or visit where necessary for his welfare or that of his family. (4) The Director may allow a prisoner entitled to a visit to send and receive a letter instead. (5) The Director may defer the right of a prisoner to a visit until the expiration of any period of cellular confinement. (6) A prisoner shall not be entitled under this regulation to receive a visit from any person other than those as are referred to in regulation 50 except with the leave of the Minister. (7) Subject to any direction of the Minister under regulation 51(5), the duration of any visit and the number of visitors in respect of any particular visit shall be established by the Director according to the needs of security, discipline and good order. (8) Visits, other than those referred to in regulations 53 and 54,shall take place in the room or rooms designated for such purpose by the Director who may also permit visits to take place outside such rooms on special grounds and under appropriate supervision. (9) A full record shall be kept in an appropriate register of all visits to prisoners and such record shall include the date and time of the visits and particulars relating to the identity of the visitor.” Regulation 53 “(1) The legal adviser of a prisoner in any judicial proceedings, civil or criminal, to which the prisoner is a party shall be afforded reasonable facilities for interviewing the said prisoner in connection with those proceedings. (2) With the permission of the Director, the legal adviser of a prisoner may interview him in connection with legal matters other than those referred to in the foregoing sub regulation. ... (4) The interviews referred to in the foregoing sub regulations shall be conducted out of hearing but in the sight of a prison officer. (5) Visits under this regulation shall take place in a room different from the room or rooms where visits referred to in regulation 52 are held, but shall also be recorded in the register of visits under sub regulation (9) of that regulation.” Regulation 54(1) “A prisoner who is a party to any legal or judicial proceedings may correspond with his legal adviser in connection with those proceedings and, unless the Director has reason to suspect that any such correspondence contains matter not relating to the proceedings, the said correspondence shall not be read or stopped under regulation   51(1).” Regulation 59(1) “Telephone calls by prisoners shall be subject to the needs of security, discipline and good order of the prison and shall be considered as a privilege in terms of regulation   13. All telephones within the Prisons shall be equipped for monitoring and recording of conversations, and the Director may authorise the intentional hearing of such conversations to safeguard members of the public or the security or safety within the prison, or to prevent the furtherance of any illegal activity.” Regulation 67 “(1) Where it appears desirable, in the interests of security or for the maintenance of good order or discipline or in his own interest, that a prisoner should not associate with other prisoners, either generally or for particular purposes, the Director may arrange for the prisoner’s removal from association accordingly. During such periods the Director may also order the cancellation of visits, other than those referred to in regulations 53, 54 and 55. (2) A prisoner shall not be removed from association under the foregoing sub regulation for a period of more than forty-eight hours without the authority of the Minister. An authority given under this sub regulation shall be for a period not exceeding fifteen days, but may be renewed for similar periods. Such an authority shall be immediately notified to the Chairman of the Board. (3) The Director may, in his discretion, direct that the prisoner resume association with other prisoners, and shall so direct if the Medical Officer advises accordingly on medical grounds: Provided, that when such removal had been effected under the Minister’s authority in terms of the preceding sub regulation, the Minister and the Chairman of the Board shall be notified immediately of such direction.” Regulation 73 “Particulars of every case dealt with under regulations 67,68, 69 and 71 shall be forthwith recorded by the Director in a register kept for the purpose.” Regulation 78 “(1) If the Director finds a prisoner guilty of an offence against discipline he may impose one or more of the following punishments: ... (f) cellular confinement not exceeding thirty days; ...” Regulation 82 “(1) Cellular confinement in respect of offences against discipline shall be undergone in a cell which meets the standards of these regulations. (2) The Medical Officer shall monitor the condition of prisoners undergoing cellular confinement and shall advise the Director if the termination or alteration of the relative punishment is considered necessary on grounds of physical or mental health. If the Director, acting on such advice, terminates or alters the punishment of cellular confinement, he shall substitute for it an alternative punishment specified in regulation   78. (3) It shall also be the duty of the Medical Officer to monitor the condition of any prisoner sentenced to solitary confinement by any court.” Regulation 90 “... (3) Saving his powers to give orders, whether verbally or in writing, as he may deem fit for the proper running of the daily administration of the prison, the Director may also make orders in writing relating to any aspect of the administration of the prison and the maintenance of discipline, security and good order therein, as well as to any other matter forming part of his duties as set out in these regulations: Provided that nothing in such orders shall be contrary to the provisions of the Act or of these regulations. (4) The Director shall take strict care to ensure that these regulations and any direction or order given thereunder, as well as any order relating to the prison, are complied with and enforced. (...)” Regulation 107* “It shall also be the duty of the Board to hear and decide upon, as soon as practicable, any request or complaint made to it by a prisoner including on matters relating to the conditions of their detention directly to the Secretary or to any of its members during the course of a visit or inspection.” Regulation 108* “(1) The decisions of the Board shall be taken by a majority of the members present and voting. In the case of an equality of votes the Chairperson shall have a casting vote in addition to his original vote. (2) The decisions of the Board shall not be binding upon the Director but it shall be the duty of the Director to take serious cognizance of the recommendations of the Board following a decision taken as provided in sub regulation (1) and to enter into a dialogue with the Board on possible implementation measures. Subject to the provisions of sub regulation (3), where the Director, or any other prison officer acting on his behalf, is of the opinion that the recommendations of the Board cannot be implemented for reasons which are in the best interests of the prison administration, an explanation in writing of these reasons shall, within one month of the date of receipt of the Board’s recommendations, be forwarded to the Chairperson of the Board and copied to the Minister, or to a person delegated by him. The Minister, or the person delegated by him, may confirm or vary the decision of the Director. (3) Where the recommendation of the Board entails, in the opinion of the Director, a security issue requiring strict confidentiality the Director, within the period of one month mentioned in sub regulation (2), shall make a statement to this effect to the Chairperson of the Board and shall concurrently submit a personal report directly to the Minister, or to the person delegated by him, giving his own comments on the recommendation, together with his opinion as to whether or not such recommendation should be accepted. The Minister’s decision, or that of the person delegated by him, shall be final and conclusive. (4) It shall also be lawful for the Board to decide on complaints and requests made by the prisoners relating to the conditions of their detention within a period of two months of the date of receipt of the request or complaint and after consulting the Director in relation to the said requests and complaints.” Regulation 114 “The Board shall inquire into any report made to it, or any information otherwise coming to its knowledge, that a prisoner’s health, mental or physical, has been or is likely to be injuriously affected by any conditions of his imprisonment.” RELEVANT INTERNATIONAL MATERIALS [2] COVID-19 19.     The Council of Europe issued a number of statements in connection with the Covid-19 pandemic and prisons, as follows: 20.     The Council of Europe Secretary General’s Toolkit for member States “Respecting democracy, rule of law and human rights in the framework of the COVID-19 sanitary crisis” (Doc. SG/Inf(2020)11 of 7   April 2020) - https://rm.coe.int/sg-inf-2020-11-respecting-democracy-rule-of-law-and-human-rights-in-th/16809e1f40 21.     The Statement of the Council of Europe Commissioner for Human Rights made on 6 April 2020: “COVID-19 pandemic: urgent steps are needed to protect the rights of prisoners in Europe” - https://www.coe.int/en/web/commissioner/-/covid-19-pandemic-urgent-steps-are-needed-to-protect-the-rights-of-prisoners-in-europe 22.     Statement of principles relating to the treatment of persons deprived of their liberty in the context of the coronavirus disease (COVID-19) pandemic issued on 20 March 2020 - European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) Council of Europe - https://rm.coe.int/16809cfa4b and its follow up of July 2020 https://rm.coe.int/16809ef566 23.     Covid-19 Related statement by the members of the Council for   penological co-operation working group (PC-CP WG) CPT/Inf(2020)13   - https://rm.coe.int/pc-cp-wg-covid-19-statement-17-04-2020/16809e2e55 and its follow up of October 2020 https://rm.coe.int/pc-cp-2020-10-e-rev-follow-up-to-pc-cp-wg-statement-covid-19/16809ff484 24 .     On 15 March 2020 the World Health Organisation (‘WHO’) issued interim guidance concerning the Pandemic entitled “Preparedness, prevention and control of COVID-19 in prisons and other places of detention”   - https://apps.who.int/iris/bitstream/handle/10665/336525/WHO-EURO-2020-1405-41155-55954-eng.pdf?sequence=1&isAllowed=y GENERAL PRISON STANDARDS 25.     The United Nations Standard Minimum Rules for the Treatment of Prisoners - https://www.unodc.org/documents/justice-and-prison-reform/Nelson_Mandela_Rules-E-ebook.pdf 26 .     Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules - Adopted by the Committee of Ministers on 11 January 2006, at the 952nd meeting of the Ministers’ Deputies and revised and amended by the Committee of Ministers on 1 July 2020 at the 1380th meeting of the Ministers’ Deputies - https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=09000016805d8d25 27.     Combatting ill-treatment in prison, Council of Europe handbook - https://rm.coe.int/combating-ill-treatment-in-prison-2-web-en/16806ab9a7 28.     Good governance for prison health in the 21st century. A policy brief on the organization of prison health (2013), compiled by the United Nations Office for Drugs and Crime and the WHO, regional office for Europe - https://www.euro.who.int/__data/assets/pdf_file/0017/231506/Good-governance-for-prison-health-in-the-21st-century.pdf 29.     Office of the High Commissioner for Human Rights, Human rights in the administration of justice, A/HRC/42/20, 30 July 2019 - https://www.ohchr.org/Documents/Issues/RuleOfLaw/Violence/A_HRC_42_20_AUV_EN.pdf OTHER MATTERS Solitary confinement 30 .     Recommendation Rec(2006)2-rev of the Committee of Ministers to member States on the European Prison Rules, adopted by the Committee of Ministers on 11 January 2006, at the 952nd meeting of the Ministers’ Deputies and revised and amended by the Committee of Ministers on 1   July 2020 at the 1380th meeting of the Ministers’ Deputies (link at paragraph   26 above), in so far as relevant at the time of the present case, reads as follows: “53.1 Special high security or safety measures shall only be applied in exceptional circumstances. 53.2 There shall be clear procedures to be followed when such measures are to be applied to any prisoner. 53.3 The nature of any such measures, their duration and the grounds on which they may be applied shall be determined by national law. 53.4 The application of the measures in each case shall be approved by the competent authority for a specified period of time. 53.5 Any decision to extend the approved period of time shall be subject to a new approval by the competent authority. 53.6 Such measures shall be applied to individuals and not to groups of prisoners. 53.7 Any prisoner subjected to such measures shall have a right of complaint in the terms set out in Rule 70. ... 60.6. a     Solitary confinement, that is the confinement of a prisoner for more than 22   hours a day without meaningful human contact, shall never be imposed on children,   pregnant women, breastfeeding mothers or parents with infants in prison. 60.6. b     The decision on solitary confinement shall take into account the current state of health of the prisoner concerned. Solitary confinement shall not be imposed on prisoners with mental or physical disabilities when their condition would be exacerbated by it. Where solitary confinement has been imposed, its execution shall be terminated or suspended if the prisoner’s mental or physical condition has deteriorated. 60.6. c     Solitary confinement shall not be imposed as a disciplinary punishment, other than in exceptional cases and then for a specified period, which shall be as short as possible and shall never amount to torture or inhuman or degrading treatment or punishment. 60.6. d     The maximum period for which solitary confinement may be imposed shall be set in national law. 60.6. e     Where a punishment of solitary confinement is imposed for a new disciplinary offence on a prisoner who has already spent the maximum period in solitary confinement, such a punishment shall not be implemented without first allowing the prisoner to recover from the adverse effects of the previous period of solitary confinement. 60.6. f       Prisoners who are in solitary confinement shall be visited daily, including by the director of the prison or by a member of staff acting on behalf of the director of the prison.” 31.     In so far as relevant, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, 21 st General Report on the CPT’s activities , 2011, deals with solitary confinement at pages   39-50, and can be accessed - https://rm.coe.int/1680696a88 32.     See below the findings of the CPT in relation to solitary confinement in Malta, at point 90 of the report. CPT report Malta (2016) 33 .     The Report to the Maltese Government on the visit to Malta carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), 25 October 2016, in so far as relied on by the applicant, reads as follows: “56. The delegation noted that some renovations had been undertaken in CCF (for example, of Divisions IV and VII). Further, two of the previously most problematic divisions (Divisions VI and XV) had been closed down. Nevertheless, the remaining divisions provided generally poor living conditions for the inmates, and this was particularly the case in Divisions II, III and XIII. While most cells were sufficient for single occupancy (measuring some 9m²), the dormitory rooms at CCF (for example in Division XIII) were cramped, with nine inmates held in approximately 30m² (i.e. significantly less than the minimum standard of 4m² of living space per prisoner in a multiple-occupancy cell recommended by the CPT).19 Many of the cells were excessively hot (over 30 degrees Celsius at the time of the visit) with poorly functioning ventilation. Further, some of the cells were in a bad state of repair, with mould or ingrained dirt evident on the walls and around the windows. Many of the washrooms were dirty, some showers lacked shower-heads and there were problems with drainage, which reportedly caused water to leak into the nearby cells (especially on the ground floor of Division XIII). The in-cell toilets were unscreened, had mal-functioning flushes, and the water