CEDH · CASELAW;COMMUNICATEDCASES;ENG — 30 juin 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left }   Communicated on 30 June 2016   SECOND SECTION Application no. 23183/15 A.T. against Estonia lodged on 7 May 2015 STATEMENT OF FACTS The applicant, A.T., is an Estonian national, who was born in 1977. He is serving a life sentence in Estonia. A.     The circumstances of the case The facts of the case, as submitted by the applicant and as they appear from the documents submitted to the Court, may be summarised as follows. 1.     Medical examination on 9 November 2010 On 9 November 2010 the applicant was transferred from prison to a public hospital to undergo a medical examination (colonoscopy). The medical examination was held in a room with barred windows. During the examination the applicant was restrained with handcuffs and shackles, which were chained to a belt around his waist (joined shackles). The prison officers remained in the room with the applicant during the examination and were able to follow the examination of his internal organs on the monitor, even though, according to the applicant, he had asked them to leave. They also could overhear the conversation between the applicant and the doctor regarding the applicant’s health. 2.     Medical examination on 27 October 2011 On 27 October 2011 the applicant was transported from prison to a public hospital to undergo a medical examination by an LOR (ear-nose-throat) specialist. The medical examination was held in a room located on either the 4 th or 5 th floor. During the examination the applicant was restrained with handcuffs and shackles, which were chained to a belt around his waist. The handcuffs and shackles were not removed during the medical examination. The prison officers remained in the room with the applicant during the examination and could overhear the conversation between the applicant and the doctor regarding the applicant’s health. 3.     Visit to hospital on 31 January 2012 On 31 January 2012 the applicant was transferred from prison to Tallinn Children’s Hospital to visit his newborn daughter who had undergone surgery and was in a serious condition. According to the applicant, the prison officials had been aware that visiting hours at the hospital were from midday to 7 p.m., but he had been transferred to the hospital around 11 a.m. His visit with his daughter had lasted only 10 minutes because he had been there during the time that medical procedures were being performed, and she had had to undergo some medical procedures. Furthermore, he had wanted to touch his child, which the doctor had given him permission to do, but the prison officers had prohibited him from doing so. Five prison officers remained with him at all times and could overhear the conversation between the applicant and the doctor regarding his daughter’s health. 4.     Administrative court proceedings On 5 February 2012 the applicant filed a petition with the Tartu Administrative Court to ascertain the lawfulness of various acts of Viru Prison. This was registered as administrative case no. 3-12-270. Inter alia, he asked the court to establish the unlawfulness of the fact that he had to remain handcuffed and shackled during his medical examinations, and of the failure of the prison officers to respect patient-doctor confidentiality, their observation and overhearing of the medical examinations, bringing him to see his child at the wrong time and consequentially limiting his visit with his daughter to only 10 minutes, and the infringement of respect for his private and family life. In support of his complaint about the infringement of respect for his private and family life, the applicant explained that he had wanted to touch his daughter, which the doctor gave him permission to do and for which the doctor had been willing to disinfect the applicant’s hands, but the prison officers had prohibited him from doing so. On 16 April 2012 the applicant filed a complaint with the Tartu Administrative Court in which he submitted a claim for compensation for non-pecuniary damage in the amount of 30,000 EUR, based on the same complaints and reasoning as in case no. 3-12-270. In this complaint the applicant also clearly stated that the limitation of his visit with his daughter and the prohibition to touch her had been unlawful, and that the non-pecuniary damage caused thereby should also be compensated. The proceedings regarding this complaint (case no. 3-12-801) were joined with the proceedings in case no. 3-12-270. On 29 January 2013, the Tartu Administrative Court issued its judgment in which it rejected the applicant’s complaint in full. The court held that the use of the handcuffs and shackles was provided for by law and based on preventive security considerations. It held that this measure was suitable, necessary and proportionate in the strict sense, and thus in accordance with the principle of proportionality. The court noted in the description of the proceedings that the applicant had complained that the prison officers remained in the examination room while medical procedures were being conducted and while the applicant was speaking to the doctor, which the applicant considered to have breached doctor-patient confidentiality and respect for his private and family life. The administrative court did not address these complaints in its reasoning or in the operative part of the judgment. The administrative court also made no mention of the applicant’s complaints regarding his being taken to the hospital at the wrong time with the consequent limitation of his visit with his daughter, and regarding the prison officers prohibiting him from touching his daughter and overhearing his conversation with the doctor about his daughter’s health. On 28 February 2013, the applicant filed an appeal with the Tartu Court of Appeal against the judgment of the Tartu Administrative Court in which he asked the court to overturn the judgment of the court of first instance and uphold his complaint in full, i.e. all of the complaints submitted to the first instance administrative court. In his appeal, the applicant reiterated that he maintained the position presented in his complaint, in court and in his submissions to the court, and requested that the appeal court base its judgment on both them and the appeal. In the appeal he noted inter alia that the administrative court had failed to respond to the justification and evidence supporting his claims. He also noted that the court had failed to address the breaches of doctor-patient confidentiality in its judgment. According to the written submission of Viru Prison submitted by the applicant, the Prison did not intentionally take the applicant to Tallinn Children’s Hospital at the time medical procedures were being performed as a result of which he was not given the opportunity to be with his daughter for more than ten minutes. Viru Prison had reached a prior agreement with the Children’s Hospital for the applicant to have a one-hour visit outside of visiting hours so as to avoid contact with third persons as much as possible. This was above all in the applicant’s own interest. The applicant had to take into consideration that his daughter was in hospital and that it might at any time have been necessary to perform a medical procedure on a patient in a serious condition. According to the escort plan, the applicant arrived at the hospital at 10:50 a.m. and the visit ended at 11:15 a.m.. As for the length of the visit with his daughter in hospital, according to the head of the escort team, the applicant himself had wanted to leave once he had spoken with the doctor. On 26 August 2014, the Tartu Court of Appeal delivered its judgment in which it dismissed the applicant’s complaint in full, but amended some of the reasoning in the first instance court’s judgment. The appeal court in substance confirmed the administrative court’s conclusion about the use of handcuffs and shackles during the medical examination. The appeal court noted that in his appeal, the applicant had claimed that the administrative court had failed to address the breaches of doctor-patient confidentiality. The Court of Appeal rejected the applicant’s complaint about the prison officers’ presence during the applicant’s medical examinations and when he visited his daughter in hospital, as they had a duty under the Regulation of the Minister of Justice “Prisoner Escort Duties and Procedures” ( Vangla saatemeeskonna ülesanded ja töökord ) to escort him and guard him during the medical examinations and the visit. It was also required that at least one member of the escort team maintain visual contact with the prisoner at all times. Even if they had overheard any conversation between the applicant and the doctor, they had an official duty to maintain the confidentiality of such information. The Court of Appeal made no mention of the applicant’s complaints regarding his being taken to the hospital at the wrong time with the consequent limitation of his visit with his daughter, and regarding the prison officers prohibiting him from touching his daughter. On 26 October 2014, the applicant submitted an appeal to the Supreme Court in which he requested that the Supreme Court quash the judgment of the Court of Appeal and uphold his complaint in full. In his appeal the applicant reiterated his complaint that he had remained handcuffed and shackled during his medical examinations and that the prison officers had stayed with him during his medical examinations on 9 November 2010 and 27 October 2011 and when he visited his daughter in hospital, and had overheard his conversations with the doctor on those occasions. While the Prison had been aware that visiting hours at the Children’s Hospital were from midday to 7 p.m., the applicant had been brought to the hospital around 11 a.m. at the time when medical procedures were being performed on patients, due to which he could only spend 10 minutes with his daughter instead of the 1 hour promised, as the doctor had said that no persons were allowed to be in the department when procedures were being conducted. The prisoner escort team’s arbitrary actions, i.e. bringing him to the hospital at the wrong time, restricted the applicant’s right to visit his child and the time during which he could do so. The escort team had also, without justification, prohibited the applicant from touching his daughter, although they were aware that the child’s condition was critical and the applicant might never see her again, and even though the doctor had given permission for the applicant to touch her and had been willing to disinfect his hands beforehand. In his appeal to the Supreme Court, the applicant also stated that the Court of Appeal had failed to address his complaints regarding the Prison taking him to see his child at the wrong time, thereby restricting the duration of the time of his visit with her, and regarding the prison officers prohibiting him from touching his daughter. On 15 January 2015, the Supreme Court refused the applicant leave to appeal. B.     Relevant international documents 1.     CPT Standards The CPT Standards (the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment) concerning health care services in prisons (see the CPT standards, document no.   CPT/Inf/E (2002) 1- Rev. 2006, pages 31 and 34) provide as follows: “... All medical examinations of prisoners (whether on arrival or at a later stage) should be conducted out of the hearing and - unless the doctor concerned requests otherwise - out of the sight of prison officers...“ 2.     The United Nations Standard Minimum Rules for the Treatment of Prisoners The Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders in 1955 and approved by the Economic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977, include the following guiding principle concerning instruments of restraint: “33.     Instruments of restraint, such as handcuffs, chains, irons and strait ‑ jackets, shall never be applied as a punishment. Furthermore, chains or irons shall not be used as restraints. Other instruments of restraint shall not be used except in the following circumstances: (a)     As a precaution against escape during a transfer, provided that they shall be removed when the prisoner appears before a judicial or administrative authority; ... (c)     By order of the director, if other methods of control fail, in order to prevent a prisoner from injuring himself or others or from damaging property; in such instances the director shall at once consult the medical officer and report to the higher administrative authority.” C.     Relevant domestic law Section 765 of the Law of Obligations Act ( Võlaõigusseadus ) provides as follows: § 765. Provision of healthcare services in the presence of third persons “Third persons may be present during the provision of healthcare services only with the consent of the patient, except if the provision of healthcare services is not possible without the presence of a third person, it is not possible to ask the patient for consent and failure to provide the healthcare services would significantly endanger the health of the patient.” Article 1 § 1 clause 5 of the Regulation of the Minister of Justice “Prisoner Escort Duties and Procedures” ( Vangla saatemeeskonna ülesanded ja töökord ), provides that the duties of an escort team include to escort, under armed surveillance, a prisoner or person under detention from prison to a medical facility and to guard the prisoner or person there. According to Article 28 § 4 of the same Regulation, during the entire time of the escort, at least one member of the escort team must have visual contact with the prisoner or person under detention. COMPLAINTS 1.     The applicant complains, relying on Articles 3 and 8 of the Convention, that the conditions of his medical examinations (i.e. use of handcuffs, shackles, measures of restraint and prison officers staying with him during his medical examinations and overhearing his conversations with the doctor on those occasions) amounted to a breach of his rights under the Convention. 2.     He also complains under Article 8 that by restricting the time of his visit with his daughter and prohibiting him from touching her, the authorities breached his right to respect for his private and family life. 3.     He further complains under Article 8 about the prison officers’ presence and their overhearing his conversations with the doctor regarding his daughter’s health. 4.     The applicant lastly complains under Article 6 § 1 about a violation of his right to a fair trial due to the courts not addressing his complaints regarding the authorities restricting his visit with his daughter and prohibiting him from touching her.   QUESTIONS TO THE PARTIES 1.     Has the applicant been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention, considering the circumstances of his medical examinations? Or has there been a violation of his right to respect for his private life, contrary to Article 8 of the Convention?   2.     Has there been a violation of the applicant’s right under Article 8 of the Convention to respect for his private and family life due to the restriction of the applicant’s visit with his daughter and due to his being prohibited from touching her? Has there been a violation of the applicant’s family and private life and/or of the private life of his daughter due to the presence of prison officers during his conversations with the doctor about his daughter’s health?   3.     Did the applicant have a fair trial in respect of his complaints regarding the restrictions on his visit to see his daughter and the prison officers prohibiting him from touching her, in accordance with Article 6 § 1 of the Convention?