A.T. v. ESTONIA - 23183/15 (Judgment : No Article 3 - Prohibition of torture : Second Section) [2018] ECHR 933 (13 November 2018)

In the case of A.T. v. Estonia,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Robert Spano, President,
Julia Laffranque,
Ledi Bianku,
Paul Lemmens,
Valeriu Griţco,
Stéphanie Mourou-Vikström,
Ivana Jelić, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 16 October 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 23183/15) against the Republic of Estonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by an Estonian national, Mr A.T. ("the applicant"), on 7 May 2015.

2. The applicant was represented by Mr T. Kullerkupp, a lawyer practising in Tallinn. The Estonian Government ("the Government") were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs.

3. The President of the Section decided under Rules 33 and 47 § 4 of the Rules of Court that the applicant should be granted anonymity and that the file should remain confidential.

4. The applicant complained under Articles 3 and 8 of the Convention about the manner in which his medical examinations had been carried out in hospital and under Article 8 of the Convention about the circumstances of his visit to see his seriously ill daughter in hospital. He also alleged that his complaints concerning the latter had not been addressed by the domestic courts, contrary to the requirements of Article 6 § 1 of the Convention.

5. On 30 June 2016 the above complaints were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1977 and is a life-sentenced prisoner. He has been detained in X Prison since 2008.

7. The facts of the case, as submitted by the parties, may be summarised as follows.

A. Medical examination on 9 November 2010

8 . Following a referral by the prison medical unit for the applicant to undergo a colonoscopy, the prison director issued an order on 9 November 2010 assigning a three-member escort team equipped with firearms, ammunition and bulletproof vests to take the applicant to Y Hospital. On the same date an escort plan ( saateplaan ) was drawn up, which included a section headed "Relevant circumstances for the execution of an escort task". It gave an overview of the applicant's past criminal behaviour, noting that he had been sentenced to life imprisonment for aggravated murder, and, while in prison, had been convicted for handling narcotic substances and repeatedly punished for acts of violence against public officials. The escort plan also included a personal risk assessment. It was noted that the applicant reacted aggressively to lawful orders of the officials when he thought that they were being unreasonable and also in situations where he felt cornered. He did not respect the prison regime and was prone to self-harm. Moreover, he was considered to become more dangerous in situations where he interpreted information in a manner expecting a favourable outcome for himself which nevertheless did not follow. The risk of his absconding was considered to be higher when outside prison. Against that background, it was considered necessary for the applicant to wear handcuffs and ankle cuffs.

9. On the same day the applicant was transferred from the prison to a public hospital. The prison officers remained in the room with him during his examination and he was restrained by handcuffs and ankle cuffs.

10 . According to the applicant, he was not allowed to wear his own clothes during the visit. The members of the escort team could overhear the conversation between him and the doctor and were able to follow the examination of his internal organs on a monitor.

11 . According to the Government, the applicant had not requested to wear his own clothes during the visit. They submitted an explanation given on 11 August 2016 by a doctor at Y Hospital, who noted that he did not remember the particular visit, but asserted that although members of the escort team would normally stay in the examination room, a screen would be placed between them and the patient. The quality management specialist of the hospital confirmed that screens were commonly used, as they prevented prison officers from directly observing the examination, but allowed them to intervene if needed. The Government also submitted detailed information about the hospital's floor plan and noted that the relevant examination room measured 40 square metres, so the prison officers had not been in the immediate vicinity of the applicant.

B. Medical examination on 27 October 2011

12 . Following a referral by the prison medical unit for the applicant to be taken to hospital for an examination by an ear, nose and throat specialist, the prison director issued an order on 27 October 2011 assigning a four-member escort team equipped with firearms and ammunition to take the applicant to Y Hospital. The information about the applicant's criminal behaviour and personal risk assessment was repeated (see paragraph 8 above) and it was considered necessary for him to wear handcuffs and ankle cuffs during the visit.

13. On the same day the applicant was transferred from prison to Y Hospital.

14 . According to the applicant, he was not allowed to wear his own clothes during the visit. In his application, he stated that the prison officers had remained in the room during the examination and could overhear the conversation between him and the doctor. In his observations he submitted that he had, very shortly after being taken to the hospital, asked to be returned to prison and had refused to go in to see the doctor as he had been embarrassed to be seen in handcuffs and ankle cuffs.

15 . The Government submitted that the applicant had not requested to wear his own clothes. They stated that although it appeared from the note in the applicant's escort plan that he had refused to see a doctor at the hospital because of his handcuffs and ankle cuffs, his medical file nonetheless revealed that a short meeting between the applicant and the doctor might have taken place. According to information obtained from the hospital, the relevant doctor's room had measured 33.5 square metres.

C. Visit to hospital on 31 January 2012

16 . On 30 January 2012 the deputy director of the prison granted the applicant's request to visit his newborn daughter (who had undergone surgery and was in a serious condition) in hospital. The applicant had submitted a request to be allowed to wear his own clothes during the visit. A six-member team (four of whom were required to stay in the immediate vicinity of the applicant and two of whom had the task of "securing the convoy") equipped with firearms and ammunition was assigned to escort the applicant. According to the escort plan, which contained information about the applicant's criminal behaviour and personal risk assessment (see paragraph 8 above), it was considered necessary for him to wear handcuffs and ankle cuffs. The visit took place on 31 January 2012.

17 . According to the applicant, the prison officers had been aware that the visiting hours at the hospital were from 12 noon to 7 p.m., but he had been transferred to the hospital at around 11 a.m. His visit with his daughter had lasted only ten minutes because he had been there during the time that medical procedures were being performed on the patients. Furthermore, he had wanted to touch his child and the doctors had given their permission, but the prison officers had stopped him from doing so. The prison officers had remained with him at all times and could overhear the conversation between the applicant and the doctor regarding his daughter's health.

18 . Relying on information provided by X Prison, the Government stated that in the relevant intensive care unit of the hospital the visiting hours were twenty-four hours a day. However, the time of the visit outside the hospital's general visiting hours (from 12 noon to 7 p.m.) had been specifically agreed with the hospital so as to minimise contact between the applicant and other people. According to the escort plan, the applicant had arrived at the hospital at 10.50 a.m. and the visit had ended at 11.15 a.m.

19 . The Government submitted an explanation drafted on 2 April 2012 by the head of the escort team on duty on the day of the visit. It stated that no medical procedures had been performed on the applicant's daughter during the visit and that the visit had not been terminated - the applicant had wished to leave the hospital himself.

20 . The Government also submitted an explanation given on 18 August 2016 by the head of the hospital board, who admitted not remembering the actual visit but stated that according to the hospital rules and code of good conduct, the intensive care unit was very quiet and any information was passed on quietly, so as not to disturb anyone. Staff had to be careful that the information was not heard by anyone other than the person concerned. Given the medical condition of the applicant's daughter, it was unlikely that permission had been granted to touch or hold her as this could have worsened her condition.

D. Administrative court proceedings

21 . Following the dismissal of his claims by X Prison, the applicant lodged a claim with the Tartu Administrative Court on 5 February 2012, alleging that the conditions and circumstances of the above-described visits had been unlawful.

22 . On 16 April 2012 he lodged a claim with the Tartu Administrative Court requesting compensation for non-pecuniary damage in the amount of 30,000 euros (EUR), based on the same complaints. In this claim he argued, inter alia , that the limitations on the visit to see his daughter and the inability for him to touch her had been unlawful. The court joined the two sets of proceedings.

23 . By a judgment of 29 January 2013, the Tartu Administrative Court dismissed the applicant's complaint in full. It held that the use of handcuffs and ankle cuffs had been permitted by law, based on preventive security considerations and, as such, had been proportionate. In the "facts and proceedings" ( asjaolud ja menetluse käik ) part of the judgment the court noted that the applicant had complained about the prison officers remaining in the examination room during the medical procedures and about his visit to see his daughter having taken place at the wrong time and being of limited duration. The court did not address these complaints in its reasoning part of the judgment.

24 . On 28 February 2013 the applicant lodged an appeal with the Tartu Court of Appeal, asking it to overturn the first-instance judgment and uphold his complaint in full. In the appeal he noted, inter alia, that the Tartu Administrative Court had failed to respond to the reasoning supporting his claims and had failed to address the breach of doctor-patient confidentiality in its judgment.

25 . By a judgment of 26 August 2014, the Tartu Court of Appeal dismissed the applicant's complaint in full, but amended some of the reasoning provided by the first-instance court. It confirmed the Administrative Court's conclusion about the use of handcuffs and ankle cuffs during the medical examination. It noted that in his appeal the applicant had claimed that the Administrative Court had failed to address the obligation to wear prison clothing, the manner in which the prison officers had carried their weapons and special equipment and the breach of doctor-patient confidentiality. The Court of Appeal dismissed the applicant's complaint about the prison officers' presence during his hospital visits, as the prison officers had had a duty under the Regulation of the Minister of Justice "Prisoner Escort Duties and Procedures" (see paragraph 36 below) to escort and guard him. The regulation 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 a conversation between the applicant and the doctor, they had had an official duty to maintain the confidentiality of that information. The court also addressed and dismissed the applicant's complaints about the obligation to wear prison clothing and about the prison officers carrying firearms. In the "facts and proceedings" part of the judgment, the Court of Appeal noted that the applicant had, inter alia , complained that the visit to see his daughter had taken place at the wrong time, limiting his visit. The court did not address this complaint in its reasoning part of the judgment.

26 . On 26 September 2014 the applicant lodged an appeal on points of law with the Supreme Court. He reiterated his complaints about the handcuffs and ankle cuffs and the presence of the prison officers during the visits. The applicant also stated that the Court of Appeal had failed to address his complaint regarding the prison officers having taken him to see his child at the wrong time (thereby restricting the duration of the visit) and having stopped him from touching his daughter.

27. On 15 January 2015 the Supreme Court refused to examine the applicant's appeal on points of law.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Relevant domestic law

1. Imprisonment Act

28 . Section 46 of the Imprisonment Act ( Vangistusseadus ), as in force at the relevant time, regulated prisoners' clothing:

"(1) Prisoners shall wear prison clothing unless otherwise provided by this Act. Prisoners are required to have a name tag attached to their clothing.

(2) Prison officers ( vanglateenistuse ametnik ) may permit prisoners to wear their own clothes if the prisoners clean, keep in order and regularly change the clothing at their own expense."

29 . Under section 132, prison officers have a duty not to disclose any facts which have become known to them in connection with the performance of their duties, including facts pertaining to the personal relationships of prisoners. The duty to maintain confidentiality is ongoing.

30 . The relevant domestic law and practice concerning the use of special equipment and means of restraint in prison and while escorting prisoners have been summarised in the case of Julin v. Estonia (nos. 16563/08and 3 others, § 90, 29 May 2012).

2. Code of Administrative Court Procedure

31 . In accordance with Article 170 § 1 of the Code of Administrative Court Procedure ( Halduskohtumenetluse seadustik ), the court hearing a matter may, on the basis of an application of a party to the proceedings or of its own motion, enter a supplemental judgment if a claim or application has not been decided in the operative part of the judgment.

3. Regulation no. 17 of 30 May 2006 of the Minister of Justice, "Prisoner Escort Duties and Procedures"

32 . Section 1(1)(5) of the Prisoner Escort Duties and Procedures ( Vangla saatemeeskonna ülesanded ja töökord ) provides that the duties of an escort team include escorting, under armed surveillance, a prisoner from a prison to a medical facility and guarding him or her there.

33 . Section 4(1) provides that an escort task is executed on the basis of a written order of the prison director, the supervisor's instructions and an escort plan. Under section 4(4), when authorising short-term prison leave, the prison director must pay particular attention to security and take into consideration, inter alia , the prisoner's personality and length of sentence, the gravity and type of the offence committed and the reasons for the prison leave.

34 . Section 8 provides that the escort task, preparation of the escort and the precise schedule of the escort is set out in the escort plan. In drawing up the escort plan, the number of persons to be escorted, information about each person, the specific nature of the escort task, the length of the escort journey and other circumstances must be taken into account.

35 . Section 26(3) provides that at the medical facility, members of the escort team must carry weapons, communication devices and special equipment in a concealed manner wherever possible. Under section 26(4) members of the escort team must prevent the escorted person having contact with patients, other people and medical staff not involved in the treatment.

36 . Under section 28(4) at least one member of the escort team must maintain visual contact with the prisoner or person in custody at all times.

4. Internal rules for the employees of X Prison

37 . Section 2(5)(12) of the rules obliges employees to keep confidential information concerning a person's family and private life and other information which they have learned in the course of their service which can usually be deemed as confidential.

5. Code of ethics for prison employees

38 . Under section 1.7 prison employees cannot disclose to third parties information which they have learned in the course of their occupation.

B. Relevant domestic practice

1. Case-law of the Supreme Court

39. In a judgment dated 13 November 2009 in administrative case no. 3-�3-1-63-09, the Supreme Court assessed the use of handcuffs on a prisoner while under escort. The Supreme Court stated that when escorting prisoners outside the premises of the prison, means of restraint were applied as a preventive measure in order to avoid an escape or mitigate the risk to the life and health of others (such as the escort team or other people being escorted). When applying preventive measures, the feared harm did not definitely have to occur, but such harm had to be probable. It was considered that the opportunities to reduce risks were more limited in an escort vehicle than in a prison (as the latter had closed premises, different accommodation wings, increased security and observation possibilities and different supervisory measures).

40. In a judgment dated 23 May 2013 in administrative case no. 3-�3-�1-�19-13, the Supreme Court found that when deciding on the use of means of restraint, the prison authority had to assess a person's inclination to escape, his or her prior behaviour and potential behaviour while under escort, the general security threat based on the specific nature of the escort, as well as the sufficiency of other measures to reduce the threat.

2. Opinion of the Chancellor of Justice

41 . In an opinion issued on 24 May 2016, the Chancellor of Justice ( Õiguskantsler ) addressed the situation of medical examinations in a prison. She found that the prison's practice, which was to always have guards present in the cell during an examination, was not in accordance with the principles of privacy and confidentiality. However, that did not mean that the presence of guards during a prisoner's medical examination was never justified. The security of medical staff and of the prison in general outweighed the prisoner's right to privacy and confidentiality if his or her behaviour during imprisonment had been defiant, threatening or violent. Additionally, in the same opinion the Chancellor of Justice referred to a Tartu Court of Appeal judgment in the applicant's case (see paragraph 25 above) and affirmed that the presence of guards during the medical examination of the specific prisoner (the applicant) had been justified in the light of his behaviour in prison.

III. RELEVANT INTERNATIONAL LAW AND PRACTICE

A. Materials of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)

1. The CPT Standards

42 . The CPT Standards concerning health-care services in prisons (see the CPT standards, document no. CPT/Inf(93)12-part) 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. Findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment

43 . During its visit to Estonia from 30 May to 6 June 2012, the CPT addressed the matter of medical examinations taking place in the presence of prison staff in X Prison. In the relevant part of the report (CPT/Inf (2014) 1), it made the following remarks:

"86. Some inmates of the [Z Unit of the X Prison] indicated to the delegation that medical confidentiality was not respected as the door of the medical room remained open when they were examined by a doctor. Prisoners were advised to whisper to doctors if they did not wish to have their discussion heard by custodial staff. As for medical examinations in an outside hospital, they were apparently undertaken in the presence of prison staff

For the CPT, there can be no justification for such situations, which are detrimental to the establishment of a proper doctor-patient relationship and usually unnecessary from a security point of view. Alternative solutions can and should be found to reconcile legitimate security requirements with the principle of medical confidentiality. The Committee recommends that steps be taken to ensure that medical examinations of prisoners are conducted out of the hearing and - unless the doctor concerned expressly requests otherwise in a given case - out of the sight of nonmedical staff."

B. Recommendation Rec(2006)2 of the Committee of Ministers to member States on the European Prison Rules

44 . The European Prison Rules regarding clothing, medical examinations and measures of restraint provide as follows:

"20.4 Prisoners who obtain permission to go outside prison shall not be required to wear clothing that identifies them as prisoners.

...

42.3 When examining a prisoner the medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to:

a. observing the normal rules of medical confidentiality;

...

68.2 Handcuffs, restraint jackets and other body restraints shall not be used except:

a. if necessary, as a precaution against escape during a transfer, provided that they shall be removed when the prisoner appears before a judicial or administrative authority unless that authority decides otherwise; or

b. by order of the director, if other methods of control fail, in order to protect a prisoner from self-�injury, injury to others or to prevent serious damage to property, provided that in such instances the director shall immediately inform the medical practitioner and report to the higher prison authority."

THE LAW

I. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION AS REGARDS THE SECURITY REQUIREMENTS OF HOSPITAL VISITS FOR MEDICAL EXAMINATIONS OF THE APPLICANT

45. The applicant complained that the conditions resulting from the security requirements of his hospital visits had violated his rights under Articles 3 and 8 of the Convention, which read as follows:

Article 3

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

Article 8

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

A. Admissibility

46. The Court notes that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. The parties' arguments

(a) The applicant

47. The applicant, relying on Article 3 of the Convention, asserted that the conditions of his hospital visits had been inhuman and degrading as the obligation to wear prison clothing, handcuffs and ankle cuffs had exposed him to the public as a prisoner. The handcuffs and ankle cuffs had, moreover, caused him physical pain, distress and mental suffering and had triggered his urges to self-harm. The members of the escort team had demonstrated their power over him by carrying their firearms and special equipment visibly during the visits. The measures employed had been disproportionate as he had never tried to escape. In any event, other less restrictive means (like a GPS tracker and/or an escort team waiting behind a door) would have been sufficient. The applicant asserted that he had asked to be allowed to wear his own clothes, but permission had been denied. He had even refused to see a doctor shortly after being taken to the hospital on 27 October 2011 as he had been worried about what impression it would give to other people.

48. The applicant also submitted that the presence of the prison officers during his visits had violated his rights under Article 8 of the Convention. The prison officers had overheard his conversations with doctors and, during his own examinations, there had been no screen between him and the members of the escort team. The applicant claimed the medical examination room had only measured about 10 square metres.

(b) The Government

49. The Government argued that there had been no breach of Articles 3 and 8 of the Convention. The prison had carried out its statutory obligation to assess all the relevant circumstances of the prison leave (see paragraphs 33 and 34 above), taking into account the nature of the escort as well the personality of the applicant. The obligation to wear handcuffs and ankle cuffs had a basis in domestic law (see paragraph 30 above).

50 . At the time of the relevant events the applicant was a young (under 35 years old), tall (over 185 cm) man of athletic build and visually in good shape. He had committed several crimes over the years ranging from crimes against property and hooliganism to those involving violence. He had been convicted and sentenced to life in 2001 for the murder of two people and the attempted manslaughter of another person. While in prison, prior to the hospital visits in the instant case, he had illegally handled narcotic substances, attacked another prisoner and assaulted prison officers or threatened to use violence against them. While some of the offences had required prior planning and organisation, others had been committed on impulse. He had a history of self-harm (he had injured himself twenty-seven times between 2002 and 2014, mostly by cutting himself) and had also acted in a threatening manner towards the prison medical staff. At the same time, his psychiatric examinations had not resulted in any permanent diagnosis. According to the applicant's personal management plan, he had been assessed as highly dangerous, unpredictable, impulsive, capable of using aggression against others and harming himself to get his way. Against that background, the application of security measures had been based on an individual risk assessment and had been justified in the interests of preventing the applicant from absconding or causing injury or damage. The prison had not had the aim of deliberately exposing or humiliating the applicant in public. Although after the hospital visits the prison medical unit had documented some redness, light pressure marks and abrasions on the skin, this was common after being cuffed and could not be considered as a sign of excessive suffering.

51. As to the obligation to wear prison clothing, the Government pointed out that it derived from domestic law (see paragraph 28 above) and served the purpose of being able to detect the prisoner more easily in a crowd in the event of an escape. In any event, the applicant had not requested to wear his own clothes during the visits of 9 November 2010 and 27 October 2017.

52. Regarding the use of service weapons and special equipment, the Government noted that under domestic law they had to be carried in a concealed manner wherever possible (see paragraph 35 above). Weapons were usually carried on a belt attached to trousers or on other belts attached to the body or clothes. There was no indication in the present case that the prison officers had had any reason to use the weapons or that they had not been carried in the manner described.

53 . As regards doctor-patient confidentiality, the Government pointed out that under domestic law, members of the escort team had an obligation to exercise supervision and maintain visual contact with the prisoner not only during the transfer but also during the appointment (see paragraph 36 above). Given the applicant's risk profile, such close supervision had been necessary considering the risk of escape or the threat he could have posed to the medical staff. The Government referred to the fact that the Chancellor of Justice had also accepted that in some instances constant supervision of a prisoner might be necessary even during a doctor's examination (see paragraph 41 above). In any event, the prison officers had - for tactical reasons - not stayed in the immediate vicinity of the applicant, but at a distance by the door of the room, and there had been a screen between them and the applicant during the medical examination. The rooms where the applicant's medical examinations had taken place had been sufficiently large (see paragraphs 11 and 15 above). Moreover, no medical information (only instructions on how to conduct himself during the colonoscopy) had been passed orally from the doctor to the applicant during the examination and the results of the examination had subsequently been sent directly to the prison medical unit. As, given the above findings, no breach of confidentiality had actually taken place, the applicant's complaint was purely hypothetical. Even if any delicate personal information had been heard, the prison authorities had had an obligation to maintain its confidentiality (see paragraphs 29, 37 and 38 above).

2. The Court's assessment

(a) General principles

54. Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. Even in the most difficult of circumstances, such as the fight against terrorism or crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment (see Ramirez Sanchez v. France [GC], no. 59450/00, § 115, ECHR 2006-�IX). 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 depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Muršić v. Croatia [GC], no. 7334/13, § 97, ECHR 2016).

55. Handcuffing does not normally give rise to an issue under Article 3 of the Convention where the measure has been imposed in connection with a lawful detention and does not entail the use of force, or public exposure, exceeding what is reasonably considered necessary. In this regard, it is important to consider, for instance, the danger of the person's absconding or causing injury or damage (see Filiz Uyan v. Turkey , no. 7496/03, § 30, 8 January 2009; see also Raninen v. Finland , 16 December 1997, § 56, Reports of Judgments and Decisions 1997-�VIII) and the particular circumstances of a transfer to hospital for medical treatment (see Duval v. France , no. 19868/08, § 49, 26 May 2011, and Paradysz v. France , no. 17020/05, § 88, 29 October 2009).

56. According to the Court's case-law, the notion of "private life" is a broad one and is not susceptible to exhaustive definition; it may, depending on the circumstances, cover the moral and physical integrity of the person The Court further recognises that these aspects of the concept extend to situations of deprivation of liberty. Moreover, it does not exclude the possibility that there might be circumstances in which Article 8 could be regarded as affording a protection in relation to conditions during detention which do not attain the level of severity required by Article 3 (see Raninen , cited above, § 63).

57. Personal information relating to a patient belongs to his or her private life. The protection of personal data, not least medical data, is of fundamental importance to a person's enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention (see Y.Y. v. Russia , no. 40378/06, § 38, 23 February 2016).

(b) Application of the above principles in the present case

58. The Court considers that given the substance of applicant's complaints, which refer to degrading treatment as well as aspects of private life, they fall to be examined under Articles 3 and 8 of the Convention.

59. The Court notes that in situations which concern the medical treatment of prisoners, the State authorities have, on the one hand, an obligation to provide detainees with the requisite medical assistance to secure their health and well-being (see Mozer v. the Republic of Moldova and Russia [GC], no. 11138/10, § 178, ECHR 2016, and Khalvash v. Russia , no. 32917/13, § 55, 15 December 2015). On the other hand, the States have an obligation under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention and that this, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals (see Đurđević v. Croatia , no. 52442/09, § 102, ECHR 2011 (extracts), and Aleksejeva v. Latvia , no. 21780/07, § 34, 3 July 2012). The Court acknowledges that there might be situations where a prisoner has to be taken to a medical facility outside prison to receive such treatment which the prison itself does not or cannot provide. However, such situations may inevitably entail a risk of the prisoner absconding or posing danger either to themselves or anyone else (for example medical personnel or other patients). The Court is also mindful of the fact that medical staff in ordinary public hospitals cannot be expected to have the same level of preparedness and training as prison officers to deal with possible risks posed by prisoners' unpredictable or violent behaviour. It is in that light that the obligation of securing to everyone the rights and freedoms defined in the Convention must be underlined. The State authorities must be particularly vigilant when they have sufficient prior knowledge about the possible danger the prisoner might pose (for example previous attempts of escaping or violent behaviour).

60. Turning to the facts of the present case, the Court notes first that the use of prison clothing, the use of handcuffs and ankle cuffs and the requirement to observe the applicant throughout his visits had a basis in domestic law (see paragraphs 28, 30 and 36 above). There is no dispute that such measures served the legitimate aim of preventing him escaping or harming and posing a danger to other people. In the context of Article 8 of the Convention, they can thus be seen to have had the aim of ensuring public safety and protecting the rights and freedoms of others.

61. The Court will assess next, for the purposes of both Articles 3 and 8, whether the combined use of security measures can be reasonably considered necessary in the light of the above-mentioned objectives. The Court will lay particular emphasis on whether the application of such measures was adapted to the needs of the situation and took into account the specific personality of the applicant.

62 . The Court notes that when authorising the applicant's visits to the hospitals and drawing up the escort plans, the prison authorities took into account his criminal history - observing that his crimes had become more serious over time - as well as his behaviour in prison. They provided a thorough risk profile, stressing that the applicant did not respect to the prison regime, and was aggressive and capable of attacking others as well as of self-harm. The risk of escaping when escorted outside prison was also highlighted. Against that background, the prison director decided that the applicant had to wear handcuffs and ankle cuffs during the visits and had to be accompanied (depending on the visits, by between three and six officers; see paragraphs 8, 12 and 16 above). The Government submitted further corroborating information, according to which the applicant could be considered to be impulsive, manipulative and violent (see paragraph 50 above).

63 . The Court finds that the prison authorities, who were in daily contact with the applicant and who were well aware of the risk he might pose, decided to order the use of above-mentioned security measures after careful consideration and gave sound reasons for their decisions. The applicant did not challenge the relevant risk assessment, but argued that since he had never tried to escape, less restrictive measures could have been used. However, the aim of the security measures was not only to avoid a possible escape, but also to avoid potential harm to other people as well as to the applicant himself. Against that background, the Court finds that the security measures were directly linked to the applicant's specific behaviour and, as such, did not exceed what could be reasonably considered necessary (see Kleuver v. Norway (dec.), no. 45837/99, ECHR, 30 April 2002, where - in the context of Article 8 of the Convention - cuffing and being escorted was considered to be warranted by the risk of escape; compare and contrast Filiz Uyan, cited above, § 32, and Duval , cited above, § 50, where a violation of Article 3 was found as the authorities had not demonstrated that the use of cuffing and the presence of prison officers had been adapted to the actual security needs and the risk posed by the prisoner).

64 . Furthermore, the Court notes that in the instant case no health-related reasons could be ascertained that would cast doubt on the use of measures of restraint - the applicant was a young man without any particular health concerns which could have rendered the use of cuffing excessive or contraindicated (see paragraph 50 above; compare and contrast Korneykova and Korneykov v. Ukraine , no. 56660/12, §§ 112-�113, 24 March 2016, and Avcı and Others v. Turkey , no. 70417/01, §§ 39-�40, 27 June 2006). Although the handcuffs and ankle cuffs left pressure marks, abrasions and redness on the skin of the applicant, it cannot be concluded from this that excessive force was used when applying them. The Court is also not convinced by the applicant's allegation that the hospital visits under the described conditions adversely affected his mental state, leading him to self-harm. Although the applicant's long history of self-harm is, in itself, a matter of concern (see paragraph 50 above), there is no evidence to suggest that a causal link existed between the visits and him harming himself.

65. The Court is mindful of the confidentiality concern and the distress caused by the presence of the prison officers during the hospital visits. Prisoners have, in the context of the right to private life, the right to medical confidentiality (see paragraphs 42-�44 above), which should not be encroached upon, unless it is necessary in the specific circumstances of the case. Although there is no dispute in the present case that the prison officers accompanied the applicant during the visits, including during his examinations, the parties disagree as to whether there was a screen between the prison officers and the applicant during his medical examinations and whether the prison officers were able to overhear his conversations with the doctors (see paragraphs 10-�11, 14-�15, 17 and 20 above). However, the Court does not find it necessary to determine the exact details of the applicant's visits to hospitals as it considers that - given the particular circumstances of the instant case - the interference with the applicant's private life can be considered justified for the same reasons as already indicated in paragraphs 62-�64 above.

66. As regards the other complaints, the Court finds that there is no evidence to corroborate the applicant's statement that the escorting prison officers carried their firearms and special equipment in a particularly demonstrative manner. Nor can the obligation to wear prison clothing be considered a disproportionate interference with the applicant's private life (see T.V. v. Finland , no. 21780/93, Commission decision of 2 March 1994, unreported). In any event, there is no evidence to suggest that the applicant was particularly or intentionally exposed to the public during the visits.

67. In conclusion, taking into account the domestic authorities' case-specific, thorough and convincing risk assessment of the applicant when applying the security measures, the Court finds that the application of those measures did not entail the use of force, or public exposure, exceeding what could reasonably be considered necessary and thus did not lead to a violation of Article 3. The Court also considers that such measures were necessary for ensuring public safety and protecting the rights and freedoms of others. Accordingly, there has been no violation of 8 of the Convention.

II. ALLEGED VIOLATION OF ARTICLES 6 AND 8 AS REGARDS CERTAIN ASPECTS OF THE APPLICANT'S VISIT TO SEE HIS DAUGHTER

68. The applicant complained that the circumstances of his visit to a hospital to see his seriously ill daughter had violated his rights under Article 8 of the Convention and added, relying on Article 6 § 1 of the Convention, that this matter had not been addressed by the domestic courts. Article 8 of the Convention has already been quoted above. The relevant part of Article 6 § 1 reads as follows:

"In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ..."

69. The Court reiterates that it is the master of the characterisation to be given in law to the facts of the case (see Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 145, ECHR 2017), and that it has previously held that whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8 (see Ivinović v. Croatia , no. 13006/13, § 36, 18 September 2014). The Court highlights that the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities (see Mustafa and Armağan Akın v. Turkey , no. 4694/03, § 20, 6 April 2010).

70. In the instant case the Court considers that the complaint raised by the applicant under Article 6 § 1 of the Convention is closely linked to his complaint under Article 8 and may accordingly be examined as part of the latter complaint in view of the State's positive obligations in the sphere of private and family life.

A. Admissibility

71. The Government, although not raising a non-exhaustion objection expressis verbis , noted on 8 February 2017 in their additional observations and submissions on just satisfaction that the applicant could have had his complaints addressed by the domestic courts under Article 170 of the Code of Administrative Court Procedure (see paragraph 31 above), but had not availed himself of that opportunity.

72. The Court considers that even if the Government's comment were to be interpreted as a claim that the applicant has not exhausted domestic remedies, this was not raised in their observations of 24 October 2016 on the admissibility and merits, nor did the Government refer to any impediment to such a submission being made earlier. The Government are thus estopped from relying on a failure to exhaust domestic remedies (see Khlaifia and Others v. Italy [GC], no. 16483/12, §§ 51-�54, ECHR 2016 (extracts)).

73. 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. The parties' arguments

74. The applicant complained that the visit to see his daughter in hospital had taken place at the wrong time and had consequently been cut short. He also asserted that the doctors had granted him permission to touch and hold his daughter, but he had been stopped from doing so by the prison officers. The domestic courts had dismissed his claims without addressing these complaints at all.

75. The Government contested the facts as presented by the applicant. The visit had not been organised to take place at a time when no visits were allowed. On the contrary, a specific visiting time had been previously agreed upon with the hospital. No medical procedures had been performed on the applicant's daughter during his visit and he himself had asked to leave the hospital (see paragraph 19 above). However, in the event that procedures had been performed on other patients and the applicant had been asked to leave the room, the Government held that this clearly would have taken precedence over the applicant's visiting rights. It was very unlikely that permission to touch his daughter had been granted (see paragraphs 18-�20 above). Against that background, no interference with rights protected under Article 8 of the Convention had taken place with respect to the timing and duration of the visit, or as regards the applicant's ability to touch the child. In any event, even if there had been such an interference, it had been proportionate.

76. The Government admitted that the domestic courts had not given reasons as to why they considered that the prison officers' actions during the applicant's visit to see his daughter had been lawful. However, the Government considered it significant that the prison had - when dismissing the applicant's claim as well as in its responses to the Administrative Court and the Court of Appeal - explained in detail why it considered the applicant's allegations to be untrue (see for the substance of the explanations paragraphs 18-19 above). In any event, the Government considered that the domestic courts had responded to the applicant's main claims concerning the use of handcuffs and ankle cuffs and doctor-patient confidentiality.

2. The Court's assessment

77. The Court notes that the parties are in dispute as to the timing of the visit to the hospital, the reasons why it was cut short and whether the doctors allowed the applicant to touch his child.

78. Even though the applicant clearly raised his complaint about the circumstances of the visit to see his daughter in hospital before the domestic courts (see paragraphs 22, 24 and 26 above) and the Administrative Court and the Court of Appeal also referred to such a complaint in the "facts and proceedings" parts of their respective judgments (see paragraphs 23 and 25 above), neither of the courts addressed this issue on the merits. The Government also acknowledged that.

79. The Court considers that, under the circumstances raised by the applicant, it cannot be ruled out that there might have been an interference with the applicant's substantive rights under Article 8 of the Convention. In that connection, the Court notes that despite the Government submitting some evidence to support their arguments (see paragraphs 19-�20 above), it cannot be ignored that the representative of the hospital could not attest to the specifics of the particular visit of 31 January 2012. Moreover, some caution must be exercised when relying solely on the uncorroborated explanation given by the head of the escort team. The applicant, for his part, did not submit any evidence to support his allegations.

80. Against that background, the Court finds itself prevented from making a substantive assessment on the merits of this particular complaint. However, it cannot overlook the domestic court's obligation to do so. It was the role of the domestic courts, in view of the positive obligations arising from Article 8 of the Convention, not only to pay due regard to the private and family life considerations arising from the applicant's complaint, but also to elucidate the relevant facts necessary to reach a decision and to give reasons when dismissing complaint.

81. Given that the applicant's complaint was dismissed without any reasons being given for such a decision, the Court concludes that the domestic courts' handling of the applicant's complaint fell short of the State's positive obligation. Accordingly, it finds that there has been a violation of Article 8 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

82. 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."

A. Damage

83. The applicant claimed 15,000 euros (EUR) in respect of non-�pecuniary damage.

84. The Government considered that sum excessive.

85. The Court, having found a violation of State's positive obligation under Article 8 of the Convention, and making an assessment on an equitable basis, awards the applicant EUR 1,500 in respect of non-pecuniary damage.

B. Costs and expenses

86. The applicant did not express any wish to have his legal costs and expenses incurred in the proceedings before the Court reimbursed. He stated that he had been granted State-funded legal aid in Estonia in order to pursue his claim in the Court.

C. Default interest

87. The Court considers it appropriate that the default interest rate 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 application admissible;

2. Holds that there has been no violation of Articles 3 and 8 of the Convention concerning the security measures during the applicant's visits to hospital;

3. Holds that there has been a violation of the State's positive obligation under Article 8 of the Convention concerning the applicant's visit to see his daughter in hospital;

4. 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, EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-�pecuniary damage;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 13 November 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Robert Spano
Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> A.T. v. ESTONIA - 23183/15 (Judgment : No Article 3 - Prohibition of torture : Second Section) [2018] ECHR 933 (13 November 2018) URL: http://www.bailii.org/eu/cases/ECHR/2018/933.html Cite as: [2018] ECHR 933