April 09, 2013
This guest post was written by Cedric De Koker, academic assistant at the Institute for International Research on Criminal Policy (IRCP), Ghent University.
With its judgment in the case of Gülay Çetin v. Turkey, the European Court of Human Rights (ECtHR) added another chapter to its significant body of detention-related case law. Having to pronounce on the issue of whether the continued detention of Mrs. Gülay Çetin, a retired auditor diagnosed with metastatic gastric cancer, infringed upon the European Convention on Human Rights, the ECtHR held unanimously that the Turkish government had violated article 3 (prohibition of inhuman or degrading treatment), taken alone and in conjunction with article 14 (prohibition of discrimination). Perhaps the most striking feature of the ruling relates to the fact that the ECtHR concluded that the applicant had been discriminated against while she was in pre-trial detention, as she had not been entitled to the same protective measures as convicted inmates with serious illnesses. As it was the first time that the Court explicitly mentioned discrimination between remand and convicted prisoners, the judgment could and most likely will have its repercussions for the administration of prisons.
The applicant, Gülay Çetin, a Turkish national, had been taken in pre-trial detention on 22 December 2006 on suspicion of having murdered her partner. Shortly after, she began experiencing a variety of gastric and digestive problems, for which she repeatedly visited the prison doctors (the judgment of the ECtHR mentions thirteen visits between 15 February 2007 and 11 July 2008), who explained her complaints as resulting from an ulcer and prescribed a series of medicines (antacids). On September 19th, 2008, the Antalya Assize Court judged the case of Gülay Çetin on its merits, and decided that she was guilty of intentional homicide, sentencing her to 15 years’ imprisonment. However, as the Court of Cassation overturned the judgment on 8 October 2009 and remitted the case to the Antalya Assize Court, Mrs. Çetin remained in pre-trial detention until 16 February 2011, the date on which the Court of Cassation affirmed the second Assize judgment.
Yet, during these proceedings, the medical condition of the applicant worsened and after a series of consultations at the hospital, she was diagnosed with metastatic gastric cancer in an advanced stage on 13 April 2009. Deeming that her condition was incompatible with a prison setting, Mrs. Çetin applied on multiple occasions for release pending trial, for suspensions of detention and for a presidential pardon without any success: all applications were refused, amongst others because the judges feared the applicant would abscond in view of the severity of her sentence. After the second judgment of the Antalya Assize Court had become definitive, the situation changed and several procedural steps were undertaken to enable her release. These steps included the obligated medical examinations by the Antalya Hospital health and the Institute of Forensic Medicine who both concluded that the execution of Mrs. Çetin’s sentence should be suspended as her life would be endangered by attempting to treat her in a prison environment. However, the steps undertaken came too late and were ultimately to no avail, as she died of her illness on 12 July 2011 before the procedure was complete and she could be released from prison.
Procedure, complaints and judgment
Following article 34 of the Convention, the procedure was initiated by Mrs. Gülay Çetin on June 3th, 2010. After her passing, her relatives took up the case. Their claim was based on article 2 (right to life) and article 3 (prohibition of inhuman or degrading treatment), taken alone and in conjunction with article 14 (prohibition of discrimination). With regard to article 2, it was argued that the prison doctors, who had attributed Mrs. Çetin’s physical complaints to an ulcer, had been responsible for the fatal progression of her cancer through medical negligence. As to article 3, the applicant argued that the refusal by the Turkish authorities of a release pending trial, a suspension of detention, or a presidential pardon exacerbated her physical and mental suffering and as such, amounted to inhuman and degrading treatment. Moreover, it was argued that Mrs. Çetin was discriminated against during pre-trial detention as she had not been entitled to the same arrangements as convicted prisoners regarding release in the event in the event of serious illness.
Whereas the Court dismissed the claim based on article 2 for failure to exhaust domestic remedies, it did find a violation of article 3, both taken alone and in conjunction with article 14. With regard to article 3 taken alone, the Court noted that although there is not an explicit obligation for states to release prisoners suffering from serious illnesses, the prohibition of inhuman or degrading treatment could necessitate states to release (or suspend the detention of) prisoners as a humanitarian measure. After all, in the opinion of the Court, the suffering caused by a serious illness can trigger the application of article 3, if and when the prison conditions, for which the government can be held responsible, are likely to exacerbate the suffering and have repercussions on the health and life expectancy of the prisoner. Since, according to the Court, this was definitely the case for Mrs. Çetin, the judges found that the continued detention, both pre-trial and after the definitive conviction, amounted to inhuman and degrading treatment.
As to article 3 taken in conjunction with article 14, the Court noted that the refusal of the government and the judges to apply the procedures designed to protect the health of prisoners with serious illnesses in the case of Mrs. Çetin, solely because she was in pre-trial detention and the procedures were only applied to convicted prisoners, constituted discrimination, because prisoners in pre-trial detention and prisoners serving final sentences are in similar situations and the court found no adequate reason to distinguish between the two categories.
What sets this judgment apart from others is not the fact that the court found the continued detention to constitute inhuman and degrading treatment. After all, in this respect the Court could fall back on its existing case law. The innovative aspect of this ruling lies instead in the fact that the ECtHR concluded that Gülay Çetin had been discriminated against while she was in pre-trial detention, as she had not been entitled to the same protective measures as convicted inmates with serious illnesses. This is remarkable for several reasons. For starters, the ECtHR has in the past been rather hesitant to rely on the prohibition of discrimination to convict states for unlawful behavior, especially when the case concerned violations of substantive rights. Whenever possible the Court tried to find a violation of the substantive right itself, so as to avoid having to resort to article 14 to condemn a state for an infringement on the rights enclosed in the Convention. Second, if and when the Court did rely on the prohibition of discrimination, it has reverted to the traditional grounds of discrimination listed in article 14, namely sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. Seldom has the Court relied on other grounds when examining whether the prohibition of discrimination had been violated, even though the summary of grounds of discrimination in article 14 is non-exhaustive.
Clearly, by deciding that the different treatment of remand and convicted prisoners constituted unlawful discrimination, the Court took another approach and added the distinction between different types of detention as a possible form of discrimination. This could and most likely will have significant repercussions in practice. Although the judgment cannot , in the strict legal sense, become a precedent, it does provide inspiration and to a certain extent, legitimation for judges who have to decide in similar cases in the future. As a result, the governments of the contracting parties of the Convention would do best to consider the judgment in the case of Gülay Çetin and make the appropriate adjustments to guarantee the equal treatment of the different types of prisoners. Or, at least sufficiently motivate why differences in treatment are necessary and legitimate, if the governments are not willing to completely equate remand and convicted prisoners.