Difference in Treatment on the Ground of Sex Arising from Penal Policy Issues: Alexandru Enache v. Romania

By Beril Onder, PhD researcher at Ghent University and University of Strasbourg

On 3 October 2017 the Fourth Section of the Court delivered the judgment in Alexandru Enache v. Romania. The case concerned a discrimination complaint under Article 14 read in conjunction with Article 8 of the Convention, regarding a special measure granting women stay of execution of their prison sentences if they were pregnant or had a child under the age of one.[1] The issue concerned the difference in treatment between men and women arising from the penal policy, like the recent Grand Chamber judgment Khamtokhu and Aksenchik v. Russia, as the applicant was refused this stay of execution based solely on his gender. The Court, in both judgments, left a wide margin of appreciation to the State Parties, and supported its conclusion by referring to the international instruments addressing the needs of women for the protection of pregnancy and motherhood. However, both judgments can be considered problematic for different reasons from a perspective of gender stereotypes. Corina Heri, in her comment, already discussed the problems related to gender stereotypes in Khamtokhu and Aksenchik. The following comments will focus on the judgment in Alexandru Enache v. Romania. Continue reading

From ‘enfant terrible’ to the European Court of Human Rights: the case of Bamouhammad against Belgium

By Rebecca Deruiter, PhD Researcher at the Institute for International Research on Criminal Policy (IRCP), Ghent University[1]

In recent years, the case of Farid Bamouhammed has been covered frequently by Belgian media, characterizing him as notoriously unmanageable and resulting in the widespread used nickname of Farid ‘Le Fou’. After numerous judicial proceedings, by both Farid Bamouhammed and the Belgian State at the national level, the ECtHR convicted the Belgian State of violating Articles 3 and 13 ECHR. The applicant argued that the combined effect of numerous transfers and continuously living under a security regime amounted to inhuman and degrading treatment, resulting in a deterioration of his mental health. The applicant further argued that he was denied of an effective remedy to defend his complaints.

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Family Visits for Life Prisoners: Khoroshenko v Russia

Guest post by Kanstantsin Dzehtsiarou (University of Surrey) and Filippo Fontanelli (University of Edinburgh)

On 30 June 2015, the Grand Chamber of the European Court of Human Rights delivered its judgment in the case Khoroshenko v. Russia. With this decision, the Court set the boundaries of State regulation in the area of penitentiary policy, namely with respect to the right to family life of lifelong prisoners. The Court has often declared that Contracting Parties enjoy a broad margin of appreciation in this area, yet the margin has limits: the Court has recently taken upon it the task to map them. The judgment of Khoroshenko v. Russia, indeed, fits within a recent strand of the case law through which the Court has scrutinised the condition of incarceration of prisoners for life.

The applicant is serving a life sentence in Russia. Generally, all prisoners in Russia can receive short- and long-term family visits. For prisoners serving life terms, instead, the law prohibits long-term visits for the first decade of imprisonment (the ‘blanket ban’). According to an article from http://angelsbailbonds.com/, “Long-term visits last up to three days and can be unsupervised; short-term visits last up to four hours, they always take place under the supervision of guards and in rooms set up to exclude all physical contact with visitors (including sexual intimacy).” Mr Khoroshenko challenged before the ECtHR the blanket ban that he endured from 1999 to 2009, invoking Articles 8 and 14 of the ECHR.

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Belgium violated the ECHR by extraditing a terrorist to the USA despite an interim measure by the Strasbourg Court: Trabelsi v. Belgium

The Trabelsi case is noteworthy for two reasons. Firstly, because of the blatant disregard by Belgium of the interim measure issued by the European Court of Human Rights. Secondly, because of the application of the reasoning from Vinter v. UK – in which the Court found that life without parole is incompatible with Article 3 ECHR – to the context of extradition proceedings. The Court finds that the applicant’s extradition by Belgium to the USA, where he ran the risk of being convicted to life without parole and despite an interim measure to the contrary, was in violation of Articles 3 and 34 ECHR. This blog post will first highlight the latter violation, before questioning the Court’s reasoning with respect to the former one.

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Education in prison: right to education only protects access in case of ‘existing’ educational facilities (Velyo Velev v. Bulgaria)

In Velyo Velev v. Bulgaria, the Court found a violation of the right to education (Article 2 Protocol 1) in a case concerning the refusal to allow a prisoner to enrol in a secondary school operating inside the prison. While the judgment should be hailed for explicitly affirming that remand prisoners also enjoy the right to education, it is unfortunate that the Court continues to construct the scope of Article 2 Protocol 1 in a very narrow fashion. As a result the Court fails to provide genuine substance to the right to education in a prison context. Continue reading

Shitting in ‘closed’ overall not ‘degrading’ according to Strasbourg Court

If you look up the word ‘degrading’ in the dictionary, chances are that you find a picture there of a person who cannot help shitting him- or herself. In the case of Lindström and Mässeli v. Finland, the Strasbourg Court however did not consider that state authorities necessarily inflict ‘degrading treatment’ when they are responsible for bringing a prisoner in such a situation. The case concerns prisoners who were put in ‘closed’ overalls they were unable to remove, which resulted in them shitting themselves because the prison guards did not bring them in time to a toilet. According to the Court, this did not amount to a violation of Article 3 ECHR. The Court did find a violation of Article 8, but as will be argued below, since the protection offered by this provision is lower, it cannot be a genuine alternative for the applicability of Article 3.

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Guest post on Epistatu v. Romania: a missed opportunity for clarification on (young) prisoners’ education

This guest post was written by Yousra Benfquih*

In the case of Epistatu v. Romania of 24 September 2013 before the European Court of Human Rights, the applicant, Mr. Cristian Epistatu, a Romanian national and final-year high-school student born in 1990, was sentenced to five and a half years’ imprisonment by a judgment of 12 March 2009 of the Bucharest County Court. Whilst the ECtHR decided that the detention conditions caused the applicant suffering attaining the threshold of degrading treatment proscribed by Article 3 ECHR, the latter’s complaint under Article 6 ECHR concerning the fairness of his criminal proceedings was declared manifestly ill-founded. More important, and subject-matter of the present guest post, was the applicant’s complaint that his right to education as guaranteed by Article 2 of Protocol No. 1 to the ECHR had been breached. He argued that this was the case as he was forced to abandon his last year of high-school in order to serve his prison sentence and the Romanian prison authorities did not allow him to complete his high-school education in prison. At the time of his incarceration, the applicant had completed eleven years of education and was enrolled in the twelfth year at a high-school. As his requests to the wardens of the different prisons he had been detained in to be allowed to complete his last year of high-school had been refused, the applicant held that the domestic authorities had failed to take any action to enable him to finish his studies.

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