KOSKINEN v. FINLAND
Doc ref: 20560/92 • ECHR ID: 001-1910
Document date: August 30, 1994
- Inbound citations: 5
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- Cited paragraphs: 0
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AS TO THE ADMISSIBILITY OF
Application No. 20560/92
by Jarmo KOSKINEN
against Finland
The European Commission of Human Rights sitting in private on
30 August 1994, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 11 May 1992 by
Jarmo KOSKINEN against Finland and registered on 28 August 1992 under
file No. 20560/92;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to reports provided for in Rule 47 of the Rules of
Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 17 March 1993 and 19 July 1994 and the observations in
reply submitted by the applicant on 24 June 1993 as well as on 7 March
and 28 August 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Finnish citizen born in 1954, has been
imprisoned since 1980. As from January 1994 he is serving his sentence
in the Central Prison of Turku. Before the Commission he is represented
by Mr. Sami Heikinheimo, a lawyer practising in Helsinki.
The facts of the case, as submitted by the parties, may be
summarised as follows.
I. The particular circumstances of the case
1. (a) The applicant's initial imprisonment, incarceration,
isolation and further prison sentences
In the 1970s the applicant committed several offences and was
sentenced by ordinary courts to a number of prison sentences. He
started serving his total prison term in 1980. In May 1980 he killed
a fellow prisoner and was then chained whenever leaving his cell for
two and a half years. He further appears to have been isolated for an
unknown period of time.
In 1981 the applicant was convicted by an ordinary court of the
above-mentioned killing in 1980, of one count of aggravated assault on
a fellow prisoner and of one count of assault on a fellow prisoner, all
offences having been committed without full possession of his senses.
He was sentenced to twelve years' imprisonment. The judgment included
an authorisation for the Prison Court (vankilaoikeus, fängelse-
domstolen) to order his incarceration in preventive detention as a
dangerous recidivist. Such an order was issued in 1983.
In 1983 the applicant was convicted by an ordinary court of
violent resistance against a guard, again without being in full
possession of his senses, and sentenced to six months' imprisonment.
In 1986 the applicant was convicted by an ordinary court of
assault on, and violent resistance against, a guard, again without
being in full possession of his senses, and sentenced to four months'
imprisonment.
From July 1987 to August 1988 the applicant was isolated pursuant
to the 1889 Decree on the Enforcement of Punishments (asetus 39/1889
rangaistusten täytäntöönpanosta, förordning 39/1889 om verkställighet
af straff, "the 1889 Decree").
In 1989 the applicant was convicted by an ordinary court of
escape and possession of an edged weapon, again without being in full
possession of his senses, and sentenced to two months' imprisonment.
From May 1989 to July 1990 the applicant was placed in a so-
called closed prison ward.
On 15 September 1990 the applicant had served two thirds of his
imprisonment, 35 days of disciplinary punishment having been added (see
below under para. 1(b)).
On 3 February 1992 the applicant was convicted by an ordinary
court of aggravated assault on, and violent resistance against, a guard
in combination with the possession of, inter alia, an edged weapon. He
was sentenced to two years and one month's imprisonment. The incident
had taken place on 31 May 1991 (see below under para. 3) and the
applicant was again considered not to have been in full possession of
his senses.
On 31 March 1992 the applicant was convicted by an ordinary court
of violent resistance against a guard on 23 August 1991 and sentenced
to four months' imprisonment (see below under para. 4).
On 9 April 1992 the Supreme Court (korkein oikeus, högsta
domstolen) rejected the applicant's request for an annulment of the
court decision authorising his incarceration as a dangerous recidivist,
as well as the order issued by the Prison Court in this respect.
On 9 September 1992 the applicant was convicted by an ordinary
court of assault on, and violent resistance against, a guard on
5 December 1990 and sentenced to four months' imprisonment (see below
under para. 2).
From July 1990 to February 1993 the applicant was placed in a so-
called semi-open ward in various prisons having reserved wards for
incarcerated dangerous recidivists (see below).
The applicant's disciplinary records show that he threatened
prison staff on 28 October 1985, 17 May and 13 August 1987, 23 June and
22 December 1988 and 20 March 1989.
The applicant's present prison term expires in 1997.
(b) The applicant's disciplinary sentences
In January 1980 the applicant was ordered to serve a
disciplinary punishment of five days' solitary confinement. In April
1980 he was ordered to serve ten further days, in June 1981 five and
ten further days and in July 1982 five further days. In addition and
pursuant to Chapter 2, Section 10, subsection 1 of the 1889 Decree,
these periods were not regarded as part of the applicant's prison term.
The punishments were imposed by the Prison Board (vankilan johtokunta,
fängelsets direktion).
2. The applicant's further isolation in the Helsinki Central
Prison from October 1990 to January 1991
Apparently on 3 October 1990 the Governor of the Helsinki Central
Prison ordered that the applicant be isolated from the other prisoners,
pursuant to Chapter 2, Section 10c, subsection 1 of the 1889 Decree,
on the ground that he was suspected of having again behaved violently.
The isolation having later been upheld under Chapter 3, Section 9, the
applicant was moved to a so-called "hard cell". On 11 October 1990 he
was moved to a so-called "soft cell" and on 20 October 1990 he was
moved to a so-called "day cell". The hard cell had two steel doors
behind which there was a "porch" separated from the cell by bars. It
had a toilet and wash-basin, as well as outlets for electrical
equipment and a television aerial. The toilet was flushed by the guard
in the corridor and the water and the lights could also be switched on
and off from the corridor.
According to the applicant, the cells were located partly
underground. Moreover, their windows were very near the ceiling and
only ensured a "theoretical" possibility of letting through natural
light.
On 5 December 1990 the applicant violently resisted a guard and
was again moved to a "hard cell". The applicant was later convicted of
this and sentenced to further imprisonment (see above under para.
1(a)).
After the incident on 5 December 1990, the applicant was only
allowed to exercise outdoors and go to and from the wash-room
handcuffed. He then refused to exercise or wash until 14 December 1990,
when the order was revoked.
On 7 December 1990 the Prison Governor ordered that the applicant
again be isolated from the other prisoners in pursuance of Chapter 3,
Section 9 of the 1889 Decree.
On 19 December 1990 the Prison Court rejected a request by the
Prison Board that the applicant be transferred to the closed ward.
On 5 January 1991 the applicant was again moved to a day cell.
On 14 February and 20 August 1991 the Prison Court rejected
requests by the applicant that he be transferred to the open ward.
3. The applicant's isolation in the Turku Central Prison from
January to June 1991
On 22 or 23 January 1991 the applicant was transferred to the
Central Prison of Turku, where he was, on 23 or 25 January 1991, placed
in a cell in the isolation ward in view of his behaviour in the
Helsinki Central Prison. The cell was partly underground, but had a
window, a toilet and a wash-basin.
According to the applicant, the cell was damp and dark, as it
received no daylight. This allegation is refuted by the Government.
According to the applicant, he was never medically examined
during this period of isolation and was allegedly refused antibiotics
for the treatment of an inflammation and athlete's foot. This
allegation is also refuted by the Government.
On 31 May 1991 the applicant assaulted a guard. He was
subsequently convicted of this offence and sentenced to further
imprisonment (see above under para. 1(a)).
4. The applicant's isolation in the Riihimäki Central Prison
from June to November 1991
On 7 June 1991 the applicant was transferred to the Central
Prison of Riihimäki. His cell had a toilet.
On 8 June 1991 the applicant threatened prison staff in
connection with being brought inside from his daily exercise in the
prison courtyard after he had disturbed the order there.
On 11 June 1991 the Deputy to the Prison Governor ordered that
the applicant be isolated from the other prisoners pursuant to Chapter
3, Section 9 of the 1889 Decree in view of the incident on 31 May 1991
in the Central Prison of Turku. The applicant's cell had a toilet.
On 3 July 1991 the applicant again threatened prison staff during
his exercise outdoors.
On 10 July 1991 and 6 August 1991 the applicant's isolation was
reviewed and upheld.
On 23 August 1991 the applicant violently resisted a guard when
exercising outdoors. According to the applicant, the incident was
provoked at the outset of his exercise by a guard prohibiting him from
replying to a fellow prisoner who had initiated a conversation. As he
had refused to comply with the prohibition, he had been ordered to end
his exercise. He had then refused to do so. The applicant was later
convicted of his resistance and sentenced to further imprisonment (see
above under para. 1(a)).
Following the incident the applicant was immediately isolated in
accordance with Chapter 3, Section 9 of the 1889 Decree.
As a further consequence of the incident on 23 August 1991 the
Prison Governor ordered that the applicant could only exercise outdoors
if handcuffed and even then only in solitude. The applicant then
refused to exercise outdoors until 6 February 1992, when the order was
revoked.
Furthermore, the applicant was no longer allowed to serve himself
meals from a cart outside his cell unless he agreed to being chained.
He then refused to serve himself in the manner proposed until 3 October
1991, when he was again allowed to serve himself.
On 4 September, 2 October and 1 November 1991 the applicant's
isolation was again reviewed and upheld.
In response to a further petition by the applicant, the
Department for Prison Administration of the Ministry of Justice
(oikeusministeriön vankeinhoito-osasto, justitieministeriets
fångvårdsavdelning) on 2 June 1992 recalled that chaining should only
be used in situations where no other measure can restrain the
prisoner's violent behaviour. Thus, it should not be used as a primary
and preventive measure but only following an actual incident. This was
brought to the attention of the Governors of the Central Prisons of
Riihimäki and Helsinki.
In her decision of 31 August 1992 in response to a petition by
the applicant, the Deputy Ombudsman (eduskunnan apulaisoikeusasiamies,
riksdagens biträdande justitieombudsman) found that means other than
chaining should primarily be used for the purpose of maintaining prison
order. Such measures are, for instance, the increase of the number of
guards during outdoor exercise.
When staying in the Riihimäki Central Prison the applicant
visited the Prison Physician on seventeen occasions between 11 June and
31 October 1991. On two occasions he was examined in the Riihimäki
Prisoners' Hospital.
5. The applicant's particular conditions in the Helsinki
Central Prison from November 1991 to June 1992
On 29 November 1991 the applicant was transferred to the Central
Prison of Helsinki where he was placed in a specially prepared cell in
the section for prisoners serving disciplinary punishments. The cell
had a toilet and a wash-basin.
The applicant was again prohibited from serving himself from the
meal-cart outside his cell unless chained. Having objected to being
chained, he was not served any meals until the middle of January 1992,
except for one occasion when his counsel was visiting him. Apparently,
he obtained food from the prison shop instead.
On 4 December 1991 the Deputy Prison Governor again ordered the
applicant's isolation from the other prisoners pursuant to Chapter 3,
Section 9 of the 1889 Decree. The applicant was placed in a solitary
cell with a toilet and a wash-basin.
On 3 January, 4 February, 4 March and 3 April 1992 the
applicant's isolation was reviewed and upheld.
According to the applicant, he was repeatedly prevented from
contacting his counsel and the organisation of their meetings was
unsatisfactory. In particular, they could only discuss matters relating
to criminal proceedings against the applicant or his complaints of his
treatment through the cell door or with guards listening.
According to the applicant, he was not properly medically
examined prior to his isolation and up to 17 January 1992. Furthermore,
he was not allowed to visit the Prison Nurse, who had only inspected
him visually through the cell door.
According to the applicant, the collection of refuse from his
cell failed to function for several weeks as from 4 December 1991.
From 5 January to 22 January 1991 the applicant was placed in a
cell in another ward similar to a "hard cell" except for the fact that
it had only one steel door.
In its response of 6 February 1992 to another complaint by the
applicant concerning inter alia the conditions in his cell, the Prison
Board stated that he had always had the possibility of cleaning his own
cell by placing all refuse in a bag which would then have been
collected by the cleaner-prisoner. The Prison Board further stated that
the applicant had been able to borrow books from the prison library by
writing a list to the staff. The same procedure had been applied when
he had wished to buy things from the prison shop.
On 6 February 1992 the Prison Governor revoked the chaining order
concerning the applicant's outdoor exercise.
On 24 March 1992 the Prison Court rejected a request by the
Prison Board that the applicant be transferred to a closed ward.
Although his placement in a closed ward could not be considered
appropriate, the Prison Court found that a recidivist in an institution
for preventive detention could, if necessary, be isolated pursuant to
Chapter 3, Section 9 of the 1889 Decree. However, as institutions for
preventive detention were under the supervision of the Ministry of
Justice, matters relating to the enforcement of the applicant's
sentence did not, with the exception of his placement in a particular
prison ward, fall within the competence of the Prison Court. The Prison
Court also rejected the applicant's request that he be moved to the
open prison ward.
On 4 May 1992 the Prison Governor revoked the isolation order
concerning the applicant. According to the applicant, his isolation
nevertheless continued, as, on 5 May 1992, he was placed in a cell
similar to a "hard cell". This cell was partly underground, but had one
window. It also had a toilet and a wash-basin. He was only allowed to
leave his cell to go into the corridor of the ward, and could not
associate with fellow prisoners.
On 8 May 1992 the applicant was moved to a so-called "travel
cell" which had recently been renovated. It was also partly
underground, but had a window, a toilet and a wash-basin.
6. The applicant's particular prison conditions as from 1 June 1992
On 1 June 1992 the applicant was again moved to the Riihimäki
Central Prison, where he was placed in the so-called "bunker ward". The
section had a maximum of ten prisoners, each with his own cell. The
applicant could, within the ward, exercise outdoors for one hour a day
and participate in hobby activities for about five hours a day. Two
prisoners at a time were allowed to stay in the leisure room. They were
not allowed to have any contact with other wards. Up to December 1992
the Sunday exercise of the prisoners in the ward coincided with the
religious service in the prison.
For a certain period of time the applicant worked as a cleaner
and could then move freely within his own ward and other prison
sections. He was allowed to borrow books from the prison library by
writing a list of them. The same procedure applied for items he wished
to buy from the prison store.
By a decision of 2 June 1992 the Department for Prison
Administration found no reason to take measures in response to the
applicant's complaint that Chapter 3, Section 9 of the 1889 Decree was
not applicable to recidivists placed in an institution for preventive
detention. The Department considered that the Decree had the status of
law and that it was applicable, mutatis mutandis, also to recidivists.
The Department further found no indication that the applicant and
the Prison Doctor had not been heard in connection with the applicant's
isolation. It further considered that, although under the 1889 Decree
and its own instruction of 1987 isolation of a prisoner shall not last
longer than necessary, no maximum period is prescribed.
On 18 August 1992 the Prison Court upheld a decision by the
Prison Board not to move the applicant to an open ward. The applicant
himself had objected to such a move.
In the autumn of 1992 the Prison Court inspected the Central
Prison of Riihimäki. On this occasion the applicant again requested the
Court to examine the lawfulness of his placement in the "bunker ward"
which he alleged contravened the Court's order that he be placed in a
semi-open ward. The Prison Court, however, found no reason to take any
measures.
The applicant appears to have been the only prisoner in the
"bunker ward" as from January 1993. On 26 January 1993 the Prison Court
decided that he could be transferred to an open ward.
On 12 February 1993 the applicant was moved to the Hämeenlinna
Central Prison, where he was placed in a cell in an open ward. On
15 February 1993, however, he was moved back to the semi-open ward of
the Central Prison of Riihimäki.
On 30 March 1993 the Prison Court upheld the transfer decision,
noting the submissions of the Board of the Hämeenlinna Central Prison,
according to which the applicant's threatening behaviour had
jeopardised prison order in that, inter alia, his fellow prisoners
might resist the applicant's threats with the use of arms.
Subsequently the applicant was moved to the Helsinki Central
Prison, where he shared his cell with another prisoner and worked as
a cleaner.
On 28 January 1994 the applicant was moved to the Turku Central
Prison, where he claims to have been de facto isolated by the Prison
Governor without any decision having been made in accordance with
Finnish law. According to the applicant, he is not allowed to work or
participate in other activities outside his cell. Apart from exercising
with the four other prisoners in the ward for one hour a day he is only
allowed to associate with other prisoners for two hours a week. The
sanitary arrangements of the cell are allegedly unsatisfactory.
On 25 February 1994 the Department for Prison Administration
informed the applicant that he had been transferred from the Helsinki
Central Prison since he had been one of the few prisoners who could
have been involved in a shooting incident. Moreover, the Department had
received a death threat concerning him.
The applicant submits that the suspicion is groundless and that
he has not at all been heard by the police on the matter. He claims
that his transfer was ordered by the Department for Prison
Administration due to its very negative attitude towards him.
According to the Government, the applicant is currently placed
in the closed ward of the Turku Central Prison. They refute, however,
his allegation that the Prison Governor has ordered his isolation.
7. Remedies pursued by the applicant
From June 1990 to January 1993 the Parliamentary Ombudsman or his
Deputy made nine decisions in response to petitions lodged by the
applicant concerning his prison conditions. In two of these decisions
the Deputy Ombudsman reprimanded prison officials for faulty procedures
or negligence, but those incidents had taken place prior to the entry
into force of the Convention with regard to Finland on 10 May 1990.
The applicant has further lodged petitions with the Chancellor
of Justice (valtioneuvoston oikeuskansleri, justitiekanslern i
statsrådet), the Prison Court and the Department for Prison
Administration. He has also instituted court proceedings against
individual civil servants.
8. Facts established by the European Committee for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment
On 1 April 1993 the above-stated Committee ("the CPT"), an organ
of the Council of Europe, issued its report following its visit in May
1992 to, inter alia, the Helsinki and Hämeenlinna Central Prisons. This
report was followed by an interim report in reply by the Finnish
Government of 26 August 1993 and a further follow-up report of
18 February 1994 (for extracts from these reports, see the Appendix to
the Commission's decision).
II. Selected relevant domestic law and administrative regulations
1. The incarceration of dangerous recidivists
The 1953 Act on the Incarceration of Dangerous Recidivists (laki
317/53 vaarallisten rikoksenuusijain eristämisestä, lag 317/53 om
internering av farliga återfallsförbrytare, "the 1953 Act") is
applicable to offenders convicted of certain offences, attempted
offences or complicity in the commission of offences, involving
aggravated violence or constituting a particular danger to the life and
health of others, and who are sentenced to at least two years'
imprisonment. The sentencing court may authorise the offender's
incarceration by the Prison Court in an institution for preventive
detention, if, during a period of ten years preceding his offence, he
has committed another offence of an extremely violent character, or
involving a particular danger to the life and health of others, and
provided he is clearly to be considered to be particularly dangerous
to the life and health of others. Such an offender is considered as a
dangerous recidivist (Section 1, as amended by Acts nos. 303/71, 491/71
and 702/91).
If the Prison Court decides to incarcerate a dangerous
recidivist, he shall immediately be transferred to an institution for
preventive detention in order to serve his imprisonment. The Prison
Court shall reconsider its incarceration order if the placement of a
recidivist in such an institution is found to be clearly unnecessary
in the light of new information (Section 9, subsection 1, as amended
by Act no. 303/71, and subsection 2).
If an incarcerated recidivist is sentenced to a further prison
sentence, the enforcement of his total period of imprisonment shall
continue to take place in an institution for preventive detention
(Section 13, subsection 1, as amended by Act no. 702/91). An
incarcerated recidivist shall be released on parole only upon having
served his total term of imprisonment, unless the Prison Court still
considers him dangerous to the life or health of others. If he is not
released, the matter shall be re-examined by the Prison Court at least
every six months (Section 14 and Section 15, subsection 1, both as
amended by Act no. 303/71; see also below under para. 9).
2. Institutions for preventive detention
The institution for preventive detention is either a separate
institution or part of another penitentiary (Section 10). In view of
the small number of incarcerated recidivists no separate institution
currently exists (circular letter of 2 June 1988 issued by the
Department for Prison Administration). The recidivists shall be grouped
according to their special features and their need for treatment
(Section 11, subsection 1). An incarcerated recidivist shall have the
right to enjoy, at his own expense, better food and more comfort than
that normally available in the institution, provided this would not
jeopardise prison order or his safe placement (Section 12, subsection
1).
Pursuant to the 1971 Decree on the Institution for Preventive
tvångsinrättning, "the 1971 Decree"), such an institution shall have
a semi-open, an open and a closed ward (Section 2). The recidivist
shall initially be placed in a semi-open ward, but shall be transferred
to an open ward as soon as he can be expected to adjust to the order
and the conditions there, and provided his transfer would not
jeopardise his safe placement. At the Prison Board's request the Prison
Court may transfer him to a semi-open ward, if this is considered
necessary for his own security, his safe placement or if, for some
other reason, he cannot adjust to the order and the conditions in an
open ward. A recidivist who refuses to comply with the order or the
conditions in a semi-open ward may be transferred to a closed ward. In
the case of an emergency his transfer can be ordered by the Prison
Board and shall then be immediately reviewed by the Prison Court. A
recidivist shall not be kept in a closed ward longer than necessary.
His placement there shall be reviewed by the Prison Court at least
every three months (Sections 3 and 4). Placement in a specific ward is
not subject to appeal.
A recidivist placed in an open or a semi-open ward shall either
be placed in a single cell or share his cell with other incarcerated
prisoners, consideration being given, as far as possible, to his own
wishes. Unless the Governor of the institution for particular reasons
decides otherwise, the recidivist shall be permitted to work with the
other incarcerated prisoners and also to associate with them during his
spare time (Section 6).
A recidivist placed in a closed ward shall have a single cell.
By permission of the Governor he may, however, work and, for particular
reasons, also associate with other incarcerated prisoners during his
spare time (Section 8).
In addition to what is prescribed in the 1971 Decree, Chapters
2 and 3 of the 1889 Decree shall also be applicable to institutions for
preventive detention and to recidivists placed in such institutions
(Section 13, subsection 2 of the 1971 Decree, as amended by Decree
no. 449/75).
3. Isolation of prisoners
(a) Isolation for security reasons
A prisoner may spend his spare time with fellow prisoners, unless
the Prison Governor decides otherwise in order to maintain prison order
or for another reason laid down by decree. Thus, he may be isolated
from his fellow prisoners if this is necessary in order to prevent him
from seriously endangering the life and health of others, in order to
prevent a clear escape attempt or a clear attempt to have him
unlawfully released, in order to prevent him from continuing to use
drugs, in order to prevent him from committing a drug offence or in
order to prevent other similar behaviour seriously jeopardising prison
order, and provided that those acts cannot otherwise be prevented
(Chapter 3, Section 9, subsections 1 and 2 of the 1889 Decree, the
latter as amended by Act no. 128/87).
The isolation of a prisoner shall be ordered by the Prison
Governor following consultation with the Prison Physician, who shall
also be consulted during the enforcement of the isolation order. The
isolation shall last no longer than necessary and the prisoner's rights
shall not be restricted further than necessary. The isolation order
shall be reviewed at least once a month (Section 9, subsection 3, as
amended by Act no. 128/87).
A prisoner isolated for security reasons shall primarily be
placed in a ward not used for prisoners in investigatory or
disciplinary isolation (see below under paras. 3 (b) and (c); circular
letter of 24 April 1987 issued by the Department for Prison
Administration).
(b) Isolation for investigatory reasons
During the investigation of an offence suspected to have been
committed by a prisoner, and in anticipation of his possible
disciplinary punishment, the Prison Board or its representative may
order his placement in isolation, provided this is necessary for the
maintenance of the prison order or for other particular reasons. Such
isolation shall not exceed seven days (Chapter 2, Section 10c,
subsection 1 of the 1889 Decree, as amended by Act no. 612/74).
(c) Isolation for disciplinary reasons
The Prison Board or Governor may order a prisoner's placement in
solitary confinement for a maximum of twenty days or seven days
respectively (Chapter 2, Section 10a, subsections 1 and 2 of the 1889
Decree, as amended by Act no. 612/74; see below under para. 8).
4. Chaining
A prisoner shall only be chained if this is necessary for the
prevention of his escape during transportation or in order to restrain
his violent behaviour in the absence of other effective measures,
provided his behaviour would endanger his own and other persons' safety
or significantly damage property. For the purpose of restraining
violent behaviour the prisoner may instead be placed in isolation. He
shall not be chained longer than necessary (Chapter 2, Section 11,
subsection 1 of the 1889 Decree, as amended by Act no. 612/74).
5. Outdoor exercise
A prisoner shall be allowed to engage in suitable exercise
outdoors for at least an hour a day (Section 36 of the 1975 Decree on
the Treatment of Prisoners (vankeinhoitoasetus 431/75,
fångvårdsförordning 431/75, "the 1975 Decree")).
6. Medical care
The Prison Physician shall monitor the state of health of
prisoners placed in solitary confinement or in other forms of isolation
and, in particular, the conditions in which such isolation is being
carried out (Section 27, no. 4 of the 1986 Prison Administration Decree
fångvårdsväsendet; repealed by Decree no. 819/92)). A similar provision
has been included in instructions issued by the Department for Prison
Administration (Response of the Finnish Government to the Report of the
CPT, p. 36).
7. Participation in religious activities
A prisoner shall be given the opportunity to participate in
religious activities in the prison and have access to religious
counselling (Chapter 2, Section 4, subsection 1 of the 1889 Decree, as
amended by Act no. 612/74).
8. Disciplinary punishments
A prisoner who does not comply with prison order, or who commits
an offence in prison punishable by a fine, may be subjected inter alia
to a disciplinary punishment in the form of solitary confinement
(yksinäishuone, enrum) and, additionally, an obligation imposed by the
Prison Board to serve the whole or part of his confinement without it
being regarded as part of his prison term (suoritetun ajan
menettäminen, förlust av avtjänad tid) (Chapter 2, Section 10,
subsection 1 and Section 10a, subsection 2 of the 1889 Decree, both as
amended by Act no. 612/74; see also above under para. 3(c)).
An appeal lies from the Prison Board to the Ministry of Justice
against a disciplinary measure which has the effect of prolonging his
prison term by over ten days (Section 73, subsection 1 of the 1975
Decree).
9. Release on parole
A prisoner sentenced to imprisonment for a certain period of time
may be released on parole upon having served two thirds of his term or,
for particular reasons, having served half of it. A recidivist in
preventive detention shall be released on parole only after completion
of his whole term of imprisonment, unless the Prison Court still
considers him dangerous to the life or health of others in accordance
with Section 1 of the 1953 Act. If the recidivist is not released on
parole the matter shall be re-examined by the Prison Court at least
every six months (Chapter 2, Section 13, subsection 1 of the 1889
Decree, as amended by Act no. 506/88 and Chapter 3, Section 15,
subsection 1 of the 1953 Act, as amended by Act no. 303/71; see also
above under para. 1).
10. Remedies under domestic law
According to Chapter 10, Section 93, subsection 2 of the
Constitution Act (Suomen hallitusmuoto 94/19, Regeringsform för Finland
94/19), anyone who has suffered an infringement of his rights, or
damage, through an illegal act or negligence on the part of a civil
servant, is entitled to demand that the civil servant be convicted and
held liable for damages, or may report him for the purposes of having
charges brought against him. Under the Tort Liability Act (vahingon-
also be instituted against the State for actions taken by civil
servants (Chapters 3 and 4).
A prisoner may complain of his treatment to the Prison Governor
or the Prison Board, and may complain of their decisions to the
Department for Prison Administration. He can also turn to the
Parliamentary Ombudsman, whose special obligation is to supervise
compliance with the law in prisons.
11. The Prison Court
The Prison Court shall consist of the Director-General for the
Prison Administration or his Deputy and four other members appointed
by the President of the Republic for a period of five years. Two of
these four members shall have judicial experience and one of them shall
be a physician experienced in psychiatry. The President and the Vice
President of the Prison Court shall be appointed by the President of
the Republic among the lawyer members of the Court. Members shall swear
a judicial oath (Section 5, subsections 2-4 of the 1953 Act).
As regards the grounds for disqualifying a member and the Prison
Court's deliberations, the provisions of the Code of Judicial Procedure
(Oikeudenkäymiskaari, Rättegångs Balken) relating to courts of appeal
shall be applicable, mutatis mutandis (Section 6, subsection 1).
COMPLAINTS
1. The applicant complains of inhuman treatment in that, with the
exception of a few interruptions, he has been placed in de facto
isolation in unsatisfactory conditions from 1980 onwards. He was
chained, refused necessary medical care, his contacts with his lawyer
were restricted and he was unable to attend religious services. The
isolation seriously disturbed his mental or physical health. Taking all
the above elements together, he alleges that they constitute a
violation of Article 3 of the Convention.
2. The applicant claims that his disciplinary punishments, obliging
him to serve an additional prison term of 35 days, have not been
ordered by a "court" within the meaning of Article 5 para. 1 (a) of the
Convention.
3. The applicant also submits that the requirement that he serve his
full sentence, instead of the normal two thirds with parole, means
that, in effect, his further detention has been decided by the Prison
Court. He alleges that this body does not fulfil the requirements of
a court under Article 5 para. 1 (a) of the Convention, as it has close
connections with the Department of Prison Administration. Accordingly,
his imprisonment as of 15 September 1990, when two thirds of his
sentence had been served, is unlawful.
4. The applicant also complains that his isolation was unlawful, not
being based on the 1971 Decree, purportedly a lex specialis, which
prescribes that questions regarding the placement of a recidivist in
a particular prison ward shall be decided by the Prison Court. The
prisons, however, circumvented the Prison Court's order that he be
placed in a semi-open ward. He again invokes Article 5 para. 1 (a) of
the Convention.
5. The applicant also complains that he had no effective remedy in
order to have the alleged inhuman treatment terminated. He invokes
Articles 6 and 13 of the Convention.
6. Finally, the applicant complains that his obligation to serve the
total length of his ordinary prison sentence before being released on
parole is discriminatory in comparison with ordinary prisoners serving
a sentence of the same length as his, who can be released on parole
after serving only two thirds of their sentence. He invokes Article 5
para. 1 (a) of the Convention, in conjunction with Article 14.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 11 May 1992 and registered on
28 August 1992.
On 6 January 1993 the Commission decided to bring the application
to the notice of the respondent Government and to invite them to submit
written observations on its admissibility and merits, limited to the
applicant's complaints under Articles 3 and 13 of the Convention.
Following two extensions of the time-limit fixed for this
purpose, the Government's observations were submitted on 17 March 1993.
On 14 May 1993 the applicant was granted legal aid.
The applicant's comments in reply to the Government's
observations were submitted on 24 June 1993. Additional observations
were submitted by him on 7 March and 28 August 1994 and by the
Government on 19 July 1994.
THE LAW
1. The applicant complains of inhuman treatment during his
imprisonment, notably due to his isolation, which he alleges had lasted
approximately twelve years by 1992. Taking all elements of his
imprisonment together, he claims that they constitute a violation of
Article 3 (Art. 3) of the Convention.
Article 3 (Art. 3) reads as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Government submit that the complaint is manifestly ill-
founded. They refer to the relevant isolation orders as indicated above
in "The Facts". Due to the applicant's violent behaviour his isolation
lasted longer than normal, but its necessity was reviewed at the
required intervals. His isolation was sometimes of a disciplinary
character based on his violent behaviour and sometimes it was aimed at
preventing similar behaviour which could have seriously jeopardised
prison order. Isolation was the ultimate alternative chosen. His
conditions in isolation have, however, been appropriate and have
complied with the Council of Europe's Prison Rules.
In particular, as regards the applicant's association with others
during his isolation, the Government submit that he was allowed to
receive visits by his family and others, although in the Helsinki
Central Prison only under surveillance. He was also allowed to have
certain contacts with fellow prisoners and could receive visits by his
counsel on condition that the meetings be fixed in advance. He was
furthermore given material enabling him to correspond. He had access
to radio, television, newspapers and books from the prison libraries.
He was allowed to shop in the prison stores. His contacts with his
counsel were not restricted more than necessary in view of the need to
maintain prison order. The requirement that the applicant be handcuffed
when exercising outdoors which led to his refusal to exercise was
justified for security reasons.
According to the Government, the applicant's cell conditions were
acceptable from the point of view of Article 3 (Art. 3). Some of his
cells were better equipped than those of other prisoners. The chaining
requirement imposed in August 1991 leading to his refusal to eat the
prison meals was a result of his own violent conduct and aimed at
maintaining prison order. The chaining would only have entailed the
handcuffing of the applicant. Moreover, as a recidivist he had the
right to acquire, at his own expense, better food than that normally
served. Thus, when refusing to eat the prison meals the applicant
bought food in the prison shop. As a recidivist the applicant was also
in a more privileged position than other prisoners regarding the right
to keep possessions in his cells. For instance, in the Helsinki Central
Prison his cell had outlets for electrical equipment, as well as for
television and radio aerials.
As regards the applicant's medical care, the Government consider
his allegation that the isolation had seriously disturbed his mental
or physical health to be unsubstantiated. His state of health has been
supervised as well as possible, bearing in mind that he sometimes
refused to undergo medical examinations in the presence of guards. Once
he refused to be examined by a dentist. The Government admit, however,
that for security reasons medical staff occasionally had to assess his
state of health visually without entering his cell. Moreover, the
medical approval of the applicant's isolation had sometimes been given
retrospectively.
The Government further contest that the applicant has been
refused the right to attend religious services in any of the prisons.
In the Helsinki Central Prison he was informed that his visits to the
prison chapel would be subject to special surveillance, following which
he refused to attend any services. In the Turku and Riihimäki Central
Prisons no special surveillance rules were imposed. In the Riihimäki
Central Prison the applicant had continuous contact with the Prison
Chaplain.
The applicant submits that the offences already committed in the
early 1980s, leading to his incarceration, cannot constitute sufficient
justification for his long-lasting de facto isolation. With the
exception of the serious assault on a guard on 31 May 1991, the
incidents in the prisons, for which he was also punished by ordinary
courts, were rare and not serious. The incidents were the result of a
"vicious circle" starting with the excessively lengthy period of
isolation. For instance, the normal disciplinary punishment following
the incident in the Helsinki Central Prison on 5 December 1990 would
have been a maximum ten days of isolation. Instead it lasted six
months. In order to exemplify the alleged "vicious circle" leading to
and maintaining his inhuman treatment, the applicant makes reference
to the incident in the Riihimäki Central Prison on 23 August 1991
leading to his violent behaviour against a guard. Finally, the review
of the applicant's isolation was mostly automatic and not sufficiently
thorough.
The applicant further emphasises that the grounds for
transferring a recidivist from a semi-open to a closed ward are the
same as those justifying his isolation in accordance with Chapter 3,
Section 9 of the 1889 Decree. The last-mentioned isolation, however,
is a significantly harsher implementation of a prison sentence. Thus,
by applying the 1889 Decree the Prison Governors circumvented the
Prison Court's repeated decisions not to place him in a closed ward and
thereby the requirement in a domestic lex specialis that isolation in
accordance with Chapter 3, Section 9 of the 1889 Decree shall not be
applied to recidivists in preventive detention.
The applicant maintains that he was not allowed to associate with
other inmates. Visits by family members and other persons did not
satisfy the need for social contacts, the condition for such visits
being severe. For example, in the Helsinki Central Prison, such visits
had to take place in the presence of four guards in special premises
and not in the normal meeting rooms. Not even his counsel was allowed
to consult the applicant in the normal meeting rooms and faced a
negative attitude from the prison staff. Neither did contacts with the
outside world via radio, television and newspapers compensate for the
lack of physical interaction with others.
The applicant further maintains that the requirement that he be
handcuffed during exercise outdoors was unjustified, given that his
exercise was scheduled to take place in the absence of all other
prisoners. The guards' attitude to him was often "bullying". For
instance, once when he had asked for that day's newspaper, a guard had
answered that it was not available. When leaving the applicant, his
counsel had seen it lying on a table. The applicant asserts that he has
been unable to borrow books from the prison library himself, being
required to tell the guards which books he wished to borrow. He was,
for unjustified reasons, not allowed to keep certain personal
belongings. For instance, during his isolation in the Riihimäki Central
Prison he was not allowed to keep a microphone for his tape recorder,
although it had been paid for by prison funds in order to assist him
in his studies.
The applicant contends that he was not properly medically
examined prior to the isolation orders and during his isolation. He
again refers to the above-mentioned Report by the CPT (para. 75)
concluding that doctors rarely visited prisoners in isolation units.
Moreover, in connection with one of the isolations ordered in the Turku
Central Prison, the Prison Physician reported, even without examining
him, that his isolation in the beginning of the 1980s had already
caused such major changes in his physical and psychological health that
renewed isolation would no longer have any essential influence on the
applicant. Only one Prison Physician agreed to examine him in the
absence of guards. On one occasion he unsuccessfully proposed to be
examined in chains provided no guards would be present. He objected to
being examined in the presence of other prison staff, fearing that
information about his state of health would be spread to others.
As regards the possibility for him to attend religious services
and seek such counselling, the applicant refutes the Government's
assertion that he was allowed to attend services in any of the prison
chapels. Reference is made, in particular, to a judgment of the City
Court of Riihimäki of 14 April 1993 purportedly establishing that he
had no such right.
The applicant finally questions the findings by the Deputy
Ombudsman invoked by the Government. The Ombudsman has very limited
possibilities to investigate complaints and mostly has to base his
findings on the mere written submissions of the officials to whom
objection is made. As regards, notably, his treatment in the Helsinki
Central Prison, the applicant also refers to the CPT's report which
concludes that the material conditions of detention in the isolation
unit at the Helsinki Central Prison are poor.
The Commission recalls that ill-treatment must attain a minimum
level of severity if it is to fall within the scope of Article 3
(Art. 3). The assessment of this minimum is relative and must take
account of all the circumstances of the case, including the duration
of the treatment, its physical and mental effects and, in some cases,
the sex, age and state of health of the person subjected to it (e.g.
Eur. Court H.R., Ireland v. the United Kingdom judgment of
18 January 1978, Series A no. 25, p. 65, para. 162). In order for a
punishment to be "degrading" and in breach of Article 3 (Art. 3), the
humiliation or debasement involved must attain a particular level and
must in any event be other than the usual element of humiliation
associated with imprisonment after a criminal conviction. Such an
examination is also relative and depends on all the circumstances of
the case and, in particular, on the nature and context of the
punishment itself and the manner and method of its execution
(Eur. Court H.R., Tyrer judgment of 25 April 1978, Series A no. 26,
p. 15, para. 30).
The Commission further recalls that the segregation of a prisoner
from the prison community does not in itself constitute a form of
inhuman or degrading treatment. Whilst prolonged removal of a person
from association with others is undesirable, the question whether such
a measure is contrary to Article 3 (Art. 3) of the Convention depends
on the particular conditions of its application, including its
stringency, duration and purpose, as well as its effects on the person
concerned. The removal of a prisoner from association with fellow
inmates for security, disciplinary or protective reasons does not
normally amount to inhuman treatment or punishment (cf. e.g. Bouajila
v. Switzerland, Comm. Report 1.7.93, paras. 102-104, to be published;
Dhoest v. Belgium, Comm. Report 14.5.87, paras. 116-118, D.R. 55
pp. 5-50, at pp. 20-21, with further references, and No. 14610/89,
Dec. 9.7.91, D.R. 71 pp. 168-221, at pp. 190-191, with further
references).
Finally, the Commission recalls that a lengthy prison sentence
or a combination of prison sentences does not in itself raise any issue
under Article 3 (Art. 3) of the Convention (e.g. the above-mentioned
No. 14610/89, p. 191).
As regards the facts of the present case, the Commission first
observes that the applicant has been imprisoned since 1980. It notes
that the Convention entered into force with regard to Finland on
10 May 1990. Subsequent to that date the applicant was formally
isolated, except for some brief interruptions, for about one and a half
years either from October or December 1990 to May 1992. Although not
being competent to evaluate the individual decisions and events
preceding 10 May 1990, the Commission must also take those into account
as background to the applicant's situation on that day (cf. T.H. v.
Finland, Comm. Report 22.10.93, para. 135). Thus, it observes that
prior to that date the applicant had been formally isolated for an
unknown period of time in the beginning of the 1980s and for about a
year from July 1987 to August 1988. The applicant's assertion that he
has been "de facto isolated" during the main part of his prison term
has not found support in the documents submitted.
The Commission finds it established that the applicant's periods
of isolation were ordered due to his repeated violent and threatening
behaviour. The isolation orders were reviewed at least on a monthly
basis and there is no indication that they were arbitrarily upheld. It
has not been shown that his isolation was so severe as to make it
contrary to Article 3 (Art. 3). On the contrary, there is no indication
that he was prevented from receiving visits, notably from his counsel,
at reasonable intervals provided prison order was not jeopardised. He
had daily contact with prison staff. He was provided with reading and
writing materials. The fact that he was not himself allowed to visit
the library and the prison shop does not alter this conclusion, as he
was not prevented from borrowing books and buying items through staff
intermediaries. Most of his cells had outlets for television and radio
aerials which he could have used at his own expense. It has not been
shown that he was unable to receive at least religious counselling
provided he complied with the relevant security arrangements.
In particular, the Commission finds it established that,
following his violent resistance against a guard on 23 August 1991, the
applicant was justifiably not allowed to exercise outdoors without
being handcuffed. He then refused to exercise outdoors until the
handcuffing order was revoked in February 1992. Thus, this isolation
was self-inflicted and limited in time. There is no indication that the
applicant was subjected to complete isolation even during this period.
The Commission further observes that, following the incident on
23 August 1991, the applicant was no longer allowed to serve himself
from the meal-cart in the prison corridor without being chained. Having
refused to comply with this order, he did not eat prison meals for
forty-two days. This consequence was, however, self-inflicted by the
applicant and there is no indication that he was unable to procure food
items from the prison shop, nor is there any indication that this
practice caused him excessive mental distress. As regards the second
order issued in November 1991 concerning his chaining during the
serving of meals, similar considerations apply.
In assessing the applicant's cell conditions the Commission has
also had regard to the CPT's report of 1 April 1993, as well as the
respondent Government's interim and follow-up reports concerning the
relevant wards of the Helsinki and Hämeenlinna Central Prisons (see the
Appendix). It considers, however, that the fact that some of his cells
were located partly underground is not sufficient to raise an issue
under Article 3 (Art. 3). Nor has it been established that the hygienic
conditions were unsatisfactory. In particular, it has not been alleged
that the toilet arrangements in any of the cells caused any particular
inconvenience to the applicant.
As regards the applicant's medical treatment, the Government have
acknowledged that on certain occasions the medical examinations of him
had to be conducted visually through his barred cell door. There is no
indication, however, that this method was used other than for security
reasons.
The Commission finally finds no indication that the applicant's
right to keep certain personal belongings in his cells was restricted
in an excessive manner in view of the security and other relevant
considerations.
Having made an overall assessment of the established conditions
during the applicant's detention, the Commission concludes that they
did not disclose any appearance of a violation of Article 3 (Art. 3)
of the Convention.
It follows that this complaint must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant next complains that his disciplinary punishments,
obliging him to serve an additional prison sentence of 35 days, have
not been ordered by a court within the meaning of Article 5 para. 1 (a)
(Art. 5-1-a) of the Convention.
Article 5 para. 1 (a) (Art. 5-1-a) of the Convention reads as
follows:
"1. Everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save in
the following cases and in accordance with a procedure
prescribed by law:
a. the lawful detention of a person after
conviction by a competent court; ..."
The Commission observes that the prolongation of the applicant's
prison term stems from the disciplinary punishments imposed on him in
1980-1982, that is during a period prior to the entry into force of the
Convention with regard to Finland. The Commission considers that the
prolongation of his prison term is a result of those disciplinary
punishments which as such lie outside the Commission's competence
ratione temporis (Nos. 8560/79 and 8613/79, Dec. 3.7.79, D.R. 16
p. 209; cf., mutatis mutandis, No. 10733/84, Dec. 11.3.85, D.R. 41
pp. 211-225 at p. 224, and, contra, No. 7031/75, Dec. 12.7.76, D.R. 6
p. 124).
It follows that this complaint is incompatible ratione temporis
with the provisions of the Convention within the meaning of Article 27
para. 2 (Art. 27-2).
3. The applicant further complains that the requirement that he
serve his full sentence, instead of the normal two thirds with parole,
means that his further detention has been decided by the Prison Court.
He claims that this body does not fulfil the requirements of a court
under Article 5 para. 1 (a) (Art. 5-1-a) of the Convention, as it has
close connections with the Department of Prison Administration.
Accordingly, his current imprisonment is unlawful.
The Commission observes that, according to Section 14 of the 1953
Act, an incarcerated recidivist shall serve his total term of
imprisonment. The applicant's incarceration was already ordered in
1983, i.e. prior to the entry into force of the Convention with regard
to Finland. Even assuming, however, that the complaint is within the
Commission's competence ratione temporis, it recalls that, in order for
detention after conviction to be lawful within the meaning of Article
5 para. 1 (a) (Art. 5-1-a) of the Convention, it must result from,
follow and depend upon, or occur by virtue of a "conviction by a
competent court". In short, there must be a sufficient causal
connection between the conviction and the deprivation of liberty at
issue (Eur. Court H.R., Weeks judgment of 2 March 1987, Series A
no. 114, p. 23, para. 42; Eur. Court H.R., Thynne, Wilson and Gunnell
judgment of 25 October 1990, Series A no. 190, pp. 26-27, para. 68 et
seq.). The Convention does not secure any right as such to be released
on parole (e.g. the above-mentioned No. 14610/89, p. 191).
The Commission notes that, as a result of the Prison Court's
order to incarcerate the applicant as a dangerous recidivist, the
applicant could not be released on parole after having served two
thirds of his sentence on 15 September 1990. Instead he must serve his
whole sentence, expiring in 1997, following which he will be released
on parole, unless he is considered to be a danger to the life or health
of others. The Commission observes that the applicant's present
imprisonment is based on a number of convictions by ordinary courts
whose competence within the meaning of Article 5 para. 1 (a)
(Art. 5-1-a) has not been challenged by him. The Commission finds that
there is a sufficient causal connection between those convictions and
the current deprivation of the applicant's liberty. Accordingly, it
concludes that this aspect of the case discloses no appearance of a
violation of Article 5 (Art. 5) of the Convention.
It follows that this complaint must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
4. The applicant further complains that his isolation was unlawful,
as it was not based on the 1971 Decree on Institutions for Preventive
Detention, a purported lex specialis. He again invokes Article 5 para.
1 (a) (Art. 5-1-a) of the Convention.
The Commission observes that the applicant's isolation was part
of the implementation of his prison sentence, which was imposed "after
conviction by a competent court" within the meaning of Article 5 para.
1 (a) (Art. 5-1-a) of the Convention. The conditions in which the
sentence is served do not, in principle, fall within the ambit of
Article 5 para. 1 (Art. 5-1), but are to be controlled under Article
3 (Art. 3) of the Convention, which the Commission has already done
above (cf. No. 7754/77, Dec. 9.5.77, D.R. 11 p. 216). The Commission
finds, therefore, that no further issue arises under Article 5 para.
1 (a) (Art. 5-1-a) of the Convention in respect of the present
complaint.
It follows that this complaint must also be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
5. The applicant also complains that he had no effective remedy
against his alleged inhuman treatment. He invokes Articles 6 and 13
(Art. 6, 13) of the Convention.
The Commission has examined this complaint under Article 13
(Art. 13) which reads as follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy
before a national authority notwithstanding that the
violation has been committed by persons acting in an
official capacity."
The Government submit that this complaint is also manifestly ill-
founded, as the applicant has no arguable claim in respect of his
complaint under Article 3 (Art. 3) of the Convention. Should the
Commission conclude otherwise, the Government argue that a number of
remedies are available to the applicant either separately or in
aggregate, satisfying the requirements of Article 13 (Art. 13).
Reference is made to the Prison Court, the Prison Governor, the Prison
Board, the Department for Prison Administration, the Parliamentary
Ombudsman and the possibility for the applicant under Section 93 of the
Constitution Act to institute criminal and civil proceedings for
damages against officials.
In view of its above conclusion with regard to the complaint
under Article 3 (Art. 13) of the Convention, the Commission considers
that the applicant has no "arguable claim" of a breach of a violation
of this provision which would warrant a remedy under Article 13
(Art. 13) (see Eur. Court H.R., Powell and Rayner judgment of
21 February 1990, Series A no. 172, p. 20, para. 46).
It follows that this complaint must also be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
6. Finally, the applicant complains that his obligation to serve the
total length of his ordinary prison sentence is discriminatory in
comparison with ordinary prisoners serving a sentence of the same
length as his, who can be released on parole having served two thirds
of their sentence. He invokes the above-cited Article 5 para. 1 (a)
(Art. 5-1-a) of the Convention, in conjunction with Article 14
(Art. 14), which reads:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin,
association with a national minority, property, birth or
other status."
The Commission observes that the reason for not releasing the
applicant on parole after he had served two thirds of his ordinary
prison sentence was his classification as a dangerous recidivist.
Accordingly, he was not in a situation comparable to that of ordinary
prisoners. In these circumstances, no issue arises under Article 14
(Art. 14).
It follows that this complaint must also be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
APPENDIX
EXTRACTS FROM THE REPORT OF THE EUROPEAN COMMITTEE FOR THE
PREVENTION OF TORTURE AND INHUMAN OR DEGRADING TREATMENT OR
PUNISHMENT ("THE CPT") OF 1 APRIL 1993
[As regards solitary confinement, notably in the Helsinki Central
Prison; pp. 28-31:]
"...
69. Reference has already been made to the large number of
prisoners in Helsinki Central Prison who had requested to be
placed in solitary confinement... . The prisoners concerned were
accommodated in the isolation unit of the prison, which also
housed those who had been placed in non-voluntary solitary
confinement (including prisoners classified as dangerous
recidivists - cf. paragraph 77) and inmates undergoing the
disciplinary penalty of cellular confinement.
The CPT has serious reservations about both the material
conditions in this unit and the regime applied to prisoners
placed there for non-disciplinary reasons.
70. The isolation unit was located in the "day cells" wing in
the prison. Most of the cells contained only a platform bed and
a lavatory - both made of concrete. Four of the cells had been
converted to accommodate prisoners thought to be especially
dangerous and likely to be held in solitary confinement for
extended periods. Material conditions in those cells were of a
slightly higher standard. None of the cells possessed any storage
space, with the result that the limited range of personal
possessions allowed to prisoners tended to be left strewn on the
floor.
Many of the cells were in an unhygienic condition and some were
extremely dirty. The condition of the in-cell lavatories also
left a great deal to be desired. In this respect, it should be
noted that the lavatories could only be flushed from outside the
cell and prisoners alleged that their requests for this to be
done were frequently ignored by the staff.
71. In short, the material conditions of detention in the
isolation unit at Helsinki Central Prison were poor.
...
72. The delegation [of the CPT] discussed the regime provided
in the isolation unit with staff and prisoners there. It emerged
that the inmates' activities consisted of reading and writing in
their cells, together with one hour of outdoor exercise each day,
when they might be allowed to associate with the other prisoners
from the unit. No work was available, even in the cells, and no
group association or sporting activities were provided. To sum
up, the vast majority of prisoners spent their time alone in
their cells, with little to occupy them. Given the extended
periods for which persons may be held under voluntary or
non-voluntary segregation, the regime which was offered to them
cannot be regarded as acceptable.
73. It is generally acknowledged that all forms of solitary
confinement without appropriate mental and physical stimulation
are likely, in the long term, to have damaging effects, resulting
in deterioration of mental faculties and social abilities. The
delegation found that the regime applied in the solitary
confinement unit in Helsinki Central Prison did not provide such
stimulation.
75. ... Finnish law obliges prisons doctors to supervise the
health of those placed in isolation; however, the delegation
found that, in practice, doctors rarely visited the isolation
units in the adult prisons visited.
...
77. Finally, reference should be made to the small number
of [dangerous recidivists] (nine at the time of the visit)
subject to the terms of [the 1953 Act]. ...
78. The delegation was informed that such prisoners were often
held for very long periods under a solitary confinement-type
regime. ..."
[With regard to the material conditions of detention in the
Helsinki Central Prison; p. 32:]
79. "[The prison] provided accommodation for inmates in
two areas, referred to as the 'day cells' and 'night cells'
sections. ... The ground floor of the 'day cells' east wing
contained the isolation unit ... . The prison was not
overcrowded and prisoners lived one to a cell throughout
the establishment.
80. Most of the cells were of a reasonable size (up to 9 m2),
acceptably furnished (bed, table, chair, wardrobe and bookshelf)
and benefited from adequate lighting and sanitation. However, it
would be preferable for sanitation facilities to be partitioned
off from the living areas in the cells.
...
83. ... [G]enerally, the delegation was struck by the poor
general state of repair of the prison; further, some areas were
extremely dirty.
..."
[With regard to the material conditions of detention in the
Hämeenlinna Central Prison; p. 34:]
"88. The cells were all of a reasonable size for the number of
prisoners accommodated and were well lit, adequately ventilated
and furnished to a satisfactory standard. In general, material
conditions of detention in the prison were good, ...
89. Only one landing in the prison had cells which were
equipped with lavatories. Prisoners who worked had access to
toilet facilities during the day but during the night had to use
a bucket for toilet purposes. Certain other prisoners appeared
to stay in their cells for much of the day (apart from exercise
periods, visits etc). Prison staff informed the delegation that
such prisoners would often have to rely on the bucket in their
cells as a toilet facility during the day. ..."
[With regard to the general conditions of detention inter alia
in the Helsinki and Riihimäki Central Prisons; pp. 44-46:]
"128. ... [A]s regards particularly the cells [in the isolation
unit of Helsinki Central Prison] used to accommodate those
undergoing cellular confinement as a disciplinary sanction [the
CPT considers that], in addition to improving hygiene within the
cells, ... it would be desirable for them to be equipped with a
table and chair, if necessary fixed to the floor.
...
134. The arrangements for visits in the establishments visited
were found to be satisfactory. ..."
[With regard to the medical issues inter alia in the
Helsinki and Hämeenlinna Central Prisons; p. 37:]
"100. In Helsinki Central Prison, a doctor ... and a
psychiatrist were employed on a full-time basis. A range of other
outside specialists visited the prison at regular intervals and
nursing cover appeared to be adequate.
At Hämeenlinna, the Central ... Prison ... used the services of
the Prison Hospital within [its] grounds ... . This was modern
... and very well equipped ..."
****
EXTRACTS FROM THE RESPONSE OF THE FINNISH GOVERNMENT TO THE REPORT
OF THE CPT (DATED 26 AUGUST 1993)
[With regard to solitary confinement; pp. 34-35:]
"The isolation unit of Helsinki Central Prison is located in the
section of day cells east where renovations will begin in 1994.
The cells used for solitary confinement will have to be rebuilt
to meet reasonable standards for the accommodation of prisoners.
...
The Prison Administration Department will during the current year
issue new instructions on the application of chapter 3 section
9 of [the 1889 Decree] concerning solitary confinement, taking
into account the recommendation by the CPT for informing the
prisoner in writing of the reasons for solitary confinement.
The prisoner is heard before any decision is taken on solitary
confinement."
[p. 41:]
"... Since 1971, two prisoners have been held in solitary
confinement for extended periods.
..."
[With regard to the Hämeenlinna Central Prison; pp. 43-44:]
"[The prison] will release the prisoners from their cells to use
a toilet during the day.
...
... It is impracticable to require that the plans recommended by
the CPT to be drawn up to give all prisoners in Hämeenlinna
Central Prison access to toilet facilities at all times be put
into effect at this stage. The Prison Administration Department
believes that the provision of such access in all prisons is
indispensable and will attach special importance to finding
practical solutions to the problem in the connection of
structural changes and reallocation of premises. In Hämeenlinna,
this objective will not be fully attained until each cell has a
toilet facility of its own. Staff on duty at night are few, and
for security reasons it is impossible to give all prisoners
access to a toilet at night. For a special reason, such as
illness, a prisoner is in any case released to use a toilet at
night.
..."
[With regard to the Helsinki Central Prison; pp. 45-47:]
"... The building which houses the cells at Helsinki Central
Prison will be fully renovated in the years to come. ... The
areas to be rebuilt will be fitted with central heating and
automatic ventilation. Most of the cells will be fitted with
toilets and wash-basins, some also with a shower. The furniture
will be: bed, chair, desk, bookshelf, two lockers and notice
board. The technical equipment will be: central heating, hot and
cold water, automatic ventilation, fire alarm, call system,
receiver for PA system, tv antenna, overhead light, and
reading-lamp.
...
Prisons have drawn up a cleaning plan, which defines the manner
and frequency of cleaning of the particular premises as well as
the person in charge. The cleaning plan for Helsinki Central
Prison was checked and approved by the Prison Administration
Department in 1989.
...
As a result of the CPT's report, senior officers in Helsinki
Central Prison have been urged to improve the general cleanliness
of the units. The basic idea that the prisoners take care of the
cleaning under the supervision of the staff has not been revised.
This practice is in conformity with the objective of involving
the prisoners in the regime of the prison.
...
In their comments on the dirty condition of the isolation unit,
Helsinki Central Prison stated that the prisoners occupying the
unit refuse to work, take drugs, are violent or afraid of other
prisoners. Not all of them are easily motivated to clean their
cells. The cells can be cleaned more thoroughly only when empty.
In addition, the bad state of repair makes maintenance of
hygienic standards difficult. Despite these difficult
circumstances, the cleanliness of these premises continues to be
in focus. As for the other parts of the prison, improvements have
been achieved during the spring of 1993. For example, waste is
taken out daily from the living quarters, and discarded materials
from the workshop areas have been taken away.
On 10 May 1993, inspectors of the Prison Administration
Department visited Helsinki Central Prison to scrutinize the
standard of hygiene. Sub-standard conditions were found to still
exist in the isolation unit, and the Prison was urged to carry
out a thorough cleaning. ..."
[p. 75:]
"... Renovation of the part of Helsinki Central Prison with
isolation cells will begin next year. The CPT's comment can be
accommodated in that process. Some cells currently in use are
being equipped with a table and chair.
..."
[In general; p. 80:]
"Finnish closed prisons have a capacity of 3000, of which a third
is in cells without separate toilet facilities. In some of these
cells (open units) prisoners have access to a toilet facility at
all times; in other units prisoners can be released by an officer
to use a toilet at night, but units continue to exist where
prisoners are not permitted to leave their cells to use a toilet
facility at night because of the reduced number of staff on duty.
With the renovation of prisons, most of the cells will be
equipped with separate toilet facilities, but this process will
take time. ..."
****
EXTRACTS FROM THE FOLLOW-UP REPORT OF THE FINNISH GOVERNMENT IN
RESPONSE TO THE REPORT OF THE CPT (DATED 18 FEBRUARY 1994)
[With regard to the conditions of detention in the Helsinki
Central Prison; pp. 14-18:]
"... In Helsinki Central Prison, the renovation of day cells west
was completed recently. ...
The isolation unit is located in the day cells east where
renovation will begin in 1994. The CPT's recommendations will be
taken into account in the renovation of the cells of the
isolation unit. Some day cells north are being repaired to house
a temporary isolation unit. The cells used for solitary
confinement as a disciplinary measure have been furnished as
recommended by the CPT.
...
Instructions, regarding solitary confinement, on the application
of chapter 3 section 9 of [the 1889 Decree] are being revised to
accommodate the CPT's recommendation for informing prisoners in
writing of the reasons for solitary confinement.
...
In discussions held with every prison on target results for 1994
the issue of allowing prisoners access to toilet facilities at
night was raised. It came out that in a number of prisons it is
possible to give prisoners access to a toilet at night. For
security reasons a cell door must not be unlocked and opened by
one guard alone. Prisons which do not have enough staff to allow
the presence of two guards in that situation will not be able to
give prisoners access to a toilet at night.
...
Since the CPT's visit, the Prison Administration Department has
carried out three inspections of the premises of Helsinki Central
Prison, issuing instructions to improve the standard of
cleanliness in the prison. The prison was aware that the third
inspection would be carried out unannounced, and in that
inspection in December 1993 it was observed that the conditions
for cleanliness had improved markedly.
..."