Communicated on 26 January 2015

FOURTH SECTION

Applications nos 60429/12 and 72760/12 Valters ĀBELE against Latvia and Valters ĀBELE against Latvia lodged on 12 September 2012 and 24 October 2012 respectively

STATEMENT OF FACTS

1. The applicant, Mr Valters Ābele , is a Latvian national, who was born in 1968 and currently serves his sentence in Brasa Prison .

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Conviction and placement in prison

3. On 7 May 2008 the applicant, who is deaf, was convicted of aggravated murder and sentenced to 15 years ’ imprisonment. This judgment became final on 24 February 2009.

4. On 27 March 2009 the applicant was placed in Liepāja Prison where he shared his cell with two other inmates who had no hearing impairment. Due to differences with his cell-mates the applicant wished to be transferred to a single person cell or to be placed in a two-person cell alone. However, this was not accommodated. On 16 June 2011, in response to the applicant ’ s complaint, the Prisons Administration merely indicated that the issue of placement of prisoners fell within the competence of the administration of the respective prison.

5. On 15 December 2011 the Administrative Commission of Liepāja Prison decided to transfer the applicant from the “lower” prison regime, the most restrictive prison regime, to the more lenient “medium” regime, as the applicant had served one quarter of his sentence. Accordingly, on 23 December 2011 the applicant was moved to Brasa Prison. There, the applicant was placed in cells nos. 301 and 303 together with 10-20 inmates who were in good health. Arguing that placement together with so many inmates who had no hearing impairment and with whom he could not communicate put him in a highly vulnerable position and subjected him to molestation, the applicant continued requesting his transfer to either a different cell or to a different prison. The applicant also complained about the conditions in these cells, particularly concerning insufficient heating, and referred to his health issues, which were aggravated by the circumstances he was placed in. In particular, in addition to being deaf, the applicant suffered from inflammation of tympanic membrane causing severe pain, gastritis, joint pain (arthralgia) in arms and legs, back pain, dental gum abscess, and other issues. He also indicated a need for dentures, which he was unable to obtain due to financial constraints.

6. The applicant was of the view that even a temporary placement in a facility with no cellmates would allow him to recuperate. In light of that, on 10 July 2012 the applicant requested to be placed in a short-term detention facility at a police station. This request was refused on the grounds that such a placement had no legal grounds.

7. On 1 March 2012 the Prisons Administration examined the applicant ’ s request to transfer him to a different prison and his complaints about the conflicts with other inmates and concluded that there was no real threat to his life or health. The Prisons Administration noted that there had been no psychological harassment either. It also stated that the applicant ’ s health care had been in accordance with the requirements of domestic law. The applicant was not informed of a possibility of appealing against this decision.

8. On 25 April 2012 the Prisons Administration examined the applicant ’ s repeated request about his conflicts with other prisoners. It reiterated its conclusions outlined in the letter from 1 March 2012.

9. Further, on 16 May 2012 the Head of Brasa Prison administration informed the applicant that the question of his transfer to the most lenient “higher” prison regime could not be examined before 10 June 2015, as only then would the applicant have served the relevant proportion of his prison sentence. Accordingly, the applicant ’ s request in that regard would not be put before the Administrative Commission of Brasa Prison.

2. Complaints before the administrative courts

10. On several occasions the applicant attempted to bring his grievances before the administrative courts. However, none of his applications were accepted, primarily due to the way the applicant had formulated his requests.

11. In particular, by a decision of 1 October 2012 the Administrative District Court refused to accept an application where the applicant had requested his transfer to a different prison that would be more suited for his health condition and a change of his prison regime to a more restrictive one. The Administrative District Court ruled that these issues fell within the realm of criminal law and could not be examined by the administrative courts. Similarly, on 25 October 2012 the Administrative District Court refused to accept the applicant ’ s request to be relieved from the obligation to continue serving his sentence. The applicant lodged an ancillary complaint but on 21 November 2012 the Administrative District Court noted that it was not clear which of the two aforementioned decisions the applicant wished to challenge. Accordingly, his complaint was not proceeded with.

12. Further, in its decision of 10 December 2012 the Administrative District Court noted that the applicant indicated several aspects regarding the serving of his sentence. However, the main request, according to the court, was to be relieved from the obligation to serve his sentence in full. Accordingly, this application was not accepted on the grounds that the Administrative District Court had already refused to accept an identical application.

13. In his following application the applicant had requested his transfer to a more lenient prison regime or his transfer to a different prison on health grounds. In addition, the applicant had also complained about insufficient heating of the prison cells. In its decision of 14 December 2012 the Administrative District Court noted that the first two requests had already been raised before the Administrative District Court, which had refused to accept them. With regard to the objections the applicant had raised about draft, cold, and lack of heaters in the prison cells, the court considered that it was impossible to determine whether it was a separate complaint concerning conditions of detention or an argument to support the applicant ’ s claim for transfer to a different prison regime. Accordingly, the Administrative District Court decided not to proceed with this part of the application and gave the applicant one month to clarify his complaint .

3. Complaint before the Prisons Administration

14. On the basis of numerous earlier complaints lodged by the applicant, on 30 January 2013 the Prisons Administration issued a decision addressing the applicant ’ s complaints on their merits. With regard to the applicant ’ s complaint about insufficient heating and lighting of the prison cell no. 301 the Prisons Administration considered that a window and lamps provided sufficient light in the cell. The Prisons Administration was also of the view that the heating pipe of 5 cm in diameter situated in the cell and the heaters located in the hallway provided a sufficient temperature in the room. Particularly, referring to the construction standards applicable to multi-storey residential houses, it noted that the requirements of the domestic law had been complied with, as it was ensured that the air temperature in the prison cells did not go below eighteen degrees Celsius.

15. In relation to the applicant ’ s complaint that the lack of heating affected his health – it had caused him headaches, joint pains, fever, cold, cough and rhinitis – the Prisons Administration noted that the applicant had only addressed the prison doctors with complaints about problems with his digestive system and had not complained about the symptoms indicated above. The Prisons Administration also informed the applicant that its decision with regard to the two aforementioned complaints could be brought before the administrative courts.

16. Further, concerning the request to be transferred to a different prison or to a different prison cell, the Prisons Administration noted that the applicant did not have a subjective right in that regard. It also noted that the complaints about behaviour of other prisoners ought to be brought before the administration of Brasa Prison. The Prisons Administration observed that ten such complaints had already been received and that all of the matters raised by the applicant had been resolved. Further, the Prisons Administration noted that the information before it did not indicate that there was any threat to the applicant ’ s life, health or safety .

17. Finally, with regard to the applicant ’ s request to be transferred back to the “lower” prison regime, the Prisons Administration responded that such actions could only be taken in cases of serious or systematic breaches of the prison regime.

B. Relevant international documents

18. The United Nations Convention on the Rights of Persons with Disabilities , ratified by Latvia on 1 March 2010, in its relevant parts, reads as follows :

Article 1 - Purpose

“ The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respe ct for their inherent dignity.

Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others. ”

Article 2 - Definitions

“For the purposes of the present Convention:

...

Reasonable accommodation” means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms; ...”

Article 13 - Access to justice

“1. States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.”

Article 14 - Liberty and security of the person

“... 2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention, including by provision of reasonable accommodation.”

19. The Interim Report of the Special Rapporteur on the question of torture and other cruel, inhuman or degrading treatment or punishment, submitted on 28 July 2008 by the Office of the United Nations High Commissioner for Human Rights to the 63rd session of the General Assembly of the UN (A/63/175), contains the following passages:

“Summary... The Special Rapporteur draws the attention of the General Assembly to the situation of persons with disabilities, who are frequently subjected to neglect, severe forms of restraint and seclusion, as well as physical, mental and sexual violence. He is concerned that such practices, perpetrated in public institutions, as well as in the private sphere, remain invisible and are not recognized as torture or other cruel, inhuman or degrading treatment or punishment.

50 . ... Persons with disabilities often find themselves in ... situations [of powerlessness], for instance when they are deprived of their liberty in prisons or other places ... In a given context, the particular disability of an individual may render him or her more likely to be in a dependant situation and make him or her an easier target of abuse ...

53. States have the further obligation to ensure that treatment or conditions in detention do not directly or indirectly discriminate against persons with disabilities. If such discriminatory treatment inflicts severe pain or suffering, it may constitute torture or other form of ill-treatment. ...

54. The Special Rapporteur notes that under article 14, paragraph 2, of the [Convention on the Rights of Persons with Disabilities], States have the obligation to ensure that persons deprived of their liberty are entitled to ‘ provision of reasonable accommodation ’ . This implies an obligation to make appropriate modifications in the procedures and physical facilities of detention centres ... to ensure that persons with disabilities enjoy the same rights and fundamental freedoms as others, when such adjustments do not impose disproportionate or undue burden. The denial or lack of reasonable accommodation for persons with disabilities may create detention ... conditions that amount to ill-treatment and torture.”

20. Recommendation No. R (98) 7 of the Committee of Ministers of the Council of Europe to the member States concerning the ethical and organisational aspects of health care in prison, in its relevant parts, reads as follows:

“I. Main characteristics of the right to health care in prison

A. Access to a doctor

1. When entering prison and later on while in custody, prisoners should be able at any time to have access to a doctor or a fully qualified nurse, irrespective of their detention regime and without undue delay, if required by their state of health. All detainees should benefit from appropriate medical examinations on admission. Special emphasis should be put on the screening of mental disorders, of psychological adaptation to prison, of withdrawal symptoms resulting from use of drugs, medication or alcohol, and of contagious and chronic conditions. ...

4. Prisoners should have access to a doctor, when necessary, at any time during the day and the night. Someone competent to provide first aid should always be present on the prison premises. In case of serious emergencies, the doctor, a member of the nursing staff and the prison management should be warned; active participation and commitment of the custodial staff is essential.

5. Access to psychiatric consultation and counselling should be secured. There should be a psychiatric team in larger penal institutions. If this is not available as in the smaller establishments, consultations should be assured by a psychiatrist, practising in hospital or in private. ...

III. The organisation of health care in prison with specific reference to the management of certain common problems

D. Psychiatric symptoms, mental disturbance and major personality disorders, risk of suicide

52. The prison administration and the ministry responsible for mental health should co-operate in organizing psychiatric services for prisoners.

53. Mental health services and social services attached to prisons should aim to provide help and advice for inmates and to strengthen their coping and adaptation skills. These services should co-ordinate their activities, bearing in mind their respective tasks. Their professional independence should be ensured, with due regard to the specific conditions of the prison context. ...

F. Violence in prison: disciplinary procedures and sanctions, disciplinary confinement, physical restraint, top security regime

64. Prisoners who fear acts of violence including possible sexual offences from other prisoners for any pertinent reason, or who have recently been assaulted or injured by other members of the prison community, should be able to have access to the full protection of custodial staff.”

21. Recommendation Rec(2006)2 of the Committee of Ministers to member States on the European Prison Rules, in its relevant parts, reads as follows:

“The Committee of Ministers, under the terms of Article 15. b of the Statute of the Council of Europe,

Having regard to the European Convention on Human Rights and the case law of the European Court of Human Rights, ...

Recommends that governments of member states:

- be guided in their legislation, policies and practice by the rules contained in the appendix to this recommendation, which replaces Recommendation No. R (87) 3 of the Committee of Ministers on the European Prison Rules. ...”

Appendix to Recommendation Rec( 2006)2

“... 12.1 Persons who are suffering from mental illness and whose state of mental health is incompatible with detention in a prison should be detained in an establishment specially designed for the purpose.

12.2 If such persons are nevertheless exceptionally held in prison there shall be special regulations that take account of their status and needs. ...

39. Prison authorities shall safeguard the health of all prisoners in their care. ...

40.3 Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation.

40.4 Medical services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer.

40.5 All necessary medical, surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose. ...

47.1 Specialised prisons or sections under medical control shall be available for the observation and treatment of prisoners suffering from mental disorder or abnormality who do not necessarily fall under the provisions of Rule 12.

47.2 The prison medical service shall provide for the psychiatric treatment of all prisoners who are in need of such treatment and pay special attention to suicide prevention.”

C . Relevant domestic law

1. Placement in prison

22. Paragraph 13 of the Regulation no. 423 (2006) of the Cabinet of Ministers states that the placement of prisoners is decided by a special commission created by the head of each prison. The circumstances to be taken into account are as follows: availability of cells, psychological compatibility of the convicted persons, their level of education and their health condition. The same provision also states that the placement of foreigners, insofar as possible, should be organised in a manner that allows them to communicate with each other.

2. Medical care in prison

23. Regulation n o. 199 (2007) of the Cabinet of Ministers, which was in force until 23 January 2014 , governed the medical care of convicts in penal institutions. The relevant provisions of this R egulations were cited in the case of Fedosejevs v. Latvia (( dec. ), no. 37546/06 , § 34, 19 November 2013).

24. Section 10 of the Medical Treatment Law ( Ārstniecības likums ) provides that the Health Inspectorate is responsible for monitoring the professional quality of medical care in health-care establishments. The competence of the Health Inspectorate and its predecessor Inspectorate of Quality Control for Medi cal Care and Working Capability, as well as the domestic case-law with regard to the supervision of medical care in prisons is outlined in the case of Antonovs v. Latvia (( dec. ), no. 19437/05, §§ 63-65, 71-79, 11 February 2014).

3. Proceedings before the head of the prison and the Prisons Administration

25. Section 50 of the Sentence Enforcement Code ( Latvijas Sodu izpildes kodekss ) provides that complaints of convicted person s regarding circumstances of the execution of th e prison sentence shall be examined by the head of the prison . Complaints contesting an administrative act or action of a public authority shall be examined by the H ead of the Prison s Administration in accordance with the procedures laid down in the Administrative Procedure Law.

26. Regulation no. 827 (2005) of the Cabinet of Ministers provides that the H ead of the Prisons Administration decides on legal challenges brought by private individuals against a dministrative acts issued by or actions of a public authority taken by its subordinate officers, unless otherwise prescribed by law (paragraph 6 and 13). The decision of the H ead of the Prisons Administration can be contested before a court (paragraph 13).

4. Proceedings before the administrative courts

27. The Administrative Procedure Law ( Administratīvā procesa likums ) provides, among other things, for the right to challenge administrative acts and actions of public authorities before the administrative courts. According to section 1(3) of the Administrative Procedure Law an administrative act, inter alia , is a decision that significantly interferes with the human rights of a person specially subordinated to a public authority. An internal decision of a public authority that only concerns that authority itself or a specially subordinated person is not an administrative act. Criminal procedural decisions are not administrative acts either. A n action of a public authority, according to section 89 of the Law, is an action within the sphere of public law which is not aimed at issuing an administrative act, provided that its results have or might infringe the rights or legal interests of an individual concerned. An action of a public authority also includes an omission on the part of a public authority provided that such authority has an obligation under the law to take a specific action.

28. Under section 92 of the Administrative Procedure Law everyone has the right to receive appropriate compensation for pecuniary and non-pecuniary damage caused by an administrative act or action of a public authority. Under section 93 of the same Law, a claim for compensation can be submitted either together with an application to the administrative courts to have an administrative act declared unlawful, or to the public authority concerned following a judgment adopted in such proceedings.

29. In addition, s ection 195 of the Administrative Procedure Law s tates that the court may order an interim measure where there is reason to believe that if the impugned administrative act remained in force, it could cause significant harm or damage, the prevention or restitution of which could be made very difficult or would require disproportionate resources, and where, upon examination of the information available to the court, the impugned administrative act appears prima facie unlawful. According to section 196, t he available relevant interim measures are either a court ’ s ruling that would replace the requested administrative act or action by a public authority, or a court decision ordering the relevant institution to perform or refrain from a certain action.

COMPLAINTS

30. Without relying on any Article of the Convention the applicant complains about the inadequacy of the prison conditions in view of his state of health and the fact that his complaints in this regard have not been examined.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention in relation to his complaints about conditions of his detention? Notably, what avenues under domestic law were available and effective in the context of the applicant ’ s complaints, having particular regard to his health condition?

2 . Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 3 , as required by Article 13 of the Convention?

3. Has the applicant been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention, given his condition and the allegedly inapt circumstances of his detention?