THIRD SECTION

DECISION

Application no. 13329/21 Marius MITT against Estonia

The European Court of Human Rights (Third Section), sitting on 17 May 2023 as a Committee composed of:

Darian Pavli , President , Ioannis Ktistakis, Oddný Mjöll Arnardóttir , judges , and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having regard to the above application lodged on 23 February 2021,

Having regard to the declaration submitted by the respondent Government requesting the Court to strike the application out of the list of cases,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The applicant’s details are set out in the appended table.

The applicant’s complaint concerning his strip search in prison on one occasion in the presence of several members of prison staff (including staff members of opposite sex), submitted under both Articles 3 and 8 of the Convention, was communicated to the Estonian Government (“the Government”).

THE LAW

The Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the complaint. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“1. The Government note that the efforts with a view to securing a friendly settlement of the case have been unsuccessful.

2. In this situation, the Government would hereby like to express – by a way of unilateral declaration – their regret that the applicant was strip searched at the possible presence of female prison staff on 12 December 2019. The applicant’s rights were violated, irrespective whether the Court would consider the circumstance of his case to correspond to a violation of Article 3 or Article 8 of the Convention.

3. The Government are prepared to pay to the applicant the global sum of 2,340 euros (two thousand three hundred forty euros). This sum is to cover any pecuniary and non-pecuniary damage as well as the costs and expenses and will be free of any taxes that may be applicable. This sum will be payable within three months from the date of notification of the decision taken by the Court to strike the case out of its list of cases. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.

4. The Government also underline that the Estonian legal framework sets out sufficient general measures to avoid similar violations and/or remedy them. At the outset, § 4¹ of the Imprisonment Act sets out that prisoners, detained persons or persons in custody should be treated in a manner that respects their human dignity and ensures that their serving of the sentence or being held in custody does not cause them more suffering or inconvenience than that inevitable in association with detention in prisons or houses of detention. If a violation still occurs, a person could turn to the administrative court with a declaratory action, i.e. they could ask the court to declare that prison’s administrative act or measure was unlawful, and/or with a compensation action, i.e. they may seek from the court compensation for harm caused in a public law relationship (§ 37 (2) 6 and 4 of the Code of Administrative Court Proceedings).

5. In case an act comprises the necessary elements of a criminal offence, is unlawful and the person is guilty of commission of the offence, penal law would apply (§ 2 (2) of the Penal Code). More precisely, § 324 of the Penal Code sets out that degrading of the dignity of a prisoner, person in detention or custody any other person detained in a custodian institution, or discriminating against such person or unlawful restricting of his or her rights by an official of a custodial institution taking advantage of his or her official position, is punishable. The Penal Code would apply if the necessary elements of an offence existed.

6. It is recalled that according to the case-law of the Court, it may be appropriate under certain circumstances to strike out an application under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration filed by the respondent Government even if the applicant wishes the examination of the case to be continued (for instance Õmblus v. Estonia (striking out) application no. 27669/08, decision of 2 March 2010; Treial v Estonia (striking out) application no 42496/05, decision of 18 March 2008).

7. It is also recalled that in respect of Article 3 cases the Court has paid attention to the terms of the declaration made by the Government and in particular, the possibility under domestic law or practice to request reopening of criminal proceedings (e.g. Jeronovics v. Latvia , application no. 44898/10, GC 5 July 2016). However, the Court has also accepted the unilateral declarations without such undertaking, if re-opening is impossible de jure or de facto (decisions of the Court of 12 March 2019 in cases TaÅŸdemir v. Turkey (52538/09), Kutlu and Others v. Turkey (18357/11), and Karaca v. Turkey (5809/13)). In any case, it will be for the relevant domestic authorities to assess and decide whether re-opening of the investigation would be possible.

8. In the light of the above and in accordance with Article 37 § 1 (c) of the Convention the Government would like to suggest that the circumstances of the present case allow the Court to reach the conclusion that for “any other reason” it is no longer justified to continue the examination of the application. Moreover, there are no reasons of a general character, as defined in Article 37 § 1 in fine, which would require the further examination of the case by virtue of that provision.

9. Therefore, the Government invite the Court to strike the application out of its list of cases.”

The applicant was sent the terms of the Government’s unilateral declaration.

By a letter of 8 June 2022, the applicant indicated that he was not satisfied with the terms of the unilateral declaration. In particular, the applicant was unsatisfied with the sum of compensation offered by the Government. He also considered that a public precedent needed to be set in order to prevent similar violations in the future.

The Court observes that Article 37 § 1 (c) enables it to strike a case out of its list if:

“... for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

Thus, it may strike out applications under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued (see, in particular, the Tahsin Acar v. Turkey judgment (preliminary objections) [GC], no. 26307/95, §§ 75 ‑ 77, ECHR 2003-VI).

The Court, being the master of characterisation to be given in law to the facts of the case, considers that it is appropriate to address the applicant’s complaint about the strip search in prison under Article 8 of the Convention (see Dej nek v. Poland , no. 9635/13, §§ 70-77, 1 June 2017; Jae ger v. Estonia , no. 1574/13, §§ 42-45, 31 July 2014; compare with Rot h v. Germany , nos. 6780/18 and 30776/18, § 70, 22 October 2020; and Val ašinas v. Lithuania , no. 44558/98, §§ 116-118, ECHR 2001-VIII).

The Court has established in a number of cases, including those brought against Estonia, its practice concerning strip searches of prisoners (see, for example, Jaeger, cited above; Jul in v. Estonia , nos. 16563/08 and 3 others, 29 May 2012; and Dejnek , cited above).

Noting the admissions contained in the Government’s declaration as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).

In the light of the above considerations, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine ).

The Court considers that the compensation should be paid within three months from the date of notification of the Court’s decision issued in accordance with Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay within this period, simple interest shall be payable on the amount in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.

Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application may be restored to the list in accordance with Article 37 § 2 of the Convention (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).

In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court, unanimously,

Takes note of the terms of the respondent Government’s declaration and of the arrangements for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.

Done in English and notified in writing on 8 June 2023.

Viktoriya Maradudina Darian Pavli Acting Deputy Registrar President

APPENDIX

Application raising complaints under Article 8 of the Convention

Application no. Date of introduction

Applicant’s name

Year of birth

Date of receipt of Government’s declaration

Date of receipt of applicant’s comments

Amount awarded for pecuniary and

non-pecuniary damage and costs and expenses

(in euros) [1]

13329/21

23/02/2021

Marius MITT

1983

23/05/2022

17/06/2022

2,340

[1] Plus any tax that may be chargeable to the applicant