EHRM, 08-11-2012, nr. 28973/11

The Government submitted that the applicant had given no indication to the prison authorities of any assault against him or of the alleged inappropriateness of the detention conditions. They noted that the governor of Szabolcs-Szatmár-Bereg County Prison had issued a special instruction addressing the treatment of the applicant.

In the Government's view, during his detention the applicant could express himself and communicate with the prison personnel despite the fact that he did not use a hearing aid and is illiterate. They also submitted that special arrangements had been made to accommodate his needs: he had been placed in a cell shared with a relative, located in an ‘open’ section of the prison, next to the service place of the unit warden so that he could immediately indicate his problems. Furthermore, to facilitate communication with the applicant, the prison warden was regularly in contact with the applicant's mother and a sign-language interpreter was made available during the prison admission procedure, the visits and on the occasions when the applicant received official documents. Fellow inmates assisted the applicant in writing letters and the warden paid special attention to the forwarding of his letters, to prevent any abuse.

The applicant submitted that his detention gave rise to a violation of Article 3 of the Convention as it was inapt to his conditions. He further claimed that he had been mobbed and sexually assaulted by other inmates. He explained that, due to his intellectual impairment and general inability to communicate, he was not in a position to complain of any assault or give indication of the inappropriateness of his circumstances, and that it was unreasonable to expect him to do so. He also noted that the visits of his mother, limited to two occasions per month, were not sufficient to address his problems and his communication needs occurring in detention. With regard to the governor's special instruction, the applicant asserted that it was unsuitable to deal with the situation of a deaf and dumb, intellectually disabled and illiterate person.

The Mental Disability Advocacy Center submitted that persons with disabilities were particularly vulnerable to torture and ill-treatment, including sexual abuse, in prison and other detention settings. Making reference inter alia to the relevant provisions of the UN Convention on the Rights of Persons with Disabilities (see paragraph 19 above), they argued that the prevention of ill-treatment of detainees with disabilities must include the provision of ‘reasonable accommodations’ on an individualised basis.

The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. In considering whether treatment is ‘degrading’ within the meaning of Article 3, one of the factors which the Court will take into account is the question whether its object was to humiliate and debase the person concerned, although the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3 (see among many other authorities Price v. the United Kingdom, no. 33394/96, § 24, ECHR 2001-VII; Peers v. Greece, no. 28524/95, §§ 67–68 and 74, ECHR 2001-III; and Engel v. Hungary, no. 46857/06, § 26, 20 May 2010).

Moreover, where the authorities decide to detain a person with disabilities, they should demonstrate special care in guaranteeing such conditions as correspond to the person's individual needs resulting from his disability (see mutatis mutandis Jasinskis v. Latvia, no. 45744/08, § 59, 21 December 2010; Price v. the United Kingdom, op.cit., § 30). States have an obligation to take particular measures which provide effective protection of vulnerable persons and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge (see Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001-V). Any interference with the rights of persons belonging to particularly vulnerable groups — such as those with mental disorders — is required to be subject to strict scrutiny, and only very weighty reasons could justify any restriction (see Alajos Kiss v. Hungary, no. 38832/06, § 42, 20 May 2010).

In the instant application, the Court observes that Mr Z.H. — deaf and dumb, suffering from intellectual disability, illiterate and unable to avail himself of the official sign language — was detained at Szabolcs-Szatmár-Bereg County Prison for a period lasting almost three months (see paragraph 11 above). It notes the Government's submission according to which special measures, incarnated by an instruction issued by the prison governor, were put in place to address his situation, as of 23 May 2011 (see paragraph 12 above). However, it is unclear to what extent these measures concerned the phase of the applicant's detention occurring prior to this date, that is, between 10 April and 23 May 2011.

In any case, the Court is not convinced that even the aggregate of the measures referred to by the Government — namely, the applicant's incarceration together with a relative in a cell close to the warden's office, the involvement of other inmates and the applicant's mother in handling the situation and the facilitation of his correspondence (see paragraph 25 above) — was sufficient to remove the applicant's treatment from the scope of Article 3.

Given that the applicant undoubtedly belongs to a particularly vulnerable group (see paragraphs 20 and 29 in fine above) and that as such he should have benefited from reasonable steps on the side of the authorities to prevent situations likely to result in inhuman and degrading treatment, the Court considers that it was incumbent on the Government to prove that the authorities took the requisite measures. This redistribution of the burden of proof is analogous to the manner in which the Court examines situations where an individual is taken into police custody in good health but is found to be injured at the time of release, so that it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention (see among many other authorities Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V).

In the present circumstances, however, the Court notes that the Government have failed to meet this burden of proof in a satisfactory manner, especially in respect of the initial period of the detention.

The Court considers in particular that the inevitable feeling of isolation and helplessness flowing from the applicant's disabilities, coupled with the presumable lack of comprehension of his own situation and of that of the prison order¸ must have caused the applicant to experience anguish and inferiority attaining the threshold of inhuman and degrading treatment, especially in the face of the fact that he had been severed from the only person (his mother) with whom he could effectively communicate. Moreover, while the applicant's allegations about being molested by other inmates have not been supported by evidence, the Court would add that had this been the case, the applicant would have faced significant difficulties in bringing such incidents to the wardens' attention, which may have resulted in fear and the feeling of being exposed to abuse.

The Court also observes that the District Court eventually released the applicant for quite similar considerations.

In sum, the Court cannot but conclude that — despite the authorities laudable but belated efforts to address his situation — the applicant's incarceration without the requisite measures taken within a reasonable time must have resulted in a situation amounting to inhuman and degrading treatment, in breach of Article 3 of the Convention, on account of his multiple disabilities.

There has accordingly been a breach of that provision.

The Government submitted that the applicant's pre-trial detention had been in conformity with the requirements of Article 5 § 2 of the Convention. They argued that all the guarantees envisaged by the Convention had been applied, including the requisite consideration dedicated to the applicant's disability and special conditions.

As to the question whether the applicant had been informed, in a language which he had understood, of the reasons for his arrest, the Government noted that the applicant had been interrogated in the presence of a sign-language interpreter and, in their opinion, he had understood the charge against him. They also stressed that he had made no complaint about the procedure and had signed the minutes of the interrogation.

The applicant submitted that, when arrested, he had not been informed, in a language which he had understood, of the reasons for his arrest and the charges against him. Relying essentially on the decisions of the Vásárosnamény District Court dated 4 July and 27 September 2011 (see paragraphs 13 and 15 above), the applicant contested the Government's submission that he understood the official sign language. In support of this argument, he further submitted two witness testimonies stating that he used a special method of communication different from the official sign language (see paragraph 17 above). He stressed that he was only able to communicate with his mother using a special type of sign-language. He explained that his signature on the minutes of the interrogation could not be considered valid, given that he was deaf, dumb and illiterate. He argued that, taking into consideration his intellectual disability, he should have been assisted by a lawyer or a person authorised to act on his behalf, so that he could understand the grounds for his arrest.

The Mental Disability Advocacy Center submitted that, when interpreting the guarantees enshrined in Article 5 § 2 of the Convention, the provisions of the UN Convention on the Rights of Persons with Disabilities should be taken into account. They argued that this instrument required States to provide reasonable accommodations to persons with disabilities in order to ensure their effective access to justice. They explained that, in the present case, reasonable accommodation would have required the presence of a person who could have effectively communicated with the applicant and assisted him during the interrogation.

The Court reiterates that paragraph 2 of Article 5 contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. This provision is an integral part of the scheme of protection afforded by Article 5: by virtue of paragraph 2, any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph 4. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features (see Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 40, Series A no. 182).

Article 5 § 2 neither requires that the necessary information be given in a particular form, nor that it consists of a complete list of the charges held against the arrested person (see X. v. Germany, no. 8098/77, Commission decision of 13 December 1978, Decisions and Reports 16, p. 111). However, in the Court's view, if the condition of a person with intellectual disability is not given due consideration in this process, it cannot be said that he was provided with the requisite information enabling him to make effective and intelligent use of the right ensured by Article 5 § 4 to challenge the lawfulness of detention unless a lawyer or another authorised person was informed in his stead (see X. v. the United Kingdom, no. 6998/75, Commission's report of 16 July 1980, § 111, Series B no. 41).

The applicant was interrogated at the Vásárosnamény police station in the sole presence of a sign-language interpreter. As already noted above (see paragraph 30 above), the applicant is deaf and dumb, illiterate and has an intellectual disability. Moreover, he cannot communicate by means of the official sign language, an interpreter of which was present. In these circumstances, the Court is not persuaded that he can be considered to have obtained the information required to enable him to challenge his detention — and this notwithstanding the fact that the signature of his nickname figures on the minutes of the interrogation.

The Court further finds it regrettable that the authorities did not make any truly ‘reasonable steps’ (cf. Z and Others, loc.cit.) — a notion quite akin to that of ‘reasonable accommodation’ in Articles 2, 13 and 14 of the UN Convention on the Rights of Persons with Disabilities (see paragraph 19 above) — to address the applicant's condition, in particular by procuring for him assistance by a lawyer or another suitable person. For the Court, the police officers interrogating him must have realised that no meaningful communication was possible in the situation and they should have sought assistance in the first place from the applicant's mother (who could have at least informed the officers about the magnitude of the applicant's communication problems) — rather than simply making the applicant sign the minutes of the interrogation.

The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 5 § 2 of the Convention.