The case had been brought by a Turkish homosexual prisoner, who, after complaining about acts of intimidation and harassment by his fellow inmates in a shared cell, was placed in solitary confinement for over 8 months. The applicant argued that his placement in solitary detention was without any legal basis and was solely done because of his homosexuality. He stated that being deprived of any contact with the other inmates and having no access to physical activity outdoors was so harsh that it had irreparable and irreversible effects on both his mental and physical health. The Court agreed and held that the treatment amounted to a breach of the applicant’s right to freedom from inhuman and degrading treatment under Article 3 of the European Convention on Human Rights (ECHR). It concluded that he had suffered the treatment because of his sexual orientation in breach of his Article 14 right to non-discrimination taken in conjunction with Article 3.

The case related to the pre-trial detention conditions of the applicant who, on 24 October 2008, was detained after turning himself in at a police station and confessed to having committed several offences including forgery, deception and credit-card fraud. Initially, the applicant was detained in a cell with a number of other inmates. However, on 5 February 2009, the applicant asked to be transferred into an individual cell following discriminatory intimidation, threats and harassment by his co-detainees because of his homosexuality. His request was granted. However, his individual cell lacked washing facilities, was very dirty and poorly lit and was usually used for solitary confinement as a disciplinary measure or for inmates accused of paedophilia or rape. The applicant was deprived of any contact with other inmates and had no access to outdoor exercise.  

 

In April 2009, the applicant complained about his treatment and argued that an end must be brought to his solitary detention as there was no legal basis for such treatment. He stated that the treatment was based solely on his sexual orientation and that it was having a negative psychological impact on him. On 25 May 2009, the judge allocated to his complaint declined to consider the case in substance on the basis that  the law covering conditions of detention did not apply to  people in pre-trial  detention. The applicant’s appeal against this decision was rejected and so he went to the ECtHR claiming a breach of Articles 3 and 14 of the ECHR.  

 

In response to the applicant’s claims, the Turkish government argued there was no breach of Article 3 ECHR because the minimum threshold in terms of gravity required was not reached. It also argued the applicant has been placed in an individual cell at his own request, following threats, intimidation and harassment by the other co-detainees because of the homosexuality of the applicant. The cell was well equipped with all the furniture and the necessary attributes required daily. Finally, the applicant was alone in the cell only until another homosexual detainee could join him. 

 

In analysing the alleged breach of Article 3, the Court had to evaluate the particular conditions of the case, the severity of the measure, the length of detention, the intended objective and its effects on the detainee. It noted the importance of giving particular consideration to the length of solitary confinement when considering proportionality. The Court found that a total exclusion, including a denial of outdoor activities or any social contacts was disproportionate. It also found that the applicant’s complaints had been rejected without substantive analysis. It held that the conditions of the applicant’s detention in solitary confinement had been such as to cause him both mental and physical suffering and a strong feeling of being stripped of his dignity. These conditions, aggravated by the lack of an effective remedy, thus constituted inhuman and degrading treatment and violated Article 3 of the ECHR. 

 

The Court went on to find that the treatment was discriminatory and breached Article 14 in conjunction with Article 3. The authorities had an obligation, under Article 14 combined with Article 3, to take all possible measures to verify whether a discriminatory attitude to the applicant had played a role in his complete exclusion from the activities of the prison. The administration failed to evaluate the situation appropriately and there was no justification for the applicant’s exclusion from outdoor activities. The measures were taken not to protect the applicant’s physical integrity but because of his sexual orientation. 

 

ERT welcomes this important decision, which is the first time the ECtHR has found a violation of Article 3 on the basis of treatment which discriminated against a person on the grounds of their sexual orientation. The judgment is also welcome in the extent to which it reaffirms once again that Article 3, which is an absolute right permitting of no derogations, requires a detainee, whether condemned or in a pre-trial situation to be detained with “human dignity”.  

 

To read the Judgment of ECtHR (in French only), click here. 

 

To read ERT’s case summary, click here.