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The case concerns the consecutive enforcement of disciplinary punishments against the applicants and the placing of the first applicant in a locked isolation cell as a security measure. This resulted in the applicants spending periods of differing durations under conditions effectively amounting to solitary confinement, which – according to the applicants – violated their rights under Article 3 of the Convention.
THE FIRST APPLICANT (APPLICATION NOS. 3501/20 AND 43128/21)
Between June 2015 and April 2018, the first applicant, who was imprisoned at the time, received 28 disciplinary punishments for refusing to perform his work duties, for carrying forbidden items on his person and for disobeying prison officers’ (unspecified) orders. On each occasion the punishment-cell regime was imposed on him. The duration of the periods that the first applicant spent under the punishment-cell regime varied between 5 and 45 days, but they were often enforced consecutively.
On one occasion additional security measures – namely, placement in a locked isolation cell – were imposed on the first applicant for throwing a bottle at a prison guard.
As a consequence, the first applicant spent the following periods under either the punishment-cell regime or the locked isolation-cell regime:
| Dates | Number of days | Regime |
| 27 June – 4 September 2015 | 69 | Punishment-cell regime |
| 23 September – 25 October 2015 | 33 | Locked isolation-cell regime |
| 26 October – 25 November 2015 | 30 | Punishment-cell regime |
| 1 December 2015 – 4 February 2016 | 65 | Punishment-cell regime |
| 11 March – 10 May 2016 | 60 | Punishment-cell regime |
| 20 May 2016 – 6 June 2018 | 747 | Punishment-cell regime |
There were breaks of between 6 and 36 days between the respective applications of these regimes.
PROCEEDINGS CONCERNING THE LAWFULNESS OF THE CONSECUTIVE ENFORCEMENT OF DISCIPLINARY PUNISHMENTS
On 20 November 2017 the first applicant lodged an application with the prison authorities, asking to be allowed to spend a reasonable amount of time under the regular prison regime between the enforcement of disciplinary punishments. He noted that he had been held constantly under the punishment-cell regime since 20 May 2016.
The prison dismissed both his application and a challenge that he subsequently lodged against it.
On 11 February 2018 the first applicant brought an action in the Tartu Administrative Court. He asked the court to declare unlawful the consecutive enforcement (or enforcement with only brief pauses) of disciplinary punishments against him for the period from 27 June 2015 to the date of the lodging of his action, and to order the prison to cease that practice. He later clarified that he did not intend to challenge the imposition on him of disciplinary punishments themselves – only how they were enforced.
On 9 October 2018 the Tartu Administrative Court in case no. 3-18-327 dismissed his action. The first applicant appealed.
On 21 May 2019 the Tartu Court of Appeal partly quashed the first-instance judgment and partly allowed the first applicant’s claim.
The Tartu Court of Appeal firstly held that the separate periods of up to 69 days that the applicant had spent under the punishment-cell regime between 25 June 2015 and 10 May 2016 had been lawful. Analysing each of the periods separately, the court found that those periods had either been below the 45-day limit set out in the Imprisonment Act or had not significantly exceeded it (the court having noted that the Imprisonment Act did not set an upper limit in respect of the consecutive enforcement of separate punishment-cell-regime measures by way of disciplinary punishment). The applicant had been able to spend a reasonable number of days (between 6 and 52 days) under the regular prison regime between the enforcement of the separate punishments.
The Tartu Court of Appeal emphasised the fact that the first applicant had repeatedly breached prison rules and had presumably understood that such behaviour meant that he would face disciplinary punishments, which would be enforced immediately, in accordance with section 65(1) of the Imprisonment Act.
The court found that the prison would not be able to carry out its statutory role if it was prevented from taking immediate action against systematic offenders and from enforcing disciplinary punishments against them.
The court examined the first applicant’s health records and found that he had attended several consultations with the prison’s medical staff at the relevant time. He had thus been under the constant supervision of medical workers. The health problems that the first applicant had complained of were either not confirmed by the medical records of the time or could not be linked to the punishment-cell regime but rather to his earlier injuries or medical conditions.
The first applicant had been able to spend one hour in the fresh air every day. The court noted that the applicant had applied for and had been granted permission to receive three short visits during the relevant period and had not applied for permission to receive any long visits. He had served his disciplinary punishments in an ordinary cell, although his bedding had been removed during the daytime. He had been given access to newspapers and been allowed to listen to the radio, read religious literature, make telephone calls, correspond by mail and participate in social programmes.
However, the Tartu Court of Appeal found that the period that the first applicant had spent under the punishment-cell regime between 20 May 2016 and 6 June 2018 had been unlawful. Although it was proven that the applicant had repeatedly sought and received medical assistance during this period, it was not clear from the records whether and how the prison had in reality assessed the mental and physical consequences of the lengthy period that the first applicant had spent in solitary confinement.
On 10 September 2019 the Supreme Court refused to examine an appeal on points of law lodged by the first applicant.
PROCEEDINGS CONCERNING COMPENSATION
On 7 December 2017 the first applicant lodged an application with the Viru Prison authorities seeking compensation for the unlawful enforcement between 25 June 2015 and 6 December 2017 of disciplinary punishments imposed on him.
The Viru Prison authorities dismissed his application, and the first applicant lodged a claim for compensation with the Tartu Administrative Court on 9 March 2018. He sought compensation in the sum of 20,000 euros (EUR) for the period from 25 June 2015 until 8 March 2018.
On 4 May 2018 the Tartu Administrative Court refused to examine his claim with regard to the period from 7 December 2017 until 8 March 2018 because he had not first raised (as had been mandatory) the complaint in question with Viru Prison (hereinafter “mandatory pre-action proceedings”) in respect of that period. That decision became final.
On 25 October 2019 the Tartu Administrative Court allowed in part the first applicant’s claim for compensation and awarded him EUR 1,200 in respect of the period that he had spent in solitary confinement from 20 May 2016 until 6 December 2017.
The Tartu Administrative Court stated that spending that period – 566 days – in solitary confinement could be considered to have been degrading as well as damaging to the first applicant’s mental health. It analysed the first applicant’s medical records and concluded that he had had a record of mental health problems since 2013 and that the problems had deteriorated in the period 2018-19. The court concluded that the period in solitary confinement had, alongside other factors, contributed to the worsening of the first applicant’s mental health. The court noted that the first applicant had been able to participate in social programmes and had had regular conversations with various prison officers, a chaplain and a psychologist but that such conversations had not taken place during a significant part of the time spent under the punishment-cell regime. He had not had any contact with fellow prisoners, which the court considered important. As for visits from family members, the court noted that while such visits were forbidden under domestic law to a prisoner undergoing the punishment-cell regime, this had not aggravated the first applicant’s situation, as it was proven that not having contact with his family had been his own choice.
As regards other shorter periods of solitary confinement between 27 June 2015 and 10 May, the Tartu Administrative Court noted that the first applicant’s treatment during those periods had been found to have been lawful in earlier court proceedings in respect of case no. 3-18-327. Consequently, the first applicant’s claim for compensation in respect of those periods could not be granted, as a finding of unlawfulness was a prerequisite for awarding damages.
As regards the period from 23 September 2015 until 26 October 2015 (when the first applicant had been placed in a locked isolation cell for 33 days as part of additional security measures imposed on him), the Tartu Administrative Court explained that such security measures were different from disciplinary punishment. They were used on precautionary grounds in order to prevent security threats either to prisoners or prison officers. Therefore, a prison could not forgo applying them on the grounds that the prisoner in question had already spent some time in solitary confinement. In any event, the first applicant had been held under a regular prison regime directly before his placement in a locked isolation cell. That period of solitary confinement – which had been shorter than the forty-five-day limit set by domestic law – had thus been lawful; therefore, the compensation claims in that respect had to be dismissed.
Furthermore, the court rejected the first applicant’s claim for compensation in so far as it concerned his back problems (which had allegedly worsened while he had been in solitary confinement), as the applicant had not raised that aspect in the mandatory pre-action proceedings.
Following an appeal lodged by the applicant, the Tartu Court of Appeal on 1 December 2020 quashed the first-instance judgment with respect to damages. Instead, it awarded the applicant EUR 1,700 in compensation for non-pecuniary damage in respect of the 566 days that he had spent in solitary confinement between 20 May 2016 and 6 December 2017.
On 9 March 2021 the Supreme Court refused to examine an appeal on points of law lodged by the applicant.
In August 2018 the first applicant lodged an application with Viru Prison seeking compensation for the period that he had spent in solitary confinement from 7 December 2017 until 30 August 2018.
The prison dismissed his application and on 12 December 2018 the applicant brought an action in the Tartu Administrative Court seeking compensation for the above-mentioned period that he had spent in solitary confinement.
The Tartu Administrative Court admitted for examination the applicant’s action for compensation. On 25 March 2020 the first applicant informed the court that he had been released from prison. As he subsequently failed to remain in contact with the court, on 14 October 2020 the Tartu Administrative Court refused to examine his claim. The applicant did not appeal against this decision.
THE SECOND APPLICANT (APPLICATION NO. 45907/20)
The second applicant, who was serving a prison sentence at the time, was placed several times under the punishment-cell regime as a disciplinary punishment for refusing to perform his work duties.
As a result of the consecutive enforcement of these disciplinary punishments, the applicant spent the following periods under the punishment-cell regime:
| Dates | Number of days | Regime |
| 1 June 2016 – 27 June 2017 | 392 | Punishment-cell regime |
| 29 June 2017 – 22 August 2017 | 55 | Punishment-cell regime |
| 24 August 2017 – 26 September 2017 | 34 | Punishment-cell regime |
Although the second applicant was also subjected to the punishment-cell regime for numerous periods before 1 June 2016 and after 26 September 2017, and although the domestic court proceedings also concerned longer periods, he clarified that his application to the Court concerned exclusively the periods between 1 June 2016 and 26 September 2017.
PROCEEDINGS CONCERNING SOLITARY CONFINEMENT
In case no. 3-17-356 the second applicant lodged a claim with the Tartu Administrative Court seeking, inter alia, to have the consecutive enforcement of disciplinary punishments declared unlawful.
On 3 August 2017 the Tartu Administrative Court dismissed his claim. The second applicant appealed.
On 29 March 2018 the Tartu Court of Appeal partly quashed the first-instance judgment and partly allowed the second applicant’s claim. The court declared unlawful the consecutive enforcement of disciplinary punishments between June 2015 and June 2017 in respect of those periods spent during that time under the punishment-cell regime which had exceeded the forty-five-day limit set by domestic law. The court ruled that the prison had not explained how it had verified and concluded that the consecutive enforcement of disciplinary punishments would not harm the second applicant’s health.
The second applicant lodged an appeal on points of law, which the Supreme Court refused to examine on 2 October 2018.
On 17 November 2017 the second applicant lodged an application with the Viru Prison authorities for compensation for the unlawful enforcement of disciplinary punishments between 1 June 2016 and 9 November 2017.
On 17 January 2018 the Viru Prison authorities dismissed the application. The second applicant then lodged a claim for compensation with the Tartu Administrative Court on 19 February 2018; he sought compensation in the sum of EUR 20,000 for the period from 1 June 2016 until 9 November 2017.
On 14 December 2018 the Tartu Administrative Court in case no. 3-18-360 allowed the second applicant’s claim in part. Taking note of the final judgment in case no. 3-17-356, the Tartu Administrative Court considered that the applicant had suffered non-pecuniary damage in respect of his solitary confinement between 1 June 2016 and 27 June 2017. However, it deemed the acknowledgment of the unlawfulness of the prison’s practice of consecutive enforcement of separate disciplinary punishments to constitute sufficient redress.
Following an appeal lodged by the applicant, the Tartu Court of Appeal on 27 June 2019 quashed the first-instance judgment. It found that the applicant should be awarded EUR 50 with respect to the non-pecuniary damage that he had suffered during the period identified by the first-instance court. The second applicant lodged an appeal on points of law.
On 15 April 2020 the Supreme Court allowed in part the second applicant’s appeal on points of law. It firstly found that the lower-instance courts had erred in identifying the relevant period of solitary confinement. It noted that the second applicant had also spent a period longer than forty-five days under the punishment-cell regime after 27 June 2017. Moreover, the Supreme Court considered that a one-day break from the punishment-cell regime during which the second applicant had been held under normal prison conditions had not been sufficient to alleviate the negative effects arising from solitary confinement. The court deemed that spending some time under the regular prison regime was necessary if the mental and physical stimulation provided by prison did not offer sufficient opportunities for socialising or other appropriate activities. As a result, the Supreme Court found that the enforcement of disciplinary punishments with respect to the second applicant during the 482 days between 1 June 2016 and 26 September 2017 had been unlawful.
The Supreme Court then outlined the basis for calculating compensation in respect of non-pecuniary damage under section 9 of the State Liability Act. It observed that the courts had a wide margin of discretion when awarding compensation for non-pecuniary damage. The amount of compensation was to be set by the courts, who had to consider, inter alia, the importance of the violated right, all the established circumstances in which the damage in question was caused, and the gravity of the interference in question. Moreover, the case-law of the European Court of Human Rights had to be taken into consideration when setting the amount of compensation. The Supreme Court noted that in Shmelev and Others v. Russia ((dec.) nos. 41743/17 and 16 others), the Court had considered reasonable and proportionate compensation awarded by a national court that had amounted to approximately 30% of the award made by the Court.
When assessing the amount of compensation to be awarded, the Supreme Court observed that the second applicant had been detained in a regular cell, that he had been under constant medical supervision and that the solitary confinement had not appeared to have seriously impacted his health. Moreover, the second applicant had had no compelling reasons to refuse to work. He had nevertheless decided to do so, even though he had been aware that, in line with the normal practice followed by the prison, he would be placed in a punishment cell for this violation.
The Supreme Court emphasised that refusal to work in prison was not to be regarded as an insignificant violation. A prisoner had a duty to work, in the interests of attaining the aims of the sentence of imprisonment. Working in prison helped a person to maintain or develop the habit of working and coping independently. Ultimately, this helped to guide a person towards law-abiding behaviour. It was also significant that from the remuneration received for their work a prisoner could provide compensation for the damage caused by his criminal offence and accumulate money that would cover his initial expenses upon release and help to alleviate the risk of his committing new criminal offences.
Taking all the aforementioned elements into account, the Supreme Court considered that the second applicant should be awarded EUR 1,500 in respect of the 482 days that he had spent in solitary confinement.
CONDITIONS OF THE APPLICANTS’ SOLITARY CONFINEMENT
The overall conditions of the punishment-cell regime are set out by the relevant provisions of the Imprisonment Act and Regulations no. 72 of the Minister of Justice on the Internal Prison Rules.
Both applicants served their disciplinary punishments in a regular prison cell, albeit under the punishment-cell regime. As part of that regime, their bedding was removed from the cell during the daytime. They were given prison clothing and they were not allowed to keep personal items other than those allowed under the Internal Prison Rules.
The cells in which the applicants served their disciplinary punishments measured approximately 9,9 square metres and were equipped with a shower and a toilet. The applicants could listen to a built-in radio and have access to newspapers and religious literature (the second applicant also had access to educational literature). If needed, they could have online access to all the domestic legislation in a separate computer room and were able to take daily one-hour outdoor walks. Neither of the applicants have raised complaints regarding aspects of their living conditions, such as the quality of lighting, ventilation or heating.
Under domestic law the applicants were not allowed to receive either short or long-term visits while being held under the punishment-cell regime. However, such visits were allowed during the breaks between the different periods that they spent confined to the punishment-cell regime.
The applicants were able to make telephone calls at least once a week. Written correspondence was authorised without any restrictions, and the applicants made active use of it to communicate either with other prisoners or with persons at liberty.
Meals were distributed three times a day, and mail was collected once a day.
SPECIFIC CIRCUMSTANCES OF THE FIRST APPLICANT
During the period in question the first applicant participated in social programmes entitled “Training on replacing aggressiveness” (eighteen meetings between 29 July 2015 and 2 October 2015), “Lifestyle training” (seven meetings between 24 April and 5 June 2017) and “Development of social skills” (eight meetings between 29 September and 27 October 2017).
In addition, he had numerous conversations (approximately thirty during the period from 27 June 2015 until 6 December 2017) with an “inspector/contact person” and a criminal probation officer, two conversations with a psychologist (on 6 November 2015 and 6 June 2016) and one with a chaplain regarding various topics concerning his behaviour, attitudes, and awareness. Within the context of those conversations, he was provided with various books to read. The psychologist noted in the record that she made of the first conversation that the applicant had expressed the wish to be left in peace to mind his own business. Following the second conversation the psychologist recorded that the applicant had been emotionally stable, with an adequate understanding of the reality of his situation and had appeared to have adapted to the punishment-cell regime.
It appears that during the period between 27 June 2015 and 10 May 2016 the applicant applied for permission to receive three short visits (all of which the prison authorised), and that two of them took place.
He was able to make telephone calls at least once a week. Between 27 June 2015 and 6 June 2018, the applicant made some 750 calls from prison, including over 150 telephone calls between 20 May 2016 and 6 December 2017.
It appears from the records submitted by the first applicant that during the period from 27 June 2015 until 6 December 2017 he had attended approximately 180 medical consultations of various natures. He was at times also provided with an exercise mat in his cell.
Besides being subjected to disciplinary punishments, the first applicant was also placed in a locked isolation cell between 23 September 2015 and 26 October 2015. This regime also demanded that he stay in his cell, apart from taking a daily one-hour walk outdoors (if he chose to do so). Unlike the punishment-cell regime, during the period in which the applicant was subjected to the locked isolation-cell regime his bedding was not removed during the day, and he was allowed to wear his own clothes, have personal items in the cell and receive visits. The selection of literature in the cell was not limited (he was able to order other books) and the applicant was able to buy items from the prison shop.
SPECIFIC CIRCUMSTANCES OF THE SECOND APPLICANT
The second applicant took part in Estonian-language courses, which partially overlapped with the periods that he spent under the punishment-cell regime. The courses took place three times a week (each lesson lasted for three hours) from 3 May until 11 September 2016 and from 27 January until 18 May 2017.
From 1 June 2016 until 26 September 2017, he had fifteen meetings with the inspector/contact person. While some meetings were held for the purpose of informing the second applicant of certain modifications to prison rules, other conversations concerned the second applicant’s duty to work, the possibility of engaging in the educational activities, and life after imprisonment. According to the records of those meetings the second applicant expressed his refusal on principle to working in prison because he considered it to be demeaning. It appears that during the period in question he was on one occasion (on 4 April 2017) offered a consultation with a psychologist, which he refused. He later requested a consultation with a psychiatrist, which took place on 17 August 2017. He was diagnosed with “unspecified severe stress reaction” and was prescribed medication. Shortly thereafter he decided not to follow the treatment prescribed by the psychiatrist.
During the period in question the second applicant applied for permission to receive six short visits, which the prison authorised (including two visits from his family members). However, three of those visits did not take place for reasons not attributable to the prison authorities.
Between 1 June 2016 and 26 September 2017, the second applicant made 312 telephone calls.
It appears from the medical records that during the period from 1 June 2016 until 26 September 2017 the second applicant attended approximately eighty medical consultations of various natures.
THE COURT’S ASSESSMENT
Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. Even in the most difficult of circumstances, such as when engaged in the fight against terrorism or crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment (Ramirez Sanchez v. France [GC], no. 59450/00, § 115). Indeed, the prohibition of torture and inhuman or degrading treatment or punishment is a value of civilisation closely bound up with respect for human dignity (Bouyid v. Belgium [GC], no. 23380/09, § 8).
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 depends on all the circumstances of the case in question, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (Muršić v. Croatia [GC], no. 7334/13, § 97).
The Court notes that measures that deprive a person of his or her liberty may often involve an inevitable element of suffering or humiliation arising from a form of legitimate treatment or punishment (Ramirez Sanchez, § 119). However, to fall under Article 3, the suffering and humiliation involved must in any event go beyond that inevitable element of suffering and humiliation connected with detention. The State must ensure that a person is detained under conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject him or her to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and that – given the practical demands of imprisonment – his or her health and well-being are adequately secured (Muršić, § 99). Furthermore, when assessing conditions of detention, account has to be taken of the cumulative effects of those conditions, as well as the specific allegations made by the applicant (Ramirez Sanchez, § 119).
A prohibition on contact with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment (ibid., § 123, and the cases cited therein). While extended removal from association with others is undesirable, whether such a measure falls within the ambit of Article 3 of the Convention depends on the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned (Rohde v. Denmark, no. 69332/01, § 93; Rzakhanov v. Azerbaijan, no. 4242/07, § 64).
The Court reiterates that solitary confinement without appropriate mental and physical stimulation is likely, in the long term, to have damaging effects, resulting in a deterioration in mental faculties and social abilities (Razvyazkin v. Russia, no. 13579/09, § 104). Complete sensory isolation, coupled with total social isolation, can destroy the personality and constitutes a form of inhuman treatment that cannot be justified by the requirements of security or any other reason (Ramirez Sanchez, § 123; A.T. v. Estonia (no. 2), no. 70465/14, § 72).
Solitary confinement, even in cases entailing only relative isolation, cannot be imposed on a prisoner indefinitely and should be based on genuine grounds, ordered only exceptionally and with the necessary procedural safeguards and after every precaution has been taken (Rzakhanov, § 73).
A system of regular monitoring of the physical and mental condition of a prisoner held in solitary confinement should also be set up in order to ensure its compatibility with continued solitary confinement (Ramirez Sanchez, § 139; Fenech v. Malta, no. 19090/20, § 66).
It is essential that a prisoner should be able to have an independent judicial authority review the merits of and reasons for a prolonged measure of solitary confinement (Ramirez Sanchez, §§ 139 and 145; Onoufriou v. Cyprus, no. 24407/04, § 71; Gorbulya v. Russia, no. 31535/09, § 77).
APPLICATION OF THE GENERAL PRINCIPLES IN THE INSTANT CASE
The instant case concerns the consecutive enforcement of disciplinary punishments against both applicants and the application of the locked isolation-cell regime as an additional security measure against the first applicant.
The application of the above-mentioned measures led to the applicants spending periods of varied duration in conditions amounting to solitary confinement. Although the locked isolation-cell regime was to a certain extent less strict than the punishment-cell regime, the application of both of those regimes meant – as a rule – that the applicants were kept alone in their cells separately from other prisoners for 23 hours a day.
Given the facts of the applicants’ respective cases, the domestic courts’ judgments made in respect of them and the extent to which the Court has declared their applications inadmissible, the periods that the applicants spent in solitary confinement can be set out as follows.
The domestic courts acknowledged the violation of the applicants’ rights in respect of the longer periods during which the punishment-cell regime had gone practically uninterrupted – 566 days with respect to the first applicant and 482 days with respect to the second applicant – and awarded the applicants EUR 1,700 and EUR 1,500 respectively in compensation for the non-pecuniary damage that the applicants had suffered.
In addition, the first applicant spent shorter periods of between thirty and sixty-nine days under either the punishment-cell regime or under the locked isolation-cell regime. There were generally breaks of between 6 and 36 days between those periods of solitary confinement, except for when the applicant was placed in a locked isolation cell. On that occasion the 33 days spent under the locked isolation-cell regime were directly followed by 30 days spent under the punishment-cell regime.
PRELIMINARY REMARKS ABOUT THE USE OF SOLITARY CONFINEMENT AS A DISCIPLINARY PUNISHMENT
The Court expresses strong concerns about the use of solitary confinement, as a disciplinary measure, for long and consecutive periods of time. The Court considers that such practice is, in principle, incompatible with Article 3, unless the Government are able to present compelling reasons as to the existence of exceptional circumstances that would justify that practice, and to show that such disciplinary punishment is indeed used as a last resort.
It is generally accepted that solitary confinement should be imposed only exceptionally as a measure of last resort and for the shortest possible period of time. This has been set out in the Nelson Mandela Rules and also in the European Prison Rules.
The CPT strongly criticised the Estonian authorities in its reports issued in 2014 (concerning the visit that took place in 2012) and 2019 (concerning the visit that took place in 2017), both for the excessive use of solitary confinement as a disciplinary measure and for the consecutive application of separate sanctions of solitary confinement, resulting in very long periods of solitary confinement. The CPT has also noted that the 45-day maximum period of placement in a punishment cell for adult inmates is too long and should be substantially reduced.
Against that general background and noting also the factual circumstances of the cases before it, the Court cannot overlook the fact that it seems to be common practice in Viru Prison to punish prisoners for their refusal to work by placing them in solitary confinement. The Court cannot but note that placement in a punishment cell is the most severe of the disciplinary sanctions available under section 63 of the Imprisonment Act.
The Court does not underestimate the need to keep discipline and maintain security in prisons. It acknowledges that infractions of different gravity may require different responses and sanctions. However, given the information before it the Court has strong doubts whether placement in solitary confinement is indeed used exceptionally and as a measure of last resort in Viru Prison. It is also open to question whether such a supposed administrative practice leaves room for (re)assessment as to whether the disciplinary measure imposed has attained its purpose.
The Court also observes that the European Prison Rules did not at the relevant time, and do not after their revision in 2020, set out the maximum period for which solitary confinement can be imposed, while referring to the need to set out such a maximum period in domestic law. The CPT considers that the maximum period should be no longer than 14 days for a given offence, and the Nelson Mandela Rules state that prolonged solitary confinement – that is to say, solitary confinement that lasts more than fifteen consecutive days – should be prohibited.
In comparison, the Imprisonment Act provides that the disciplinary punishment of placement in a punishment cell cannot exceed 45 days. Not only is that period three times longer than the maximum period that the CPT and the UN General Assembly have considered acceptable, but this maximum limit – which should, in principle, operate as a safeguard against abuse – becomes practically worthless if in practice several disciplinary punishments can be and indeed are enforced consecutively.
OVERALL ASSESSMENT OF THE CONDITIONS OF THE APPLICANTS’ SOLITARY CONFINEMENT
The Court considers that prolonged solitary confinement entails an inherent risk of harmful effect on any person’s mental health, irrespective of the material or other conditions surrounding it. However, the Court may have regard to the particular conditions and modalities of solitary confinement in relation to the more limited periods of its application.
The Court observes that neither of the applicants raised complaints regarding aspects of their living conditions, such as the quality of ventilation, heating or lighting in their cells or the cleanliness of those cells. However, during the application of the punishment-cell regime, the applicants’ bedding was removed during the daytime.
The applicants’ placement in solitary confinement was accompanied by the restriction that by way of exercise they could take only one-hour daily walks outdoors. The Government did not contest the applicants’ assertion that the outdoor walking area had been rather small (approximately 10 square metres, according to the first applicant’s estimate). In that connection, the Court has often observed that short periods of outdoor exercise exacerbate the situation of prisoners who are confined to their cells for the rest of the time (N.T. v. Russia, no. 14727/11, § 49).
There is no doubt that both applicants were authorised to receive (and indeed did receive) some short visits during the overall period of their solitary confinement. It is not in dispute that the applicants could make telephone calls and send and receive correspondence; both of them availed themselves of that opportunity.
Both applicants, for some time during their solitary confinement, also attended social programmes (the first applicant) or language courses (the second applicant) and had meetings with inspector/contact persons, criminal probation officers and – to a lesser extent – a chaplain, a psychologist or a psychiatrist.
As for medical assistance, it is evident from their medical records that both applicants were under regular medical supervision. There is nothing in the case file to conclude that the applicants’ long-term solitary confinement led to a noticeable deterioration in their physical health.
Turning to the question of the applicants’ mental health, the Court observes that while the applicants were given access to a psychologist during their stay in solitary confinement, those occasions – as recorded in the documents submitted to the Court – were extremely rare. In addition, the Court takes note of the Government’s argument that the applicants had had the possibility of requesting to see a psychiatrist in the event of their feeling the need to do so. Indeed, a couple of such appointments took place.
However, aside from rare opportunities to meet with a psychologist and the possibility of requesting a consultation with a psychiatrist, there do not seem to have been in place any measures to assess – on the prison authorities’ own initiative and at reasonably regular intervals – the applicants’ psychological capacity to deal with long-term solitary confinement and its effect on their mental health. The Court emphasises in this connection the fact that prisoners kept in long-term solitary confinement need particular attention in order to minimise the damage that this measure can do to them (Razvyazkin, § 106; see also Rule 43.2 of the European Prison Rules; compare and contrast Rohde, § 108). The Court agrees with the reasoning of the Supreme Court that prisoners subjected to long-term solitary confinement cannot always be expected to have the necessary awareness of and capacity to identify their own mental-health problems and to ask for specialist intervention (compare and contrast Maslák v. Slovakia (no. 2), no. 38321/17, §§ 189-91). Furthermore, the Court considers that in instances where, as a result of consecutive enforcement of disciplinary punishments, prisoners have spent extensive uninterrupted periods in solitary confinement, granting them regular access to a psychologist or psychiatrist cannot, in itself, justify or validate their continued placement in such conditions.
As for procedural safeguards, the Court takes note of the Government’s assertion – unrebutted by the applicants – that the applicants had been aware of the reasons for the imposition of the impugned disciplinary and security measures and could have challenged them before the domestic courts. In the case at hand neither of the applicants did so. In fact, the first applicant specifically clarified in the domestic proceedings that he had not sought to challenge the imposition on him of the disciplinary punishments themselves. The applicants also had the opportunity to challenge – and did indeed challenge – the manner in which those measures were enforced in respect of them. Their arguments were assessed at three levels of jurisdiction, and the domestic courts provided a detailed analysis of the applicants’ situation and the conditions in which they had had to spend their solitary confinement.
The Court’s assessment concerning the compatibility of the applicants’ solitary confinement with Article 3 of the Convention
Assessing the overall compatibility of the applicants’ solitary confinement with the requirements of the Convention, the Court cannot but agree with the reasoning of the Supreme Court in finding that even if the decisions to apply certain measures (disciplinary punishments or security measures) might in themselves be lawful, their uninterrupted enforcement might nonetheless be unacceptable from the perspective of Article 3 of the Convention.
In the instant case the Estonian courts concluded that the consecutive enforcement of disciplinary punishments imposed on the applicants – which had led to the first applicant spending 566 days uninterruptedly, and the second applicant 482 days practically uninterruptedly, under the punishment-cell regime – had been unlawful. In reaching that conclusion, the domestic courts focused on the scarcity of meaningful ways for the applicants to socialise and the lack of any assessment of the impact of their continuous solitary confinement regime on the mental and physical health of the applicants.
The Court concurs with the Government that the domestic courts’ finding of a violation under domestic law did not automatically mean that the Convention had also been violated. It notes, however, that in the instant case the domestic courts’ judgments referred to, inter alia, the Court’s case-law.
The Court considers the above analysis of the applicants’ solitary confinement, particularly its duration combined with the lack of mental and physical stimulation and the absence of a mechanism to meaningfully assess the applicants’ physical and psychological capacity to deal with long-term solitary confinement. Against that background, the Court sees no reason to reach a different conclusion from the Convention perspective from the one reached by the domestic courts with respect to the above-mentioned periods of 566 days and 482 days that the first and the second applicant respectively spent in solitary confinement.
As regards the period between 27 June 2015 and 10 May 2016 – during which the first applicant spent shorter periods (of between 30 and 69 days) under either the punishment-cell regime or the locked isolation-cell regime – the domestic courts found that holding the first applicant under those regimes had been lawful and had not violated his rights.
The domestic courts approached those shorter periods of solitary confinement on an individual basis, analysing the duration and lawfulness of each of the above-mentioned periods separately. In so doing, the domestic courts – while also considering other elements – paid attention to whether each of the periods of solitary confinement had been below or over the forty-five-day limit allowed under the domestic law as the maximum permissible duration of each separate disciplinary punishment. They also considered the intervening periods that the first applicant had been able to spend under the regular prison regime and the fact that the locked isolation-cell regime had been imposed on the first applicant for different purposes from those of the punishment-cell regime.
The Court acknowledges that if one accepts the enforcement of lawfully imposed sanctions and security measures – and in the present proceedings this has not been called into question – then alternating solitary confinement with periods during which prisoners are held under the regular prison regime does not appear to be arbitrary or excessive in itself. It will take this into account when analysing the manner in which the domestic courts carried out their assessment in the instant case.
The Court concurs with the Supreme Court that the longer the periods of solitary confinement, the longer the intervening periods should be during which the person in question is held under regular prison conditions – which presumably also afford more possibilities to socialise and engage in other meaningful activities.
By contrast, under circumstances in which extended periods of solitary confinement are interrupted only for negligible periods in relation to the duration of isolation, such breaks would likely not offer the relief necessary to counteract the negative effects of the protracted isolation regime.
The same applies, in principle, even when successive periods of solitary confinement are the result of the application of different disciplinary or security measures – so long as there is no marked difference between those measures in terms of the solitary nature of the detention regime arising from them. The Court acknowledges, however, that owing to the variety of security concerns that prison authorities must face and tackle in the interests of either their personnel or prisoners, it might not be possible to suspend or postpone the application of different security measures.
In the instant case the breaks between the periods of solitary confinement – ranging between 6 and 36 days – cannot all be considered negligible. However, while the period between the enforcement of two sets of disciplinary punishments in September-October 2015 was indeed fifty-two days (as considered by the domestic courts), the first applicant was nonetheless placed under the locked isolation-cell regime for thirty-three of those fifty-two days. Thus, the period that he spent under the regular regime was only nineteen days long.
The Court considers the first applicant’s overall conditions of detention during this period, as well his access to medical supervision. It notes that the first applicant’s participation in a social programme between July and October 2015 is likely to have contributed to reducing any general feeling of isolation during the period in question.
Although alternating the enforcement of separate lawful and proportionate disciplinary punishments with reasonably long periods spent under the regular prison regime will not necessarily lead to the finding of a violation under Article 3 of the Convention, the Court cannot ignore the specific circumstances surrounding the first applicant’s case in the instant proceedings: the first applicant not only spent roughly 8 months out of approximately 11 months in solitary confinement between June 2015 and May 2016 (albeit with pauses) but this period was followed only ten days later by a period of 566 days of uninterrupted solitary confinement. In total, of the period between June 2015 and December 2017, the first applicant spent only a little more than 2 months under the regular prison regime. The Court finds that the possibility of attending social programmes, having meetings with an inspector/contact person and a criminal probation officer – and, to a lesser extent, with a chaplain and with medical professionals – and having a few short meetings was not sufficient to alleviate the negative effects arising from the first applicant’s having to spend repeated and extended periods in solitary confinement.
Lastly, the Court cannot but underscore once more that the solitary confinement which the applicants were subjected to was imposed (in all instances but one) as a disciplinary measure, leading to their seclusion for long cumulative periods. In that regard, it is significant that the maximum period of 45 days for which the punishment-cell regime can be imposed under domestic law – which is already of considerable length – seems to have had no bearing on the manner the punishments were consecutively enforced, as the applicants were kept in solitary confinement for uninterrupted periods for much longer than the limit set by law. Having doubts as to whether in the above circumstances solitary confinement as a form of disciplinary punishment was indeed imposed as a measure of last resort, the Court in any event considers that the Government have not presented compelling reasons as to the existence of exceptional circumstances capable of justifying the use of such long periods of solitary confinement as a purely disciplinary measure.
Given the background set out above, the Court finds that the first applicant’s solitary confinement (be it under the punishment-cell regime or under the locked isolation-cell regime) in respect of all the periods between 27 June 2015 and 6 December 2017 – considering their cumulative effect – subjected him to hardship going beyond the unavoidable level of suffering inherent in detention.
The second applicant’s solitary confinement during the period between 1 June 2016 and 26 September 2017 also subjected him to distress going beyond the inevitable element of suffering and humiliation inherent in detention.
THE APPLICANTS’ VICTIM STATUS IN VIEW OF THE COMPENSATION AWARDED IN THE DOMESTIC PROCEEDINGS
The Court reiterates that it falls, firstly, to the national authorities to redress any alleged violation of the Convention. In this regard, the question whether an applicant can claim to be a “victim” of the violation alleged is relevant at all stages of the proceedings under the Convention. A decision or measure favourable to the applicant is not in principle sufficient to deprive him or her of his or her status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged (either expressly or in substance) and then afforded redress for the breach of the Convention (Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 179-80; Kurić and Others v. Slovenia [GC], no. 26828/06, §§ 259-60).
The Court considers that in the present case the first condition for the loss of victim status – namely, the acknowledgment of a violation in substance by the national authorities – was fulfilled regarding the periods of solitary confinement between 20 May 2016 and 6 December 2017 (concerning the first applicant) and between 1 June 2016 and 26 September 2017 (concerning the second applicant). The domestic courts expressly acknowledged, referring to the Court’s case-law, that the consecutive enforcement of disciplinary punishments against the applicants during these two periods had been unlawful.
The domestic courts did not find a violation of the first applicant’s rights as regards the period between 27 June 2015 and 10 May 2016. Therefore, as regards that period, the first applicant cannot be considered to have lost his victim status.
It remains for the Court to ascertain whether the amount of compensation awarded by the domestic courts – in so far as they found a violation of the applicants’ rights – was sufficient to compensate the applicants for their grievances under Article 3.
The principles according to which the Court ascertains whether the amount in damages awarded by the domestic courts was sufficient to compensate the applicants for their grievances under Article 3 have been set out in Nikitin and Others v. Estonia (nos. 23226/16 and 6 others, § 197, 29 January 2019). In that case the Court emphasised that the level of compensation awarded in respect of non-pecuniary damage must not be unreasonable in comparison with the awards made by the Court in similar cases. The Court notes, in addition, that the relevant section of the Shmelev and Others decision, referred to by the Government, addressed the question of the general effectiveness of a compensatory remedy under Article 13 of the Convention. However, this is a matter that is distinct from the question of victim status under Article 34 of the Convention (ibid., § 118).
In the instant case, having regard to the sums it has awarded in similar cases (compare Rzakhanov, § 89; Razvyazkin, § 155), the Court finds that the amount of compensation awarded by the domestic courts cannot be considered to constitute appropriate redress for the violations complained of in the light of the standards set by it in comparable situations. It considers that the amounts of EUR 1,700 and EUR 1,500 awarded to the first and the second applicant, respectively, were unreasonably low, given the nature and duration of the violation of their rights under Article 3 of the Convention.
The Court therefore dismisses the Government’s objection with regard to the applicants’ victim status.
FINAL CONCLUSIONS
In the light of the above reasoning, the Court concludes that there has been a violation of Article 3 of the Convention in respect of all the periods between 27 June 2015 and 6 December 2017 that the first applicant spent under either the punishment-cell regime or the locked isolation-cell regime. There has also been a violation of Article 3 of the Convention in respect of the period between 1 June 2016 and 26 September 2017, which the second applicant spent under the punishment-cell regime.
