Last week the European Court of Human Rights took an unprecedented step in recognizing how excessive pretrial detention carries repercussions beyond the holding cells. In Salakhov and Islyamova v. Ukraine the court held that when authorities fail to protect the life of a person awaiting a trial, the mental suffering of his parents can amount to inhuman treatment under Article 3.
Mr. Salakhov was arrested on suspicion of stealing a cell phone. Despite the minor nature of this crime, he was kept in pretrial detention for almost a year. His health sharply deteriorated while in detention. After a considerable delay, Salakhov, who was HIV positive, was transferred to a state hospital where he was constantly guarded by police officers and kept continuously handcuffed to his bed. He was eventually found guilty of theft and sentenced to a fine. Two weeks after his release, Salakhov died.
The European Court found that Ukraine had failed to protect Salakhov’s life in violation of Article 2 and that his inadequate medical care violated Article 3. Notably, this is the first time the court has found violations in a situation where a detainee has died after release as a consequence of ill-treatment suffered while in detention.
The court then turned its attention to the claim made by Salakhov’s mother, Ms Islyamova. The court observed that, for nearly a year, Islyamova was forced to witness the slow death of her son without being able to help him. She made countless requests, appeals, and visits to the hospital, prosecution authorities, and courts in the hope of saving her son’s life—or at least alleviating his suffering. Her efforts were met with indifference.
Islyamova complained that this caused mental suffering amounting to inhuman treatment under Article 3. In upholding the claim, the court took into account a number of factors, including the parent-child bond between Islyamova and her son; the activeness of her efforts; the duration of her suffering; and the uncaring way authorities responded to her inquiries. The court awarded her 60,000 euros in damages.
The holding marks a clear departure from the court’s previous case law. Previously, in Yasin Ates v. Turkey and similar cases, the court had held that profound suffering caused to a family by a person’s death while in custody did not amount to a violation of Article 3. In fact until now, as far as the emotional suffering of the family members was concerned, Article 3 appeared to be reserved for the context of enforced disappearances (e.g. Cakici v. Turkey) and child abuse (e.g. M.P. and Others v. Bulgaria).
The new approach in this case reinforces a positive duty of state authorities to react to the plight of a detainee’s relatives in an appropriate and humane way.
A 2011 report, The Socioeconomic Impact of Pretrial Detention, published by the Open Society Justice Initiative and the United Nations Development Program, documents how pretrial detention carries a wide range of hardships for the families of detainees. For more information on the impact of excessive pretrial detention and possible alternatives, please see the Global Campaign for Pretrial Justice.